Workers’
Compensation Board
OPINION
ENTERED: April 13, 2017
CLAIM NO. 201301851
TRANSERVICE LOGISTICS, INC. PETITIONER
VS. APPEAL FROM HON. R.
ROLAND CASE,
ADMINISTRATIVE LAW JUDGE
JOHN MADDOX and
HON. R. ROLAND CASE,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART,
VACATING
IN PART & REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Transervice Logistics, Inc. (“Transervice”)
appeals from the Opinion, Award, and Order rendered February 18, 2016 by Hon. R.
Roland Case, Administrative Law Judge (“ALJ”). The ALJ awarded John Maddox (“Maddox”)
temporary total disability (“TTD”) benefits, permanent partial disability
(“PPD”) benefits increased by the multipliers contained in KRS 342.730(1)(c)1
& 3, and medical benefits for injuries he sustained in a February 24, 2011
work-related motor vehicle accident (“MVA”).
Transervice also appeals from the November 22, 2016 order denying its
petition for reconsideration.
On
appeal, Transervice argues the ALJ failed to render a decision on the issues of
compensability of alleged injuries to Maddox’s neck, low back and left
shoulder. Transervice also argues the
ALJ failed to address the issue of the compensability of pain management
treatment for those conditions rendered by Dr. Jason Lewis of Commonwealth Pain
Associates. Because the ALJ failed to
address these issues, which were properly preserved for determination, we
vacate the decision, in part, and remand for additional findings addressing Maddox’s
alleged injuries to his neck, low back, and left shoulder, as well as the compensability
of the contested pain management treatment for those conditions.
Maddox
filed a Form 101 on December 3, 2013 alleging injuries to the left ribs, a
chest laceration, the chest wall, back, neck, T6-T7 (complicated fracture),
lacerated spleen, right kidney lesions, nasal fracture, left hemo-pneumothorax,
splenectomy, laparotomy, seizures, headaches, head injury, depression, hernia,
insomnia, a collapsed lung, and the left shoulder due to a work-related MVA
which occurred on February 24, 2011 while working for Transervice. Maddox has not returned to work since the
accident. In the Form 104 filed with the
Form 101, Maddox indicated he was a truck driver and mechanic in the U.S. Army
from 1980 to 1986, and subsequently worked as a truck driver until the February
24, 2011 accident.
Transervice
filed a Form 111 Claim Denial on February 24, 2014, admitting Maddox sustained
several injuries in the MVA. However, it
specifically denied Maddox injured his neck, thoracic spine, low back, left
shoulder, and head, or suffers from seizures, insomnia or depression due to the
accident.
The
ALJ found Maddox violated a safety rule by failing to wear his seatbelt at the
time of the accident, and reduced the award of income benefits by 15% pursuant
to KRS 342.165(1). Maddox did not appeal
that determination. We will only address
the evidence relevant to the issues on appeal.
Maddox
testified by deposition on March 11, 2014 and April 3, 2014, and at the hearing
held February 13, 2015. Maddox was born
on March 27, 1961. He is a high school
graduate with no vocational training. At
the time of the accident, he had a commercial driver’s license, which has now
expired. Maddox began driving a truck
for Kroger in 2001. In 2008, Transervice
purchased the delivery service from Kroger.
Maddox continued to drive for Transervice, performing the same duties as
he had for Kroger, until the February 24, 2011 MVA. Maddox regularly drove his personal vehicle
from his home in Harrodsburg, Kentucky to the Transervice facility in
Louisville. He made deliveries at
various Kroger locations throughout Kentucky, Indiana, Tennessee and Illinois.
Maddox
testified he had previously sustained a head injury in a MVA in Mississippi in
1998. He later injured his right wrist
while working in Elkhart, Indiana, but this resolved long before the February
2011 accident. He also experienced low
back pain in 2005, and had occasional back spasms afterward, but was having no
ongoing problems at the time of the accident.
Maddox also injured his right shoulder in August 2010 when he fell
against a doorway. He stated he had no
problems with headaches or seizures prior to the February 2011 MVA.
On
February 24, 2011, Maddox was hauling an empty trailer from Owensboro, Kentucky
to the Transervice facility in Louisville.
He does not remember the accident itself. All he remembers is being placed onto a
gurney for transfer into an ambulance.
He testified he lost consciousness, and remembers nothing until he woke
up in the hospital several days later.
Maddox was at the University of Louisville Hospital from the date of the
accident until March 14, 2011, where he was treated for a nasal fracture, chest
laceration, rib fractures, spleen removal, and respiratory failure. He stated he was placed in a drug-induced
coma in order to recover from his injuries.
He
was transferred to Cardinal Hill Hospital in Lexington, Kentucky to complete
his rehabilitation. After his release
from Cardinal Hill, Maddox saw Dr. Terry Troutt on a couple of occasions for
treatment. He next treated with Dr.
William Lester, and had physical therapy in Danville, Kentucky. He later treated with Dr. Warren Bilkey. Maddox later had surgery for a hernia. He stated he developed pneumonia while at the
hospital in Louisville, and still has breathing difficulty. He also has left shoulder pain which he
attributes to arthritis. He stated he
developed neck pain while he was at Cardinal Hill Hospital. He additionally stated his low back pain is
worse now than before the accident, and sometimes it causes numbness in his
left leg.
Maddox
testified he began having seizures six to eight weeks after the accident, and
first sought treatment for this condition in June or July 2011. The seizures consist of broken speech, the inability
to talk, and tremors. He also has
headaches three to four times per week.
He underwent a video EEG performed at the University of Louisville
Hospital. He has no ongoing treatment
for his seizures.
Maddox
does not believe he is able to return to work due to shortness of breath,
seizures, and inability to lift the truck doors. He also stated he is depressed, and has
trouble concentrating. He lacks energy,
and tires easily. He stated he would be
unable pick up cases of product that may fall in the trailer.
In
support of his claim, Maddox filed Dr. Bilkey’s November 13, 2012 report. Dr. Bilkey diagnosed Maddox as having a
work-related MVA which resulted in a traumatic brain injury and multiple left
upper rib fractures. He stated Maddox
has left shoulder, neck, flank and ribcage pain, along with headaches and
residual cognitive dysfunction. He noted
Maddox also complained of thoracic and lumbar pain radiating down the left
lower extremity. Dr. Bilkey assessed a
35% impairment rating pursuant to American Medical Association, Guides to
the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”). He attributed the bulk of the impairment
rating to Maddox’s cognitive loss. The
impairment rating is inclusive of assessments of 3% for the headaches and 5%
for the thoracic strain.
Maddox
later filed numerous treatment notes and supplemental reports from Dr. Bilkey,
including multiple questionnaires completed between October 28, 2011 and
January 12, 2014, and office notes from August 9, 2011 through December 18,
2013. The December 18, 2013 note states
Maddox had reached maximum medical improvement (“MMI”), and is restricted to
sit down duty only, with no walking greater than two hundred feet, no overhead
work, no working at unprotected heights, no climbing ladders or stairs, and no
operating heavy equipment.
Maddox
additionally filed Dr. Bilkey’s supplemental October 28, 2014 report which
stated he had a traumatic brain injury with cognitive impairment, multiple left
upper rib fractures, residual left shoulder pain, upper and mid back pain,
headaches and seizures. Dr. Bilkey also
disagreed with Dr. Robert Granacher’s conclusions, and stated Maddox has a 40%
psychiatric impairment. In a note dated
December 22, 2014, Dr. Bilkey again disagreed with Dr. Granacher’s conclusions,
and stated his opinions remain unchanged.
Maddox
filed numerous medical records and reports in support of his claim, some of
which are illegible. These records will
not be reviewed in depth. Maddox
underwent a hernia repair by Dr. Robert E. Darnall in November 2011, and there
is no report of ongoing difficulty from that condition. Dr. Ghras Arar diagnosed Maddox with possible
seizures in 2012, and an EEG was read as abnormal. Maddox also filed records of Dr. David Jackson
of Cardinal Hill Hospital, who noted the various injuries including rib
fractures, a hemo-pneumothorax, nasal fracture, respiratory failure, left chest
laceration and respiratory failure. He
additionally noted Maddox had undergone a splenectomy. The records of Dr. Richard Dartt, Maddox’s
family physician, for treatment from January 12, 2012 through May 16, 2013
indicate he had no muscle or joint pain, nor did he report stiffness, swelling
or restriction of range of motion.
Maddox
filed records from Dr. Jason Lewis, an anesthesiologist, for treatment from
December 14, 2013 through December 21, 2014.
Dr. Lewis diagnosed thoracic/ lumbosacral neuritis, myalgia, myositis,
and a degenerative lumbar disc. Maddox
also filed numerous illegible records from Dr. William Lester for treatment
from March 2011 through July 2011.
Glenn
Decker, a physical therapist, treated Maddox on thirty-three occasions between
May 2011 and July 2011. Physical therapy
was discontinued due to Maddox’s complaints of chest pain. He noted complaints of soreness and restricted
range of motion in the trunk, arm and thoracic spine with some residual
weakness in the shoulders and upper extremities.
Dr.
Siddarth Kapoor, a neurologist, stated Maddox had post-traumatic spasmodic
dystonia and bilateral hemi-facial spasm which could be treated with
anti-epilepsy medication. Dr. Kapoor
additionally stated, “I do feel there is an element of secondary gain with
active litigation that is going on.” Dr.
Beth Dubose noted the October 1, 2012 brain MRI revealed scattered foci of high
signal in the deep periventricular white matter which may reveal ischemic
changes related to small vessel disease in the left cerebellum.
Maddox
also filed the records from the University of Louisville Hospital for treatment
from February 24, 2011 through March 16, 2011.
Those records reflect treatment for trauma Maddox suffered due to being
thrown twenty to thirty feet in the MVA, resulting in injuries to the face,
neck and head, along with fractured ribs, with no evidence of cervical fracture
or subluxation. The records note he had
wedging at T7 and maybe T6 which could be chronic. Degenerative disc disease was also noted at
L4-L5 and L5-S1. In the March 14, 2011
discharge summary, Maddox was diagnosed with nasal fractures, left chest
laceration, multiple rib fractures, splenic laceration, left hemo-pneumothorax
and respiratory failure.
Maddox
also filed records from Norton Suburban Hospital, Baptist East Hospital,
Baptistworx, Jewish Hospital Southeast, McDowell Wellness Center, Dr. Alexi
Hernandez from University Neurologists, and Dr. John C. Hignight from Ear, Nose
and Throat of Central Kentucky.
Maddox
additionally filed the report of Dr. Michael Cecil dated July 26, 2011, who
performed a neuropsychological evaluation.
Dr. Cecil opined Maddox had severe impairment of functional brain
ability due to a traumatic brain injury. He noted Maddox's intellectual functioning
was impaired. Based upon the 2nd
and 5th Editions of the AMA Guides, Dr. Maddox assessed a 35%
whole person impairment due to his severe traumatic brain injury. He recommended outpatient
neuro-rehabilitation services in the form of speech therapy and occupational
therapy. He determined Maddox had not reached MMI at the time of the evaluation. He recommended a neurological examination,
along with a brain MRI and EEG. He opined
Maddox has a severe brain functioning disability, and diagnosed dementia due to
head trauma, borderline intellectual functioning, head injury, and significant
neuropsychological impairment with a decline in quality of life due to a brain
injury.
Transervice
submitted multiple medical records and reports including those of Louisville
Metro Emergency Services, McDowell Health-Rehabilitation Services, Dr.
Hignight, Dr. Joel Horowitz, Dr. Hernandez, Dr. Dartt, the ambulance run
report, Dr. Jackson, Louisville Pulmonary Care, and University of Louisville
Neurology. Pulmonary function studies
revealed Maddox’s FVC was 89% of predicted value, and the FEV1 was 91% of
predicted value, both within the realm of normal.
Transervice
also filed the records review report prepared by Dr. Troutt on April 16,
2014. Dr. Troutt found Maddox had
reached MMI on February 7, 2012 and assessed a 0% impairment rating. He stated Maddox’s injuries would not have
been as severe if he had been wearing a seat belt. He also stated treatment with Oxycodone and
Valium is not beneficial, but Maddox may benefit from treatment with a topical
analgesic for chest wall intercostal neuritis.
Transervice
deposed Dr. Jason Wayne Smith, a surgeon at the University of Louisville
Hospital on April 22, 2014. Dr. Smith is
a trauma surgeon. He is board certified
as a general surgeon with an added qualification of critical care. Dr. Smith treated Maddox for injuries he
sustained in the February 24, 2011 MVA.
He noted there was no indication Maddox lost consciousness on the
original assessment. The primary
complaints were chest and facial pain.
Maddox did not complain of neck pain.
He was alert and oriented when he was brought into the emergency
room. A cervical CT-scan revealed no
fracture or subluxation of the cervical spine, but some degenerative changes
were present. A CT-scan of the head
revealed no acute intrachranial abnormality.
Maddox had multiple rib fractures, and a splenectomy was performed.
Subsequent
to the splenectomy, Maddox developed breathing difficulty and was placed on a
ventilator. While on the ventilator he
was placed on narcotics and sedation. He
stated Maddox was not placed in a drug induced coma. Maddox was eventually released to a
rehabilitation hospital. Dr. Smith
stated there was no evidence of traumatic brain injury, or injuries to the
cervical spine. Maddox had no symptoms
of injury to the low back, and there were no abnormalities in the upper or
lower extremities.
Transervice
also filed the report of Dr. Granacher who evaluated Maddox on November 3rd
and 4th, 2011. After the
evaluation and testing, Dr. Granacher diagnosed Maddox with mild cognitive impairment
due to treatment with Oxycodone, Flexeril and Valium, not to a traumatic brain
injury. He also stated Maddox has
altered IQ scores, probably due to the lapse of effort, and the effects of his
medications. He also determined Maddox’s
functions is probably normal except for the effects of his medication
regimen. He assessed a 0% impairment
rating, and stated there is no causal relationship between Maddox’s condition
and the MVA.
In
a supplemental note dated May 6, 2014, Dr. Granacher opined Maddox did not
sustain a traumatic brain injury in the MVA.
He additionally stated the video EEG does not support the diagnosis of
post-traumatic epilepsy. In his note
dated December 8, 2014, Dr. Granacher stated Dr. Bilkey lacks a full
understanding of the difference between non-epileptic seizures and
post-traumatic epilepsy. After reviewing
additional records, he stated he stood by his previous opinions. In another note dated December 10, 2014, Dr.
Granacher stated Maddox has no impairment rating for the alleged non-epileptic
seizures or cognitive impairment.
In
the decision rendered February 18, 2016, the ALJ determined Maddox was not
wearing his seatbelt at the time of the accident, and pursuant to KRS
342.165(1), reduced the award of income benefits by 15%. The ALJ awarded TTD benefits at the rate of
$613.67 per week (reflecting the 15% reduction) from the date of the accident
until September 13, 2012. Based upon the
35% impairment rating assessed by Drs. Bilkey and Cecil, the ALJ awarded PPD
benefits, enhanced pursuant to KRS 342.730(1)(c)2 & 3, yielding a weekly
payment of $707.60 per week for 520 weeks, reduced to $601.46 per week pursuant
to KRS 342.165(1).
Although
the ALJ determined the period of TTD benefits and PPD benefits to be awarded,
he did not address what specific injuries Maddox sustained. Regarding the payment of medical benefits,
the ALJ stated as follows:
While certain medical expenses were
presented it was agreed at the final hearing that the Administrative Law Judge
would not be asked to provide an award indicating exactly which of the unpaid
medical bills would and would not be paid. The Administrative Law Judge will
enter the customary medical benefits award.
Transervice
filed a petition for reconsideration arguing the ALJ only addressed the
work-relatedness and causation of Maddox’s thoracic and cognitive issues, but
not the alleged head injuries, seizures, headaches, neck, low back, left
shoulder, hearing loss and depression.
Transervice requested additional findings outlining the evidence he
relied upon to find a traumatic brain injury with cognitive loss. Transervice requested the alleged injuries
not addressed in the decision be dismissed.
Transervice also argued Maddox failed to meet his burden of proving he
sustained injuries to his head, seizures, headaches, neck pain, low back pain,
left shoulder pain, hearing loss and depression, and there is no evidence
supporting a determination in his favor.
Finally, Transervice argued the appropriate impairment rating should be 33%
rather than 35%.
On
November 2, 2016, the ALJ issued an order denying the petition for
reconsideration. He specifically held as
follows:
The
defendant/employer’s Petition for Reconsideration is essentially a re-argument
of the case. The evidence in this claim is voluminous to say the least and the
defendant/employer and plaintiff were ably represented by very competent
counsel who were very zealous in representing their clients. The plaintiff
while generally credible was not the best historian. In the original Opinion,
the Administrative Law Judge carefully reviewed and summarized all the evidence
of record and considered the respective briefs of counsel.
On
the Petition for Reconsideration the Administrative Law Judge has again
reviewed the evidence and the defendant/ employer’s petition and the
plaintiff’s responses to same.
As
the Administrative Law Judge noted on page 47 of the original Opinion, there is
very little consistency in the medical evidence of record. Again, as noted, the
testimony from the plaintiff is also conflicting and it was difficult to
determine and separate the degree of his symptoms from his perception of his
condition.
While
there is multiple evidence on which to base an award and find a traumatic brain
injury, the Administrative Law Judge relied on the evidence from Dr. Warren
Bilkey. Quite simply, the Administrative Law Judge was faced with voluminous
and conflicting medical evidence presented by two (2) very capable and zealous
attorneys. After due consideration the Administrative Law Judge was persuaded
by Dr. Warren Bilkey, and based his opinion on the reports from Dr. Bilkey.
Obviously, there were multiple other results that could have been found. The
evidence could have been interpreted to find a total disability or a much
smaller impairment and disability. After again reviewing the evidence, the
Administrative Law Judge remains convinced his original Opinion and Award is
accurate and the defendant/employer’s Petition for Reconsideration is therefore
OVERRULED.
On
appeal, Transervice argues the ALJ must address the compensability of all of
Maddox’s alleged injuries. It argues
although a formal benefit review conference was not held and therefore there
was no order setting forth stipulations or an agreement as to contested issues,
these were preserved in the Form 111 it filed.
It argues the issues were also preserved in its witness list and
stipulations, and a ruling on the compensability of these alleged issues is
necessary. Because the ALJ failed to
make a determination regarding the specific injuries Maddox sustained in the
February 24, 2011 MVA, we vacate the
decision in part, and remand for additional findings and determinations. Specifically, the ALJ must determine whether
Maddox sustained injuries to his neck, low back, and left shoulder, and the
treatment for those conditions.
An ALJ has wide-ranging
discretion in reaching his or her decision. Seventh Street Road Tobacco
Warehouse v. Stillwell, 550 S.W.2d 469 (Ky. 1976); Colwell v. Dresser
Instrument Div., 217 S.W.3d 213, 219 (Ky. 2006). KRS 342.285 designates the ALJ as the finder
of fact, and is granted the sole discretion in determining the quality,
character, and substance of evidence. Paramount
Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). Likewise, the ALJ, as fact-finder, may choose
whom and what to believe and, in doing so, 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 party’s total proof. Caudill v. Maloney’s
Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977); Pruitt v. Bugg Brothers,
547 S.W.2d 123 (Ky. 1977).
However,
such discretion is not without limitation.
In reaching a determination, the ALJ must
provide findings sufficient to inform the parties of the
basis for the decision to allow for meaningful review. Kentland Elkhorn Coal Corp. v. Yates,
743 S.W.2d 47 (Ky. App. 1988); Shields v. Pittsburgh and Midway Coal Mining
Co., 634 S.W.2d 440 (Ky. App. 1982); Big Sandy Community Action Program
v. Chafins, 502 S.W.2d 526 (Ky. 1973).
In this instance, the ALJ did not err
in finding Maddox sustained work-related injuries and in awarding benefits. However, the ALJ failed to set forth a
finding of what injuries Maddox sustained due to the MVA. The ALJ stated he relied upon the impairment
rating assessed by Dr. Bilkey. However,
Dr. Bilkey only addressed Maddox’s cognitive loss, headaches, and thoracic
strain, but did not address the allegations of injuries to the neck, low back
and left shoulder. Transervice
requested, via a petition for reconsideration, additional findings from the ALJ
concerning the other alleged conditions; however, this was summarily denied.
Transervice is entitled to an award
outlining the specific work-injuries Maddox sustained, and for which it is
responsible. Such a finding is necessary
for a correct determination of liability of not only current treatment, but
also for determining future liability for any change of income benefits or
additional medical treatment. While the
ALJ’s determination regarding TTD benefits, PPD benefits, medical benefits and
the safety violation will not be disturbed, we must remand this claim for a
determination regarding the allegations of injuries to the neck, back, left
shoulder, and the work-relatedness of the pain management treatment for those
conditions. In making this determination, the ALJ must
bear in mind that as the claimant, Maddox bore 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). The ALJ may make any
determination he deems appropriate, as long as it is supported by the
evidence. We direct no particular result.
Accordingly,
the February 18, 2016 Opinion, Award, and Order and the November 22, 2016 Order
on petition for reconsideration rendered by Hon. R. Roland Case, Administrative
Law Judge, are hereby AFFIRMED IN PART
and VACATED IN PART. This claim is REMANDED to
the Administrative Law Judge for additional
findings of fact and entry of an amended opinion in
conformity with the views expressed herein.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON MICHAEL P NEAL
222 WEST MAIN ST, STE 1800
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON ERIC M LAMB
PO BOX 34275
LOUISVILLE, KY 40232
ADMINISTRATIVE
LAW JUDGE:
HON R ROLAND CASE
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601