Commonwealth
of
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