December 4, 2009 07-90015

OPINION ENTERED: DECEMBER 4, 2009

CLAIM NO. 07-90015

MCCAIN EMPLOYMENT SERVICES, INC. PETITIONER

VS. APPEAL FROM HON. DOUGLAS GOTT,

ADMINISTRATIVE LAW JUDGE

JAMES BELL

HON. DOUGLAS GOTT,

and ADMINISTRATIVE LAW JUDGE, RESPONDENTS

OPINION

DISMISSING AND REMANDING

* * * * * *

BEFORE: GARDNER, Chairman, COWDEN and STIVERS, Members.

STIVERS, Member. Petitioner McCain Employment Services ("McCain") appeals from the March 26, 2009, interlocutory order ("March 26, 2009, order") rendered by Hon. Douglas Gott, Administrative Law Judge ("ALJ") finding the injury suffered by James Bell ("Bell") aroused Bell's pre-existing dormant avascular necrosis into a disabling reality and awarding medical benefits for the cure and relief of the hip condition, including hip replacement surgery. McCain filed a petition for reconsideration asserting patent error and arguing, in part, that the ALJ failed to recognize the claimant did not initially complain of a symptomatic hip; "rather, the initial hospital records reflect that the claimant's complaints were limited to his low back." McCain's petition for reconsideration was overruled by order dated April 30, 2009, and McCain has now appealed to this Board.

Bell submitted his Form 101 alleging that on April 2, 2007, he sustained injuries while in the course of his employment at Flowers Baking Company, a job at which he was placed by McCain. Bell described the injury as follows:

Plaintiff was making a delivery in Jeffersonville, IN. Plaintiff was in the back of the truck moving racks of trays. While pulling a tray with one leg and pushing a stack with his arms, the tray being pulled hung on the floor of the truck pulling Plaintiff's right lower extremity, right hip, groin and low back.

Bell testified by deposition on July 18, 2008, and at the February 17, 2009, hearing. Bell was born on February 10, 1953, and lives in Louisville, KY. Bell is a high school graduate and attended St. Mary's Seminary College for three years. Bell attended truck driving school in the winter of 2007 but dropped out because he "couldn't maneuver inside the cab."

Bell began working for Flowers in 2005 as a relief driver "delivering bread and snacks to grocery stores, fast food restaurants, gas stations, convenience stores." At approximately 11 a.m. on April 2, 2007, Bell was moving bread trays in his truck to prepare for a delivery to Burger King. When one of the trays became stuck on a board in the back of the truck, Bell lost his balance and fell. When Bell stood up, he immediately felt pain. He testified to the following in his deposition:

Well, I stood up and thought that I had pulled my groin muscle because it was hurting right away. And I went ahead and- well, I decided to go ahead and finish the delivery, which I did, and started driving back down 65 to my next delivery in Jeffersonville.

And on the way, the pain grew in my back and my buttocks and my groin, and by the time I got to Sellersburg I could hardly move my right leg, and I decided that I better get out of the truck, because if I could call somebody to come get me, I would need to be out of the truck.

And I was starting to hurt so bad and tighten up so bad that I didn’t' think I would be able to get out of the truck if I didn't do it right then. So I opened the door and set my left leg out the door, and I had to use both hands to pick up my right leg and push it around into the opening of the door, and I slid on my backside out of the door, holding onto to [sic] the handrail and the handgrip on the door and got to the ground, and I worked my way around to the bumper and could not go any further.

Bell called an ambulance and went to Clark Memorial Hospital where he stayed for three days.

Bell submitted the medical records of Clark Memorial covering the period from April 2, 2007, through April 4, 2007. Records generated April 2, 2007, note that Bell complained of hearing a popping sound when the work incident happened with an immediate onset of pain in his groin that radiated into his right hip and leg. Bell was given Dilaudid PCA, Valium, Nexium, and Neurontin. A CT of the lumbar spine conducted on April 2, 2007, revealed an L5-transitional level annular disc bulge and spondylosis. T12-L1 and L5-transitional level spondylosis was noted as well with degenerative disc disease at the L5-transitional vertebral level. An MRI of the lumbar spine performed on April 3, 2007, revealed the following:

1. No acute disease is seen in the lumbar spine.

2. Degenerative disc disease at L5-S1 level.

3. Small posterior broad-based disc protrusion at L5-S1 level causing mild flattening of the anterior and thecal sac and touches the right and left S1 nerve roots without causing effacement or displacement of the nerve roots. There is mild degenerative arthritis in the posterior facet joints at the L5-S1.

Bell submitted the medical records of Dr. Jeff E. LaGree, a chiropractor at the Lighthouse Spine and Rehabilitation Center in Louisville, Kentucky generated from April 10, 2007, through August 10, 2007. Records generated on April 10, 2007, note the following as Bell's "chief complaint"- "low back strain; with right groin pain = 4 (severe)." Bell complained of difficulties getting up and out of a chair and climbing stairs. The April 10, 2007, record notes that Bell "can't function normally." The medical records indicate that Bell was treated by Dr. LaGree 44 times between April 10, 2007, through August 10, 2007. The "final re-evaluation" on August 10 notes the following:

Much improved/much more functional ability at work and home; right groin pain mild = 2; low back pain= 2 mild; gait ability= if patient has to walk 100 yards, he states… it hurts however much improved.

Bell submitted the records of Progressive Medical and Rehabilitation dated March 12, 2008, where Bell was seen by Gina Kirchner, a nurse practitioner. Bell was diagnosed with lumbar strain and right groin sprain and contusion, and it was recommended that he undergo physical therapy two times a week. Bell was given refills for Ultram, 50 mg.

Bell submitted the medical records generated by Norton Southwest Hospital which indicate Bell was admitted to the hospital on April 25, 2004, for pneumonia. The discharge diagnosis was as follows:

1. Necrotizing MRSA pneumonia, status post lobectomy on the right.

2. Pain secondary to surgery.

3. History of atrial fibrillation.

4. Severe anaphylactic reaction to IV Amiodarone.

5. Recovering alcoholic.

6. History of confusion with psychotic features, treated with Haldol.

Bell submitted the independent medical examination ("IME") of Dr. Anthony McEldowney, an orthopedic surgeon, generated on June 24, 2008. Dr. McEldowney diagnosed Bell with chronic lumbar sprain/strain and chronic right hip sprain/strain with exacerbation of underlying asymptomatic right hip arthrosis. Dr. McEldowney believed Bell had reached MMI and assessed a 12% impairment rating. Of the 12%, 8% was attributed to his lumbar sprain/strain (DRE Lumbar Category 2) and 4% for internal rotation loss of his right hip. Dr. McEldowney noted several limitations and restrictions, including an inability to walk, stand, or drive more than 30 minutes without a break, an inability to run, climb more than two flights of stairs every four hours, and climb ladders. Bell should not lift/carry nonrepetitively 10-15 pounds and push/pull nonrepetitively 20-25 pounds and avoid repetitive bending and stooping. Dr. McEldowney noted that Bell is unable to squat, crawl, kneel, or operate machinery that requires any repetitive use of his right lower extremity. Dr. McEldowney noted that it is within reasonable medical probability that Bell's present symptoms are the "direct result" of the April 2, 2007, "work related injury to his lower back and right groin area."

McCain submitted the independent medical examination (“IME”) report of Dr. Bart Goldman, an orthopedic surgeon, generated after evaluating Bell on June 12, 2008. Dr. Goldman noted that nobody had addressed the condition of Bell's hip and recommended that an AP pelvis film and a right lateral hip film be performed. If these turned out to be normal, Dr. Goldman recommended that an MR arthrogram be performed. He also noted the following: "It is certainly possible that this gentleman has an acetabular labral tear based on the description of this injury." Dr. Goldman's diagnosis was the following:

His diagnosis include possible lumbar strain, now resolved, and a possible tear of the acetabular labrum of the right hip. Both of these would have been related to the Workers' Compensation injury.

Based on examination at this time he has no problem with his low back. He may have a problem with his hip. This, as far as I can tell, would be related to the injury in question.

Dr. Goldman did not believe Bell was at MMI and did not assess an impairment rating for his hip condition. Dr. Goldman did note that Bell falls into a lumbar DRE category I with a 0% impairment rating for his lumbar condition since he has "minimal complaints and no objective findings." He opined there was no reason Bell could not return to "work in a job that requires neither prolonged standing nor prolonged walking."

McCain filed the medical report of Dr. Gregory Gleis, an orthopedic surgeon, generated after performing an evaluation on September 24, 2008. Dr. Gleis' diagnosis included avascular necrosis of the femoral head due to the 19 or more doses of steroids he was given at Norton Southwest Hospital for a severe anaphylactic reaction to Amiodarone. Dr. Gleis opined that the while the April 2, 2007, work related event did not cause the avascular necrosis, it caused the pre-existing dormant avascular necrosis to become symptomatic. He believed a total right hip replacement "would be appropriate."

Dr. Gleis believed that Bell was not at MMI and he could not assign an impairment rating until his hip was treated. Dr. Gleis opined that Bell had a pre-existing active impairment to his lower back prior to the April 2, 2007, work incident. Consistent with a Table 15-3, DRE Category II, Bell had a 5% WP impairment rating. He noted Bell "was being treated by a chiropractor about twice per week even as recently as one week before the 04/02/07 incident."

In a letter dated December 9, 2008, Dr. Gleis was asked to clarify if the hip replacement surgery was necessitated by the pre-existing necrosis or by the symptoms which were aroused by the work related fall. Dr. Gleis opined that the need for the surgery was due to the pre-existing necrosis.

McCain submitted the September 30, 2008, letter drafted by the Attorney Jeffrey J. Paige, counsel for Bell, asking Dr. William Moss to provide his opinion on the etiology of Bell's avascular necrosis by checking his answer at the bottom of the page. Dr. Moss checked the following: "I opine that the diagnosis of Avascular necrosis and referral to Dr. Pomeroy has no relationship to the work injury that occurred on April 10, 2007." (emphasis in original).

Bell filed the rebuttal report of Dr. McEldowney generated on December 29, 2008, after he reviewed the IME reports of Dr. Gleis and Dr. Goldman. Dr. McEldowney noted, in part, the following:

I do agree with Dr. Moss that Mr. Bell's vascular necrosis is not related to his work injury. My diagnosis is chronic right hip sprain/strain with exacerbation of his right hip arthrosis and range of motion limitations that give him the 4% whole person impairment around the right hip. I do agree most likely his avascular necrosis was related to either alcohol or drug abuse or his long history of steroid use. That being said I also believe that when he began work on 4/02/2007 his right hip was asymptomatic enough to allow him work without restrictions. He was not performing a [sic] sedentary work but rather driving, loading and unloading a truck for grocery stores and restaurants. This would have required what I would consider to be pretty normal range of motion of the spine and of the lower extremities that being the right hip. He states he had an injury where he had severe aduction [sic] of the pelvis and injury to his lower back and secondary to this injury he had an exacerbation of his underlying hip arthrosis/avascular necrosis resulting in range of motion limitations. I do agree with Dr. Moss that the avascular necrosis was not caused by the work injury but rather an exacerbation.

Dr. McEldowney also noted that Bell was not "in any position to continue working."

The January 12, 2009, Benefit Review Conference ("BRC") order and memorandum contains stipulations including coverage under the Act and the existence of an employment relationship. Additionally, the parties stipulated that Bell sustained a work-related injury on April 2, 2007, "as to lb, but not right hip." As to the contested issues, the BRC order states as follows: "Parties agree to bifurcate the issue of the work relatedness of the alleged right hip injury, and any resulting period of TTD if the injury is found to be W-R. All other issues are preserved." A hearing was held on February 17, 2009.

By order dated March 26, 2009, the ALJ found that Bell met his burden of proving the work-relatedness of the avascular necrosis component of his right hip condition and held, in part, the following:

In this case, the ALJ rather easily concludes that Plaintiff has met his burden.

The only evidence supporting the Defendant's contention of nonwork-relatedness is the letter in which Dr. William Moss indicated that the condition had no connection to the work injury. As far as the ALJ can determine, the record is devoid of any other mention of Dr. Moss- if or when he treated Bell or the nature of the treatment. The ALJ might speculate that Dr. Moss is possibly affiliated with Progressive Medical, but, regardless, the record would suggest that his involvement in this claim appears to be the least of any other doctor whose evidence is of record.

The two physicians who saw Plaintiff for IME's at the Defendant's request support Plaintiff's case for work relatedness of the avascular necrosis. Dr. Goldman said in June 2008 that Bell had not received proper work-up for the hip; that he might have a tear of the acetabular labrum in the hip that would be related to the fall at work; and he was not at maximum medical improvement until he had additional studies.

Dr. Gleis said Bell's fall at work 'triggered the pre-existing dormant avascular necrosis to become symptomatic,' and recommended a total hip replacement.

Plaintiff's IME, Dr. McEldowney, said that the 'severe abduction of the pelvis' Plaintiff described as the mechanism of injury created 'an exacerbation of his underlying hip arthrosis/avascular necrosis resulting in range of motion limitations.'

The Defendant is correct in asserting that Plaintiff's avascular necrosis was not caused by the work injury. However, it's conclusion that 'The medical evidence is overwhelmingly clear that Plaintiff's avascular necrosis of the right hip is unrelated to his work injury,' misses the point. With the exception of Dr. Moss, the medical evidence overwhelmingly demonstrates that the work injury aroused his dormant arthorsis [sic]/necrosis into disabling reality. There is evidence of preexisting back complaints, but no evidence of preexisting hip complaints. Therefore, the hip condition was dormant and was aroused by the work injury. As such, it is an 'injury,' a compensable claim, and the liability of the Defendant. [citations omitted]. This liability includes medical benefits for the cure or relief of the hip condition, including the hip replacement recommended by Dr. Gleis.

Significantly, the ALJ noted that his March 26, 2009, order was an "interlocutory award" and was "not final or appealable." The ALJ ordered the parties to file status reports in 90 days and every 30 days thereafter.

McCain filed a petition for reconsideration, alleging the ALJ erred by failing to recognize Bell did not complain of a symptomatic hip until one year after the injury in March, 2008. "Thus, the medical records made concurrently with the treatment do not support the allegation that the injury 'aroused' the hip condition."

In its petition for reconsideration, McCain also asserts that the "evidence does not show that the surgery is recommendable due to the injury." The ALJ overruled McCain's petition for reconsideration by order dated April 30, 2009.

McCain's first argument is that the March 26, 2009, order is an appealable order. McCain asserts that the case of Tube Turns Div. v. Logsdon,
677 S.W.2d 897 (Ky., 1984) is determinative, arguing that the ALJ's March 26, 2009, order will result in McCain paying "substantial medical expenses" that are "unlikely to be recoverable" if McCain ultimately prevails on the issue of work-relatedness of Bell's hip condition. We disagree. Accordingly, we dismiss McCain's appeal and remand this claim to the ALJ.

803 KAR 25:010, Section 21(2)(a) states that an aggrieved party has thirty days of the date of a "final" award, order, or decision to file a notice of appeal to the Workers' Compensation Board. Significantly, 803 KAR 25:010, Section 21(2)(b) states that "a final award, order or decision shall be determined in accordance with Civil Rule 54.02(1) and (2)." (emphasis added). Civil Rule 54.02(1) is clear in its mandate, stating that a court may issue a "final" judgment that disposes of "upon one or more but less than all of the claims or parties." However, the "judgment shall recite such determination and shall recite that the judgment is final." (emphasis added). Civil Rule 54.02(1) continues stating as follows:

In the absence of such recital, any order or other form of decision, however designated, which adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is interlocutory and subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

The clear and unambiguous language used in 803 KAR 25:010, Section 21(2)(a) and Civil Rule 54.02(1) is certainly mandatory and indicative of legislative intent. "When considering the construction of statutes, KRS 446.010(20) provides that “may” is permissive, and “shall” is mandatory. Alexander v. S & M Motors, Inc., 28 S.W.3d 303 (Ky.,2000). Being unambiguous on its face, a rule of statutory construction long accepted by Kentucky courts is that unambiguous statutes must be applied as written. "[A]bsent an ambiguity, 'there is no need to resort to the rules of statutory construction in interpreting it.'" Hall v. Hospitality Resources, Inc., 276 S.W.3d 775, 784 (Ky., 2008). By using the word "shall," 803 KAR 25:010, Section 21(2)(a) and Civil Rule 54.02(1) mandate that "a final award, order or decision shall be determined in accordance with Civil Rule 54.02(1) and (2)" and, accordingly, an order that disposes of less than all of the claims "shall" recite that it is a "final" order if it is meant to be such. If the language from Civil Rule 54.02(1) is not used, the order must be deemed interlocutory in nature and is "subject to revision at any time" and not appealable.

In the case of Fulton County Fiscal Court v. Robert E. Hopper, Jr., 2005-CA-000024-WC, rendered December 29, 2005, designated not to be published, the Court of Appeals affirmed this Board's dismissal of the appeal of an interlocutory order in which the ALJ determined only the claimant's average weekly wage and that the injury occurred in the course and scope of his employment. In affirming the Board, the Court of Appeals held as follows:

The ALJ's opinion and order did not recite that it was final; in fact, it gave the parties forty-five days to agree on a further litigation plan, to settle the case, or to show cause why a final hearing should not be scheduled. Pursuant to CR 54.02(1), therefore, it was interlocutory.

As interlocutory, the Board's dismissal of the appeal was proper. In Reisinger v. Grayhawk Corporation, 860 S.W.2d 788, 790 (Ky.App.1993), the court stated:

CR 54.02 has been held to require dismissal of an appeal where the record showed that the order did not adjudicate the rights of all the parties in the action and other matters remained to be adjudicated. Signer v. Arnold, Ky., 436 S.W.2d 493 (1969). In a recent case, this Court noted that an order allowing attorney fees, but not providing for a distribution of funds to the attorney, is not a “final order” from which an appeal will lie. As such, the order was interlocutory, and judicial economy necessitates this rule. Revenue Cabinet v. Barbour, Ky.App., 836 S.W.2d 418 (1992).


In the case at bar, the order of the ALJ was interlocutory. It did not adjudicate finally the rights of any of the parties and, as such, does not meet the test of CR 54.02 to be deemed “final” ...

In the case sub judice, the March 26, 2009, order does not recite that it is a "final" order pursuant to 803 KAR 25:010, Section 21(2)(a) and Civil Rule 54.02(1). In fact, the ALJ clearly states that the order is an "interlocutory award" and, thus, "not final or appealable." (emphasis added). The ALJ even ordered the parties to file status reports in 90 days and every 30 days thereafter. The ALJ failed to include the requisite language as mandated by 803 KAR 25:010, Section 21(2)(a) and Civil Rule 54.02(1), therefore it is clear that the March 26, 2009, order was interlocutory and not final. Consequently, McCain's appeal can not be heard at this time as this Board lacks jurisdiction.

As to the second argument raised in McCain's appeal- that the ALJ erred in finding the hip replacement surgery compensable- we lack jurisdiction to rule on this issue at this time.

Accordingly, McCain's appeal is DISMISSED and REMANDED to the ALJ for a decision on all remaining issues.

ALL CONCUR.

COUNSEL FOR PETITIONER:

HON BONNIE HOSKINS

P O BOX 24564

LEXINGTON KY 40524

COUNSEL FOR RESPONDENT:

HON JEFFREY J PAIGE

1501 DURRETT LN STE 200

LOUISVILLE KY 40213

ADMINISTRATIVE LAW JUDGE:

HON DOUGLAS W GOTT

400 E MAIN ST STE 300

BOWLING GREEN KY 42101