Workers’
Compensation Board
OPINION
ENTERED: April 28, 2017
CLAIM NO. 201501198
KIRKLAND'S PETITIONER
VS. APPEAL FROM HON. DOUGLAS
W. GOTT,
ADMINISTRATIVE LAW JUDGE
KELLEY DARST and
HON. DOUGLAS W. GOTT,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Kirkland’s appeals from the Opinion, Award and Order rendered November
23, 2016 by Hon. Douglas W. Gott, Administrative Law Judge (“ALJ”) finding a
February 5, 2015 accident at home traceable to the original November 20, 2014
work injury. The ALJ awarded Kelley
Darst (“Darst”) temporary total disability (“TTD”) benefits, permanent partial
disability (“PPD”) benefits and medical benefits. Kirkland’s also appeals from the December 1,
2016 order denying its petition for reconsideration.
Darst filed a Form 101
alleging she injured her right shoulder on November 20, 2014 while unloading a
truck. Kirkland’s filed a timely Form
111 accepting the November 20, 2014 work injury as compensable but denying
liability for the subsequent accident which occurred at home.
Darst testified by
deposition on October 19, 2015, and at the hearing held October 25, 2016. Darst was born in June 1965, and earned her
Bachelor’s degree in fashion merchandising.
Darst worked as a manager for Kirkland’s at all relevant times. Darst previously injured her right shoulder
in 2005 while working for Kirkland’s, for which Dr. Kitty George performed
surgery on February 6, 2006. Darst fully
recovered from her injury and resumed her job duties at Kirkland’s without
restrictions until the November 20, 2014 work injury.
On November 20, 2014,
Darst was helping unload a truck with a co-worker. Her co-worker lost her grip of a heavy box
containing a bench and Darst grabbed it as it started to fall. Darst immediately felt a pop and burning
sensation in her right shoulder. She
eventually began treating with Dr. George, who performed surgery on January 27,
2015. Darst continued to work with
restrictions assigned by Dr. George until the January 2015 surgery.
Dr. George restricted
Darst from work for approximately six weeks, prescribed pain medication, and
placed her right upper extremity in an immobilizer. Darst testified Dr. George advised her to
sleep in an upright position to avoid inadvertently laying on her right
shoulder. Approximately one week
following her surgery on February 5, 2015, Darst testified she was sleeping in
a recliner to keep her right shoulder immobile.
Darst stood and pushed her blankets off to go to the restroom. Darst testified she mistakenly thought she
had cleared the blankets but got her feet tangled in them, causing her to trip
and fall. Darst fell forward and first
caught herself with her left hand since her right upper extremity was strapped
to her chest, but then instinctively splayed her right palm out to catch
herself. Darst emphasized she was
sleeping in the recliner to keep her right shoulder immobile and to prevent herself
from laying on it in bed, and was still taking Hydrocodone for pain. Prior to the November work injury, Darst did
not normally sleep in the recliner.
Darst testified the only reason she was sleeping in the recliner was due
to her shoulder injury and resulting surgery.
The following day,
Darst reported the fall at home to Dr. George who recommended continuing the
same course of treatment consisting of physical therapy. When her pain did not resolve, Dr. George
ordered an MRI and performed a second procedure on August 8, 2015 to repair a
tear and she placed three anchors into the shoulder. The workers’ compensation insurer denied
coverage for the second MRI and August 2015 surgery.
Darst testified she
continued to work for Kirkland’s until the surgery with a five pound lifting
restriction. Kirkland’s paid Darst TTD
benefits until June 6, 2015 even though she had not been released from Dr.
George’s care. Dr. George released her
to return to work in October 2015 with restrictions of no lifting over thirty
pounds with the right upper extremity and no repetitive overhead work. Kirkland’s was unable to accommodate the
restrictions and terminated Darst on October 7, 2015. Darst began working for JCPenney in November
2014 as a merchandising assistant, which is not as physically demanding as her
job with Kirkland’s. Darst believes she
is unable to return to the type of work she performed at Kirkland’s due to the
lifting restriction imposed by Dr. George.
Both parties filed Dr.
George’s records. Those records reflect
Darst complained of right shoulder pain following an October 2004 work
accident. After a period of conservative
treatment, Dr. George performed shoulder arthroscopy with debridement of SLAP,
subscapularis and rotator cuff, as well as soft tissue subacromial
decompression on February 6, 2006. Darst
continued to treat with Dr. George until March 2007.
Darst returned to Dr.
George on December 8, 2014. In the
medical note, Dr. George stated Darst injured her right shoulder on November
20, 2014 at work. After reviewing an
MRI, Dr. George diagnosed right shoulder tendinopathy, partial rotator cuff
tear with subluxed biceps head. Dr.
George administered an injection and assigned restrictions on Darst’s
activities. After no improvement, Dr.
George recommended surgery. The January
25, 2015 operative report reflects Dr. George performed a diagnostic
arthroscopy; biceps tenotomy; debridement of subscapularis; debridement of
supraspinatus; and subacromial decompression.
The report reflects post-operative diagnoses of right shoulder subluxed
biceps tendon, partial rotator cuff tear, and impingement with a longitudinal
split in the supscapularis. Dr. George
restricted her from work for six weeks.
On February 6, 2015,
Dr. George noted Darst, “was doing fine but fell last night. She got out of a chair; her feet were tangled
in a blanket and she fell forward on her arm.
She states it is feeling a little bit better.” Dr. George ordered physical therapy, which
did not relieve Darst’s pain. Dr. George
administered an injection, which similarly did not provide relief, and then an
MRI. On April 16, 2015, Dr. George noted
the original injury and the subsequent fall at home. The MRI showed improvement of the
supraspinatus, but revealed a new interstitial tear of the rotator cuff. Dr. George diagnosed a new interstitial tear
of the rotator cuff and felt it “was related to her initial injury in view of
the fact that without having her initial injury she would not have been in a
recliner and thus would not have a problem.”
After conservative treatment failed, Dr. George recommended surgery. The August 5, 2015 operative report reflects
Dr. George performed a diagnostic arthroscopy, debridement of subscapularis,
and rotator cuff repair. It reflects
post-operative diagnoses of partial subscapularis tear and high-grade partial
rotator cuff tear. In February 2016, Dr.
George permanently restricted Darst from lifting over fifteen pounds.
In an October 22, 2015
letter, Dr. George noted the 2005 right shoulder injury necessitating surgery,
the November 2014 right shoulder injury requiring debridement in 2015, and the
February 2015 fall at home reinjuring her shoulder. Dr. George opined, “the reinjury was clearly
related to the 2014 work injury as it would not have been necessary for her to
sleep in a recliner had she not had the work injury resulting in subsequent
weakness and susceptibility to injury.”
Dr. George anticipated Darst would attain maximum medical improvement
(“MMI”) six months after surgery.
Similarly, in an August
18, 2016 letter, Dr. George opined, “the February 2015 re-injury is related to
the 2014 work-related accident. If Ms.
Darst had not had the 2014 injury and surgery, she would not have needed to be
in a recliner. I absolutely associate
this injury in 2015 with her prior injury and surgery 2014.” Dr. George also agreed with the impairment
rating assessed by Dr. Mark Barrett.
Darst filed Dr. Barrett’s
August 1, 2016 report. He noted the
November 20, 2014 injury requiring surgery.
Following the surgery, Darst was prescribed pain medication and
instructed to sleep in a chair. He noted
the February 5, 2015 fall, which he opined, “was a result of a combination of
several factors, but most notably begin forced to sleep in a chair with her arm
(appropriately) immobilized while also on pain medication which obviously would
affect coordination and balance.”
Dr. Barrett noted a
subsequent MRI demonstrated a new interstitial tear of the rotator cuff,
consistent with a traumatic injury, for which Darst eventually underwent a
second procedure. After performing an
examination, Dr. Barrett diagnosed, “persistent right shoulder pain status post
injury to rotator cuff and biceps tendon on November 20, 2014 and subsequent
reinjury and new rotator cuff tear resulting in an August 5, 2015 operation for
repair.” He opined the November 20, 2014
injury caused the need for her January 27, 2015 surgical repair. He stated Dr. George appropriately prescribed
pain medication and advised Darst to sleep in the recliner, which resulted in
her falling, which in turn led to a second right shoulder surgery. The fall at home caused a partial tear to the
subscapularis, and more importantly, Dr. George visualized a high-grade tear of
the supraspinatus during the August 2015 arthroscopy, which had to be released
and then reattached to the humerus. The
tear seen on MRI was interstitial and did not require repair.
Dr. Barrett assessed a
7% impairment rating pursuant to the 5th Edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment, attributing
1% to the 2005 injury and 6% to her current condition. He agreed with Dr. George’s lifting
restriction. Dr. Barrett also opined the
supraspinatus tear repaired in August 2015 was likely present but missed in the
April 2015 MRI.
Kirkland’s filed the
June 9, 2015 and March 8, 2016 reports of Dr. Frank Bonnarens, who also
testified by deposition on March 28, 2016.
In the March 8, 2016 report, Dr. Bonnarens noted the November 2014 work
injury but not the subsequent injury at home.
Dr. Bonnarens diagnosed rotator cuff tendonitis for which Darst
underwent surgery in addition to releasing the long head of the biceps. Dr. Bonnarens opined the new interstitial
tear demonstrated in the April 9, 2015 MRI is unrelated to the November 20,
2014 work injury, but is consistent with degenerative changes. Dr. Bonnarens recommended a diagnostic
injection of the AC joint. He found the
recommended second right shoulder arthroscopy was due to the November 2014 work
injury. Dr. Bonnarens stated Darst had
attained MMI from the November 2014 injury and assessed a 2% impairment
rating. In an addendum, Dr. Bonnarens stated
he had reviewed the December 21, 2014 MRI and concluded the subluxation of the
long head of the biceps was the injury she sustained for which a release was performed. The other degenerative changes present
including the AC joint arthrosis were pre-existing and unrelated to the November
2014 injury.
In the March 8, 2016
report, Dr. Bonnarens noted the fall at home in February 2015. He opined Darst sustained rotator cuff
tendinitis because of the November 20, 2014 work accident and attained MMI on
August 26, 2015. Dr. Bonnarens stated
Darst’s injury now warrants no impairment rating and he would not recommend
permanent restrictions. Dr. Bonnarens
opined the February 5, 2015 fall at home caused a rotator cuff tear. Dr. Bonnarens opined the January 27, 2015 did
not increase the risk of Darst getting her feet tangled in a blanket and
falling on February 5, 2015. Dr.
Bonnarens did not recommend additional treatment for the November 2014 work
injury.
Dr. Bonnarens’
testimony is consistent with his reports.
He opined Darst subluxed her biceps tendon due to the November 2014 work
injury. Dr. Bonnarens stated there is no
relationship between the work injury and the subsequent fall at home, noting
Darst could have tripped and fallen over anything. Dr. Bonnarens stated the new interstitial
tear shown in the April 2014 MRI is unrelated to her November 2014 subluxation
of the long head of the biceps. Dr. Bonnarens
noted Dr. George did not repair the interstitial tear as shown on the April
2015 MRI, but repaired the supraspinatus tendon. Dr. Bonnarens stated the tear of the
supraspinatus tendon was not present in the second April 2015 MRI or during her
two surgeries in January 2015 or 2006.
Dr. Bonnarens opined the tear occurred subsequent to the April 2015
MRI. Dr. Bonnarens reiterated getting
ones feet caught in a blanket is not work-related.
After summarizing the
evidence, the ALJ made the following analysis regarding the fall at home and
subsequent surgery:
The
primary issue in this case is whether Darst has proven that her fall at home
and resulting treatment stem from the original work injury and are thus
compensable. KRS 342.0011(1) defines “injury” as “any work-related traumatic
event…arising out of and in the course of employment which is the proximate
cause producing a harmful change in the human organism evidenced by objective
medical findings.” Courts have held that the phrase “in the course of” has
reference to the time, place and circumstances of an injury, while “arising out
of” the employment relates to the cause or source of the traumatic event. Stapleton
v. Fork Junction Coal Co., 247
S.W.2d 372, 373 (Ky. 1952).
6. The
ALJ finds the February 5, 2015 incident where Darst tripped at home is traceable
to the original work injury, and therefore the resulting surgery and impairment
are work related. The ALJ relies on Dr. George and Dr. Barnett in making this
finding; and, further, on the proposition that but for the injury Darst would
not have been sleeping in the recliner and gotten tangled in the blankets as a
result. The ALJ does not find, as argued by Darst, that her case fits squarely
under the direct and natural consequence rule of Addington Resources, Inc.
v. Perkins, 947 S.W.2d 421 (Ky. App. 1977), but it is close.
The Defendant cites to no medical evidence,
case law, or statute in arguing against compensability. However, it does
reasonably raise the question of where the line should be drawn when
considering the compensability of post-injury accidents at home, and, of
course, argues the line should be drawn short of favoring Darst’s case. These
cases constantly require lines to be drawn in the gray areas of the facts
presented, and in this instance the ALJ finds the circumstances favor work
relatedness. The Defendant argues Darst “just as easily could have tripped and
fallen over a blanket had she instead been sleeping normally in bed.” (Brief,
p. 5) Such is true, and if that was the case here the finding would likely be
different because an injury sustained while getting out of one’s regular bed to
use the bathroom does not contemplate work relatedness. But in Darst’s case,
her fall occurred when nature called from the recliner to which she had been
relegated because of post-surgical pain, and that fact favors work
relatedness.
The ALJ adopted the 6%
impairment rating assessed by Drs. George and Barrett, and found the three
multiplier applicable. The ALJ awarded
Darst TTD benefits, PPD benefits, and medical benefits for the right shoulder
injury.
Darst filed a petition
for reconsideration requesting the ALJ address the duration of TTD benefits
since this issue was identified at the hearing.
Kirkland’s also filed a petition for reconsideration arguing the ALJ
erred in finding the fall at home related to the original November 20, 2014
work injury. It argued the fact that Dr.
George recommended Darst sleep in the recliner is immaterial, since there is no
evidence the underlying right shoulder injury caused her to later fall at home
or increased the probability of such a fall occurring. It argued the fall at home was a separate and
distinct incident unrelated to the November 2014 work injury.
The ALJ sustained
Darst’s petition and awarded additional TTD benefits. The ALJ overruled Kirkland’s petition stating
Darst was sleeping in a recliner because of the work injury, and fell as a
result. He also noted while it is
customary to throw covers to the side while getting out of one’s own bed and
not to the ground, covers will fall to one’s feet when arising from an
unfamiliar position of sleeping propped up in a recliner. The ALJ stated Darst was placed in this
position by the work injury, making her fall and resulting surgery work-related.
On appeal, Kirkland’s
argues there is no compelling evidence demonstrating the original work accident
and resulting surgery caused her to trip at home or increased the probability
of such an accident. Again, Kirkland
asserts the fact Darst was sleeping in a recliner upon the advice of Dr. George
is immaterial since the actual mechanism of injury was a trip and fall over
covers, which had fallen to the floor.
Kirkland’s argues this is a commonplace hazard with no causal nexus to Darst’s
work injury, noting she could have just as easily tripped and fall over a
blanket from her bed where she normally slept.
While Dr. George may have recommended sleeping in the recliner,
Kirkland’s asserts there is no evidence demonstrating her original underlying
injury either directly caused the subsequent fall at home or naturally
increased the probability of such a fall occurring. Kirkland’s asserts there is always the
possibility of awaking at night to use the restroom and to trip and fall regardless
of whether one is sleeping in a bed, couch or recliner. Kirkland asserts the mechanism of injury was
unrelated to the underlying right shoulder condition.
As the
claimant in a workers’ compensation proceeding, Darst had the burden of proving
each of the essential elements of her cause of action, including
causation/work-relatedness. See KRS 342.0011(1); Snawder v. Stice,
576 S.W.2d 276 (Ky. App. 1979). Since
Darst was successful in her burden, the question on appeal is whether there was
substantial evidence of record to support the ALJ’s decision. Wolf Creek Collieries v. Crum, 673
S.W.2d 735 (Ky. App. 1984). “Substantial evidence” is defined as evidence of relevant
consequence having the fitness to induce conviction in the minds of reasonable
persons. Smyzer v. B. F. Goodrich
Chemical Co., 474 S.W.2d 367 (Ky. 1971).
In rendering a decision, KRS 342.285
grants an ALJ as fact-finder the sole discretion to determine the quality,
character, and substance of evidence. Square D Co. v. Tipton, 862 S.W.2d 308
(Ky. 1993). An ALJ may draw reasonable inferences from the
evidence, reject any testimony, and believe or disbelieve various parts of the
evidence, regardless of whether it comes from the same witness or the same
adversary party’s total proof. Jackson
v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores,
560 S.W.2d 15 (Ky. 1977). In that
regard, an ALJ is vested with broad authority to decide questions involving
causation. Dravo
Lime Co. v. Eakins, 156 S.W.3d 283 (Ky. 2003). Although a party may note evidence that would
have supported a different outcome than that reached by an ALJ, such proof is
not an adequate basis to reverse on appeal. McCloud
v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). Rather, it
must be shown there was no evidence of substantial probative value to support
the decision. Special Fund v. Francis,
708 S.W.2d 641 (Ky. 1986).
The function of the Board in reviewing an
ALJ’s decision is limited to a determination of whether the findings made are
so unreasonable under the evidence that they must be reversed as a matter of
law. Ira A. Watson Department Store
v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
The Board, as an appellate tribunal, may not usurp the ALJ's role as
fact-finder by superimposing its own appraisals as to weight and credibility or
by noting other conclusions or reasonable inferences that otherwise could have been drawn from the
evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).
KRS 342.0011(1) defines
injury as, “any work-related traumatic event or series of traumatic events,
including cumulative trauma, arising out of and in the course of employment
which is the proximate cause producing a harmful change in the human organism
evidenced by objective medical findings.”
“[T]he language ‘in the course of. . . employment’ refers to the time,
place, and circumstances of the accident, and the words ‘arising out of . . .
employment’ relate to the cause or source of the accident.” Masonic Widows and Orphans Home v. Lewis,
330 S.W.2d 103, 104 (Ky. 1959). There
the Court explained, “The cause must have had its origin in a risk connected
with the employment and the injury have flowed from that source as a rational
consequence.” Id. at 104. Black’s
Law Dictionary, 10th
Edition, defines proximate cause as, “a cause
that directly produces an event and without which the event would not have
occurred.”
Consistent with the doctrine of
proximate cause, our courts have long recognized the general rule that workers’
compensation benefits must be allowed for all the injurious consequences
flowing from a work-related injury. Beech Creek
Coal Co. v. Cox, 314 Ky. 743, 744, 237 S.W.2d 56 (Ky.
1951). For purposes of the Act,
“injury” has been held to include all direct and natural
consequences of the original injury that are not attributable to an
independent, intervening cause. In Addington Resources, Inc. v.
Perkins, 947 S.W.2d 421, 423 (Ky. App. 1997),
the court explained the “direct and natural consequence rule” as
follows:
The
applicable rule has been referred to as the direct and natural consequence rule and is explained in Larson,
Workmen’s Compensation Law, § 13.11 (1996), as follows:
The
basic rule is that a subsequent injury, whether an aggravation of the original
injury or a new and distinct injury is compensable if it is the direct
and natural result of a compensable primary injury. See also Dutton v. Industrial Comm’n of
Arizona, 140 Ariz. 448, 682 P.2d 453 (Ct. App. 1984); and Beech Creek
Coal Co. v. Cox, 314 Ky. 743, 237 S.W.2d 56 (1951).
Here,
substantial evidence supports the ALJ’s determination the subsequent fall at
home was work-related. In an October 22,
2015 letter, Darst’s treating physician, Dr. George, opined “the reinjury was clearly related to the 2014 work injury as it would
not have been necessary for her to sleep in a recliner had she not had the work
injury resulting in subsequent weakness and susceptibility to injury.” Similarly, in an August 18, 2016 letter, Dr.
George opined, “the February 2015 re-injury is related to the 2014 work-related
accident. If Ms. Darst had not had the
2014 injury and surgery, she would not have needed to be in a recliner. I absolutely associate this injury in 2015
with her prior injury and surgery 2014.”
In his August 1, 2016
report, Dr. Barrett noted the fall at home, “was a result of a combination of
several factors, but most notably begin forced to sleep in a chair with her arm
(appropriately) immobilized while also on pain medication which obviously would
affect coordination and balance.” He
reiterated the fall at home and subsequent surgery happened because Darst was
appropriately in a position for post-operative recovery, which allowed her to
fall as she got out of the chair. Dr.
Barrett noted if it had not been for her recovery from the first surgery, “the
subsequent fall and need for the second surgery would have never happened.”
The opinions of Drs.
George and Barrett, as well as Darst’s testimony, constitute substantial
evidence supporting the ALJ’s determination the subsequent fall and resulting
surgery are work-related. Where the
ALJ’s decision is supported by substantial evidence in the record, we may not
reverse. Special Fund v. Francis,
supra.
Accordingly, the
November 23, 2016 Opinion, Award and Order and the December 1, 2016 Order on
petition for reconsideration rendered by Hon. Douglas W. Gott, Administrative
Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON PATRICK J MURPHY, II
3151 BEAUMONT CENTRE CIRCLE, STE 200
LEXINGTON, KY 40513
COUNSEL
FOR RESPONDENT:
HON ERIC T WEINER
1387 SOUTH FOURTH STREET
LOUISVILLE, KY 40208
ADMINISTRATIVE
LAW JUDGE:
HON DOUGLAS W GOTT
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601