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Workers’
Compensation Board
OPINION ENTERED: November 17, 2017
CLAIM NO. 201682331
PHOENIX PROCESS EQUIPMENT PETITIONER
VS.
APPEAL
FROM HON. R. ROLAND CASE,
ADMINISTRATIVE LAW JUDGE
RONALD LEE JACKSON
AND HON. R. ROLAND CASE,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Phoenix
Process Equipment (“Phoenix”) appeals from
the June 9, 2017 Opinion, Award and Order and two July 25, 2017 Orders rendered
by Hon. R. Roland Case, Administrative Law Judge (“ALJ”), awarding Ronald
Jackson (“Jackson”) medical benefits for treatment of blood clots. On appeal, Phoenix argues the ALJ erred in
finding the treatment compensable. We
affirm.
Jackson worked for
Phoenix as a service technician, which required him to regularly travel to
international destinations such as Australia, India, and South Africa. In June of 2014, while on a flight to
Australia, he began having leg pain. When he returned home, he sought treatment at Primary Care Medical Center, where he was diagnosed
with blood clots in his left leg and abdomen.
The medical records from Primary Care Medical Center note a family
history of deep vein thrombosis (“DVT”) and a personal history of blood
clots. A June 24, 2014 CT scan of the
chest revealed multiple pulmonary thromboemboli involving the right lower lobe
and minimal atelectasis or pulmonary parenchymal scarring within the posterior
aspect of the right lower lobe.
Jackson next treated with Dr. Christina Breit from July 3,
2014 through July 25, 2016. On July 3,
2014, after reviewing CT scans, Dr. Breit diagnosed pulmonary emboli and
DVT. Following blood work, she also
diagnosed a protein S deficiency.
However, Dr. Breit’s office notes indicate she could not be certain
about the cause of the protein S deficiency:
[Discussed with] patient that since blood
was drawn while already on anticoagulant for 2 days may not be correct. Will need to stay on xalerto for next 6
months then will have evaluation by hematology to determine if he needs to be
on the medication for life or can come off since propagated by long overseas
flight. If med is stopped will advise to have labs redrawn to see if correct
diagnosis of Protein S.
In a November 25, 2014 note, Dr. Breit indicated Jackson
“has no known risk factors for DVT/PE.”
She recommended he continue blood thinners “until no longer flying
internationally for business.” In a
letter dated July 25, 2016, Dr. Breit noted Jackson had been treated for DVT
and pulmonary emobli, and was found to have a protein S deficiency. She explained, “This diagnosis with his international
travel is believed to be the cause of his blood clots. If he was no longer traveling he would not
require continued DVT prophylaxis.”
Jackson testified he continues to travel internationally
for Phoenix. He intends to continue
working another ten years.
It should be noted Jackson did not
seek income benefits, nor did he claim he suffers a permanent impairment
rating. Therefore, the ALJ considered
only whether Jackson is entitled to medical benefits. The ALJ’s findings are as follows:
In
this case, it is uncontroverted that the plaintiff’s job required him to be on
an airplane for long periods of time. This required him to be in a seated
position for long periods of time. Clearly, the work activity of flying long
distances on an airplane can qualify as a compensable injury if it produces a
harmful change in the human organism. See Ryan’s Family Stackhouse vs.
Thomasson, 82 SW3d 889 (Ky 2002). Hence, the issue becomes whether the
plaintiff suffered a harmful change to the human organism as confirmed by
objective medical findings. In this case, a CT scan confirmed blood clots in
the plaintiff’s lungs. Medical records indicate he also had blood clots in his
legs. Certainly, blood clots in the lung and body is a harmful change. Not only
are blood clots a harmful change they can sometimes result in death. Hence, the
record clearly establishes the plaintiff suffered a harmful change in the human
organism. The issue [then] becomes whether or not this was work related.
The evidence relative to causation
consists of the opinion report of Dr. Christina Breit. Her single page report
of July 25, 2016 provides “Mr. Ronald Jackson has been treated for deep vein
thrombosis and pulmonary emboli since last year. He was found to have a protein
S deficiency. This diagnosis with his international travel is believed to be
the cause of his blood clots.” The issue then becomes whether or not this
report establishes a prima facie case. The Administrative Law Judge has
reviewed all the medical evidence of record along with the testimony of the
plaintiff. Based on the totality of the circumstances and the timeline in this
claim, the ALJ is persuaded that the plaintiff’s international travel and long
flights in a plane was the cause of the plaintiff’s blood clots. The blood
clots obviously are a harmful change in the plaintiff’s human organism. The ALJ
is persuaded that the plane travel did cause the blood clots. Hence, there was
a harmful change in the human organism.
The defendant relies on American
Bakeries vs Hatzell, 771 SW2d 333 (Ky 1989). However, the employer’s
reliance on that case is misplaced. In Hatzell the Court held that
angina pectoris is only a symptomatic pain emanating from the underlying heart
disease. They specifically noted that the claimant’s heart and arteries were
the same condition after the angina pain as they were before it. The Court
concluded, “Consequently, there was no harmful change to the human organism.”
However, in this case there was a harmful change to the human organism in the
nature of blood clots. Hence, it is readily apparent that in Hatzell, Supra,
there was no harmful change; however, in the instant case there was a harmful
change to the human organism.
In conclusion, the ALJ is persuaded that
the plaintiff did sustain an injury as defined by the Act resulting in a
harmful change to the human organism. The plaintiff does not seek temporary
total disability benefits or permanent partial disability benefits but only
reasonable medical treatment. The ALJ is persuaded that the plaintiff has
established an injury as defined by the Act and is entitled to the appropriate
medical treatment for his injury. The appropriate award will be entered.
Jackson filed a petition for reconsideration requesting a
specific finding on the compensability of the emergency room treatment for a
pulmonary embolism and ongoing medical treatment, including prescriptions for Xarelto
and office visits related to that prescription.
In a July 25, 2017 Order, the ALJ sustained Jackson’s petition for reconsideration,
and determined the emergency room visit and Xarelto are compensable.
Phoenix filed a petition for reconsideration requesting
additional findings as to whether Jackson suffered a permanent harmful change,
whether he established a prima facie case, and why symptoms of the underlying
non-work condition are compensable.
Phoenix also argued any recovery of medical benefits should be limited
to the period in which he is flying while in the course of his work duties.
In a second Order dated July 25, 2017, the ALJ denied
Phoenix’s petition for reconsideration as a re-argument of the merits of the
claim. As to Phoenix’s request that the
award be limited to periods in which Jackson is flying for work, the ALJ opined
this argument is prospective and properly raised in a motion to reopen should
that circumstance arise.
Phoenix now appeals, arguing the ALJ erred in finding
Jackson suffered a harmful change to the human organism. It claims Dr. Breit’s opinion establishes
Jackson’s blood clots were merely a symptom of his protein S deficiency, which
is not a work-related condition. We
disagree.
Jackson bore the burden of proving each
of the essential elements of his cause of action. Snawder v. Stice,
576 S.W.2d 276 (Ky. App. 1979). Because he was successful in that 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 reviewing an ALJ’s decision, the
Board is limited to determining whether the decision is so unreasonable under
the evidence that it 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 could be drawn from the evidence. Whittaker
v. Rowland, 998 S.W.2d 479 (Ky. 1999). 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 injury is “any work-related
traumatic event or series of traumatic events, including cumulative trauma,
arising out of and in the court of employment which is the proximate cause
producing a harmful change in the human organism evidenced by objective medical
findings.” KRS 342.0011(1). The CT scans
establish Jackson first developed blood clots in June 2014 after flying to
Australia. Dr. Breit opined the long
haul flights and the protein S deficiency combined to cause Jackson’s blood
clots. We conclude this evidence
constitutes the requisite proof to support the ALJ’s conclusion that Jackson’s
2014 blood clots were work-related.
Phoenix advances several arguments to
challenge the ALJ’s conclusion Jackson suffered a work-related injury. Its argument that a blood clot is not a
harmful change in the human organism is devoid of any merit and warrants no
extended discussion. A blood clot is not
a normally-ocurring, innocuous condition in the human organism.
Phoenix also claims the blood clot is
merely a symptom of Jackson’s protein S condition. Dr. Breit’s medical opinion plainly refutes
this contention; she unequivocally concluded the protein S condition along with the lengthy flights caused
Jackson’s blood clots. Furthermore, we
must note it has not been established whether Jackson’s protein S condition is
genetic or resulting from his use of Xarelto to thin his blood.
The fact Jackson’s blood clots have
now resolved due to pharmaceutical therapy does not render them
non-compensable. A harmful change may or
may not be permanent. Robertson v.
United Parcel Service, 64 S.W.3d 284 (Ky. 2001). An award of medical benefits does not require
a finding of permanent impairment. FEI
Installation, Inc. v. Williams, 214 S.W.3d 313 (Ky. 2007).
Contrary to Phoenix’s assertions, Jackson’s condition is
unlike the situation in American Bakeries Co. v. Hatzell, 771 S.W.2d 333
(Ky. 1989). Hatzell suffered pain in his
chest as a symptom of underlying heart disease.
He argued the stress of his work caused the chest pain. The Kentucky Supreme Court concluded the
chest pain, known as angina pectoris, is merely a symptom of the underlying
atherosclerotic heart disease. The
medical proof established Hatzell’s underlying heart disease could have caused
the chest pain at any time.
The key difference in this claim is Dr. Breit’s opinion
that the protein S defiency combined with
the long haul flights caused Jackson’s blood clots. She additionally noted Jackson has no other
risk factors for or history of blood clots.
In this claim, the clots Jackson sustained were a physical manifestation
that constitute a departure from his normal state of health. Jackson’s work requires lengthy
intercontinental flights, clearly necessitating continued treatment with Xarelto
as long as he continues those flights.
Phoenix bore the burden of proving any pre-existing active
condition. Finley v. DBM Technologies,
217 S.W.3d 261 (Ky. App. 2007). Here,
the evidence does not compel a finding that Jackson had a pre-existing Protein
S deficiency. Dr. Breit’s records
indicate the diagnosis of a Protein S deficiency based upon blood work
performed after Jackson began treatment with Xarelto could be incorrect. She indicated testing after he ceases taking
the medication would indicate whether the diagnosis of the deficiency is
correct. Jackson had no treatment for
blood clots prior to June 2014. No
medical evidence indicates there was a Protein S deficiency or problems with
clotting prior to the work-related blood clots in June 2014. Rather, Phoenix seems to base its position
entirely on some family history of blood clots.
The evidence falls far short of compelling a finding that Jackson had a
pre-existing active Protein S deficiency.
We agree it would be premature to limit Jackson’s medical
benefits to periods when he is flying internationally. Whether Jackson has a protein S deficiency
will not be known until he is retested after ceasing blood thinners. What constitutes reasonable and necessary
treatment in the future cannot be determined prospectively. Phoenix remains
liable for medical treatment reasonably required for the
cure and relief from the effects of Jackson’s work-related injury, subject to
the rules and procedures set forth in the statute and its accompanying
regulations pertaining to the compensability and contest of medical
expenses. Phoenix retains the right to challenge
the reasonableness and necessity of care in the future.
Accordingly, the June 9, 2017 Opinion, Award and Order and the July 25, 2017 Orders rendered by Hon. R. Roland Case, Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON WALTER E HARDING
400 W MARKET ST #2300
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON JEFFREY ROBERTS
509 MAIN ST
MURRAY, KY 42071
ADMINISTRATIVE
LAW JUDGE:
HON R. ROLAND CASE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
