OPINION ENTERED: December 31, 2008
CLAIM NO. 91-38804
MICHAEL COOTS PETITIONER
VS. APPEAL FROM HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE
CUMBERLAND VALLEY CONTRACTORS;
TRINITY FAMILY HEALTHCARE;
DR. M. MAZLOOMDOOST;
MAY PAIN INSTITUTE
and HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
VACATING AND REMANDING
* * * * * *
BEFORE: GARDNER, Chairman; COWDEN and STIVERS, Members.
GARDNER, Chairman. Michael Coots (“Coots”) seeks review of an opinion and order in a medical fee dispute relieving Cumberland Valley Contractors (“Cumberland”) of the obligation to pay for continued lumbar and cervical treatment. On appeal, Coots argues the Administrative Law Judge (“ALJ”) ignored substantial and probative evidence and, for that reason, the ALJ’s opinion is clearly erroneous. Because the ALJ’s decision and order on reconsideration was internally inconsistent, we remand for further findings.
Coots, a deep miner by occupation, first injured his neck and back in 1991, while working for Cumberland as a roof bolter. In an approved 1992 settlement agreement, Coots received a lump sum payment from Cumberland and the Special Fund in the total amount of $6,500.00 and future medicals remained open. During the next thirteen years, Coots worked regularly for various coal mining companies. In 2004 and 2005, while working as a roof bolter for James River Coal, Coots filed claims alleging injuries to his neck, cumulative trauma injuries to the wrists and back, with secondary psychological overlay. Extensive proof was introduced during the litigation; however, James River Coal and Coots eventually settled the claims in 2007 for $40,000.00, which included a waiver of future medical treatment. Coots has not returned to work since the 2005 injury at James River Coal.
Coots continued to seek medical treatment for his neck and back following the injuries at James River Coal; however, continued medical treatment following the 2007 settlement was billed to Cumberland. These medical billings prompted Cumberland to file a motion to reopen and medical fee dispute on January 17, 2008. Cumberland contested provider requests for approval of pain management, office visits and diagnostic testing. It primarily contended the “subsequent intervening, superseding accidents” at James River Coal relieved Cumberland from future medical liability.
The parties introduced the medical evidence presented in the earlier claims against Cumberland and James River Coal. Additionally, Cumberland introduced evidence that it had made no medical expense payments between August 13, 1992 and August 3, 2004. The only medical report of record generated by any physician after the 2007 settlement with James River Coal was a January 7, 2008 report from Dr. M. Mazloomdoost, a pain management specialist. In his report, Dr. Mazloomdoost recorded a history received from Coots of the 1991 injury at Cumberland and the 2005 injury at James River Coal. Following a physical examination, Dr. Mazloomdoost diagnosed low back pain, sacroiliac arthritis, myofascial pain syndrome, knee pain, and muscle spasm. He expressed the opinion that Coots suffered from severe low back pain and recommended treatment, which included Lortab, sacroiliac and trigger point injections, IV sedation, and fluoroscopy. Dr. Mazloomdoost noted in his report Coots ceased pain management treatment in August or September 2007 and his compensation claim was settled with no medical coverage. He further stated “the workers’ compensation case of 1991 was considered pre-existing, and continues to cover medical expenses relating to the patient’s back injury.”
The medical evidence the ALJ found persuasive comes by way of the independent medical evaluations performed by Dr. James W. Templin, Dr. P.D. Patel, and Dr. Gregory E. Gleis. These physicians evaluated Coots during the litigation of the claims against James River Coal.
Dr. Templin, on November 17, 2005, received a history of the 2004 and April 18, 2005 injuries at James River Coal. Dr. Templin’s diagnoses included chronic low back pain syndrome, degenerative lumbar disc disease, chronic cervical pain syndrome, degenerative cervical disc disease, and a lumbar disc herniation at L3-4. Dr. Templin placed Coots in a DRE cervical and lumbar Category II and assessed an 8% impairment rating for the cervical spine and a 5% impairment rating for the lumbar spine. Dr. Templin believed that within reasonable medical probability, Coots’ injuries were the cause of his complaints. He recommended significant restrictions, and believed Coots did not retain the physical capacity to return to the type of work performed at the time of the injury. Dr. Templin further stated Coots had an active impairment prior to the injury.
Dr. Patel, in addition to performing a psychiatric consultation, evaluated Coots’ cervical and lumbar spine. Dr. Patel received a history of the 2004 and 2005 injuries at James River Coal, which resulted in chronic neck and back pain, noting that physical therapy prescribed by Dr. William Brooks was unsuccessful and Coots was declared medically disabled from work. Following a physical examination, Dr. Patel assessed a 5% impairment to the cervical spine and a 5% impairment to the lumbar spine. He believed Coots had an active impairment prior to the injuries at James River Coal as a result of degenerative lumbar and cervical disc disease, and assigned 50% of his impairment rating to those conditions.
Dr. Gleis examined Coots on June 12, 2006, at the request of James River Coal. Dr. Gleis, in his report, recorded histories of the 1991, 2004 and 2005 injuries. Coots presented with chief complaints of low back, neck and bilateral forearm and hand pain. In addition to the review of diagnostic tests and the results of a physical examination, Dr. Gleis’s report contained an extensive review of Coots’ medical history. Dr. Gleis documented that Coots, prior to the June 22, 2004 injury at James River Coal, had sought treatment from various physicians throughout 2003 and early 2004, with complaints of neck and back pain. Dr. Gleis concluded Coots’ 1991 injury would have qualified for a DRE lumbar Category II and a 5% impairment rating, which remained unchanged at the time of the examination. Addressing the cervical spine, Dr. Gleis placed Coots in a DRE Category I and assigned a 0% impairment rating. Dr. Gleis stated that Coots’ current low back pain was an “exacerbation” of a preexisting active condition and his cervical pain was the result of cervical degenerative disc disease that was a preexisting active condition prior to June 2004.
A final hearing was conducted by the ALJ on July 22, 2008. On cross-examination, Coots testified as follows:
Q What do you mean?
A Well, I hurt it [neck and back] once in ’91 and it never go[t] no better and I had to keep working, so I re-hurt it again.
Q And your testimony, when you were ask [sic] in your deposition about your low back pain, had it changed in some way following this problem in ’05?
A Yes.
Q And you also testified that your neck problems, it changed as a result of this incident at work in ’04?
A Yeah. It just gets worse.
In an August 18, 2008 decision, the ALJ, following a review of the medical evidence, concluded as follows:
An employer is responsible for reasonable and necessary medical expenses when a subsequent work related event causes a worsening or exacerbation of a pre-existing active condition. Derr Construction Company v. Bennett, Ky. 873 S.W.2d 824 (1994). In this instance, the medical evidence submitted by the parties establishes that the plaintiff’s treatment following his 1991 injury was very minimal until 2003. The plaintiff subsequently filed a cumulative trauma claim against a new employer and the medical evidence presented indicates that his continuing difficulties are related to his subsequent work injuries. While the Administrative Law Judge does not necessarily buy into the defendant-employer’s argument that the plaintiff is engaged in a scheme, he does believe the plaintiff has been caught in a snafu. As is noted above, the law provides that it is the subsequent employer who is responsible for continued medical treatment when the subsequent work or work event causes a worsening or exacerbation of a pre-existing active condition. That is exactly what has happened here and the defendant-employer must be relieved of its obligation for payment of medical expenses under K.R.S. 342.020 due to the subsequent intervening accident.
The ALJ’s decision was followed by a petition for reconsideration requesting additional findings specifying which medical opinions the ALJ considered most persuasive, as well as an “assessment or findings of fact relative to the credibility of the plaintiff’s testimony. . . .” In an order on reconsideration, the ALJ stated:
The Administrative Law Judge notes that Dr. Templin set forth the plaintiff’s impairments were the result of work injuries of June 22, 2004 and April 18, 2005. Dr. Gleis indicated the plaintiff’s current symptoms would be an exacerbation of a pre-existing active condition. Dr. Patel felt the plaintiff’s psychiatric condition was due to the work injuries of June 22, 2004 and April 18, 2005. Based upon this medical evidence, the Administrative Law Judge simply found it would be the responsibility of the carrier for the 2004 and 2005 injuries for payment of medical expenses rather than the carrier for the plaintiff’s 1991 injury. Therefore, the petition for reconsideration is denied.
On appeal, Coots again asserts the ALJ has made insufficient findings of fact and failed to consider crucial and probative evidence in rendering his decision. Coots submits the material evidence of record unequivocally establishes the contested medical bills are related to the 1991 work injury and the ALJ acted in excess of his authority by ignoring substantial and probative evidence of record. Coots points to his own testimony that he has had flare-ups of his condition since 1991, and his condition became chronic before the 2004 and 2005 work injuries at James River Coal. He relies heavily on Dr. Gleis’s chronological review of the medical records, which reveal complains of neck and back pain from March 2003 until May 2004. Coots contends the ALJ erroneously concluded the subsequent injuries caused a worsening or exacerbation of his preexisting active condition and his chronic and ongoing symptoms relate to the 1991 injury.
Both the 1991 injury at Cumberland and 2004 and 2005 injuries at James River Coal became the products of settlements. KRS 342.125(7) unequivocally provides that no statement contained in the agreement concerning the liability of the employer or the nature and extent of disability or any other matter can be considered by the ALJ as an admission against the interest of either party. Thus, in a reopening for increased income benefits, an ALJ is obligated to determine, based on the evidence of record, a claimant’s actual impairment at the time of settlement. In a medical fee dispute involving a subsequent injury to the same body part while working for a different employer, an ALJ must determine whether the second injury to the same body part constitutes an injury of appreciable proportion to relieve the first employer from the obligation to absorb the cost of continued medical treatment. In Derr Construction Co. v. Bennett, 873 S.W.2d 824, 828 (Ky. 1994), a case that did not involve subsequent employers, the supreme court held:
Because KRS 342.020 does not exempt an employer from liability for any portion of a worker’s medical expenses in those instances where the work-related injury constitutes a progression or worsening of a prior, active work-related condition, we hold that the employer is responsible for the medical expenses necessary for the cure and relief of the arthritic condition in claimant’s knees. (Emphasis added.)
Here, the ALJ’s interpretation of Derr Construction is not entirely correct when he stated that “an employer is responsible for reasonable and necessary medical expenses when a subsequent work-related event causes a worsening or exacerbation of a preexisting active condition.” (Emphasis added.) Generally, the term exacerbation refers to a temporary injury or condition that will resolve in time, or returns to a claimant’s baseline pre-injury condition. For example, in Kelly & Wilmore, Inc. v. Payne, 2002-SC-0396-WC, rendered February 20, 2003 and designed not to be published, the court affirmed the decision of an ALJ assigning liability for future medical benefits to the first employer. In that case, the ALJ determined the claimant sustained a work injury in 1997 and a subsequent 1998 injury involved nothing more than an exacerbation of the 1997 injury.
In Sears Roebuck & Co. v. Dennis, 131 S.W.3d 351 (Ky.App. 2004), a claimant was first injured at Radio Shack and subsequently injured while working for Sears. Addressing liability for medical expenses, the Court of Appeals stated:
While it is true in general that the last employer would be responsible for medical expenses, there are occasions where medical expenses can be clearly distinguished as resulting from distinct and separate events and body parts. Here, expert testimony indicates the physical injury to Dennis’[s] low back at Sears did not result in any structural change nor did it result in additional impairment. There was evidence upon which the ALJ could reasonably conclude the injury at Sears produced only temporary effects. In such a situation it is proper to award medical benefits during the temporary period payable by the employer responsible for the temporary aggravation and, once the individual returns to his baseline condition, to require the employer responsible for the earlier injury to resume medical payments.
Id. at 356.
It is well settled that the parties are entitled to sufficient findings of fact based on a correct understanding of the facts and law in order to apprise them of the basis of the ALJ’s decision and to afford meaningful appellate review. See Shields v. Pittsburgh and Midway Coal Mining Co., 634 S.W.2d 440 (Ky.App. 1982). Here, the ALJ’s decision to rely on the opinions of Dr. Templin and Dr. Gleis is internally inconsistent as that evidence is diametrically opposed. While Dr. Templin opined the 2004 and 2005 injuries at James River Coal constituted injuries that caused impairment and established a progression or worsening of Coots’ condition, Dr. Gleis’s opinion – without more explanation – established the later injuries caused no greater impairment. Dr. Gleis believed Coots’ back injury at James River Coal was an exacerbation of the 1991 injury and Coots’ complaints of cervical pain were medically documented well before 2004. While there is certainly substantial evidence contained in the record to support the ALJ’s conclusion, the evidentiary and legal conflicts in the ALJ’s opinion and order on reconsideration must be resolved.
For the foregoing reasons, the decision of Administrative Law Judge John B. Coleman is VACATED and REMANDED for further findings in conformity with the views expressed in this opinion.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON JOHN HUNT MORGAN
PO DRAWER 750
HARLAN KY 40831
COUNSEL FOR RESPONDENT
CUMBERLAND VALLEY CONTRACTORS:
HON W BARRY LEWIS
PO BOX 800
HAZARD KY 41702
TRINITY FAMILY HEALTHCARE
PO BOX 368
MIDDLESBORO KY 40965
DR. M MAZLOOMDOOST
1725 SHAKER DR STE 101
LEXINGTON KY 40504
MAY PAIN INSTITUTE
14 MOONBOW PLAZA STE 2
CORBIN KY 40701
ADMINISTRATIVE LAW JUDGE:
HON JOHN B COLEMAN
107 COAL HOLLOW RD STE 100
PIKEVILLE KY 41501
