Workers’
Compensation Board
OPINION
ENTERED: August 12, 2016
CLAIM NO. 201357391
FORD MOTOR COMPANY (LAP) PETITIONER
VS. APPEAL FROM HON. JEANIE
OWEN MILLER,
ADMINISTRATIVE LAW JUDGE
LAMARR D. ASHWOOD and
HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Ford Motor Co., Louisville Assembly Plant
(“Ford”) appeals from the Opinion, Order and Award rendered March 21, 2016 by
Hon. Jeanie Owen Miller, Administrative Law Judge (“ALJ”) awarding Lamarr
Ashwood (“Ashwood”) temporary total disability (“TTD”) benefits, permanent
partial disability (“PPD”) benefits, and medical benefits for a right ankle and
foot injury. Ford also appeals from the
April 25, 2016 Order denying its petition for reconsideration.
On
appeal, Ford argues the evidence compels a finding Ashwood’s right lower
extremity condition was pre-existing and not casually related to the September
7, 2013 work injury. Ford argues the ALJ
erred in awarding TTD benefits during the period Ashwood worked light duty
through December 12, 2013. Ford also
argues the ALJ improperly awarded vocational rehabilitation benefits. For the reasons outlined below, we
affirm.
Ashwood
filed a Form 101 on November 24, 2014, alleging he injured his right ankle on
September 7, 2013 when he “slipped on stairs and bashed right ankle.” At the time of his injury, Ashwood was
working on Ford’s assembly line. The ALJ
subsequently granted Ashwood’s motion to amend the Form 101 to reflect injuries
to his right lower extremity, foot and ankle.
Ford additionally filed two medical fee disputes. Ford first disputed the July 24, 2014 right
flat foot reconstructive surgery performed by Dr. Timothy Hanna. Ford next disputed the amputation below the
right knee performed by Dr. Nathaniel Liu on January 28, 2015. Both physicians were joined as parties.
Ashwood
testified by deposition on March 31, 2015, and again on September 21,
2015. He was born on December 2, 1992,
and currently resides in Hampton, Virginia with his mother. Ashwood was born with congenital foot problems,
but could not provide specific details of the treatment he received when he was
an infant. He confirmed he was born with
a left club foot deformity which required surgery as an infant. He was also told a duplicate great toe was
surgically removed from his right foot as an infant. Ashwood underwent additional surgery on his
left foot in Virginia in 2010. Ashwood
does not recall having any problems with his right foot, ankle or leg until
September 7, 2013. Ashwood was not
taking any medication at the time of the September 7, 2013 work injury.
Ashwood
is a high school graduate and has no other specialized or vocational training. He began working at Ford in June 2012. At the time of his injury, Ashwood worked on
the engine line where he was required to pull down a pneumatic gun to screw in
one or two nuts, and to use a “popper.”
Ashwood was required to walk and stand all day.
On
September 7, 2013, Ashwood was returning to his work station from a bathroom
upstairs. As he was descending the
stairs, he slipped and hit the outside of his right ankle on one of the metal
steps. Within an hour, Ashwood
experienced right ankle pain and went to Ford’s medical facility. Ford referred him to a podiatrist, Dr. Jason
Pedersen, who treated him conservatively.
Despite Ashwood’s continuing symptoms, Dr. Pedersen eventually allowed
him to return to work without restrictions.
Unsatisfied, Ashwood began treating with Dr. Hanna, who performed
surgery in July 2014. Despite surgery,
Ashwood continued to experience stabbing pain and was unable to bear weight on
his right foot. Dr. Hanna referred
Ashwood to Dr. Liu, a vascular surgeon, who performed a successful amputation
below the right knee in January 2015.
Dr. Steve Frick fitted him for a prosthesis in April 2015.
Following
his September 7, 2013 injury, Ashwood returned to work on light duty for Ford
until December 13, 2013. He was restricted
from bearing any weight on his right foot.
Ashwood testified he sat in the cafeteria for approximately two months
and did nothing. On cross-examination,
Ashwood indicated this may have been for one month rather than two. He then affixed Velcro strips to radios at a
table in the cafeteria for a month, and then worked on the assembly line for
another month. When asked whether the
Velcro job lasted an entire shift, Ashwood stated he would do it “until they
ran out of stuff to bring me.” At first,
Ford brought him Velcro jobs around lunch time, and he worked until
approximately 2:00 p.m. When he was
moved to the line, the Velcro job lasted an entire shift. Ashwood was the only employee doing this job,
stating “I think it was just something to give me something to do.” He agreed Ford’s medical department created
the job for him. Ashwood was sent home
when Ford outsourced the Velcro job to another company.
Ashwood
has not worked since December 13, 2013. He
indicated he is unable to return to his former job at Ford or any other job he
previously held. Ashwood believes
himself to be totally disabled, and is unable to perform any work activities on
a sustained basis. Since the work
injury, Ashwood has not looked into additional schooling or retraining. However, he is willing to participate in
vocational rehabilitation if the ALJ believes it is appropriate.
Ashwood’s
mother, Zadie Clark (“Clark”), testified by deposition on October 26,
2015. Ashwood was born with congenital
problems related to his feet. As a
newborn, surgery was performed to remove “the nubs that was on his left
foot.” He was also born with a
duplicative toe on his right foot which was surgically removed a month or two
after birth. No other treatment was
rendered to Ashwood’s lower extremities until 2010. At that time, he underwent surgery for his
left foot only. She is unaware of any
other problems, limitations or treatment concerning Ashwood’s right foot or
ankle as either a child or teenager until the work injury.
Ford
filed the medical records from Langley Air Force Base indicating Ashwood
treated there on eight occasions in 2010.
On September 2, 2010, Ashwood primarily complained of “left Achilles
contracture and toe pain, right flat foot and toe malalignment.” Under the subjective history section, it is
noted Ashwood was born with bilateral congenital foot deformities:
Left foot born with three rays, medial two
fused, s/p multiple surgeries. Right
foot born with club foot and great toe duplication also s/p multiple
surgeries. Patient states right foot has
pain at the IP of the great toe particularly when struck. No other complaints of right foot. Left foot has pain at the most fibular ray
MTP and tight Achilles.
Dr.
Eric Shirley examined Ashwood and noted imaging studies showed a severe flat
right foot and his left foot study showed two primary rays with two medial
metatarsals fused. He recommended
surgery on the left foot. Although no
treatment recommendations were made for the right foot, Dr. Shirley noted
Ashwood’s left severe flat foot with occasional pain due to hallux
interphalangeus could be corrected down the road. The left foot procedure was performed on
October 6, 2010. In the last note dated
January 18, 2011, Dr. Shirley noted Ashwood was doing well
post-operatively. He did not discuss or examine
the right foot.
Ford
filed the medical records from its Company/Occupational Health and Safety
Information System. On September 7,
2013, Michelle Crumble, BSN, noted Ashwood reported tripping and falling down
the stairs injuring his right ankle. She
diagnosed Ashwood with a sprain or strain of the ankle, prescribed medication,
and allowed him to return to work without restrictions. Ashwood returned there for treatment on May
2, 2014 reporting severe ankle pain. The
records note Ashwood has an anatomically deformed flat pronated foot. The records reflect Dr. Ring Tsai diagnosed a
sprain or strain of the right ankle and stated it had resolved to
baseline. He then noted Ashwood’s
congenital foot problems may require further treatment.
Ford
also filed treatment records of Dr. Pedersen, and a report of the November 26,
2013 right foot MRI. The MRI report
reflects as follows:
Lateral calcaneal subluxation with hindfoot
valgus deformity and resulting calcaneotibular impingement (AKA lateral
hindfoot impingement) with area of chronic soft tissue swelling/ impingement;
short segment mildly hypertrophic distal PT tendinopathy with a small, thin
pinhole tear; high grade atrophy and fatty infiltration of the abductor
hallucis muscle; and lateral midfoot arthrosis and low grade first MTP
arthrosis.
On
February 24, 2014, Dr. Pederson diagnosed a right ankle sprain, joint
pain-ankle, and posterior tibial tendinitis after Ashwood presented for a
follow-up for severe ankle pain. He
prescribed medication and restricted Ashwood to seated duty for two weeks. Dr. Pederson released Ashwood to work without
restrictions on May 9, 2014, stating the work-related fall and ankle injury had
resolved.
Ford
filed the records from Dr. Hanna and Norton Brownsboro Hospital. On July 2, 2014, Dr. Hanna noted Ashwood
presented with severe right ankle pain and had failed all conservative
treatment. Dr. Hanna notes Ashwood “has
been told for a number of years that he will eventually need surgical
intervention.” Dr. Hanna recommended
surgery. Ashwood was admitted to the
hospital on July 24, 2014 for “reconstructive surgery to right lower leg for
long standing deformity.” The operative
note reflects pre- and post-operative diagnoses of equinus deformity of right
foot; degenerative arthritis of the subtalar, talonavicular, and calcaneocuboid
joints; dislocation of the talonavicular, calcaneocuboid, and subtalar joints;
and posterior tibial tendon dysfunction.
Dr. Hanna performed the following procedures on July 24, 2014: 1) Tendo
Achilles lengthening right leg and posterior capsule release of subtalar joint;
2) Triple arthrodesis of right subtalar joint, talonavicular joint, and
calcaneocuboid joint; 3) Open repair of dislocations of talonacivular joint,
calcaneocuboid joint; 4) External fixator placement of right hindfoot; 5)
Kidner procedure right foot; 6) PRP placement; and, 7) Peroneal tendon
lengthening right foot.
On
December 15, 2014, Dr. Hanna noted Ashwood underwent flatfoot reconstruction
with tendo Achilles lengthening five months previous, but continued to
experience severe pain and the inability to bear any weight. Dr. Hanna noted Ashwood, “states that he is
getting pain for 20 years now to this leg and would like to move forward with
amputation.” Ashwood was transferred for
elective below-knee amputation of right leg.
In
an undated letter, Dr. Hanna was unable to state whether Ashwood’s pain was
“secondary to congenital malformations, secondary to previous surgical
intervention the patient had at a young age is leading to malformations, or
secondary to the fall that occurred at work.”
Dr. Hanna noted he did not examine Ashwood prior to the fall at
work. Dr. Hanna also noted Ashwood claimed
his pain began as a result of a work injury.
Dr. Hanna stated he could not determine how much pain the patient was in
before the fall due to his significant deformity.
Ford
also filed records from Dr. Liu. On
April 16, 2015, Dr. Liu noted he began treating Ashwood in December 2014 for a
“non-salvageable foot related to club deformity and ankle fracture that was
treated by podiatry.” He performed an amputation
below the right knee on January 28, 2015.
Dr. Liu stated Ashwood’s amputation site had completed healed and he was
due to have his prosthesis to take home.
Dr. Liu anticipated Ashwood would be ambulatory with his prosthesis. In a November 19, 2015 letter, Dr. Liu stated
Ashwood reached medical maximum improvement (“MMI”) on April 16, 2015.
Ashwood
filed the January 13, 2015 report of Dr. James Farrage, who evaluated him prior
to the amputation. He noted the
September 7, 2013 work injury, and subsequent treatment, as well as his history
of bilateral foot and ankle deformities.
Following an examination, Dr. Farrage diagnosed status post severe right
ankle injury due to a work-related fall requiring eventual triple arthrodesis
of the right subtalar, talonavicular, and calcaneal cuboid joints with
associated tendon lengthening procedures.
Dr. Farrage stated Ashwood has ongoing issues with bony nonunion,
intractable pain, muscular atrophy, and impaired functional capacity with
possible need to proceed with an amputation below the right knee. Dr. Farrage stated Ashwood’s clinical
presentation and historical account are consistent with the proposed mechanism
of injury, and he has undergone an appropriate medical workup and surgical
intervention. Dr. Farrage stated Ashwood
is not at MMI, and will probably require the amputation.
Dr.
Farrage restricted Ashwood to sedentary work and found he does not retain the
physical capacity to return to his former position. Dr. Farrage assessed a 16% impairment rating
for Ashwood’s current condition pursuant to the 5th Edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (“AMA Guides”).
However, if he undergoes a below the knee amputation, Dr. Farrage stated
the impairment rating would increase to 28%.
Dr. Farrage declined to apportion Ashwood’s impairment rating for a pre-existing
condition despite his history of correction of clubfoot deformity as a child
with associated congenital issues since he was asymptomatic and functional.
Ashwood
also filed the May 4, 2015 report of Dr. Paul Maloof, who evaluated him after the
amputation. Dr. Maloof performed an
examination and reviewed the medical records provided to him. He diagnosed, “below-knee amputation of the
right lower extremity secondary to intractable pain status post a failed
attempted hindfoot fusion surgery which was performed by a podiatrist to treat
an ankle injury that occurred while at work.”
He opined the diagnosed condition is causally related to the treatment
which resulted from the September 7, 2013 injury. Dr. Maloof did not believe Ashwood had
attained MMI since he was recently fitted for prosthesis. Dr. Maloof anticipated significant physical
therapy and rehabilitation would be necessary for the next twelve months, but
no ongoing medical treatment. Dr. Maloof
found the amputation medically reasonable.
He assessed a 28% impairment rating for the amputation pursuant to the
AMA Guides, attributing the entirety of the rating to the September 7,
2013 work injury since, “his surgical treatment failed to improve his condition
leading to intractable pain and ultimately a below knee amputation.” Dr. Maloof opined Ashwood does not retain the
physical capacity to return to his former job, and would recommend permanent
restrictions.
Ford
filed the November 12, 2014 peer review report prepared by Dr. Richard
Sheridan. He also testified by
deposition on April 28, 2015. After
reviewing the medical records, Dr. Sheridan stated Ashwood had right foot
problems prior to the work injury, noting he had corrective surgery as an
infant. He concluded the July 24, 2014
flat foot reconstructive surgery was necessary for a congenital abnormality of
his right foot for which he had surgery as an infant, and was not a direct
result of the work injury.
Dr.
Sheridan’s testimony is consistent with his report. He confirmed he did not interview or examine
Ashwood. He diagnosed Ashwood with a
right ankle sprain and posterior tibial tendinitis due to the September 7, 2013
work injury. He opined the July 2014
flat foot reconstruction surgery is unrelated to the ankle sprain. Even assuming Ashwood had no prior history of
right lower extremity problems, Dr. Sheridan opined the work accident would not
have brought his pre-existing, dormant degenerative condition into disabling
reality. Ashwood would have needed the
July 2014 surgery regardless of the work-related fall on September 7,
2013.
Ford
also filed Dr. George E. Quill’s October 22, 2015 medical records review report.
Dr. Quill also testified by deposition
on February 5, 2016. In his report, he
noted the medical records from Ford and Dr. Pederson were consistent with a
diagnosis of a right ankle sprain, and imaging studies demonstrated a
longstanding, congenital clubfoot and hindfoot, as well as ankle
subluxation. Dr. Quill concluded the
July 24, 2014 surgery was the result of his hindfoot valgus deformity with
resultant calcaneofibular impingement and hindfoot arthrosis. Ashwood then underwent a below the right knee
amputation for the painful sequelae of clubfoot and the complications resulting
from his July 2014 surgery. Dr. Quill
stated Ashwood will require subsequent surgical treatment and eventual
amputation due to osteoarthritis, contracture, tendinosis, and arthrofibrosis
resulting from multiple-operated congenital right clubfoot.
Dr.
Quill opined his diagnoses and the subsequent surgical intervention including
the amputation are not causally related to the alleged work-related injury on
September 7, 2013. The amputation was
due to painful sequelae of clubfoot and triple arthrodesis nonunion. Dr. Quill stated Ashwood reached MMI from his
work-related ankle sprain within twelve weeks of that injury, and from his
amputation by his last office visit with Dr. Liu. Although the amputation was not casually
related to the September 7, 2013 work injury, the procedure was medically
necessary and will require ongoing treatment.
Likewise, Ashwood’s permanent impairment rating and restrictions for the
amputation would not be casually related to the ankle sprain or contusion
sustained on September 7, 2013. Dr.
Quill assessed a 0% impairment rating for Ashwood’s work-related ankle sprain
warranting no permanent restrictions.
In
a November 18, 2015 addendum, Dr. Quill clarified the multiple operations he
was referring to in his October 2015 report are those Ashwood received as an
infant or child. He noted Dr. Hanna’s
letter stating he is unable to comment with reasonable medical certainty on
causation.
Dr.
Quill’s testimony upon direct examination is consistent with his report. Dr. Quill confirmed he did not examine
Ashwood. He testified the records
indicate Ashwood had numerous congenital anomalies of both feet. He stated Ashwood had treatment, “for quite a
few years even before the 2013 injury for what was classified as a club foot on
one side, the right, and cleft foot on the left. He’d had numerous surgeries as an infant,
toddler, a younger person for both. He’d
even had an extra digit removed from his left foot.” Dr. Quill stated all the records, including
those from Langley Air Force Base, indicate Ashwood had problems, conditions
and deformities of his right foot from birth until he worked for Ford. He further opined his pre-existing conditions
were active at the time of the work injury stating, “I would think it would be
very difficult to have a foot shaped like that and not be symptomatic.” Likewise, Dr. Quill stated the pre-existing,
active condition would have qualified Ashwood for an impairment rating pursuant
to the AMA Guides. Dr. Quill
opined the July 2014 procedure was performed by Dr. Hanna to realign the foot,
rebuild the arch, and address the existing arthritis. The procedure was not related to, nor
reasonable or necessary for, the effects of the September 7, 2013 work injury. Likewise, Dr. Quill found the below the right
knee amputation, although reasonable, not related to or caused by the work
injury.
On
cross-examination, Dr. Quill stated the only surgery Ashwood underwent on his
right foot prior to his work injury was when he was an infant, which probably
resulted in overcorrection of his clubfoot.
He admitted Ashwood did not have active symptomology or medical
treatment of his congenital and degenerative right ankle condition prior to
September 7, 2013 other than his surgery as an infant. However, Dr. Quill stated he would, “find it
hard to believe” Ashwood’s congenital problems were asymptomatic prior to work
injury, but admitted he did not have any records indicating otherwise.
Dr.
Quill stated Ashwood attained MMI from his ankle sprain when Dr. Pederson
allowed him to return to work without restrictions. Dr. Quill testified Ashwood would reach MMI
from his amputation three to six months after the surgery depending on how well
the prosthetic went. Assuming the amputation
is work-related, Dr. Quill agreed with the 28% impairment rating assessed by
Drs. Farrage and Maloof. He also stated
if Ashwood’s prosthesis is successful, he should be able to return to his
former job at Ford.
Ford
filed the vocational report of Dr. Ralph Crystal. He stated Ashwood is able to perform
sedentary to light duty work, and is not disabled from employment. He also stated a six month to a year
certificate or diploma program in computer technology, business and office
systems or computer and engineering technology can be considered as part of a
rehabilitation and return to work program for Ashwood.
The
following contested issues were listed at the BRC: Benefits per KRS 342.730,
work-relatedness/causation, unpaid or contested medical expenses, injury as
defined by the Act, exclusion for pre-existing disability/impairment, TTD
(underpayment as to rate and duration) and the medical fee disputes. The parties waived their right to have a
hearing.
In
the March 21, 2016 opinion, the ALJ provided a detailed thirty-two page summary
of the lay and medical evidence. The ALJ
stated in relevant part as follows:
2. Work-relatedness/causation.
Work-related causation is an essential element of a claim for workers'
compensation benefits and the burden of proving that element rests with the
Plaintiff. Snawder vs. Stice, Ky. App., 576 SW2d 276 (1979).
KRS 342.0011(1) provides that an injury is a work-related traumatic
event that is "the proximate cause producing a harmful change in the human
organism." All of the harmful changes in the human organism that result
from a work-related injury and that are not attributable to an independent,
intervening cause are compensable. Beech Creek Coal Co. vs. Cox, 314 Ky. 743, 237 SW2d 56 (1951); Elizabethtown
Sportswear vs. Stice, 720 SW2d 732 (Ky. App. 1986). Chapter 342 holds
an employer liable for all of the injurious consequences of a work-related
injury that are not attributable to an independent, intervening cause. When conflicting evidence is presented, the ALJ may
choose whom or what to believe. Pruitt
vs. Bugg Bros., 547 SW2d 123, 125 (Ky. 1977). The ALJ
may also choose to accept portions and disregard other portions of an expert witness’
testimony. Copar, Inc. vs. Rogers,
127 SW3d 554 (Ky. 2003).
In this particular case I
found the opinions of Dr. Farrage and Dr. Maloof were the most persuasive and
in line with the medical proof. Here,
Plaintiff suffered what would have to be described as a fairly minor injury to
his right ankle at work. However, the
medical treatment by Dr. Pederson, then by Dr. Hanna, and finally by Dr. Liu
ultimately resulted in a significant impairment and painful condition requiring
amputation of his right lower extremity below the knee. Dr. Maloof opined that
the diagnosed condition is causally related to the treatment which resulted
from the September 7, 2013 injury. Dr.
Farrage and Dr. Maloof’s opinions that Plaintiff’s right foot and ankle
condition were causally related to the work injury, is more in line with the
medical history gleaned from the medical records and thereby, more
persuasive. I find that Plaintiff
suffered a work related injury that resulted in permanent impairment on
September 7, 2013.
3. Pre-existing active impairment.
Kentucky law holds the
arousal of a pre-existing dormant condition into disabling reality by a work
injury is compensable. However, an
employer is not responsible for a pre-existing active condition present at the
time of the alleged work-related event. McNutt
Construction/First General Services vs. Scott, 40 SW3d 854 (Ky. 2001). The correct standard regarding a carve-out
for a pre-existing active condition is set forth in Finley
vs. DBM Technologies, 217 SW3d 261 (Ky. App. 2007). In Finley, supra, the Court
instructed in order for a pre-existing condition to be characterized as active, it must be both symptomatic and impairment ratable
pursuant to the AMA Guides immediately prior to the occurrence of the
work-related injury. The employer bears
the burden of proving the existence of a pre-existing active condition. Finley, supra.
The evidence is that Plaintiff was working
at Ford, performing all of his required duties, was under no restrictions, was
taking no medication and was not being treated for any condition of his right
lower extremity immediately before his September 7, 2013 injury.
The similarity between Mr.
Ashwood’s situation and the plaintiff’s in Finley is noteworthy. In Finley, the ALJ found that her
surgery was the result of the work-related injury, but that the lumbar fusion
and all subsequent medical treatment was for treatment and revision of the
pre-existing congenital deformity, rather than for the cure and relief of the
work injury. Also in Finley, the
ALJ and Workers’ Compensation Board found that the lumbar fusion surgery
changed some of plaintiff’s symptomatology, and the ALJ determined that the
surgery, post-surgical treatment, or other medical expenses for treatment of
either the effects of the fusion surgery or the treatment of scoliosis should
be the responsibility of the employer.
The ALJ apportioned the impairment rating between the work injury and
the pre-existing scoliosis.
However, the Court of
Appeals noted that it is well-established that the work-related arousal of a
pre-existing dormant condition into disabling reality is compensable. McNutt
Constr./First Gen. Servs. vs. Scott, 40
SW3d 854 (Ky. 2001). The Court went on to ask and answer the question:
What then is necessary to
sustain a determination that a pre-existing condition is dormant or active, or
that the arousal of an underlying pre-existing disease or condition is
temporary or permanent?” To be
characterized as active, an underlying pre-existing condition must be
symptomatic and impairment ratable pursuant
to the AMA Guidelines immediately
prior to the occurrence of the work-related injury. Moreover, the burden of
proving the existence of a pre-existing condition falls upon the employer. WolfCreek Colleries v. Crum, 673 S.W.2d
735, 736 (Ky. App. 1984).
Alternatively, where the underlying
pre-existing disease or condition is shown to have been asymptomatic
immediately prior to the work-related traumatic event and all of the employee's permanent impairment is medically
determined to have arisen after that event—due either to the effects of the
trauma directly or secondary to medical treatment necessary to address
previously nonexistent symptoms attributable to an underlying condition
exacerbated by the event—then as a matter of law the underlying condition must
be viewed as previously dormant and aroused into disabling reality by the
injury. Under such circumstances, the injured employee must be compensated not
just for the immediate physical harm acutely produced by the work-related
trauma, but also for all proximate chronic effects corresponding to any
contributing pre-existing condition, including any previously dormant problem
strictly attributable solely to congenital or natural aging processes, as it
relates to the whole of her functional impairment and subsequent disability
rating, including medical care that is reasonable and necessary pursuant to KRS
342.020. Id.
The situation in Finley
is duplicated in the present case of Mr. Ashwood. The Finley court goes
on to state:
The arousal of a pre-existing dormant
condition into disabling reality may be considered temporary when, upon
attaining maximum medical improvement, the employee post injury fully recovers
and reverts to her pre-injury state of health. However, where the trauma or the underlying pre-existing defect
exacerbated by the trauma results in a permanent impairment rating post injury,
even though secondary to surgery or other medical treatment, the
totality of the effects of the employee's condition must be judged compensable
as a matter of law. Id. (Emphasis
ours).
I find Plaintiff’s
pre-existing condition was both asymptomatic and produced no impairment
immediately prior to the work-related injury and thereby constitutes a
pre-existing dormant condition. I further find that Plaintiff’s pre-existing
dormant condition was aroused into disabling reality by a work-related injury
and the medical treatment for the injury. The undersigned does not find
compelling the medical records from at least three years prior to the work
injury that discusses some vague pain and some “possible” future medical
treatment. There is no evidence that
Plaintiff was being treated for his right foot even remotely close in time to
the work injury. Clearly, Plaintiff had a congenital deformity of his foot –
but it was not causing restrictions, nor did it require medical treatment, nor
was he taking any medications for said condition. Accordingly, Plaintiff’s
impairment and medical expense related to the pre-existing condition are
compensable. For this finding I rely on
the Plaintiff’s testimony and the medical opinion of Dr. Farrage, Dr. Maloof
and the medical records submitted regarding his treatment (or the lack thereof)
prior to his work injury.
Relying
upon the opinions of Dr. Farrage and Maloof, the ALJ found Ashwood has a 28%
impairment rating due to the September 7, 2013 work injury. After performing an analysis pursuant to Fawbush
v. Gwinn, 103 S.W.3d 5 (Ky. 2003), the ALJ found Ashwood is entitled to the
three multiplier pursuant to KRS 342.730(1)(c)1. The ALJ determined Ashwood is not permanently
totally disabled. The ALJ determined the
medical treatment received by Ashwood was reasonable, necessary and related to
his September 7, 2013 work injury and resolved the medical fee disputes in
favor of Ashwood.
After
reviewing the cases of W.L. Harper Construction Co. v. Baker, 858 S.W.2d
202 (Ky. App. 1993), Central Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky. 2000),
Double L. Const., Inc. v. Mitchell, 182 S.W.3d 509 (Ky. 2005) and Livingood
v. Transfreight, LLC, 467 S.W.3d 249 (Ky. 2015), the ALJ found Ashwood
entitled to TTD benefits from September 7, 2013 through April 16, 2015, the
date Dr. Liu found him to have reached MMI, stating as follows:
Here, the undersigned finds that Plaintiff is
entitled to TTD of $467.19 per week from September 7, 2013 to April 16, 2015.
Although Plaintiff returned to Ford, he was placed in the cafeteria doing
virtually nothing. He was then given
some work to do from October 31, 2013 to December 11, 2015 placing velco (sic)
on one of the automobile parts. He was
“allowed” to work on this task so long as the parts were needed. It was not a steady work and the wages filed
by Ford do not describe or categorize the wages received --- other than to note
the total and some categories, i.e. overtime etc. It is undisputed that Plaintiff never
returned to the work he was doing at the time of the injury. Even when he was actually doing substantive
work, it was not a regular job and varied significantly as to hours worked etc.
Plaintiff testified he never returned to his
regular job. The Plaintiff points out that he was never released to perform the
type that is customary or that he was performing at the time of his injury.
The job that Plaintiff performed for “about a
month” was apparently not a regular job in the plant, as it was out-sourced and
eliminated. All of the facts convinces
the undersigned that the “job” the Plaintiff performed for about a month was
minimal and certainly not his customary work.
Accordingly, Plaintiff is entitled to TTD for
the period of September 7, 2013 through April 16, 2015, the date Dr. Liu
testified Plaintiff had reached maximum medical improvement.
The ALJ also awarded vocational
rehabilitation benefits. She stated as
follows in support of the award:
Although Plaintiff argues for a finding of
permanent total disability, the undersigned is persuaded by Dr. Crystal’s
opinions and Plaintiff’s vocational abilities.
The undersigned finds that although the “contested issue” of vocational
rehabilitation was not specifically preserved during the BRC, the undersigned
is convinced that the parties have tried the issue by consent. The Plaintiff
has testified he desires to be retrained and re-enter the work force. The
Defendant/employer has argued that Plaintiff is not totally disabled, in part,
because he would be able to be retrained.
Indeed, Dr. Crystal in his report notes Plaintiff would benefit from
more education and re-training. Accordingly, the undersigned find that
Plaintiff shall undergo a vocational evaluation per KRS 342.710(3).
Ford
filed a petition for reconsideration essentially making the same arguments it
now asserts on appeal. Ford additionally
asserted the ALJ did not address the conflicting testimony of Dr. Quill.
In
the Order denying Ford’s petition, the ALJ reiterated testimony from Dr. Quill
she found persuasive as it relates to whether there was a pre-existing, active
condition. The ALJ noted Dr. Quill
testified: 1) the medical
records he was provided showed Ashwood had only undergone one operation on his
right foot, performed in infancy, before the occurrence of the work injury of
September 7, 2013; 2) there were no medical records which indicated Ashwood was
having any active treatment or any symptomatology or any complaints with his
right foot or right ankle prior to the work-related injury of September 7,
2013; and, 3) he reviewed no records which indicated Plaintiff's congenital
problem (which pre-dated the work injury) was symptomatic before September 7,
2013. The ALJ stated she thoroughly
reviewed and considered Dr. Quill’s opinions, as well as all of the other
medical evidence in the record, and found no error in the analysis regarding
Ashwood’s pre-existing active impairment.
Likewise, the ALJ found no error in
her analysis regarding entitlement to TTD benefits during the period Ashwood
continued to work. The ALJ noted the
undisputed evidence demonstrates Ashwood was initially placed in the cafeteria
doing essentially nothing. He was then given a job that required affixing
Velcro strips to stereos while sitting in the cafeteria, and then later while
on the assembly line. The ALJ noted Ashwood
was often given only a few hours of work to perform. He was not allowed to perform any overtime
and was also sent home on several occasions without compensation. The ALJ also found critical the lack of
evidence countering the Plaintiff’s assertions and testimony regarding his
activities at Ford were not “customary” and he did not receive his regular
wages.
Finally, the ALJ found no error in her
order for a vocational rehabilitation evaluation. The ALJ acknowledged vocational rehabilitation
was not listed as a contested issue at the BRC; however, she determined the
issue was tried by consent. She noted
Ashwood’s current abilities, both physical as well as vocational, was much of
the core of both parties’ arguments.
The issue of extent and duration of Plaintiff’s disability, as well as
whether he was entitled to a statutory multiplier, included evidence regarding
Plaintiff’s need for vocational rehabilitation.
Specifically, the ALJ noted Dr. Crystal’s report discusses the
Plaintiff’s ability to avail himself to vocational retraining. The ALJ noted Dr. Crystal was hired by Ford
as a vocational expert witness.
Additionally, Ashwood testified he was interested in retraining if the
ALJ found it appropriate. The ALJ found
it disingenuous Ford now asserted it was without notice Ashwood was pursuing
vocational rehabilitation.
On
appeal, Ford argues, “the evidence compels a finding that Claimant’s right
lower extremity condition was pre-existing and not work-related.” Ford argues, unlike the Claimant in Finley
v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007), there is evidence in
the case sub judice that Ashwood
returned to “pre-existing baseline given his congenital defects.” It points to the records of the Ford medical
facility, Dr. Quill, and Dr. Pedersen to demonstrate Ashwood sustained a right
ankle sprain due to the work injury, and was released to return to work without
restriction as of May 9, 2014 by Dr. Pederson.
Further it argues there are “multiple indications in the treating physicians’
records that claimant’s condition was pre-existing and active despite the lack
of medical treatment records pointed out by the ALJ,” and pointed to portions
of the records from Dr. Hanna’s medical notes, and Dr. Quill’s testimony. Therefore, Ford argues the evidence compels a
finding, pursuant to Finley, there was a return to Ashwood’s prior
baseline symptoms and that his condition was congenital and painful for over
twenty years.
Ford
also argues the ALJ erred in awarding TTD benefits during the time Ashwood
continued to work through December 12, 2013, pursuant to Trane Commercial
Systems v. Tipton, 481 S.W.3d 800 (Ky. 2016). Ford does not challenge the award of TTD
benefits from December 13, 2013 through Ashwood’s attainment of MMI on April 16,
2015. It asserts Ashwood worked through
December 12, 2013 earning the same or greater wages. It asserts Ashwood’s testimony “is less than
clear” regarding his work tasks during this time period. Ford also argues the post-injury wage records
are inconsistent with Ashwood’s testimony he was allowed to go home once he
completed the Velcro work for the day.
Ford asserts the Velcro work performed by Ashwood was a legitimate job,
and does not arise due to the extraordinary circumstance referred to by the
Court in Tipton.
Finally,
Ford argues the ALJ improperly awarded vocational rehabilitation benefits
arguing it was not preserved as a contested issue at the BRC and the issue was
not tried by consent.
As
the claimant in a workers’ compensation proceeding, Ashwood had the burden of
proving each of the essential elements of his cause of action. See KRS 342.0011(1); Snawder v. Stice,
576 S.W.2d 276 (Ky. App. 1979). Since
Ashwood was successful in that burden regarding entitlement to TTD and
vocational rehabilitation benefits, the question on appeal is whether
substantial evidence of record supports 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). However, Ford
bore the burden of any affirmative defenses, including whether Ashwood had any
pre-existing active conditions.
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 that would have supported a different outcome than that 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
ALJ applied the appropriate analysis pursuant to Finley v. DBM Technologies,
supra, and McNutt Construction/First General Services v. Clifford F. Scott, et al., 40 S.W.3d 854 (Ky. 2001), and substantial evidence supports her
determination Ashwood’s
pre-existing dormant condition was aroused into disabling reality by his work-related
injury. In McNutt,
the Court held, “[w]here work-related trauma causes a dormant degenerative condition
to become disabling and to result in a functional impairment, the trauma is the
proximate cause of the harmful change; hence, the harmful change comes within
the definition of an injury.” Id.
at 859. However, as noted by the ALJ, an
employer is not responsible for a pre-existing active condition present at the
time of the work injury. To be characterized as an active condition, the underlying pre-existing
condition must be symptomatic and
impairment ratable pursuant to the AMA Guides immediately prior to the
occurrence of the work-related injury. Moreover, the burden of proving the
existence of a pre-existing condition falls upon the employer. Finley v. DBM Technologies, supra.
Since Ford was unsuccessful in
proving a pre-existing, active condition, the question on appeal is whether the
evidence compels a different result. Wolf
Creek Collieries v. Crum, supra. “Compelling evidence” is defined as evidence
so overwhelming no reasonable person could reach the same conclusion as the
ALJ. REO Mechanical v. Barnes,
691 S.W.2d 224 (Ky. App. 1985). The
function of the Board in reviewing the ALJ’s decision is limited to a
determination of whether the findings made by the ALJ are so unreasonable under
the evidence that they must be reversed as a matter of law. Ira A. Watson Department Store v. Hamilton,
34 S.W.3d 48 (Ky. 2000).
It
is undisputed Ashwood had a congenital right foot condition. The ALJ determined Ashwood’s congenital foot
condition was both asymptomatic and produced no impairment immediately prior to
the work injury, and was therefore a pre-existing dormant condition. The ALJ additionally found his pre-existing
dormant condition was aroused into disabling reality by his work-related injury
and the treatment for that injury. In
support of her determination, the ALJ relied upon the opinions of Drs. Farrage
and Maloof. Ford does not challenge
their opinions on appeal, and we likewise find those opinions constitute
substantial evidence supporting the ALJ’s determination. Both physicians declined to apportion
Ashwood’s impairment rating for a pre-existing condition. Dr. Farrage specifically opined Ashwood was
asymptomatic and functional at the time of the work injury.
The
ALJ also noted the lack of medical evidence indicating any treatment for his
right foot “even remotely close in time to the work injury.” The ALJ specifically found the discussion of
vague pain and possible future medical treatment in the 2010 Langley Air Force
Base records was not compelling on this issue.
She also noted the congenital condition did not cause Ashwood’s
restrictions and did not require medication at the time of his work injury. In the order on reconsideration, the ALJ
highlighted the portions of Dr. Quill’s testimony she found persuasive. Dr. Quill admitted the medical records he was
provided demonstrated Ashwood had only undergone one operation on his right
foot as an infant, and there were no medical records indicating he had any
active treatment, symptomology, or complaints with his right foot or ankle
prior to the work injury. He noted he
reviewed no medical records indicating Ashwood’s congenital problems were symptomatic
prior to the work injury.
The
above-referenced evidence constitutes substantial evidence supporting the ALJ
determination, and no contrary result is compelled. While Ford may be able to point to
conflicting portions of Dr. Quill’s testimony and report in support of its
argument, the ALJ enjoys the discretion of believing or disbelieving 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, supra. Likewise,
Ford’s ability to note evidence supporting a different outcome is not an
adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp.,
supra.
The
ALJ applied the proper analysis based upon the applicable case law in
determining Ashwood is entitled to TTD benefits during the period he returned
to modified work following his work injury, and substantial evidence supports
her decision. 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 Magellan Behavioral
Health v. Helms, 140 S.W.3d 579 (Ky. App. 2004), the Court of Appeals
instructed that until MMI is achieved, an employee is entitled to a
continuation of TTD benefits so long as he remains disabled
from his customary work or the work he was performing at the time of the
injury. 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).
In Livingood
v. Transfreight, LLC, et, al., supra, the Supreme
Court declined to hold a claimant is entitled to TTD benefits so long as he or
she is unable to perform the work performed at the time of the injury. The Court stated, “. . . 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.’” Id. at 254. Most recently in Trane
Commercial Systems v. Tipton, supra, the Supreme Court recently clarified when TTD benefits are appropriate in cases where the employee returns
to modified duty. The Court stated:
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 TDD 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 TDD 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 TDD
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 TDD benefits in
addition to the employee's wages would forward that purpose.
Id. at 807.
The ALJ, in primarily
relying upon Ashwood’s testimony, determined he did not return to his customary
work following his September 7, 2013 work injury. Ashwood testified he initially sat in the
cafeteria for either one or two months doing nothing. He then affixed Velcro strips to radios at a table
in the cafeteria for a month, and then on the line another month. When asked whether the Velcro job lasted an
entire shift, Ashwood stated he did it “until they ran out of stuff to bring
me.” At first, Ford brought him Velcro
jobs to do at lunch time, and he would do that until approximately 2:00 p.m. When he was moved to the line, the Velcro job
lasted an entire shift. Ashwood was the
only employee who performed this job, stating: “I think it was just something
to give me something to do.” He agreed
Ford’s medical department created the job for him. Ashwood was sent home when Ford outsourced
the Velcro job to another company.
Ashwood’s
testimony constitutes substantial evidence supporting the ALJ’s determination
he did not return to customary work following his work accident in accordance
with Livingood
v. Transfreight, LLC, et, al., supra, and Trane Commercial Systems v. Tipton, supra. Ford’s argument the post-injury wages
demonstrates he earned the same or greater wages is unpersuasive. The wage records do not shed light on whether
Ashwood had returned to customary employment.
Finally, we find no
merit in Ford’s argument the ALJ improperly awarded vocational rehabilitation
benefits. Although the issue of
vocational rehabilitation was not listed as a contested issue at the BRC, the
ALJ found in both the opinion and order on reconsideration the parties
tried the issue by consent. If issues are not specifically raised in the pleadings, they are
nonetheless treated as if they had been raised if they were tried by the
express or implied consent of the parties.
Kroger Co. v. Jones, 125 S.W.3d 241, 246 (Ky. 2004). The Kentucky Supreme Court has taken the view
that the “theory of implied consent rest[s] on absence of actual prejudice,
i.e., the ability to present a defense.”
Id. The determination of
whether an issue was tried by consent rests within the sound discretion of the
ALJ. Nucor Corp. v. General Electric
Co., 812 S.W.2d 136, 145-46 (Ky. 1991).
In this instance, the
ALJ provided a thorough explanation regarding why she believed the issue of
vocational rehabilitation had been tried by consent. She specifically noted, at the request of Ford, Ashwood underwent a vocational evaluation
by Dr. Crystal. As part of his
assessment, Dr. Crystal noted Ashwood hoped to return to work, and has thought
about returning to school or obtaining additional training. Dr. Crystal found Ashwood is not disabled
from work. He also stated, “A six month
to one-year certification or diploma program . . . can be considered as part of
a rehabilitation and return to work program for Mr. Ashwood.” Likewise, as noted by the ALJ, Ashwood
testified he would be interested in retraining if the ALJ feels it
appropriate. For this reason, it cannot be said the ALJ abused her discretion in
concluding the issue had been tried by the consent of the parties.
Accordingly, the March
21, 2016 Opinion,
Order and Award and the April 25, 2016 Order on petition for reconsideration
rendered by Hon. Jeanie Owen Miller, Administrative Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON GEORGE T T KITCHEN III
600 EAST MAIN ST, STE 100
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT LAMARR ASHWOOD:
HON CHED
JENNINGS
401
WEST MAIN ST, STE 1910
LOUISVILLE,
KY 40202
OTHER
RESPONDENTS:
DR NATHANIEL LIU
3 AUDUBON PLAZA DR, STE 220
LOUISVILLE, KY 40217
DR JASEN PEDERSEN
6400 WESTWIND WAY, STE B
CRESTWOOD, KY 40014
DR TIMOTHY HANNA
9880 ANGIE’S WAY, STE 240
LOUISVILLE, KY 40241
ADMINISTRATIVE
LAW JUDGE:
HON JEANIE OWEN MILLER
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601