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