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April 28, 2017 201501198

Commonwealth of Kentucky 

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