Workers’
Compensation Board
OPINION
ENTERED: September 22, 2016
CLAIM NO. 201494424
NAN BENALLY PETITIONER
VS. APPEAL FROM HON. JONATHAN
R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
COMMONWEALTH OF KENTUCKY
ADMINISTRATIVE OFFICE OF THE COURTS
and HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART,
REVERSING
IN PART, AND REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Nan Benally (“Benally”) seeks review of the May 16, 2016, Opinion and Award of
Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ”), finding she
sustained work-related injuries to her right knee and low back on February 3,
2014, while in the employ of the Administrative Office of the Courts
(“AOC”). The ALJ awarded permanent
partial disability (“PPD”) benefits and medical benefits. The ALJ denied benefits for Benally’s alleged
left knee and left ankle injuries.
Benally also appeals from the June 20, 2016, Order amending the award of
PPD benefits but denying the rest of her petition for reconsideration.
On appeal, Benally challenges the ALJ’s decision on four
grounds. First, she alleges the ALJ
failed to make crucial findings of fact detailing the physical aspect of
Benally’s work responsibilities and whether she can do those tasks post-injury. Second, Benally asserts the ALJ erred in
failing to award the two multiplier pursuant to KRS 342.730(1)(c)2. Third, Benally contends the ALJ erred in
finding the three multiplier was not applicable. Fourth, she maintains the ALJ should not have
denied benefits for a left knee injury based on the defense of a pre-existing
active impairment.
In the Form 101, Benally alleged injuries to both knees, the
left ankle, and left back occurring on February 3, 2014, when she fell down the
stairwell in the employee parking garage on her way to work.
In the Benefit Review Conference (“BRC”) Order &
Memorandum, the parties stipulated Benally sustained work-related injuries on
February 3, 2014, and the AOC received due and timely notice. The parties also stipulated Benally returned
to work on May 15, 2014, and currently earns the same or greater wages. The parties indicated the contested issues
were Benally’s physical capacity to return to the type of work performed at the
time of the injuries, benefits per KRS 342.730, and unpaid or contested medical
expenses.
Benally testified at her July 11, 2014, deposition and at
the March 17, 2016, hearing. During her
deposition, Benally testified she was currently working as a counselor which is
the same job she was performing prior to the injury. However, she was not performing the same job
duties. Benally testified she did not
believe she could physically continue performing all of the tasks associated
with her job at the time of the injury.
Benally testified she is no longer involved in any court work or transferring
files to and from court. She has very
limited contact with her clients except for those who come to her office on the
second floor. She no longer goes to the
jail, makes home visits, or transfers patients.
The modified duties she performed after the injury include completing
paperwork and duties other employees were unable to complete. Benally has a Master’s Degree in counseling
and amassed fifty-one hours in a Ph.D. program at the University of
Wisconsin.
Benally acknowledged she previously underwent
surgery in 1980 on her left knee to repair the ACL. She also acknowledged receiving treatment approximately
three to six months before her February 3, 2014, injury because she lost
flexion and the left knee became painful.
Benally was seen by her primary care physician, Dr. Melanie Smallwood,
who referred her to physical therapy.
She described her symptoms as a regular popping and loss of mobility resulting
in modified gait. Benally believed
physical therapy had helped. She denied
having any prior left ankle, low back, or right knee problems.
After the injury, Dr. Smallwood
referred her to Dr. Akbar Nawab, who on June 5, 2014, performed surgery to
repair meniscal tears in the right knee.
Dr. Nawab eventually referred her to Dr. Kyle Young for treatment of her
low back problems. Benally has pain in
the lower back which causes numbness and tingling in the buttocks extending
down the back of her right leg. Benally
estimated she was off work two or three days after the injury and returned to
work performing light duty. She was off
work in excess of a week due to the June 5, 2014, surgery. At the time of her deposition, she was under
light duty restrictions of no lifting over ten pounds and no kneeling or
crawling. She has limited mobility in
walking and is only able to drive short distances. Benally testified her job was modified
because of her injuries; however, she was unsure if her current restrictions
were permanent.
Much of Benally’s hearing testimony mirrors her deposition testimony. At the hearing, Benally described her job
duties as follows:
Q: And can you tell the Judge what your
responsibilities were as a counselor.
A: My duties were to administer
therapeutic services to clients that were referred to us through the judicial
system. So doing group work, group therapy, individual therapy, case
assessment, court appearances, taking clients to and from detox centers or to
incarceration, going in and out of house, jail assessments, documentation of
all case management and the over seeing [sic] of the case manager that was
assigned to it.
After the injury, Benally did not
perform some of the basic duties associated with her job. She indicated she was no longer meeting with
clients in group sessions, attending court sessions, and carrying charts. Benally testified that after the injury, her
wages remained the same. Her last day of
work at the AOC was on April 16, 2014.
Benally testified she resigned in order to return to the University of
Wisconsin to pursue a Ph.D. She acknowledged
that prior to the injury she had already initiated the process of returning to
the University of Wisconsin. Since
resigning, Benally has not earned the same wages she earned while employed with
the AOC. She left the University of
Wisconsin and returned to Kentucky to help her daughter because her daughter
had “some medical concerns.”
Benally provided the following testimony regarding the
tasks she was physically unable to perform post-injury:
Q: As you sit here today are you able
to go back to work as a counselor at AOC?
A: With the specific duties that I was
performing there only if they were modified as they had been before would
I be able to do them.
Q: Tell us what is it that you couldn’t
do the work that you did before you got hurt.
A: The modified duties include the
light duty work, so carrying heavy loads of charts or walking long distances
like we had to do. Our offices were on Market Street and to go across to the
Judicial Center is a block and a half, so walking back and forth. Also being
able to ambulate freely, without hesitation and I was working with crisis
clients, so being able to respond quickly in emergency situations would be
challenging for me.
Q: Is that the same thing as crisis
intervention?
A: Yes, it is.
Q: What does that really entail?
A: That relates to sometimes we have
clients that are messed up detoxing, so they can become unstable both
physically or mentally. And sometimes they can lash out or they can have
physical problems, any number of things that can happen with them, so we are
always on guard as to how to manage those kinds of things even with themselves
or amongst each other.
Q: Well, physically what does that
mean?
A: Physically that means that I should
intervene – sometimes I have to intervene physically. Restraining somebody,
helping them to – if they have a seizure helping them onto the floor and making
them safe until a medical help arrives. Being able to react to any type of
situation, sometimes clients can become combative not only verbally but
sometimes physically. So maintaining safety not only for myself but for others
that I am responsible for.
Benally estimated her left knee was
treated approximately six months before February 3, 2014, when she underwent
physical therapy. Benally acknowledged that
after the injury she was off work for three days and returned to the same
position earning the same salary. She
missed two weeks of work following her surgery in June 2014.
Numerous medical records were
introduced. In a letter dated June 18,
2014, attached to a partially completed and unsigned Form 107, Dr. Nawab stated
Benally suffered a work-related injury consisting of bilateral patella
fracture, ankle strain, lumbar strain, and meniscal tear. As a result, Benally underwent an arthroscopy
of the right knee. The operative note
was attached to his filings. The June 5,
2014, operative note reveals the following procedure was performed: “arthroscopy
of the right knee with chondroplasty patella, partial medical meniscectomy,
partial lateral meniscectomy, chondroplasty, lateral femoral condyle.” Dr. Nawab indicated Benally suffered a 4%
impairment rating based on the 5th Edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”)
due to impairment of meniscal tear.
The December 16, 2015, Independent
Medical Evaluation (“IME”) report of Dr. Jules Barefoot was introduced. Dr. Barefoot assessed the following:
1) History of a left knee
nondisplaced patella fracture.
2) History of a right knee nondisplaced
patella fracture.
3) Injury to the medial and
lateral menisci of the right knee requiring arthroscopy surgery with a partial
medial and lateral meniscectomy June 5, 2014.
4) Avulsion fracture left
ankle talar head.
5) Osteoarthritis of the left
ankle.
6) Progressive severe
osteoarthritis of the right knee.
7) Progressive severe
osteoarthritis of the left knee.
8) L3-L4 and L4-L5 posterior
disc protrusions with radicular complaints.
Based on the AMA Guides, Dr.
Barefoot assessed a 9% impairment rating for the right knee injury, an 8%
impairment rating for the left knee injury, a 5% impairment rating for the left
ankle injury, and a 13% impairment rating for the low back injury. Based on the combined values chart, Benally
had a 31% whole person impairment rating all of which was attributable to the
work-related injury as Benally had no pre-existing impairment.
The AOC introduced the October 7,
2015, report and October 29, 2015, addendum of Dr. Michael Best as well as his
January 7, 2016, deposition. In his
October 7, 2015, report, Dr. Best noted Benally had undergone ACL repair of the
left knee approximately thirty years ago.
He also noted that in June 2012 and in July and September 2013, Benally
had been seen by Dr. Smallwood for left knee pain. Dr. Best performed range of motion tests on
both knees, the left ankle, and low back.
Because x-rays of both knees and the left ankle were necessary, Dr. Best
stated he was unable to complete the IME.
In his addendum, Dr. Best noted
x-rays of the left foot and both knees had been performed on October 21,
2015. Dr. Best assessed no impairment
for the left ankle and left knee condition.
He assessed a 4% impairment rating for a work-related injury to the
right knee. He also assessed a 5%
impairment rating for the low back condition as Benally had radiographic
criteria for a lumbosacral DRE Category II impairment. However, he believed this impairment rating
pre-existed the slip and fall, as there was no objective evidence the slip and
fall produced a permanent harmful change in the human organism. Dr. Best believed the left knee was a
long-standing condition dating back to the sequela of the ACL tear and
reconstruction in 1980 and there was no objective evidence of a new permanent
harmful change in the human organism related to the February 2014 slip and
fall. At most, the slip and fall
resulted in a left knee contusion.
Dr. Best noted Benally had described
the physical requirements of her usual and customary work. He opined “the patient has described her work
as a counselor, a desk job, and she is fully capable of returning to these
duties without restrictions.” Thus, he
believed Benally retained the physical capacity to return to the type of work
performed at the time of the injury.
As to the nature and extent of
Benally’s work-related injuries, the ALJ provided the following Findings of Fact
and Conclusions of Law:
16. In addition to
the myriad of medical evidence in this matter, the ALJ is presented with impairment
ratings from Drs. Best, Nawab, and Barefoot. The ALJ is most persuaded by the
opinions of Drs. Best and Nawab as they are consistent and provide a consensus
of opinion that the Plaintiff has suffered a 4% whole person impairment as a
result of the injury to her right knee. The outlying opinions of Dr. Barefoot
are outweighed by this consensus however the opinion of Dr. Barefoot that the
Plaintiff’s back injury is causally work-related is convincing.
17. The ALJ is persuaded by the explanation provided
by Dr. Best regarding the Plaintiff’s left knee, and left ankle
conditions. Specifically, the ALJ is
persuaded that the Plaintiff’s left knee condition is degenerative and
pre-existing and that the left ankle condition has resolved.
18. Dr. Best also opined
that the there was no cause and effect relationship established to support the
work-relatedness of the Plaintiff’s back injury and resulting 5% impairment.
The ALJ is more persuaded however by the opinion of Dr. Barefoot that the
Plaintiff’s lumbar spine condition was asymptomatic, dormant, and non-disabling
but due to the workplace injury was activated into her current symptomatic
disabling reality. While the ALJ finds
that the impairment rating provided by Dr. Best is more reasonable, the opinion
regarding causation provided by Dr. Barefoot is to be relied upon herein.
19. The ALJ
therefore finds based upon the opinions of Drs. Best and Nawab that the
Plaintiff has sustained a 4% whole person impairment to the right knee. The ALJ is persuaded that the Plaintiff has
sustained a 5% whole person impairment to the low back as determined by Dr.
Best but finds that this impairment is causally work-related in accordance with
the opinion of Dr. Barefoot. The ALJ relies upon Dr. Best however to conclude that
the Plaintiff retains the ability to return to the same type of work. Based
upon the foregoing, the ALJ finds that the Plaintiff has sustained a 4% whole
person impairment and a 5% whole person impairment, to the right knee and low
back respectively. The Plaintiff therefore has sustained a 9% whole person
impairment as a result of the work injury but retains the ability to perform
the same type of work.
Benally filed a petition for
reconsideration asserting the ALJ should provide specific findings of fact regarding
the physical requirements of her job and whether she can now and into the
foreseeable future physically restrain one of her participants. She pointed to her testimony that restraining
participants was one of her job duties which she can no longer perform. Benally noted Dr. Best opined she could
restrain participants who weigh approximately one hundred pounds.
Next, Benally requested the ALJ address
her entitlement to the two multiplier pursuant to KRS 342.730(1)(c)2 since the
uncontradicted testimony established she returned to work earning the same
wages. Therefore, pursuant to Livingood
v. Transfreight, LLC, 467 S.W.3d 249 (Ky. 2015), she argued she was entitled
to enhanced PPD benefits during any cessation of employment regardless of
whether it is related to her injury.
Finally, Benally requested the ALJ “to void and redo” those portions of
his opinion wherein the ALJ stated he believed the testimony and report of Dr.
Best that Benally had pre-existing conditions of the left knee and low back
since causation and pre-existing impairment were not issues in the claim. Benally asserted the only contested issues pursuant
to the BRC Order were benefits per KRS 342.730, unpaid and contested medical
expenses, and reimbursement for mileage.
Benally also contended Dr. Best’s opinion concerning a pre-existing
active impairment did not meet the requirements of Finley v. DBM
Technologies, 217 S.W.3d 261, 265 (Ky. App. 2007), as there was no evidence
she had a condition which was symptomatic immediately before she fell. Benally also asserted the ALJ improperly
calculated the award of PPD benefits.
In the June 20, 2016, Order, the ALJ
sustained only that portion of the petition for reconsideration regarding his
miscalculation of the PPD benefits and amended the award to reflect Benally is
entitled to $32.17 per week instead of $10.93 per week for 425 weeks. Concluding all other portions of the petition
for reconsideration were a re-argument of the merits, the ALJ declined to further
disturb his opinion.
In her first argument on appeal, Benally asserts the ALJ
failed to make crucial findings of fact so that meaningful review can be
conducted. Specifically, she asserts
that in response to the petition for reconsideration the ALJ failed to outline
the physical demands of her work and whether she is capable of performing those
tasks after the injury. Benally
specifically notes she cannot restrain the participants in the program anymore
and seeks remand for additional findings of fact.
In her second argument, Benally contends
she is entitled to the two multiplier starting from August 16, 2014, which is
last date she earned the same or higher wages.
Pursuant to Livingood v. Transfreight, LLC, supra, she posits
she is no longer required to establish the reason for the cessation of her employment
is related to the disabling injury.
Benally notes the ALJ focused on the fact she planned to resume her
education at the University of Wisconsin; thus, the cessation for her
employment was unrelated to the work injury.
In her third argument, Benally asserts she
is entitled to the three multiplier because she cannot return to the type of
work she was performing at the time of the injury. Benally points to her testimony outlining those
aspects of her job she can no longer physically perform. She continues to emphasize she is no longer
capable of restraining her clients.
Therefore, Benally argues since the three multiplier is applicable, the
ALJ should have also performed an analysis pursuant to Fawbush v. Gwinn,
103 S.W.3d 5 (Ky. 2003). Benally asserts
the standard is whether she can perform the actual work she was performing at
the time of the injury.
Benally’s fourth argument is that there
were only three contested issues- benefits per KRS 342.730, unpaid or contested
medical expenses, and reimbursement for mileage. She notes the ALJ was persuaded her left knee
condition was degenerative and pre-existing, and she objected to this rationale
as the basis for his decision on this issue as the defense of a pre-existing
active impairment was withdrawn by the AOC.
Further, Benally asserts Dr. Best’s opinion she had a pre-existing
active impairment of the left knee is not based on the evidence as there was no
showing per Finley v. DBM Technologies, supra, her left knee was
symptomatic immediately before the fall.
She also contends her left knee impairment is only ratable because she
had an ACL repair in 1980.
As the claimant in a workers’
compensation proceeding, Benally had the burden of establishing her entitlement
to the multipliers contained KRS 342.730(1)(c)1 and that she sustained a
work-related injury to the left knee. Snawder
v. Stice, 576 S.W.2d 276 (Ky. App. 1979).
Since Benally was unsuccessful in that burden, the question on appeal is
whether the evidence compels a different result.
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 (
We find no merit in Benally’s first argument
asserting the ALJ should have provided additional findings of fact regarding the
physical aspects of her job and erred in overruling her petition for
consideration. In his opinion, the ALJ
summarized Benally’s testimony regarding her job duties. He also indicated “[t]he Plaintiff’s job
description of Substance Abuse Counselor was introduced into evidence on behalf
of the Plaintiff. This information was reviewed and considered into
evidence.” After considering this
information and Dr. Best’s opinion, the ALJ concluded Benally retained the
capacity to return to the same type of work.
That was clearly within the ALJ’s authority. The ALJ was not required to sift through the
testimony, outline the demands of her job, and then make specific findings that
Benally could perform each one of the physical tasks associated with her job at
the time of the injury.
An ALJ is not required to set
out the minute details of his reasoning in reaching his conclusion. Big Sandy Community Action Program v.
Chaffins, 502 S.W.2d 526 (Ky. 1973); Shields v. Pittsburgh and Midway Coal
Mining Co.,
634 S.W.2d 440 (Ky. App. 1982). The only
requirement is the decision must adequately set forth the basic facts upon
which the ultimate conclusion was drawn so the parties are reasonably apprised
of the basis of the decision. Big Sandy Community Action Program v. Chaffins,
supra.
Dr. Best indicated in his report that
he was fully aware of Benally’s job description and believed she was capable of
fully performing that job after the injury.
Based on the ALJ’s statements in his opinion regarding Benally’s job
tasks and Dr. Best’s statements indicating he was aware of the physical
requirements of Benally’s job, the ALJ was not required to provide more in
depth findings.
Regarding Benally’s second argument, we agree
with Benally the two multiplier is applicable in this claim. Therefore, the award of PPD benefits must be
reversed. In the March 17, 2016, BRC
Order, the parties stipulated Benally returned to work on May 5, 2014, and she
currently earns the same or greater wage.
That stipulation causes the two multiplier to be applicable, and the ALJ
erred in not so finding.
In Livingood v.
Transfreight, LLC, supra, the Kentucky Supreme Court concluded as
follows:
Given our analysis, we
conclude that Chrysalis
House was incorrect in holding that the reason for cessation of
work at the same or greater wage under KRS
342.730(1)(c)2 must relate to the disabling injury. To that extent, Chrysalis
House is overruled. Nevertheless, a literal construction of KRS
342.730(1)(c)2 would lead to an unreasonable result if an employee
like the one in Chrysalis
House is allowed to benefit from his own wrongdoing.
Id. at 257.
The Kentucky Supreme Court held as
follows:
We hold that 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. In the instant case, the
substantial evidence of record does not establish that Livingood's conduct was
of that nature. Rather, the ALJ concluded that “but for the prior
transgressions the pole bumping incident would not have resulted in
[Livingood's] termination.”
Id. at 259.
Thus, Benally is entitled to double
income benefits during any period her employment at the same or greater wages
ceases for any reason without or without cause, except where her conduct was
shown to have been an intentional deliberate action with reckless disregard of
the consequences either to her or another.
Here, there is no question Benally
ceased her employment with the AOC in order to attend the University of
Wisconsin for a Ph.D. In light of Benally’s
unrebutted testimony, there is no need to remand the claim for additional fact
finding since Benally ceased her employment with AOC in an attempt to obtain
her Ph.D. at the University of Wisconsin, and her conduct was not an
intentional deliberate action with reckless disregard of the consequences
either to her or another.
On remand, the ALJ shall enter an
award directing Benally is entitled to the two multiplier from August 16, 2014,
and continuing throughout the period her weekly wage is less than her AWW at
the time of the injury. We emphasize
that pursuant to 803 KAR 25:010 Section 16, the AOC did not seek to be relieved
of the stipulation prior to the date of the hearing. Thus, the parties are bound by the
stipulation.
We
find no merit in Benally’s third argument asserting she is entitled to the
three multiplier. In his October 29,
2015, addendum report, under work capacity/restrictions, Dr. Best stated as
follows:
The patient has described
the physical requirements of his/her usual and customary work activities.
Should restrictions be
placed upon patient’s work activities due to the injury or its residuals? No.
Does patient retain the
physical capacity to return to the type of work performed at the time of
injury? Yes.
The patient has described
her work as a ‘counselor’, a desk job. She is fully capable of return to these
duties without restriction.
Dr. Best opined Benally was fully
capable of returning to her job duties as a counselor at the time of the
injury. Dr. Best reinforced this opinion
at his deposition, testifying as follows:
Q: Do you believe she is
capable of performing her job duties as a drug court counselor that she was
performing prior to this slip and fall?
A: I do. As she described it
to me, the majority of the activities required in her job were pretty
sedentary, and so consequently I believe that indeed she can return to those.
. . .
Q: Okay. Do you know she is
a drug counselor at the courts?
A: Yes, sir.
Q: And as you can imagine,
these are highly tense people, and a lot of times she has to – well, not a lot
of times. It is part of her work, as she described in her deposition, that
sometimes she has to intervene physically. Is she able to do that now?
A: Sure.
Q: She can hold down a
person?
A: Well, it depends on – I
mean, you didn’t describe – I mean, is the person 100 pounds? Is the person 400
pounds? If the patient’s 400 pounds, neither you nor I can restrain that
individual. If the patient’s 100 pounds, then probably both you and she can
restrain that patient.
Q: So you wouldn’t have a
problem letting her do that if you were her doctor?
A: No. And I’ll tell you
another reason why, because return to work is so terribly necessary in life. In
all of our lives, having a job is a very meaningful position. Bringing home a
paycheck is very meaningful. If you look at the studies, you’ll find out that
the incident of depression is about six times greater in individuals who are
unemployed. The incidence of hypertension goes up; the incidence of diabetes
goes up; the incidence of a sudden cardiac death goes up. So consequently, I am
very judicious when I take people from work. There has to be a real solid
reason. Okay? If you look at her from her waist up, okay, she’s normal. Okay?
There’s no reason why, from the waist up, she couldn’t help restrain
individuals. From the waist down, she’s got a – she’s got two bad knees. Okay?
Her ankle is fine, and I don’t find anything significantly bad about her back.
So in that circumstance, I would rather err on allowing her to return to her
work than to keep her off work. I just don’t think that’s fair to either she or
her family.
Q: You wouldn’t agree that’s
sort of an iffy point there, whether she can restrain someone or not?
A: Well, again, it depends
on who she has to restrain. Okay? And, you know, the whole point is that should
I tell you, you shouldn’t drive a car home tonight because you may get hit by a
Greyhound bus? Well, you may get hit by a Greyhound bus on the way home, but
the chances aren’t great that that’s going to happen, so I wouldn’t tell you not
to drive home. And it’s the same thing with her job. I think that her risk of
injury is so low that she ought to be able to return to that job because she
also said that typically she never lifts greater than 25 to 30 pounds.
Q: Is that when she was talking
about carrying the cases to the court? Is that what she was talking about?
A: Yeah, carrying records,
she said.
Q: Okay. Now, what about –
can she traverse stairs, go up and down stairs?
A: Again, it depends on how
many stairs we’re talking about. Could she go up 50 stairs? Probably not. Could
she up ten stairs? Probably she could. And, again, going up and down stairs is
all in conditioning. So consequently, if she had to climb 10 or 12 stairs, if
she got into an aerobics program, for instance, like a swimming program that
would help strengthen her lower extremities, then indeed she might well be able
to do that. It’s just – you have to give me a few more statistics about what
she’s got to do.
The testimony of Dr. Best as set
forth above and his opinions expressed in the October 29, 2015, addendum
qualify as substantial evidence supporting the ALJ’s decision the three
multiplier is not applicable. Since the
evidence does not compel a contrary result, this Board is without authority to
disturb the ALJ’s decision on this issue.
Likewise, Benally’s fourth argument asserting
the ALJ should not have denied benefits for the left knee condition based on a
finding of pre-existing active impairment is without merit. The March 17, 2016, BRC Order lists three contested
issues. Work-relatedness/causation and
injury as defined by the Act were not listed as contested issues for any of the
alleged work-related injuries. Further,
exclusion for disability/impairment was also not listed as an issue.
Nonetheless, we conclude the issue of
whether Benally sustained a work-related left knee injury was tried by
consent. In his October 29, 2015,
addendum, Dr. Best provided the following opinion regarding an impairment
rating for the left knee:
Clearly, the left knee
degenerative changes secondary to the ACL reconstruction/tear in 1980 is a
chronic active medical condition. It is fully expected that the left knee would
have developed degenerative changes following the injury and subsequent reconstructive
surgery. This is the natural outcome of this condition.
Dr. Best also alluded to treatment in
2012 and 2013 for left knee problems. In
fact, Benally testified she had been to the doctor between three and six months
prior to the injury for left knee problems.
During his deposition and without objection, Dr. Best provided the
following testimony explaining why he did not believe Benally sustained a
compensable injury to the left knee:
Q: So do you feel like she
has any permanent impairment rating under the Fifth Edition of the AMA Guides
for the left knee?
A: Well, absolutely she has
a permanent impairment rating. The problem is what of that permanent impairment
rating is related to the contusion, and typically a soft tissue contusion results
in no permanent impairment rating. If you look at my report, she has a very
significantly reduced range of motion of that left knee. She also
radiographically has very significant osteoarthritis of that left knee. She,
again, had the ACL reconstruction in 1980, and if you look into her past
history, she’s had chronic complaints of left knee pain. So the real problem
here is, yes, she has a ratable impairment under the fifth edition AMA Guides.
I just do not feel that that impairment, however, is objectively determined to
be causally related to the slip and fall injury.
. . .
Q: Now, did you find a
permanent injury caused by the fall of February 3rd, 2014, for the
left knee?
A: For the left knee. Okay.
Let’s define “permanent injury.” Are we using a permanent harmful change to the
human organism?
Q: Yes.
A: Is that the definition
we’re using?
Q: Yes.
A: Okay. Under that
definition, I did not find objective evidence of a worsening of her
pre-existing degenerative arthritis of the left knee.
Q: Okay. Did you find that
she had a patella fracture from the fall to the left knee?
A: I did not, and there was
some question as to whether that was actually a patellar fracture because if
you look at that report, on one – in one place calls it a nondisplaced left patellar
fracture; on another place it calls it as a vertical fracture of the tibia. So
I’m not sure exactly what the radiologist meant by that, but I did not see it.
And subsequent radiographic studies did not show that there was any arthritic
component secondary to it as you would expect with a nondisplaced fracture.
Q: So is your opinion today,
then, that what she has sustained from February 3rd, 2014, to her left knee is
a temporary condition?
A: I do believe that she
had, at the very most, she had a nondisplaced fracture. Nondisplaced fractures
heal without sequelae. Okay? Hence, why it’s nondisplaced. It’s anatomic. Okay?
So consequently, I do not believe that this resulted in a permanent harmful
change.
Q: Because the fracture
healed?
A: Because it had healed in
anatomic position.
Q: Okay. But can we agree
that there was a fracture for the left knee?
A: Again, I can’t – I can
quote what the radiologist said by that MRI. I was not provided that MRI.
Q: Okay. Can we say that
there are physicians who have examined her radiographs and determined that she
had a fracture to the left knee?
A: I think the only person
that looked at that was the radiologist because Dr. Nawab did not comment on
that being a fracture and did not alter his care. Obviously, she was not given
a knee brace for that. She was not put in a cast. She did not receive any
surgical procedure. So I did not see where Dr. Nawab found that to be a
treatable entity.
Q: Doctor, if I show you Dr.
Nawab’s note that he said that she sustained a bilateral patellar fracture,
would you change your opinion on that then?
A: Yeah, because there’s
nothing that would indicate that she had bilateral patellar fractures. The MRI
of the right knee did not show a patellar fracture, so I think he probably
misspoke if he said bilateral patellar fracture.
[text omitted]
Q: Doctor, do you see Dr.
Nawab’s narrative report where he says diagnosis is bilateral patellar
fracture?
A: I do.
Q: Upon reading that, do you
change your mind at all on whether Ms. Benally suffered permanent harm as a
result of the fall of February 3rd, 2014?
A: Well, now are you asking
me about the right knee?
Q: Left knee.
A: Because we’re talking
about bilateral fractures; we’re talking about left and right.
Q: That’s right. I’m going
to stay on the left for now because I’m not worried about the right.
A: I need a scorecard here.
Q: She had a lot of
different parts.
A: Again, I would not agree
with what Dr. Nawab said. I think he misspoke in that or it’s a typographical
error because there is no place in the record that indicates that this patient
had bilateral patellar fractures.
Benally filed no objection to any
portion of Dr. Best’s reports nor did she object to his deposition testimony concerning
the left knee condition. In fact,
Benally engaged in a lengthy cross-examination regarding Dr. Best’s reasoning
for concluding Benally did not sustain a left knee injury. Similarly, Benally did not object to that
portion of AOC’s brief, under the heading “extent and duration,” arguing
Benally did not sustain a compensable left knee injury.
Pursuant to CR 15.02,
“[w]hen issues not raised by the pleadings are tried by express or implied
consent of the parties, they shall be treated in all respects as if they had
been raised in the pleadings.” In Nucor Corp. v. General
Electric Co., 812
S.W.2d 136 (Ky. 1991), our Supreme Court discussed the purpose of CR 15.02,
and explained how the rule should be interpreted by Kentucky courts:
Bertelsman Philipps explains “[o]ne of the
reasons” for the rule “is to take cognizance of the issues that were actually tried.”
“The Rule
goes further than authorizing amendments to conform to the evidence. It
provides that if issues not raised by the pleadings are tried by express or
implied consent, they shall be treated as if they had been so raised [citation
omitted].
....
The
decision whether an issue has been tried by express or implied consent is
within the trial courts discretion and will not be reversed except on a showing
of clear abuse.
....
It seems
clear that at the trial stage the only way a party may raise the objection of
deficient pleading is by objecting to the introduction of evidence on an
unpleaded issue. Otherwise he will be held to have impliedly consented to the
trial of such issue.”
Furthermore, the
Supreme Court has noted that “[t]here is a need for uniformity and stability in
our approach to the application of the civil rules to Workers' Compensation
matters.” The uniformity principle was followed in Divita v. Hopple Plastics,
858 S.W.2d 214 (Ky. App. 1993), where this Court held that since the defendant
employer's misrepresentation defense “was tried before the ALJ,” the defense
was properly considered by the ALJ even though the employer had failed to raise
the issue in the pre-hearing conference order. This Court went on to state that
CR 15.02
also applied to workers' compensation proceedings, explaining that “we would
not apply a more stringent rule [than CR 15.02]
to an administrative hearing.” Thus, the
issue of whether Benally sustained a work-related left knee injury was tried by
consent.
Further, Benally’s reliance upon Finley
v. DBM Technologies, supra, is misplaced. In the case sub judice, the issue was not whether a portion of an impairment
rating for the left knee should be carved out for a pre-existing active
condition pursuant to Finley v. DBM Technologies, supra. Rather, the issue was whether Benally
sustained a work-related injury to the left knee. Dr. Best concluded Benally did not sustain a work-related
left knee injury and all of her left knee problems were symptomatic and
pre-existed her February 3, 2014, injury.
In order for Finley v. DBM Technologies, supra, to be
applicable, there must have been a work-related injury meriting an impairment
rating. In that case the question then
becomes whether a portion of the impairment rating should be carved out for a
pre-existing active condition as defined by Finley v. DBM Technologies, supra. Here,
Dr. Best concluded there was no work-related injury; thus, Finley v. DBM
Technologies, supra, is inapplicable. We also emphasize Dr. Nawab, Benally’s
treating physician, only assessed an impairment rating for the right knee
injury. In his report of June 8, 2014,
Dr. Nawab did not assess an impairment rating for any other condition.
Accordingly, the May 16, 2016, Opinion and Award is AFFIRMED on all issues raised by Benally on appeal except for the
ALJ’s failure to enhance her income benefits by the two multiplier. Therefore, the award of PPD benefits is REVERSED and this matter is REMANDED to the ALJ for entry of an
award directing Benally is entitled to benefits enhanced by the two multiplier
from August 16, 2014, until such time as she earns wages which are equal to or
greater than the wages she earned at the time of the injury.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON BERLIN TSAI
500 W JEFFERSON ST STE 2100
LOUISVILLE KY 40202
COUNSEL
FOR RESPONDENT:
HON K LANCE LUCAS
HON SARAH C ROGERS
1511 CAVALRY LN STE 201
FLORENCE KY 41042
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R WEATHERBY
657 CHAMBERLIN AVE
FRANKFORT KY 40601