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Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:   December 2, 2016

 

 

CLAIM NO. 201493256

 

 

WORK4CE, INC.                                 PETITIONER

 

 

VS.        APPEAL FROM HON. THOMAS G. POLITES,

                 ADMINISTRATIVE LAW JUDGE

 

 

NICHOLAS PLATANIOTIS

HON. THOMAS G. POLITES,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

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BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

RECHTER, Member.  Work4Ce, Inc. (“Work4Ce”) as insured by KESA, appeals from the February 11, 2016 Opinion and Award and the July 14, 2016 Order on Petition for Reconsideration rendered by Hon. Thomas G. Polites, Administrative Law Judge (“ALJ”) finding it responsible for permanent partial disability and medical benefits awarded to Nicholas Plataniotis (“Plataniotis”).  On appeal, Work4Ce argues the ALJ erred in sua sponte addressing issues not preserved for his decision, in awarding permanent benefits for what was at most a temporary injury or exacerbation, in awarding medical benefits payable at a time it was not at risk, and in failing to specify what medical treatment was compensable.  Additionally, Work4Ce argues the ALJ violated its due process rights.  We affirm.

          Plataniotis filed his claim on July 25, 2014, alleging he suffered cumulative trauma injuries to his back and neck beginning in September, 2012.  His application states notice was given in September, 2012 and he continued to complain of back pain until December, 2013 when he was removed from the task that caused his discomfort.   

          Plataniotis testified by deposition on October 30, 2014 and at the hearing held December 17, 2016.  He was hired by Work4Ce as a measurement technician in June, 2012 and was assigned to work at the Toyota plant.  His work required him to hold a large camera while hunched over sheet metal, which he cleaned and chemically etched.  He usually worked on his hands and knees, or bent over with his arms extended.  He was usually required to look up from his crouched position. 

          Plataniotis began to experience pain in his ribcage, thoracic area and upper back in September, 2012, which he attributed to his work.  He reported the problems to Toyota and an ergonomic study was performed, but no modifications were made.  His problems significantly worsened in the fall of 2013.  On January 1, 2014, he was assigned to a different position at Toyota.  At no point did Plataniotis miss work, except for medical appointments.  Plataniotis’ pain peaked in February, 2014 and he asked Toyota to make modifications, but the request was refused.  He was terminated in June, 2014 because he could not perform the tasks he was hired to perform. 

          Plataniotis testified he continues to have pain in his ribcage, shoulder blades, and upper back.  He experiences tightness and knotting in the muscles from his ribs to his neck and popping in his neck.  At his deposition, Plataniotis indicated his problems with his back and neck were “probably about where they were in the fall of 2012, when I first started to feel things --.”

          Plataniotis submitted medical records and the September 16, 2014 report of Dr. Michael Grefer, who began treating him on March 26, 2014.  Dr. Grefer diagnosed cervical, thoracic, and lumbar sprain and strain; multilevel degenerative disease and degenerative disc disease.  He stated Plataniotis’ symptoms were caused by work, attributing the condition to overuse stress syndrome secondary to chronic posturing and positioning required in performing work-related activities.  Dr. Grefer assigned a 5% impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”).

          Work4Ce submitted the report of Dr. John Vaughan, who performed an independent medical evaluation (“IME”) on July 20, 2015.  Dr. Vaughan diagnosed chronic diffuse back pain with cervical, thoracic, and lumbar strain.  An MRI revealed mild degenerative changes including cervical and thoracic spondylosis.  Dr. Vaughan did not believe Plataniotis’ ongoing complaints are related to work activities that occurred from 2012 to 2014.  Plataniotis has mild degenerative changes which commonly start in early adulthood.  Dr. Vaughan assigned a 0% impairment rating pursuant to the AMA Guides.  He did not believe there was any need for ongoing treatment as a result of any alleged work injuries. 

          Work4Ce submitted the report of Dr. David Jenkinson, who performed an IME on November 5, 2014.  Plataniotis reported developing neck and back pain beginning in September 2012.  The pain increased to the point he “couldn’t tolerate [it] any longer” and he filed an injury report in February, 2014.  Dr. Jenkinson did not believe Plataniotis had a permanent harmful change to his spine.  Rather, he has a small mid-thoracic disc bulge which is a common incidental finding of no clinical significance.  Dr. Jenkinson opined that Plataniotis may have had transient discomfort due to awkward posturing, but there is no evidence that he had any significant abnormality that should have interfered with his normal activity.  Dr. Jenkinson assigned a 0% impairment rating pursuant to the AMA Guides.  He opined Plataniotis required no current or future medical treatment related to the alleged work injury.

          It was established that Work4Ce was insured by KEMI until March 26, 2013, and thereafter by KESA.  Prior to the hearing, KEMI reached an agreement to settle any liability arising during its period of coverage, beginning when Plataniotis began experiencing symptoms in September, 2012.  KEMI paid a lump sum of $3,000, including $1,000 for waivers or buyouts of past and future medical benefits, vocational rehabilitation and the right to reopen against Work4Ce while covered by KEMI.  The agreement expressly reserved Plataniotis’ right to pursue his claim for the time period from March 27, 2013 until his employment ended in June, 2014. 

          In considering the medical proof, the ALJ noted the difference between Dr. Grefer’s opinion and that of Drs. Jenkinson and Vaughn is whether the injury is temporary or permanent.  Noting his status as a treating physician, the ALJ found Dr. Grefer’s opinion most persuasive.  As such, he determined Plataniotis is entitled to permanent partial disability benefits based on a 5% impairment rating.  The ALJ then turned to the manifestation date of the cumulative trauma injury:

     Given that Plaintiff’s alleged injury is a cumulative trauma injury, the manifestation date of said injury is determined by the date upon which Plaintiff was first advised by a medical professional that he suffered from an injury related to his work activities.  Plaintiff’s first diagnosis of his condition was provided by Dr. Grefer who first saw Plaintiff on March 26, 2014 and in his treatment note of that date stated that Plaintiff suffered from “an overuse type of syndrome with some mechanical issues”.  The ALJ considers Dr. Grefer’s diagnosis of overuse syndrome as the first diagnosis that Plaintiff suffered from a work-related injury and as such, the ALJ concludes that the manifestation date of Plaintiff’s cumulative trauma injury is March 26, 2014 and liability for Plaintiff’s benefits arose on this date.

 

The ALJ’s decision made no specific findings regarding medical benefits, but contained a standard award of medical benefits pursuant to KRS 342.020.

          Work4Ce filed a petition for reconsideration raising essentially the same arguments it makes on appeal.                   In his order on reconsideration, the ALJ stated he found March 26, 2014 as the date of manifestation based upon Dr. Grefer’s diagnosis.  The ALJ indicated he did not believe there was credible evidence contrary to his finding.  He reiterated that, because he found Plataniotis sustained a work-related injury, Work4Ce is responsible for payment for medical treatment and retains the right to file a motion to reopen to contest the reasonableness and necessity of future expenses.  

          On appeal, Work4Ce first argues the ALJ erred in addressing the date of injury because the parties stipulated the injury occurred in September, 2012.  Further, Work4Ce contends Plataniotis admitted his current condition is the same as it was in September 2012.  Therefore, according to Work4Ce, sole liability rests with KEMI, the carrier at risk in 2012.

          We disagree the parties stipulated the date of injury as September, 2012.  The date of injury in a cumulative trauma claim does not bear the same import as in a traumatic injury claim.  The exact wording of the October 28, 2015 Benefit Review Conference order reflects this distinction: “Plaintiff sustained a work-related injury or injuries on alleged beginning of 9/2012.”  The December 17, 2015 hearing order notes Work4Ce, as insured by KEMI, settled for the period of exposure during its policy.  When the stipulation is considered in conjunction with the reservation of the right to proceed against Work4Ce, it is clear the parties stipulated that the condition first became symptomatic in September, 2012.            

          In a cumulative trauma claim, the date that symptoms arise may not be the same as the date when the condition becomes disabling or impairment ratable.  This is particularly true when, as here, the claimant continues to be exposed to the trauma after symptoms arise.  Furthermore, the date symptoms arise may differ from the date of manifestation for notice and statute of limitations purposes.  Having concluded the stipulation referred only to the date symptoms arose, the date of the onset of disability remained an issue and was properly addressed by the ALJ.  We find no error.   

          Work4Ce next argues the ALJ erred in awarding permanent partial disability benefits for an injury which occurred during KEMI’s coverage period.  According to Work4Ce, Plataniotis admitted his current condition is “about the same” as it was in September, 2012.  It contends that because the parties stipulated the injury occurred in September, 2012, any change in Plataniotis’ condition during KESA’s coverage period is simply a temporary exacerbation which does not warrant permanent income benefits.

          We reject this argument because it presumes Plataniotis did not suffer a permanent injury, and fails to recognize that KESA is liable for a cumulative trauma injury that becomes disabling during its period of coverage.  We have already explained that the parties did not stipulate an injury date of September, 2012.  Rather, Plataniotis’ symptoms began in September, 2012 and gradually worsened for two years.  Furthermore, the ALJ rejected the theory the injury was temporary, and substantial evidence supports the conclusion Plataniotis suffered a permanent injury.  Pursuant to KRS 342.0011(1), an injury is a work-related traumatic event (or series of such events) that causes a harmful change in the human organism.  Dr. Grefer’s report is substantial evidence that Plataniotis’ work resulted in permanent harmful change and a 5% permanent impairment rating.  Even if Plataniotis’ statement that his condition is “about” what it was in September, 2012 is interpreted as some kind of admission, the ALJ was free to reject this testimony.                               

          Having determined the cumulative trauma injury produced an impairment rating, it was incumbent upon the ALJ to determine the date upon which Platanoitis’ impairment and disability arose.  As noted by the ALJ, a gradual injury manifests, for notice and statute of limitations purposes, when a physician diagnoses a harmful change and informs the individual that work caused the condition.  However, the date upon which the impairment and disability arose may be different.  The award must begin on the date the ALJ determines that impairment or disability arose.  See Sweasy v. Wal-Mart Stores, Inc., 295 S.W.3d 840, 841 (Ky. 2009). 

          In Special Fund v. Clark, 998 S.W.2d 487, 490 (Ky. 1999), the Supreme Court discussed liability for cumulative trauma injuries when the claimant continues to work at a repetitive motion job which gave rise to the injury.  There, the Court defined "manifestation" in a cumulative trauma injury claim as follows:

In view of the foregoing, we construed the meaning of the term ‘manifestation of disability,’ as it was used in Randall Co. v. Pendland, as referring to physically and/or occupationally disabling symptoms which lead the worker to discover that a work-related injury has been sustained.

 

          In Brummitt v. Southeastern Kentucky Rehabilitation Industries, 156 S.W.3d 276, 279 (Ky. 2005) the Court elaborated:

Where an individual continues to perform the same repetitive activity after a gradual injury becomes manifest, additional incidents of workplace trauma may well cause additional harmful changes. In other words, the individual may well sustain subsequent gradual injuries.

 

Citing Special Fund v. Clark, 998 S.W.2d 487 (Ky. 1999).

 

          While Plataniotis was clearly symptomatic during a period when KEMI had coverage, there is simply no medical opinion to establish his impairment rating existed until the period KESA provided coverage.  Drs. Vaughan and Jenkinson did not believe Plataniotis sustained a permanent injury, nor did they assign a permanent impairment rating.  Dr. Grefer assigned a 5% impairment rating based upon the totality of Plataniotis’ exposure to cumulative trauma, and made no attempt to apportion the impairment rating between the periods of coverage by the two carriers.  Dr. Grefer was the first physician to diagnose a permanent harmful change, which occurred on March 26, 2014, during the time KESA provided coverage.  We find no error in the ALJ’s award of income benefits commencing on this date.   

          In a related argument, Work4Ce notes the ALJ awarded medical benefits beginning prior to the date KESA extended coverage.  It argues it cannot be liable for medical benefits prior to March 26, 2013.  Therefore it requests the ALJ on remand to address whether the evidence supports a finding of any temporary injury after that date, and the reasonableness and necessity of any medical treatment during those periods.   

          Work4Ce is correct that KESA cannot have liability for medical expenses incurred prior to the date it provided coverage.  However, its concerns are unfounded because the settlement agreement resolved any medical expenses during the period KEMI provided coverage.  All of the medical expenses identified by Plataniotis in his Notice of Filing Disputed Medical Bills were for services provided after additional cumulative trauma occurred during the period covered by KESA.

          Work4Ce next argues the ALJ erred in failing to make specific findings regarding whether medical expenses submitted for payment were compensable.  Work4Ce contends a general award of medical benefits is insufficient and requests the matter be remanded for specific findings.                                  KRS 342.020(1) provides:

In addition to all other compensation provided in this chapter, the employer shall pay for the cure and relief from the effects of an injury or occupational disease such medical, surgical and hospital treatment, including nursing, medical and surgical supplies and appliances, as may reasonably be required at the time of the injury and thereafter during disability. . .  . 

 

          Clearly, Plataniotis is entitled to an award of reasonable and necessary medical treatment.  Here, there was no medical fee dispute filed.  Rather, Plataniotis merely filed a notice indicating he was seeking reimbursement of expenses he and his insurer had paid.  Work4Ce did not challenge the reasonableness or necessity of the medical treatment directly.  Rather, Work4Ce’s position before the ALJ was that any subjective complaints Plataniotis had were related to a prior active condition or, alternatively, were related to a temporary injury during coverage by KEMI.  As set forth above, liability for medical expenses during the period of KEMI’s coverage was resolved by the settlement agreement.  Work4Ce remains liable for the reasonable and necessary treatment from the date KESA began to provide coverage.

          Finally, Work4Ce argues the ALJ violated its substantive and procedural due process rights by raising the issue of the date of manifestation of disability, contrary to the stipulations of the parties.  Work4Ce asserts its entire defense was premised upon the date of the injury being September, 2012. 

          The fundamental requirement of due process of law is the opportunity to be heard at a meaningful time and in a meaningful manner.  See U.S.C.A. Const. Amends. 5, 14; Const. § 2.  In Kentucky Alcoholic Beverage Control Board v. Jacobs, 269 S.W.2d 189 (Ky. 1954), the Court held the requirements of procedural due process included a hearing, the taking and weighing of evidence, findings of facts based upon consideration of the evidence, and the making of an order supported by substantial evidence.

          From the outset, Plataniotis alleged a cumulative trauma injury.  Throughout the litigation, Work4Ce was aware he continued to perform the tasks alleged to have caused the condition for an extended time after notice was given and continuing into the time KESA provided coverage.  The worsening of the condition eventually lead to Plataniotis being removed from the position in which he was continually being exposed to trauma, and that occurred during the time KESA was at risk.  During the pendency of the action, Work4Ce had the opportunity to develop proof concerning when Plataniotis’ disability arose.  Prior to the hearing, Work4Ce was aware of the settlement for exposure to cumulative trauma during the period covered by KEMI and Plataniotis’ intention to continue the claim for trauma during KESA’s coverage period.  Work4Ce did not seek additional time to develop proof.  Rather, it relied on arguments the condition was either pre-existing active or the result of exposure during KEMI’s coverage.  Under the circumstances, we do not believe the ALJ’s decision violated Work4Ce’s procedural due process rights.   

          Accordingly, the February 11, 2016 Opinion and Award and the July 14, 2016 Order on Petition for Reconsideration rendered by Hon. Thomas G. Polites, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.

 

 

 

 

COUNSEL FOR PETITIONER:

 

HON GREG L LITTLE

1510 NEWTON PIKE #108

LEXINGTON, KY 40511

 

COUNSEL FOR RESPONDENT:

 

HON BRANDON VOELKER

4318 ALEXANDRIA PIKE

COLD SPRING, KY 41076

 

ADMINISTRATIVE LAW JUDGE:

 

HON THOMAS G. POLITES

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601