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April 13, 2017 201301851

Commonwealth of Kentucky 

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