Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: July 1, 2016
CLAIM NO. 201166927
FLOYD COUNTY BOARD OF EDUCATION PETITIONER/
CROSS-RESPONDENT
VS. APPEAL FROM HON. STEVEN
G. BOLTON,
ADMINISTRATIVE LAW JUDGE
JENNIFER MARTIN RESPONDENT/
and CROSS-PETITIONER
HON. STEVEN G. BOLTON,
ADMINISTRATIVE LAW JUDGE RESPONDENT
OPINION
AFFIRMING IN PART,
VACATING IN PART, AND REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Floyd County Board of Education
(“Floyd County”) and Jennifer Martin (“Martin”) both appeal from the Opinion,
Award and Order rendered January 15, 2015 by Hon. Steven G. Bolton,
Administrative Law Judge (“ALJ”). Martin
was awarded temporary total disability (“TTD”) benefits, permanent partial
disability (“PPD”) benefits increased by the two multiplier pursuant to KRS
342.730(1)(c)2, and medical benefits for injuries to her right knee and head
sustained in a work-related motor vehicle accident (“MVA”) on November 17,
2011. The parties also appeal from the
February 24, 2016 Order on Petitions for Reconsideration.
On
appeal, Floyd County argues the ALJ did not perform a proper analysis pursuant
to Livingood v. Transfreight, LLC, 467 S.W.3d 249 (Ky. 2015) in awarding
TTD benefits from November 17, 2011 to April 2, 2012 since she returned to the
same position without restrictions on November 28, 2011. Floyd County argues the ALJ erred in beginning
the application of the two multiplier contained in KRS 342.730(1)(c)2 from the
date of injury, rather than from the date of cessation of employment at the
same or higher rate of pay. Floyd County
also argues the ALJ erred in relying upon the opinions of Dr. Robert Granacher
and Dr. David Muffly in assessing a 15.5% impairment rating. Martin argues the ALJ erred in failing to
award future medical benefits for her work-related left shoulder injury.
The
opinions of Drs. Granacher and Muffly constitute substantial evidence
supporting the ALJ’s determination Martin sustained work-related injuries to
her right knee and head warranting a 15.5% impairment rating. However, we
vacate in part and remand for additional findings and analysis regarding the
periods to which Martin may be entitled to TTD benefits; the date Martin ceased
earning equal to or greater wages and therefore entitlement to the actual enhancement
by the two multiplier or doubling of her PPD benefits; and whether Martin
sustained a temporary injury to her left shoulder as a result of the November
17, 2011 MVA warranting temporary and/or future medical benefits.
Martin
filed a Form 101 alleging injuries to her left shoulder, right knee, back and
head due to the MVA on November 17, 2011.
Martin is a registered nurse and began working for Floyd County as a
health coordinator/certified school nurse in 1978. The ALJ sustained Martin’s motion to amend
the Form 101 to include a cervical injury in an order dated August 11,
2015.
Martin
testified by deposition on December 20, 2013 and at the hearing held November
16, 2015. Martin is responsible for the
health care of all students in the Floyd County school system, the training of
health assistants and nurses, and is involved in all health plan meetings. Her job requires her to travel throughout the
county. She does not have patients, does
not administer injections, and has never had to perform CPR. At the time of the MVA, Martin worked 205
days a year for which she earned approximately $62,000.
Following
the November 17, 2011 MVA, Martin was off work until November 27, 2011. Martin returned to her job as health
coordinator on November 28, 2011, earning the same or greater wages. Other than not driving for the first few days
after she returned to work, Martin resumed her normal duties full-time without
restrictions, but had continued problems with her right knee, left shoulder and
head. Martin continued to work full-time
without restrictions until she retired on June 1, 2013. No physician advised her to retire due to her
health conditions. Martin was re-hired
by Floyd County in early October 2013, and returned to the same position, but
worked half the number of hours she did before, earning approximately
$24,000.
On
November 17, 2011, Martin was stopped at a red light waiting to turn left. Martin testified she does not remember the
events occurring over the next four or five hours, but was told she was
rear-ended by another vehicle. Martin
has no recollection of being taken to Highlands Regional Medical Center, or
treatment rendered at the facility.
Martin was transferred to Cabell Huntington Hospital for further
evaluation, and states her first memory is in the ambulance on the way
there. Martin was admitted overnight,
and was treated for her head injury by a neurologist, Dr. Jeffery Doug Miles. Her left shoulder was treated by Dr. John
Jasko. Martin’s left upper extremity was
placed in a sling and she was prescribed medication. She was diagnosed with a concussion, and
restricted from work for two weeks.
Martin realized she had problems with her right knee when she attempted
to get out of bed and had difficulty walking.
She also experienced back, neck and head pain. Subsequent to her hospital visits, Martin
followed up with Drs. Miles and Jasko.
Dr.
Jasko treated Martin’s right knee and left shoulder conservatively which helped
but did not resolve those complaints.
Dr. Jasko ordered an MRI of Martin’s right knee in 2012 and her left
shoulder in April 2015. Dr. Jasko also
administered two injections, ordered a TENS unit, and prescribed a compound
cream. Martin is restricted from lifting
over twenty-five pounds. Martin stated
she followed up with Dr. Miles for her head complaints. Dr. Miles restricted her from driving for a
year, but Martin advised she was unable to follow the restriction due to her
job duties. At the hearing, Martin
indicated she sought osteopathic treatment for her neck and low back pain in
August 2015.
Martin
was involved in a previous MVA in February 2011 when she was rear-ended by a
FedEx truck, from which she testified she sustained a “stinger” and was taken
to the hospital. Martin was released the
same day and did not receive any subsequent treatment. Martin denies any prior symptoms or treatment
to her left shoulder, back, neck or head.
Martin recalled one incident of previous right knee pain after she
walked a long distance.
Martin
filed the emergency department records from Highlands Regional Medical Center
dated November 17, 2011, which reflect she was involved in a MVA, with possible
loss of consciousness. Martin could not
remember the accident, but complained of a headache, back pain and left
shoulder pain. The records reflect Martin
was diagnosed with a head injury, contusion to the chest wall and a shoulder
sprain. Martin was transferred to Cabell
Huntington Hospital for further evaluation by Dr. Miles. He diagnosed a concussion and possible left
shoulder contusion versus rotator cuff pathology, and admitted her
overnight. Upon discharge, Martin’s left
arm was placed in a sling. She was
advised to follow up with Dr. Miles and an orthopedist. Martin was restricted from work until
November 28, 2011.
The
records indicate Martin followed up with Dr. Miles on one occasion on December
16, 2011. Although Dr. Miles noted
Martin was doing well, he also noted she reported a long-lasting headache,
dizziness, and an episode of forgetfulness.
Dr. Miles diagnosed Martin as status-post concussion, loss of
consciousness, improving. He advised
Martin to return as needed.
Martin
treated with Dr. Jasko on several occasions from December 2011 through February
2012, and again from October 2014 through April 2015, for primarily left
shoulder and right knee pain. Dr. Jasko’s
records reflect he initially diagnosed a shoulder contusion/pain and right knee
sprain versus medial meniscal tear. A
February 7, 2012 right knee MRI demonstrated meniscal tears. Dr. Jasko treated both conditions conservatively
with physical therapy and prescription Ibuprofen. When Martin returned in October 2014, Dr.
Jasko ordered additional physical therapy for her right knee and left shoulder,
and administered injections to the shoulder.
An April 21, 2015 left shoulder MRI demonstrated anterior capsular
stripping with deficiency of the anterior inferior aspect of the cartilaginous
labrum attributed to labral tear. In the
last note of record dated April 28, 2015, Dr. Jasko diagnosed shoulder pain in
the deltoid insertion and restricted Martin from working overhead, and lifting
or carrying over twenty-five pounds. He released
Martin to return on an as-needed basis.
Floyd
County filed the treatment records of Dr. Sujatha Reddy and Dr. Jaya
Pampati. Martin complained of right knee
and right hip problems in 2004, 2005 and 2009.
On February 9, 2011, Martin was taken to Highlands Regional Medical
Center following a MVA, and was diagnosed with a cervical sprain and head
injury.
Floyd
County filed the February 24, 2014 report of Dr. David Muffly, who also
testified by deposition on March 19, 2014.
Dr. Muffly diagnosed a right knee strain with medial meniscus tear; left
shoulder strain without sign of rotator cuff injury; and resolved lumbar
pain. He noted Martin had pre-existing
right knee and right hip arthritis, as well as pre-existing low back pain. Dr. Muffly opined the left shoulder strain is
related to the MVA, and the meniscus tear is partially related to the MVA. Dr. Muffly assessed a 1% impairment rating
for the meniscus tear pursuant to the 5th Edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment
(“AMA Guides”). He attributed
half of the impairment rating to the MVA and half to pre-existing, active
degenerative changes. Dr. Muffly
provided the following regarding the left shoulder and low back conditions:
3. Did the work incident of 11/17/2011 cause a permanent injury in your
opinion or a temporary injury that resolved?
The right knee medial meniscus tear
is a permanent injury. The low back pain
from the [MVA] did resolve. The left
shoulder did not cause a permanent injury.
4. If it is your opinion that the work incident of 11/17/2011 caused a
temporary injury that resolved, please state the date, within the realm of
reasonable probability and/or certainty upon which that temporary injury
resolved?
The low back pain and left shoulder
pain improved after completion of her physical therapy in April 2012.
Dr.
Muffly opined Martin is at maximum medication improvement (“MMI”), and can
continue her current job duties without permanent restrictions. Dr. Muffly stated Martin could require a
right knee arthroscopic procedure in the future. Dr. Muffly prepared two addendums dated
February 28, 2014 and July 23, 2015 in which his opinions remained
unchanged.
Dr. Muffly’s deposition testimony
is consistent with his report. He noted
Martin did not complain of back or neck pain during his examination. He again assessed a 1% impairment rating for
the right knee meniscus tear, attributing half to the MVA and the other half to
the pre-existing degenerative changes. Upon
questioning of his assessment of impairment on cross-examination, Dr. Muffly
stated as follows:
Q: Is there anything in the AMA Guidelines that gives more impairment
if you have more than one tear?
A: There’s in the Guidelines if you have surgery to remove both
meniscus, it gives more impairment. And actually, technically she never had
surgery, so technically she doesn’t have the 1% impairment to the knee, but I
think it was something that I assigned without surgery.
Q: And if she had surgery what would your impairment be?
A: One percent.
. . . .
Q: And Dr. Muffly, your impairment rating that you assigned, that would
be based upon Ms. Martin having surgery?
A: Yes.
Q: Okay. So if there is no
surgery, would she have any impairment?
A: Technically no impairment according to the Guidelines.
Q: And is that based on the 5th Edition of the AMA Guidelines?
A: Yes.
Dr. Muffly testified Martin
sustained a temporary left shoulder strain due to the November 17, 2011 MVA
which did not result is permanent impairment pursuant to the AMA Guides. He further testified Martin did not sustain
any permanent impairment to her low back or cervical spine. Dr. Muffly stated Martin reached MMI at the
conclusion of her physical therapy in April 2012.
Martin filed the February 27, 2014
report of Dr. Anbu Nadar. He diagnosed a
head injury with concussion; cervical and lumbosacral strain with degenerative
disc disease; left shoulder strain with rotator cuff tendonitis; and right knee
contusion and strain, chondromalacia patella, all caused by her accident. He assessed a 5% impairment rating to the
cervical spine, 5% to the lumbar spine, and 12% to the “right knee;
concussion/memory loss,” for a combined 22% impairment rating pursuant to the
AMA Guides. He later clarified he
assessed a 2% impairment rating for the right knee and a 10% impairment rating
for the “head injury and concussion and memory loss.” Dr. Nadar assigned permanent restrictions,
and opined Martin is unable to return to work.
Dr. Nadar stated Martin is at MMI, and recommended periodic symptomatic
care. Dr. Nadar was unable to assess any
permanent impairment for her left shoulder utilizing the AMA Guides.
Floyd County filed the February 15,
2014 report of Dr. David Shraberg, a board certified psychiatrist and
neurologist, who also testified by deposition on April 2, 2014. His deposition testimony is consistent with his
report. Dr. Shraberg performed a neurological
and neuropsychiatric examination. He
also reviewed the medical records. Dr.
Shraberg testified Martin’s mental status, neurological examinations, and her
cognitive functioning were all within normal limits.
At Dr. Schraberg’s request, a battery
of neuropsychological tests was administered by Dr. Paul Ebben. He concluded any test scores falling below
expectations should not be interpreted because there was a response bias toward
exaggerating problems as it pertains to memory and visual-constructional
skills. In this instance, Dr. Ebben
stated there was no clear evidence of outright malingering. Nonetheless, he stated the scores which fall
below expectations are suspect and need to be interpreted cautiously. Therefore, Dr. Shraberg interpreted the
psychological testing results as showing no evidence of memory or cognitive
impairment from the MVA.
Dr. Shraberg diagnosed Axis I
pre-accident history of hypothyroidism, mild concussion, Grade III concussion
with post-concussion syndrome, recovered with possibly 3-4 hours of antegrade
amnesia with no intracranial focal signs; Axis III MVA with soft tissue
contusion and injury to left shoulder and right knee, with ongoing complaints
of mild left shoulder and right knee pain and concussion with transient
post-concussive symptoms including headaches and initial difficulties and
transient problems with memory and concentration, recovered. Dr. Shraberg opined Martin has recovered from
her mild concussion, and warrants a 0% impairment rating pursuant to the AMA Guides.
Dr. Shraberg stated permanent
restrictions and stated additional neuropsychiatric treatment is
unwarranted. He opined Martin has the
capacity to continue performing her job duties as a health coordinator.
In addendums dated May 17, 2014 and
July 29, 2015, Dr. Shraberg disagreed with the opinions of Dr. Granacher. Dr. Shraberg noted Dr. Granacher is neither a
neurologist nor neuropsychologist. He
asserts Dr. Granacher bypassed his own neuropsychologist’s conclusions, and
interpreted neuropsychological testing he is neither board-certified nor
qualified to interpret on a first level basis.
Martin filed the February 10, 2014
report of Dr. Granacher, who evaluated her on February 4 and 5, 2014. He also testified by deposition on September
2, 2014. Dr. Granacher’s deposition
testimony is consistent with his report.
He is board-certified in general psychiatry, geriatric psychiatry,
forensic psychiatry, neuropsychiatry, and sleep medicine. He reviewed Martin’s history, along with her
medical records, and performed a mental status examination. A brain MRI was performed on February 5,
2014, which demonstrated intact midline structures, no convincing evidence of a
Chari malformation, and a homogeneous brain parenchyma. Dr. Amy Frazier administered a battery of
neuropsychological testing.
Dr. Granacher noted atypical
results on the Conner’s Continuous Performance test consistent with an
attention deficient disorder. Two
additional tests indicated mild impairment.
Overall, Dr. Granacher opined Martin shows impairment of sustained
attention, dominant fine motor speed, non-dominant fine motor speed, naming
ability, and executive functions tasks of trial-by-trial feedback to form,
maintain, and shift cognitive sets. Dr.
Granacher testified the tests are consistent with the biomechanics of Martin’s
injury and her reported memory problem.
He further explained only Martin’s prospective memory has been
affected. He diagnosed a mild
neurocognitive disorder as a result of the November 17, 2011 MVA. Pursuant to the 2nd and 5th
Editions of the AMA Guides, Dr. Granacher assessed a 15% impairment
rating. He testified Martin has
plateaued in her recovery.
Dr. Granacher restricted Martin
from employment which requires sustained attention, fine motor speed of the
dominant hand, fine motor speed of the non-dominant hand, and quick decisional
capacity. Dr. Granacher stated Martin
retains the ability to perform her job duties on a full time basis, but he
restricted her from giving injections, situations requiring rapid nursing
decisions on behalf of a physically impaired youngster, or where she might be
required to perform CPR. Dr. Granacher
testified he was not aware of Martin’s specific job duties as a health coordinator,
and he did not review her deposition testimony.
He recommended a trial of cognitive enhancers and frontal brain
stimulants.
A
Benefit Review Conference (“BRC”) was held on December 1, 2014. The parties stipulated: Floyd County paid a
total of $309.42 in TTD benefits, as well as medical expenses; to an average
weekly wage (“AWW”) of $1,272.71; she returned to work on November 28, 2011
earning equal or greater wages; and, she retired on June 1, 2013, returning
later on a part-time basis. The parties
identified the following as contested issues:
benefits per KRS 342.730 including extent and duration with multipliers,
work-relatedness/causation, credit for sick leave/subrogation, exclusion for
pre-existing disability/impairment, and TTD.
Subsequent to the BRC, liability for present and future medical benefits
was added as a contested issue in an order dated January 7, 2015. Unpaid or contested medical expenses were
additionally listed as a contested issue in the November 16, 2015 hearing order. The ALJ noted the issue of subrogation for
any award against a third party tortfeasor has been bifurcated and held in
abeyance pending resolution of Martin’s third party claim.
In
the January 15, 2016 opinion, the ALJ provided a detailed summary of the
evidence. The ALJ found Dr. Nadar’s
opinions unpersuasive. He then stated
Dr. Muffly’s opinion is the most compelling “as to [Martin’s] claim of
permanent injury to her left shoulder, right knee, back and cervical spine . .
.” Based upon the opinion of Dr. Muffly,
the ALJ found Martin sustained a right knee strain with a medial meniscus tear
resulting in a 1% impairment rating, 50% of which is attributable to
pre-existing, active degenerative changes.
The ALJ found the low back strain and left shoulder strain had resolved,
and determined she does not have any permanent injury to her cervical spine as
a result of the MVA. The ALJ found
Martin reached MMI at the conclusion of her physical therapy in April 2012, has
no work restrictions, and can continue her current job duties.
With
regard to Martin’s concussion and memory loss, the ALJ found the opinions of
Drs. Nadar and Muffly unpersuasive. The
ALJ provided a five page summary of the opinions of Drs. Granacher and
Shraberg. He then provided the following
analysis in ultimately finding the opinion of Dr. Granacher most
persuasive:
Both of these
eminent physicians are persuasive. Dr. Shraberg argues that his diagnosis is
more accurate because he has assessed Ms. Martin from a neuropsychological
perspective rather than a neuropsychiatric perspective as did Dr. Granacher. He
also argues that his assessment of Ms. Martin’s neuropsychiatric impairment is
confirmed by her work history post-accident wherein she returned to full
employment on November 28, 2011 and worked without restriction until she took
regular retirement effective June 1, 2013, then came back working unrestricted
half-time in the same position where presumably she continues to work without
restriction. He opines in his Addendum #1 to his medical report that there is nothing
clinically (Ms. Martin’s performance and career after the accident) on
neuro-psychological testing when factored and reconciled with the usual Scatter
and other tests that contradict reliance on mildly abnormal tests, that
suggests that either Ms. Martin has an impairment, should be restricted in her
present duties as a nurse in the school system nor requires dangerous
stimulants, amphetamines or cognitive enhancers.
Dr. Shraberg
challenges Dr. Granacher’s qualifications to make an assessment of Ms. Martin
from a neuropsychiatric standpoint as opposed to Dr. Shraberg’s
neuropsychological evaluation. However, I am convinced by the opinion of Dr.
Granacher because of the testing. Dr. Granacher had his own testing performed,
to which he testified. However, he also noted (correctly in my opinion), that
the testing by Dr. Ebben seemed to confirm that Ms. Martin has cognitive
deficiencies arising from the MVA.
As Dr.
Granacher pointed out, in the 7 page report of testing results appended to Dr.
Shraberg’s IME, Dr. Ebben noted test results that showed on the Repeated
Battery for the Assessment of Neuropsychological Status (RBANS), Ms. Martin
tested “Below expectations” in 3 of 5 categories and on the test as a whole.
She also performed “Below expectations” on the finger tapping test and the grip
strength test. On the Personality Assessment Inventory (PAI), she showed
Elevated subscales demonstrating Thought Disorder (problems with confusion,
distractibility, communicating and concentrating). Her consistency between
observations, test results, and subjectively expressed symptoms was “Variable,
guarded to poor regarding memory and visual-constructional skills.” As Dr.
Granacher pointed out, Dr. Ebben was not aware of Plaintiff’s clinical
situation. His job was to administer and report on the results of various
standardized neuropsychological testing, which he did. It would appear that
despite Dr. Shraberg’s assertions to the contrary, his results are at least in
part supportive of Dr. Granacher’s diagnoses of this Plaintiff.
For the
foregoing reasons, I find the medical opinion of Dr. Granacher to be the most
complete and compelling medical evidence in the record as it relates to the
nature, scope and effect of Plaintiff’s head injuries.
I therefore
find that on November 17, 2011, Jennifer Martin, the Plaintiff herein, suffered
a work related traumatic event in the form of a motor vehicle accident arising
out of and in the course of her employment with the Defendant, Floyd County
Board of Education, which is the proximate cause producing a harmful change in
the human organism evidenced by objective medical findings.
The
ALJ found the three multiplier contained in KRS 342.730(1)(c)1 is not applicable. However, he found Martin met the criteria for
the two multiplier contained in KRS 342.730(1)(c)2 since she returned to work
on November 28, 2011 earning the same or greater wages. She voluntarily retired on May 31, 2013, and
returned to Floyd County within three months earning half the wages she made at
the time she retired. The ALJ found Livingood
v. Transfreight, 467 S.W.3d 249 (Ky. 2015), mandates the application of the
two multiplier to the award of benefits.
Thus, the ALJ calculated the award of PPD benefits as follows: $1,272.71 AWW x 2/3 = $848.47 (Max. Wage
$541.47) x 15.5% = 83.93 x 2 (statutory multiplier) = $167.86 per week.
After
providing the statutory definition of TTD, the ALJ made the following findings
regarding Martin’s entitlement:
“[Martin] was temporarily, totally disabled from November 17, 2011 until
April 2, 2012 when she had returned to unrestricted work and was found to be at
MMI by Dr. Muffly . . .” The ALJ also
found Martin “is entitled ongoing (sic) to have the employer pay for the cure
and relief from the effects of her work-related injuries.”
The
ALJ awarded PPD benefits in the amount of $167.86 per week commencing November
17, 2011, TTD benefits from November 17, 2011 through April 2, 2012, and
medical benefits.
Floyd
County filed a petition for reconsideration raising several arguments,
including those now raised on appeal.
Martin also filed a petition for reconsideration requesting the ALJ
correct the rate of TTD benefits. In the
February 24, 2016 order on petitions for reconsideration, the ALJ made the
follow relevant findings:
Defendant’s second argument requests that I
set aside the Opinion, Award and Order of January 15, 2016 based on defendant’s
disagreement with my interpretation of Dr. Muffly’s 1% whole person impairment
rating. While Dr. Muffly did state that technically speaking Martin was not
entitled to an impairment rating because she had not had surgery, he went on to
note that she had refused surgery. He went on to find that within the realm of
reasonable medical probability, she had a 1% impairment. Dr. Muffly was the
defendant’s IME physician. I chose to rely on his opinion because I found it to
be both informed and persuasive.
The same is true of Defendant Employer’s
allegation of error concerning my reliance on the medical opinion of Dr. Granacher
over that of Dr. Shraberg. I articulated at length the basis for that reliance,
upon which I will not expand.
Thus, as to defendant’s argument of error
patently appearing on the face of the Opinion, Award & Order with regard to
my reliance on some medical evidence over other medical evidence, it is a
disagreement with my interpretation of the medical evidence in the record,
which is not within the scope of my review under the provisions of KRS 342.281.
Francis v. Glenmore Distilleries, 718 S.W.2d 953 (Ky.App. 1986).
Defendant’s allegations of error patently appearing on the face of the Opinion,
Award and Order of January 15, 2016 is therefore DENIED.
. . . .
Lastly, the Defendant wants findings as to
which body parts the Plaintiff is entitled to have future medical services
rendered at the expense of the employer. I have already articulated and awarded
benefits for the right knee and head (mild neurocognitive disorder) which were
the only body parts ultimately at issue regarding a permanent disability
rating. The Defendant/Employer apparently recognized a period of temporary
total disability from 11/17/2011 through 4/2/2012, and I am unaware of any
evidence in the record from the Defendant/Employer distinguishing TTD benefits
as between the complained of left shoulder, right knee, back and head.
As permanent partial disability benefits were
awarded for the right knee and head only, no substantial evidence was presented
concerning a permanent rating for the left shoulder and back, and no argument
was made by the Plaintiff for future medical benefits for those body parts, the
award of future medical benefits under KRS 342.020 would not apply to the left
shoulder and back. Therefore, additional findings of fact would be superfluous.
I find no error patently appearing on the face of the Opinion, Award and Order
of January 15, 2016 as to this issue and defendant’s request for further
findings is DENIED.
The ALJ also corrected
the TTD benefit rate. Regarding
multipliers, the ALJ found Martin entitled to the enhancement by the two
multiplier, and found no patent error appearing on the face of the January 15,
2015 opinion.
On appeal,
Floyd County challenges the ALJ’s reliance on the opinions of Drs. Muffly and
Granacher in determining Martin’s right knee and head injuries warrant a 15.5%
impairment rating. With regard to
Martin’s right knee condition, Floyd County argues Dr. Muffly’s 1% impairment
rating is not in conformity with the AMA Guides since he testified she
technically did not qualify for any impairment due to the fact she did not
undergo surgery. Floyd County also
argues the ALJ disregarded Dr. Shraberg’s opinions. It also points to Dr. Granacher’s testimony regarding
his lack of knowledge of Martin’s specific job duties, the fact he did not
perform a neurological examination, and his incorrect identification of
Martin’s initial hospital visit being longer than one day. Floyd County also challenges the ALJ’s TTD
analysis during the time period Martin had not reached MMI, but had returned to
work without restriction beginning on November 28, 2011. Although it agrees the two multiplier is
applicable, Floyd County contends the ALJ erred in beginning the double award
from the date of injury rather than the date of cessation. Martin argues the ALJ erred in failing to
award future medical benefits for her left shoulder injury.
As the claimant in a workers’
compensation proceeding, Martin had the burden of proving each of the essential
elements of her cause of action. See
KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since she was successful in
that burden, with exception for her left shoulder injury, the question on
appeal is whether there was substantial evidence of record to support the ALJ’s decision. Wolf Creek Collieries v. Crum, 673
S.W.2d 735 (Ky. App. 1984). “Substantial evidence” is defined as evidence of relevant
consequence having the fitness to induce conviction in the minds of reasonable
persons. Smyzer v. B. F. Goodrich
Chemical Co., 474 S.W.2d 367 (Ky. 1971).
As fact-finder, the ALJ has the sole
authority to determine the weight, credibility and substance of the
evidence. Square
D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ
has the discretion to determine all reasonable inferences to be drawn from the
evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329
(Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky.
1979). The ALJ may reject any
testimony and believe or disbelieve various parts of the evidence, regardless
of whether it comes from the same witness or the same adversary party’s total
proof. Magic Coal Co. v. Fox, 19
S.W.3d 88 (Ky. 2000). Although a party
may note evidence supporting a different outcome than reached by an ALJ, such
proof is not an adequate basis to reverse on appeal. McCloud
v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). The Board, as
an appellate tribunal, may not usurp the ALJ’s role as fact-finder by
superimposing its own appraisals as to the weight and credibility to be
afforded the evidence or by noting reasonable inferences that otherwise could have been drawn from the
record. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky.
1999). So long as the ALJ’s ruling with
regard to an issue is supported by substantial evidence, it
may not be disturbed on appeal. Special
Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
The opinions of Drs. Granacher and
Muffly constitute substantial evidence supporting the ALJ’s determination
Martin sustained work-related injuries to her right knee and head warranting a
15.5% impairment rating. The ALJ
demonstrated a clear understanding of the evidence before him, and properly
weighed the conflicting opinions in reaching his ultimate determination.
In his February 24, 2014 report, Dr.
Muffly, who the ALJ noted evaluated Martin at Floyd County’s request, diagnosed
a right knee
strain with medial meniscus tear and found a history of pre-existing right knee
and right hip arthritis. Dr. Muffly
stated the meniscus tear is partially related to the MVA. He assessed a 1% impairment rating for the
right knee medial meniscus tear, apportioning half to the MVA and half to
pre-existing degenerative changes. Dr.
Muffly stated his assessment was pursuant to “[t]able 17-33 of the 5th
Edition AMA Guidelines. . .” On direct
examination, Dr. Muffly confirmed his assessment of impairment pursuant to the
AMA Guides. However, on
cross-examination, Dr. Muffly stated since Martin did not have surgery, she
technically does not have a 1% impairment rating. The ALJ addressed this inconsistency in the
order on petition for reconsideration stating as follows:
While
Dr. Muffly did state that technically speaking Martin was not entitled to an
impairment rating because she had not had surgery, he went on to note that she
had refused surgery. He went on to find
that within the realm of reasonable medical probability, she had a 1%
impairment.
Dr. Muffly’s assessment
of impairment found in the report, and confirmed by his deposition testimony,
constitutes substantial evidence upon which the ALJ could rely in assigning a
.5% impairment rating for Martin’s right knee.
We acknowledge Dr. Muffly provided equivocal testimony regarding his
assessment upon cross-examination.
However, the ALJ appropriately exercised his discretion in accepting the
opinions contained in Dr. Muffly’s report and rejecting the equivocal testimony
on cross-examination. Magic Coal
Co. v. Fox, supra. Dr.
Muffly indicated in his report his assessment was made pursuant to the AMA Guides,
which he confirmed during direct examination.
Therefore, Dr. Muffly’s opinion constitutes substantial evidence and we
will not disturb the ALJ’s determination on this issue.
We likewise find Dr. Granacher’s
opinion regarding Martin’s cognitive condition constitutes substantial evidence
upon which the ALJ could rely. The
attacks by Floyd County go to the weight to be afforded the evidence. It
is not within this Board’s province to re-weigh the evidence. The ALJ provided detailed summaries of Drs.
Granacher’s and Shraberg’s opinions, appropriately considered each, and
adequately explained why he ultimately found Dr. Granacher’s opinion most
persuasive. The ALJ alone has the
authority to determine the quality, character, and substance of the evidence, and to judge
the weight and inferences to be drawn from the evidence. Square D Company v. Tipton, 862 S.W.2d
308 (Ky. 1993); Miller v. East Kentucky Beverage/Pepsico, Inc., 951
S.W.2d 329 (Ky. 1997). Where the
evidence is conflicting, the ALJ may choose whom or what to believe. Pruitt v. Bugg Brothers, 547 S.W.2d
123 (Ky. 1977).
We
agree with Floyd County the ALJ did not perform a proper analysis regarding
Martin’s entitlement to TTD benefits during the time period she returned to
work without restriction prior to attaining MMI. The finding Martin attained MMI on April 2,
2012 appears to be undisputed. The ALJ
found Martin entitled to TTD benefits from “November 17, 2011 until April 2,
2012 when she had returned to unrestricted work and was found to be at MMI by
Dr. Muffly.”
TTD is statutorily
defined in KRS 342.0011(11)(a) as “the condition of an employee who has not
reached maximum medical improvement from an injury and has not reached a level
of improvement that would permit a return to employment[.]” In Central Kentucky Steel
v. Wise, 19 S.W.3d 657, 659 (Ky. 2000), the Kentucky Supreme Court explained, “It would not be
reasonable to terminate the benefits of an employee when he is released to
perform minimal work but not the type that is customary or that he was performing at the time of
his injury.” Thus, a release “to perform
minimal work” does not constitute a “return to work” for purposes of KRS
342.0011(11)(a).
To be entitled to receive TTD, an injured worker must prove both that he
is unable to return to his customary, pre-injury employment and that he has not
reached MMI from his work-related injury.
In Livingood v.
Transfreight, LLC, supra, the Kentucky Supreme Court addressed the
ALJ’s denial of Livingood’s request for additional TTD benefits during the
period he had returned to light duty work by stating, “Except for bathroom
monitoring, Livingood had performed the other activities before the injury;
further they were not a make-work project.” Id. at 253. The Court specifically stated as follows:
As
the Court explained in Advance Auto Parts
v. Mathis, No. 2004-SC-0146-WC, 2005 WL 119750, at (Ky. Jan. 20, 2005), and
we reiterate today, Wise does not "stand for the principle that workers
who are unable to perform their customary work after an injury are always
entitled to TTD." Livingood had the burden of proof on the issue. Where
the ALJ finds against the party with the burden of proof, the standard of
review on appeal is whether the evidence compelled a contrary finding. FEI Installation, Inc. v. Williams, 214
S.W.3d 313 (Ky. 2007). The Board and the Court of Appeals were not convinced
that it did. Nor are we. "The function of further review in our Court is
to address new or novel questions of statutory construction, or to reconsider
precedent when such appears necessary, or to review a question of
constitutional magnitude." Western
Baptist v. Kelly, 827 S.W.2d 685, 688, 39 4 Ky. L. Summary 54 (Ky. 1992).
Id.
at 254-255.
More recently in Trane
Commercial Systems v. Tipton, 481 S.W.3d 800 (Ky. 2016), the Supreme Court clarified when TTD is appropriate in cases where the
employee returns to modified duty.
The Court stated:
We take this
opportunity to further delineate our holding in Livingood, and to clarify
what standards the ALJs should apply to determine if an employee “has not
reached a level of improvement that would permit a return to employment.” KRS
342.0011(11)(a). Initially, we reiterate that “[t]he purpose for awarding income
benefits such as TTD is to compensate workers for income that is lost due to an
injury, thereby enabling them to provide the necessities of life for themselves
and their dependents.” Double L Const.,
Inc., 182 S.W.3d at 514. Next, we note that, once an injured
employee reaches MMI that employee is no longer entitled to TTD benefits.
Therefore, the following only applies to those employees who have not reached
MMI but who have reached a level of improvement sufficient to permit a return
to employment.
As
we have previously held, “[i]t would not be reasonable to terminate the
benefits of an employee when he is released to perform minimal work but not the
type [of work] that is customary or that he was performing at the time of his
injury.” Central Kentucky Steel v.
Wise, 19 S.W.3d at 659. However, it is also not reasonable, and it does not
further the purpose for paying income benefits, to pay TTD benefits to an
injured employee who has returned to employment simply because the work differs
from what she performed at the time of injury. Therefore, absent extraordinary
circumstances, an award of TTD benefits is inappropriate if an injured employee
has been released to return to customary employment, i.e. work within her
physical restrictions and for which she has the experience, training, and
education; and the employee has actually returned to employment. We do not
attempt to foresee what extraordinary circumstances might justify an award of
TTD benefits to an employee who has returned to employment under those
circumstances; however, in making any such award, an ALJ must take into
consideration the purpose for paying income benefits and set forth specific
evidence-based reasons why an award of TTD benefits in addition to the
employee's wages would forward that purpose.
Id.
at 807.
That said, the award of
TTD benefits is hereby vacated. Although
Martin testified she struggled with her left shoulder, right knee and head, the
evidence establishes Martin returned to her usual work as a health coordinator
on November 28, 2011 until her retirement on June 1, 2013. On remand, the ALJ must determine,
based upon the evidence, if Martin is entitled to TTD benefits during the
period she worked prior to reaching MMI, bearing in mind the direction of the
Kentucky Supreme Court in Livingood v.
Transfreight, LLC, supra, and Trane
Commercial Systems v. Delena Tipton, supra. This Board may not and does not direct any
particular result because we are not permitted to engage in fact-finding. See KRS 342.285(2); Paramount
Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). However, any determination must be supported
by the appropriate analysis and findings.
Although it agrees
Martin is entitled to the two multiplier pursuant to KRS 342.730(1)(c)2, Floyd
County argues the date of injury, for application of the enhancement, or
doubling of benefits is incorrect. We
agree the two multiplier applies, but only became effective during the period
Martin ceased earning an AWW equal to or greater than her pre-injury AWW. At the BRC, the parties stipulated: 1) Martin’s
AWW was $1,272.71; 2) Martin returned to work on November 28, 2011 earning an
equal or greater wage; 3) Martin currently earns less than her AWW; and, 4)
Martin retired on June 1, 2013 and returned on a part-time basis.
KRS 342.730(1)(c)2
states as follows:
If
an employee returns to work at a weekly wage equal to or greater than the
average weekly wage at the time of injury, the weekly benefit for permanent
partial disability shall be determined under paragraph (b) of this subsection
for each week during which that employment is sustained. During any period of
cessation of that employment, temporary or permanent, for any reason, with or
without cause, payment of weekly benefits for permanent partial disability
during the period of cessation shall be two (2) times the amount otherwise
payable under paragraph (b) of this subsection. This provision shall not be
construed so as to extend the duration of payments.
Recently, the Kentucky
Supreme Court held KRS 342.730(1)(c)2 permits a double income benefit “during
any period that employment at the same or a greater wage ceases “for any
reason, with or without cause,” except where the reason is the employee's
conduct shown to have been an intentional, deliberate action with a reckless
disregard of the consequences either to himself or to another.” Livingood v. Transfreight, LLC, 467
S.W.3d at 259.
There appears to be no dispute Martin
returned to work on November 28, 2011 at an AWW equal to or greater than $1,272.71, and she currently earns a lesser AWW. In light of Livingood v. Transfreight,
LLC, supra, and the stipulations entered into by the parties, the
ALJ must first make a specific finding as to the date Martin ceased earning the
same or greater AWW. Both parties appear
to agree her date of retirement would be the day she ceased earning the same or
greater wages. Martin’s weekly benefits
may only be doubled during that period of such cessation except where it results
from Martin’s conduct resulting from her own intentional, deliberate act with
reckless disregard of the consequences either to herself or another.
Finally,
Martin argues the ALJ failed to consider whether she is entitled to future
medical expenses for her left shoulder injury.
In the opinion, the ALJ relied on the opinions of Dr. Muffly, with
exception for the head injury, and found Martin’s left shoulder strain had
resolved. The ALJ found Martin entitled
medical benefits of her “work related injuries,” and entitled to future medical
expenses pursuant to KRS 342.020. In its
petition for reconsideration, Floyd County requested the ALJ specify for what
injuries it is responsible for paying medical expenses. In her reply to Floyd County’s petition,
Martin argued at a minimum she is entitled to future medical expenses for her
head, right knee and left shoulder.
Since the rendition of Robertson v. United Parcel Service, 64
S.W.3d 284 (Ky. 2001), this Board has consistently held it is possible for an
injured worker to establish a temporary injury for which temporary benefits may
be paid, but fail to prove a permanent harmful change to the human organism for
which permanent benefits are authorized.
In Robertson, the ALJ determined the claimant failed to prove
more than a temporary exacerbation and sustained no permanent disability as a
result of his injury. Therefore, the ALJ
found the worker was entitled to only medical expenses the employer had paid
for the treatment of the temporary flare-up of symptoms. The Kentucky Supreme Court noted the ALJ
concluded Robertson suffered a work-related injury, but its effect was only
transient and resulted in no permanent disability or change in the claimant's
pre-existing spondylolisthesis. The
Court stated:
Thus,
the claimant was not entitled to income benefits for permanent partial
disability or entitled to future medical expenses, but he was entitled to be
compensated for the medical expenses that were incurred in treating the
temporary flare-up of symptoms that resulted from the incident.
Id.
at 286.
It is well established
an ALJ may award future medical benefits for a work-related injury, although a
claimant has reached maximum medical improvement and did not have a permanent
impairment rating resulting from the injury.
See FEI Installation, Inc.
v. Williams, 214 S.W.3d 313 (Ky. 2007).
In his report, Dr.
Muffly, upon whom the ALJ relied, clearly diagnosed Martin with left shoulder strain without signs
of a rotator cuff injury due to the MVA.
He stated, “[t]he left shoulder did not cause a permanent injury” and
improved after the completion of her physical therapy in April 2012. Likewise, Dr. Muffly testified Martin sustained
a temporary left shoulder strain as a result of the MVA which did not result in
permanent impairment pursuant to the AMA Guides. Martin also testified she believed she
injured her left shoulder in the MVA, and received treatment for this
condition. The medical records also
indicate Martin was primarily treated for her left shoulder complaints by Dr.
Jasko.
In
light of the contested issues listed at the BRC and the request for
clarification in the petition for reconsideration, we vacate and remand for the
ALJ to perform an analysis pursuant to Robertson
v. United Parcel Service, supra; and FEI Installation, Inc. v.
Williams, supra, to determine whether Martin sustained a temporary
injury to her left shoulder, if any, as a result of the November 17, 2011 MVA
warranting temporary and/or future medical benefits.
Accordingly, the
January 15, 2015 Opinion, Award and Order and the February 24, 2016 Order on Reconsideration rendered by Hon. Steven G. Bolton, Administrative Law Judge, are hereby AFFIRMED IN PART and VACATED IN PART.
This claim is REMANDED to
the Administrative Law Judge for additional
findings of fact and entry of an amended opinion in conformity with the views
expressed herein.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON CLAYTON D SCOTT
PO DRAWER 1767
PAINTSVILLE, KY 41240
COUNSEL
FOR RESPONDENT:
HON RONNIE M SLONE
PO BOX 909
PRESTONSBURG, KY 41653
ADMINISTRATIVE
LAW JUDGE:
HON STEVEN G BOLTON
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601