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June 23, 2017 201493654

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  June 23, 2017

 

 

CLAIM NO. 201493654

 

 

BLUEGRASS OAKWOOD INC.                         PETITIONER

 

 

 

VS.          APPEAL FROM HON. GRANT S. ROARK,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

SHERRY ALLEN and

HON. GRANT S. ROARK,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING IN PART,

VACATING IN PART & REMANDING

 

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

ALVEY, Chairman.  Bluegrass Oakwood Inc. (“Bluegrass”) seeks review of the Opinion, Award and Order rendered November 21, 2016 by Hon. Grant S. Roark, Administrative Law Judge (“ALJ”).  The ALJ determined Sherry Allen (“Allen”) sustained a low back injury due to the February 6, 2014 work accident, and awarded temporary total disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits, and medical benefits.  The claim was originally assigned to Hon. Udell Levy, Administrative Law Judge, (“ALJ Levy”), but was reassigned to the ALJ in an order dated June 2, 2016.  Bluegrass also seeks review of the January 25, 2017 order overruling its petition for reconsideration.

          On appeal, Bluegrass argues the ALJ failed to address whether it is responsible for payment of disputed medical treatment and testing, specifically the May 25, 2014 brain MRI at Lake Cumberland Regional Hospital; the May 25, 2014 emergency room visit to Lake Cumberland Regional Hospital; the July 18, 2014 lumbar MRI ordered by Dr. Magdy El-Kalliny; the October 6, 2014 CT scan of the head; and the October 10, 2014 MRI of the brain.  Bluegrass also argues the ALJ failed to determine whether Allen is entitled to future medical benefits for her alleged head and neck injuries.  Because the ALJ failed to address the alleged neck and head injuries, we vacate his decision in part and remand for additional findings addressing those alleged injuries, including entitlement to past and future medical expenses.   

          Allen filed a Form 101 alleging injuries to her low back, neck and head when she slipped and fell on ice while working as a licensed practical nurse (“LPN”) for Bluegrass on February 6, 2014.  Allen disclosed she had previously injured her neck in a work-related injury in October 1998, which was settled in a lump sum. 

          Allen testified by deposition on January 29, 2015, and at the hearing held September 20, 2016.  Allen began working for Bluegrass as an LPN in September 2002.  Allen testified she slipped and fell on ice on February 6, 2014 in the course and scope of her employment.  She fell on her buttocks and struck her head on the concrete.  Although she felt herself blacking out, Allen forced herself to walk to a nearby building and called for help.  Allen stated she experienced a headache, pain in her shoulders, hips, bottom, feet and low back.  Allen drove to the emergency room at Lake Cumberland Regional Hospital where she was treated and released.  Allen sought treatment with Dr. Edward Grimball, her family physician.  Allen also treated with Dr. Amr El-Naggar, who ultimately performed low back surgery on October 17, 2014, which was denied by the workers’ compensation insurer.

           Allen stated that prior to the surgery, she had severe headaches, tremors in her hands, back pain and difficulty with bowel movements.  Although the surgery partially relieved her symptoms, she continues to have low back pain radiating into her left hip and leg, as well as numbness and tingling.  Allen stated she no longer has headaches or hand tremors.  Allen provided little testimony regarding her cervical complaints.

          Subsequent to the February 6, 2014 work injury, Allen returned to her job on January 5, 2015 earning the same wages she had earned prior to her work accident.  Allen stated Dr. El-Naggar had released her to return to work without restrictions.  Four to six weeks later, Bluegrass placed her in a secretarial position earning the same or greater wages.  Allen continued to work as a secretary until June 1, 2016, when Bluegrass implemented a general layoff.  At the time of the hearing, Allen was collecting unemployment benefits.   

          Allen stated Dr. El-Naggar permanently restricted her from lifting over twenty-five pounds and advised her to alternate between sitting, standing and walking.  In light of her restrictions, Allen does not believe she can return to her former position as an LPN. 

          Prior to the February 6, 2014 work accident, Allen received treatment for migraines, neuropathic symptoms related to Type II diabetes, anxiety, depression, and restless leg syndrome.  Allen stated she sustained a work-related cervical injury on October 31, 1998 while working as a CNA at a hospital.  Dr. El-Naggar performed a cervical fusion and, after a period of recovery, Allen was able to resume her job duties with no limitations.  Allen ultimately settled the cervical claim in April 2001.  Allen sustained a whiplash injury to her neck in a 2002 motor vehicle accident, and received conservative treatment for low back pain in 2005 and 2012.  Prior to the work injury, Allen stated she did not have any pain in her neck, head or low back, and was able to perform her job as an LPN.

          Bluegrass filed medical records spanning from 1998 through 2011 reflecting Allen received treatment prior to the work accident for thoracolumbar strain, headaches, neck pain, mid-back pain, fibromyalgia, Type II diabetes, anxiety, low back pain, numbness in her toes, fatigue, and restless leg syndrome.  Those records also reflect Dr. El-Naggar performed a cervical fusion at C5-6 on January 5, 1999.      

          On February 6, 2014, Allen sought treatment at the emergency department with Lake Cumberland Regional Hospital after she slipped and fell on ice, landing on her buttocks and hitting her head.  Allen reported pain in her right shoulder, wrist, hip, and the right side of her neck.  Allen was prescribed medication, taken off work for two days, and instructed to follow up with Dr. Grimball. 

          Allen treated with Dr. Grimball in February and March 2014.  Dr. Grimball also testified by deposition on January 11, 2016.  On February 11, 2014, Allen reported feet numbness, altered bowel and bladder function, difficulty ambulating, and mid back pain.  Dr. Grimball assessed musculoskeletal pain, low back pain/lumbago and cervicalgia/ neck pain, prescribed medication and ordered physical therapy.  Dr. Grimball also ordered cervical, thoracic and lumbar spine MRIs.  On the following visit on March 6, 2014, Dr. Grimball noted complaints of pain in Allen’s bilateral hips, greater trochanter, sacrum and coccyx with radiculopathy down her legs.  He ordered MRIs of the bilateral hips and lumbar spine.  On March 13, 2014, Allen additionally complained of headaches, shortness of breath and severe tremors, as well as pain in her neck, shoulders, low back, hips and legs.  Dr. Grimball referred Allen to neurology and rheumatology, and ordered a head MRI, all of which were denied.  On March 25, 2014, Dr. Grimball noted a March 19, 2014 lumbar MRI demonstrated multilevel desiccation changes, several disc bulges and canal stenosis.  He diagnosed myalgia, muscle weakness, multiple contusions and headaches, and referred Allen to Drs. El-Naggar and El-Kalliny. 

          Dr. Grimball testified Allen’s degenerative low back changes were dormant prior to the work-related fall.  As to Allen’s cervical condition, Dr. Grimball was unable to definitively answer whether her prior condition was dormant at the time of the work accident.  Similarly, Dr. Grimball could not definitively state what caused Allen’s headaches. 

          Allen began treating at the Lake Cumberland Neurosurgical Clinic in April 2014 with Dr. El-Naggar, Sarah Todd, a physician’s assistant, and Jocelyn Saleh, APRN.  Allen consistently complained of low back pain radiating into her hips and legs, as well as headaches and neck pain following her work accident.  Allen’s diagnoses included sacroiliitis, lumbar degenerative disc disease, low back pain, HNP lumbar, lumbar radiculopathy, greater trochanteric bursitis, headache, concussion, and neck pain.  Treatment recommendations from April 2014 through October 2014 included medication, injections, head CT, cervical MRI, repeat lumbar MRI, and brain MRI.  Ultimately, Dr. El-Naggar performed a left L5-S1 hemilaminectomy with partial facetectomy on October 17, 2014.  Dr. El-Naggar released Allen to return to work with a fifty-pound lifting restriction on December 15, 2014 for six months.  Allen returned seven months later on July 6, 2015 complaining of worsening symptoms.  Jocelyn Saleh, APRN, recommended injections, medication and a lumbar MRI.  On October 12, 2015, Dr. El-Naggar referred Allen to Dr. Harold Rutledge for a morphine pump trial.  On August 22, 2016, Dr. El-Naggar permanently restricted Allen from lifting, pulling and pushing over twenty pounds, and to alternate between sitting, standing and walking every half hour.  Dr. El-Naggar opined the treatment he recommended is reasonable, necessary and related to the February 6, 2014 accident.     

          Bluegrass filed the April 22, 2015 report of Dr. Russell Travis, along with his supplemental reports dated May 19, 2015, January 16, 2016 and January 29, 2016.  After performing an examination and reviewing the records, Dr. Travis diagnosed Allen with somatization, depression, anxiety and post-traumatic stress disorder.  At most, he opined Allen sustained cervical and lumbar strains due to the work-related fall from which she would have attained maximum medical improvement (“MMI”) within four to six weeks with appropriate physical therapy.  Dr. Travis opined Allen had pre-existing low back pain, anxiety and depression, headaches, neck pain and a cervical fusion. 

          Dr. Travis opined the October 17, 2014 lumbar surgery was due to pre-existing, symptomatic degenerative changes at L5-S1 and not the work injury.  Dr. Travis assessed a 10% impairment rating, attributing 5% to the work injury.  Dr. Travis opined Allen reached MMI from the surgery on December 15, 2014, found permanent restrictions unnecessary, and concluded Allen could return to work as a LPN.

          Dr. Travis assessed a 25% impairment rating for the prior 1999 cervical fusion.  Dr. Travis opined Allen’s headaches and neck pain were pre-existing, and she did not suffer any significant head injury due to the work injury.  Dr. Travis opined Allen does not require further medical treatment other than psychiatric help to treat her post-traumatic stress disorder, severe somatization, depression and anxiety unrelated to the work injury.  In the subsequent amendments, Dr. Travis opined the recommended morphine pump and injections were not reasonable and necessary, and additional records he reviewed did not alter his prior opinions. 

          During the course of the litigation, Bluegrass filed a medical fee dispute challenging five recommended medical treatments:  1) the cervical and thoracic MRIs recommended by Dr. Grimball; 2) the bilateral hips MRI recommended by Dr. Grimball; 3) the MRI of the brain recommended by Dr. Grimball; 4) Dr. Grimball’s referral to Dr. El-Kalliny and all subsequent treatment rendered by her; and 5) the May 25, 2014 emergency room visit at Lake Cumberland Regional Hospital.  Bluegrass supported the challenges with a utilization review report by Dr. Bart Goldman, and four utilization review reports by Dr. Shelley Freimark.  ALJ Levy granted Bluegrass’ motion to join Lake Cumberland Regional Hospital, Dr. El-Kalliny, and Dr. Grimball as parties on February 18, 2015. 

          Subsequently, Bluegrass filed four additional utilization reviews by Dr. Freimark in July 2015, August 2015, October 2015, and November 2015.  Dr. Freimark opined left greater trochanteric bursal injections, a left sacroiliac joint injection, bilateral facet injections, and a morphine pump trial recommended by Dr. El-Naggar are neither reasonable, necessary, nor related to the work injury. 

          A benefit review conference (“BRC”) was held on September 20, 2016.  The BRC order identifies the contested issues as benefits per KRS 342.730, work-relatedness/ causation, unpaid or contested medical expenses, injury as defined by the ACT, exclusion for pre-existing disability/ impairment and TTD.  The parties also identified, “MFD – pain management/pain pump; apportionment” as a contested issue. 

In the November 21, 2016 opinion, the ALJ was most persuaded by the opinions of Drs. El-Naggar and Grimball with respect to the cause of Allen’s low back symptoms.  The ALJ determined the February 6, 2014 injury aroused previously dormant and non-disabling low back degenerative changes into symptomatic reality, and her current lumbar condition and need for surgery are work-related and compensable.  The ALJ adopted the 10% impairment rating assessed by Dr. Travis, but attributed the entirety of the rating to the work injury.  The ALJ found Allen retains the physical capacity to perform the job she held at the time of her injury.  The ALJ determined Allen is entitled to the two multiplier contained in KRS 730(1)(c)2 beginning June 2, 2016.  The ALJ found Allen reached MMI on December 15, 2014.  The ALJ determined the medical dispute challenging the pain pump and pain management in favor of Bluegrass based upon Dr. Travis’ opinions.  The ALJ awarded Allen TTD benefits, PPD benefits and medical benefits for the cure or relief of the effects of her injury.  The ALJ did not address Allen’s alleged neck or head injuries.

Bluegrass filed a petition for reconsideration requesting additional findings of fact regarding medical expenses incurred during the pendency of the claim, specifically: 1) the May 25, 2014 brain MRI performed at Lake Cumberland Regional Hospital; 2) the May 25, 2014 emergency room visit at Lake Cumberland Regional Hospital; 3) the second lumbar MRI ordered by Dr. El-Kalliny and performed July 17, 2014; and 4) the October 6, 2014 CT of the head and October 10, 2014 MRI of the brain ordered by Dr. El-Naggar.  Bluegrass also requested additional findings of fact addressing its obligation for future treatment of Allen’s alleged neck and head injuries.  

          The ALJ stated as follows in the January 25, 2017 order overruling Bluegrass’ petition for reconsideration:

In its petition, the Defendant requests additional findings relative to the conclusion that Plaintiff’s head injury is compensable.  Having reviewed the Defendant’s petition, the [ALJ] is not persuaded it set forth any patent errors or that any further findings are necessary to support the conclusions rendered.

 

 

          On appeal, Bluegrass argues the ALJ failed to make specific findings addressing the compensability, and its obligation to pay for the above listed contested past medical treatment.  Bluegrass cites to the opinions of Dr. Freimark attached to its medical fee dispute and Dr. Travis in support of non-compensability.  Bluegrass also argues the ALJ failed to make any findings regarding Allen’s entitlement to future medical benefits for her alleged head and neck injuries.  Bluegrass points out Allen produced no evidence of a permanent impairment for either condition, and Dr. Travis opined no additional treatment is necessary. 

          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 Allen sustained a work-related low back injury for which he awarded benefits.  However, he failed to set forth findings of whether Allen sustained neck or head injuries, temporary or permanent, due to the February 6, 2014 work accident.  The contested issues included benefits per KRS 342.730, unpaid or contested medical expenses, and injury as defined by the Act. 

          The ALJ stated he relied upon the opinions of Drs. Grimball and El-Naggar in determining Allen sustained a work-related low back injury, and the opinion of Dr. Travis in assessing an impairment rating.  However, Allen also received treatment from Drs. Grimball and El-Naggar for her alleged neck and head injuries.  Dr. Travis addressed Allen’s alleged neck and head injuries in his report and subsequent amendments, primarily addressing causation/work-relatedness.  Dr. El-Naggar opined the treatment he recommended is reasonable, necessary and related to the February 6, 2014 accident.  Despite the evidence of record, the ALJ failed to address the allegations of injuries to the neck and head.  Bluegrass filed a petition for reconsideration requesting additional findings of fact addressing its obligation to pay for specific past and future medical expenses related to the neck and head, but this was summarily denied.        

          Bluegrass is entitled to an award outlining the specific work injuries Allen sustained, and for which it is responsible.  Such a finding is necessary for a determination of its liability for not only current treatment, but also its liability for future income or medical benefits.  While the ALJ’s determination regarding TTD benefits, PPD benefits, and medical benefits will not be disturbed, we must remand this claim for a determination regarding the alleged neck and head injuries, including Allen’s entitlement to past and future medical benefits for these alleged injuries.  In making this determination, the ALJ must bear in mind that as the claimant, Allen bore the burden of proving each of the essential elements of her cause of action.  See KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  We additionally note in FEI Installation, Inc. v. Williams, 214 S.W.3d 313 (Ky. 2007), the Kentucky Supreme Court instructed KRS 342.020(1) does not require proof of an impairment rating to obtain future medical benefits, and the absence of a functional impairment rating does not necessarily preclude such an award.  Therefore, the absence of an impairment rating does not preclude the ALJ, on remand, from awarding future medical benefits.  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 November 21, 2016 Opinion, Award, and Order and the January 25, 2017 Order on petition for reconsideration rendered by Hon. Grant S. Roark, 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 ROBERT F FERRERI

614 WEST MAIN ST, STE 5500

LOUISVILLE, KY 40202

 

COUNSEL FOR RESPONDENT:

 

HON MARK D KNIGHT

PO BOX 49

SOMERSET, KY 42502

 

ADMINISTRATIVE LAW JUDGE:

 

HON GRANT S ROARK

657 CHAMBERLIN AVE

FRANKFORT, KY 40601