*/
Workers’
Compensation Board
OPINION
ENTERED: July 29, 2016
CLAIM NO. 201465846
JAMES MCDOWELL PETITIONER
VS. APPEAL FROM HON. STEVEN
G. BOLTON,
ADMINISTRATIVE LAW JUDGE
ANN TAYLOR, INC.
and HON. STEVEN G. BOLTON,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
REVERSING
IN PART,
VACATING
IN PART, AND REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
James McDowell (“McDowell”) appeals from the
February 15, 2016, Opinion, Award, and Order and the March 11, 2016, Order on
Petition for Reconsideration by Hon. Steven Bolton, Administrative Law Judge
("ALJ"). The ALJ awarded permanent partial disability
("PPD") benefits in the amount of $3.92 per week commencing on
October 2, 2014; temporary total disability (“TTD”) benefits of $301.79 per
week from October 6, 2014, to March 18, 2015; and medical benefits for a right
elbow injury.
On appeal, McDowell asserts the ALJ
erred in dismissing his claim for a right shoulder injury against Ann Taylor,
Inc. (“Ann Taylor”) due to a lack of due and proper notice and failed to make
adequate findings of fact on the issue of causation regarding the right
shoulder.
The Form 101 alleges on October 2,
2014, McDowell injured his right elbow and shoulder in the following manner:
"Client was loading a truck. The boxes began falling and he injured his
shoulder. He also injured his elbow when he was trying to get out of the
way." Regarding notice, the Form 101 alleges as follows: "The
client's supervisor was notified the same day and he went to the doctor the
next day."
On August 3, 2015, McDowell filed a
Motion to Bifurcate requesting the ALJ to first decide the issues of
entitlement to medical treatment and TTD benefits. By order dated August 24,
2015, the ALJ overruled McDowell's motion.
The December 15, 2015, Benefit Review
Conference ("BRC") order lists the following contested issues: benefits
per KRS 342.730; work-relatedness/causation; notice; unpaid or contested
medical expenses; injury as defined by the ACT; TTD [handwritten:
"duration/rate"]. Under "other" is the following:
"incl. extent & duration w/multipliers; compensability of right
shoulder." The BRC order indicates TTD benefits were paid from October 6,
2014, and March 29, 2015.
McDowell was deposed on September 3,
2015, and testified regarding the October 2, 2014, accident:
A: Okay. We was [sic]- we was [sic]- I was
telling you about the- about the boxes coming down the- the conveyor.
Q: Uh-huh.
A: And they was [sic] coming down the
conveyor, and I told you I was over there. And it [sic] was [sic] another- two
more guys.
And it started coming down. And we went in
there, and they start come [sic]- we start stacking. So, you know, we have one-
we have one guy on this side and one guy on that side in the middle, and I'm on
the very end.
And we- and everybody's grabbing. He's
grabbing. He's grabbing. I'm grabbing. We put them up. We [sic] throwing them
on up. We [sic] throwing them up.
And as we [sic] stacking them, they're
getting to be a wall. We [sic] pushing them because they [sic] all different
sizes. We try to keep them uniform.
...
A: So as we was [sic] putting them, you know,
on there and- you know, one of us was hitting the button so the conveyor could
come back, because, you know, we got to where they was [sic] going so much that
we was [sic] stacking them up- up so far, then, all of a sudden, I don't know what
happened, one of the rows, one of them started to come- started to come at us.
And everybody tried to back- everybody's
starting to back up. And instead of it coming, the whole thing, it [sic] just
one side of it came. And as they was [sic] ducking- and I had my back turned.
I'd [sic] come [sic] to and I turned around to it, it was coming at me.
And the only thing I could do, them [sic]
boxes was [sic] hitting me, and I hit my elbow on the conveyor. As I hit the
elbow-
...
A: I said one of them started coming, but it
wasn't the own- it was the only one that started. One of them started coming.
If one started, the other one- other ones started coming.
And as it was, I had my back turned. They was
[sic] ducking. Some of them was [sic]- the guys was [sic] ducking.
...
A: And I turned around, and it was right on
me. So I fell back and hit my elbow on there, and then my shoulder hit the side
of the truck going down.
...
Q: Okay. So one of- one of the stacks starts
falling on you, and you said you hit your elbow on the conveyor belt; right?
A: Right.
Q: Did you fall to the ground?
A: I fell to the ground with the boxes.
Q: Did the boxes fall on top of you?
A: Two or three did.
Q: Where did they fall on you?
...
A: Oh, they- it fell- chest, shoulder, leg-
Q: Okay.
A: - like that. I- I blocked- I blocked my
face, but, you know-
Q: What part of your body hit the ground?
A: My elbow- elbow hit- my shoulder hit the
side of the truck.
Q: So your shoulder hit the side of [sic]
truck, and your elbow hit what?
A: The conveyor.
...
Q: You hit the side of the truck, but you didn't hit the ground?
A: Well, I ended up on the ground, but it- it kind of caught my-
it kind of caught my fall.
Q: The side of the truck?
A: Yeah.
Q: Okay. And what- what side caught- caught
your fall? Your left or your right side?
A: My right side.
...
Q: So did it hit the boxes itself or the
wall?
A: My- my shoulder?
Q: Yeah.
A: No, it hit the wall.
Q: Any other body parts come into contact with
anything?
A: No.
Q: So your right shoulder hits the wall of
the truck, and your right elbow hits the conveyor. Anything else?
A: No.
McDowell
explained what occurred directly after the incident, including the filling out
of the injury report:
A: Well, we got up and every- every- we
straightened all the boxes back up. We kept on working.
I said- they asked me if I was all right. And right then I said
I was okay, and I- but, I guess, I was working, and I kept feeling my elbow,
you- you know.
And I said something to the supervisor about
it, and- and then they told me to let me know if I-
Q: Who was the supervisor?
A: It was- well, Laura's the supervisor, but
Gene is the- is the lead. He's the lead. He's the lead man, so he's the-
Q: What's Gene's-
...
Q: -Gene's last name?
A: Gene Lilly.
Q: Lilly?
A: Uh-huh.
Q: Okay.
A: And he said, 'If you want to' - he told me
to report it to her. And she said if I wanted to go see about it - and I told
her right then that, 'I'm okay. You know, I'm okay' right- you know. I didn't
want to go see about it, but as the day progressed, it started getting- it
starts swelling up and getting stiff.
Q: Your elbow.
A: Correct. So- so that- that evening she
asked me about it, and I said 'I'm going to go home, and I'm just going to- I'm
going to soak it, you know, and ice it down, and see if it'll be all right.'
And so-
Q: That's on Thursday, the 2nd.
A: That's on Thursday.
Q: Okay.
A: And so I said, 'We're fine- we'll see.'
She said, 'Well, if you come in tomorrow and it's still bothering you, we're
going to send you over to the- we're going to send you over across the street.'
I said, 'Fine.'
I went home. I had ice packs at home, and I
iced it down and rubbed it down real good. And, you know, this was kind of
stiff, but, really, all the pain was right in the elbow.
Q: Okay.
A: So when I got up the next morning, it's
still kind of stiff- because I drive to work, and, you know, I could feel it,
you know, driving. So I got to work and- and she said how did it look? She
looked at it and said, 'It's still kind of swollen.'
...
A: And we was [sic] working, like, ten-hour
shifts, and so we was [sic] riding overtime. So I kept on working.
We started working. And- and about break
time, which- about 9:20, it was swollen up some more. And I kept saying, 'It's
getting stiffer and stiffer.' By then, it just started swelling. It was all the
way up my arm.
So what we did, we took- me and a coup- a
couple coworkers took two ice bags, and we put them right on my elbow. And we
taped them with duct tape all the way like this. And I- and I worked like that
until about 11:30.
And she came down, because Gene had called
her up- from upstairs, office, and told her, 'You need to come down, because
he's- keeps- he's getting worse and worser [sic].'
I was- by then, I was still doing the boxes,
but I wasn't doing half the speed. So when she came down about 11:30, she said,
'I'm sending you across the street.' I did not-
Q: This was on Friday-
A: Yeah.
Q: -the 3rd?
A: Uh-huh.
Q: Okay. So that would have been BaptistWorx.
A: Yeah.
Q: Sir, are you telling me that you went to
BaptistWorx on Friday, the 3rd?
A: Oh, I didn't go that Thursday. I went
there Friday.
Q: Okay. So the records that I have show that
you went the following Monday. Do you know anything about that?
A: Well, I probably had to go- I- probably
[sic] a Monday.
...
Q: And you- your testimony here today is that
you think you told Laura about the incident the day that it happened, that
Thursday; right?
A: Right.
...
Q: Okay. Do you know if you ever had to fill
out a re- and incident report?
A: We filled out an incident report, but- she
filled out the incident report.
Q: Were you around her when she did that?
A: Yeah, I was sitting in the- I was sitting
in the office when she filled it out.
Q: Did you see it?
A: I mean, did I see what she wrote? No, I
didn't.
Q: Okay. And do you remember when that
incident report was filled out- or when she filled it out when you were in
office with her?
A: She filled it out right after- right after
I came back from Baptis- I mean, BaptistWorx.
Q: So it would have been the 6th, because we
just established you went to BaptistWorx on the 6th-
A: It would have to be.
Q: -right?
A: Yeah, it would have had to be.
Q: Okay. So the incident report was filled out on the 6th;
right?
A: Right.
Q: And you did not get an opportunity to see
what she filled out; right?
A: Right.
Q: So you didn't sign it or anything; right?
A: I don't know. I don't know it I- I don't
know if I signed it or not. I had to. I would have had to sign it; wouldn't I?
Q: I don't know the answer to that. I'm-
that's why I'm asking you. So let me ask you this: Do you remember signing an
incident report?
A: I signed one once before when I had that-
my knee-
Q: Okay.
A: -but I don't- you know, I- I could have. I
don't know.
Q: All right. And-
A: You're talking almost a year.
Q: Right. When you reported the incident to
Laura and when- and- and subsequent- subsequently when you filled out- or when
she filled out an incident report while you were with her in the room, do you
recall what body part you told her you injured?
A: Yeah, I told her I- I told her that I- I
told her that I hurt my elbow, but I said I had pain all the way up to my
shoulder.
Q: So you told her you hurt your right elbow
and that you had pain all the way up-
A: all the way up to-
Q: -to your shoulder.
A: -the shoulder.
Q: Is that pretty much the words that you
used when you explained-
A: Pretty much.
...
A: It could be either/or-
Q: Okay.
A: -but I know I mentioned my shoulder, too.
. . .
Q: Okay. Now, you also told Aida that part of
the protocol was to talk to Laura Whitlock about the injury.
A: Correct.
Q: Okay. So you're sitting in the room with
her, and you tell her what happened.
A: That's correct.
Q: Okay. And- but this is after you had been
to BaptistWorx.
A: Correct.
Q: So at that point, you had already been
diagnosed with a broken elbow- oh- and I'm not a doctor, and I'm not going to
say that correctly, but a broken elbow.
A: A fracture; yes.
Q: Okay. And did you bring her that
paperwork?
A: Yes, I did.
Q: Okay. So she was talking to you, but she
also had to be- she was also referencing the record from BaptistWorx.
A: Correct.
Q: Does that sound right? Okay.
So when- when you talked to Laura, you- did
you tell her the same things that you told us earlier that, you know, you had
pain in the elbow but it went to the right shoulder?
A: It was going up- yeah, it was going to my
shoulder.
Q: Okay. So as you're telling her this, and
she's reviewing the BaptistWork's [sic] report, she's typing it into the
computer.
A: Well, she- yeah, she- yeah, she's typing
it, because she couldn't- she couldn't make a report until after I went over
there and I came back with the paperwork-
Q: Okay.
A: -saying what was wrong.
Q: All right. After she filled out this
injury report, at any point did you see the report she filled out?
A: Not as I remember.
Q: Okay. You don't remember signing anything.
A: I ain't [sic] saying I didn't sign it-
Q: Uh-huh.
A: -but I don't remember reviewing it.
When presented with the injury report,
McDowell testified:
Q: Okay. Well, I have this. And it's been
filed into evidence, but I'll probably just attach it to the deposition just
because your referencing it.
This is the First Report of Injury. Is this
the first time that you've ever seen this document?
A: [examines document]
Q: Does this look familiar to you at all?
A: Oh, yeah, it looks familiar.
Q: Okay. Have you seen this before or-does
the form itself, or does this specific incident report, when you're talking
about October 2nd, 2014, have you seen this specific incident report regarding
that injury?
A: This is the elbow?
Q: Yeah, this is for your elbow.
A: I don't remember-
Q: Okay.
A: -but I know I've seen- I've had to fill
one out. I- I had to fill one out like this before, but this- this was what- I
think this here is a- a new- we changed workmen's- I think we changed insurance
companies. And the first time when I hurt my knee, it was under a different
one. So this was different.
Q: Okay. So as you're sitting here today, is
this the first time you've reviewed the actual injury report from October 2nd
of 2014 where you hurt your elbow and your shoulder?
A: To me, it is.
Q: Okay. So- and you- looking at this form,
you- you're not seeing your signature anywhere.
A: [examines document]
Q: And there's three different pages, so I
probably shouldn't spread it out. You don't see your signature on any one of
these three pages that we're looking at right now.
A: [examines document] Unless you see it and
I don't.
Q: Okay. I don't see it, but I'm just wonder-
I just wanted to make sure you- you know, you didn't sign this report; correct?
A: Not that I know of.
...
Q: Now, I'm going to read a line to you
regarding- on this incident report, and it says- and I'll- this "EE"
stands for employee. It's just shorthand.
[reads] Employee was working loading a
trailer when he hit his elbow in the conveyor causing a right olecranon process
fracture to the right elbow.
Does that accurately describe the injury that
you had on October 2nd, 2014, or is she missing something?
A: Okay. When she was ask- when she- when she
was doing it, I told her that when it hit- hit the elbow, and she typed it up,
I said, 'I hit the elbow, but I had pain all the way up to my shoulder,' she
didn't put the shoulder down there, but I sure- I'm sure I said it.
...
A: -I mean, since my elbow was so swollen,
although that I said that my- you know, that the pain was going all the way to
my shoulder, and what BaptistWorx was sending her back, they didn't put nothing
in there about my shoulder. So they- she didn't put nothing on the paperwork
about the shoulder.
Q: And- and, obviously, this isn't a co- you
didn't talk to her about this. You're just assuming that that's what happened.
A: That's what I'm saying.
Q: Okay. Because I don't want the judge to
think that this is a conversation you [sic] with Laura, you know, because it's-
you didn't talk to her about this. This is what you're assuming based on the-
A: What I see-
Q: -description of the injury.
A: -what I see, yeah.
Q: Okay. So she doesn't mention the shoulder,
but, you know, had you had the opportunity to review this, would you have
corrected her?
A: I probably would have.
Q: Okay. And you would have told her about
your right shoulder.
A: Right.
Q: Okay. But you didn't get that opportunity;
is that true?
A: That's true.
McDowell testified when his right
shoulder pain first began:
Q: Okay. When did you first start
experiencing right-shoulder pain?
A: The first week.
Q: The first week of physical therapy?
...
Q: Is that a yes?
A: Yes. I'm sorry.
Q: That's all right. And what did you do at
that point?
A: Well, I- I told the- the guy that was
working with me, I said, 'I keep feeling- I keep feeling something funny in my
shoulder.' And that's when he start- he started working with it and stuff like
that.
And then I told him it was- felt kind of
sore. Then he start- when he was icing this part down, he started putting heat-
Q: When he was icing your right elbow down?
A: He started putting heating pads on the
shoulder.
Q: Okay. And then what?
A: And- and then he- that's what he was doing
every time I came. He was doing it every time. And then he kept saying he was
kind of concerned about the shoulder, although the elbow was getting somewhat
better.
And then when we got ready, when- you know, I
was having to- he was having me lift up certain stuff, and I was having
problems lifting.
Q: During physical therapy?
A: And that's- that's when he was getting
concerned. He said, 'The elbow seems to be working, but you're not- you're not
lifting up,' because I had to be able to- to go overhead. I had to be able to
lift overhead, and I couldn't do them [sic].
When he- when he got a- a small- a little
small ball, and I couldn't throw it up- I couldn't throw it up into the- the
bin, and that's when he said, 'You need to tell the doctor about your
shoulder.'
Q: Okay. So is it fair to say that your
right-shoulder pain and symptoms developed during physical therapy?
A: I don't know if it developed during there,
but it started.
Q: It started during physical therapy?
A: In pain- it started paining [sic] more
during physical therapy, but I wasn't doing anything in extreme in order to
make it- it was- I was just doing regular ice and heat and- and this stim- and
this stuff they put on there that- I forget what it is, that stimulates the-
Q: Uh-huh.
A: -the arm and stuff. They was [sic] doing stuff like that.
...
Q: So when the elbow pain started to-
resolving [sic], that's when you really noticed what- that something was wrong
with your right shoulder.
A: Yes, it was.
Q: Okay. But was there ever a doubt in your
mind that the shoulder wasn't related to your fall at work?
A: No.
Q: Okay. So you- you, from the beginning,
attributed the pain in your shoulder to the fall at work.
A: Yes.
Q: Okay. But you- and you're not a doctor, so
you didn't know at the time of your fall, you know, that you had a- an injury
to your shoulder. You just knew you had pain there.
A: Correct.
Q: Okay. And the pain in your shoulder really
didn't start to bother you until the elbow had resolved.
A: Right.
Q: Okay. And you didn't notice the- the real
pain in your shoulder until physical therapy was making you use that shoulder.
A: Right.
After four weeks of physical therapy, McDowell
saw Dr. Frank Bonnarens a second time:
Q: And during that second evaluation with Dr.
Bonnarens, is that when you started telling him about right-shoulder pain?
A: I told him about the problems I was having
with it. And he examined me further, and he stopped the physical therapy.
Q: Okay. What about your elbow at that time?
Had that kind of resolved, or were you still having problems with your elbow?
A: I was still having some problems with my
elbow.
Q: What kind of problems?
A: It was still kind of- it was still- it was
still sore. It was still tender, but not like it was.
...
Q: Okay. So then Dr. Bonnarens sent you to an
MRI of your shoulder; right?
A: Yes, he did.
Q: Did you ever get an MRI of your elbow?
A: No, I think they just x-rayed it.
Q: Okay.
A: Then- I don't know bene- I don't know
whether they- if they MRIed [sic] both of them at the same time or not.
Q: Okay.
A: I can't say.
Q: And then he started treating you for your
shoulder in December. Does that sound right to you?
A: Yes.
Q: Okay. In December he had recommended a surgery to you, is
that right-
A: That's correct.
Q: -for your right shoulder? Prior to that
recommendation for surgery in December of 2014, had you had any physical
therapy for your shoulder specifically?
A: No.
Q: Did you have any injections in- to your
right shoulder?
A: No.
McDowell underwent shoulder surgery in
May 2015.
McDowell testified regarding when he
gave notice of his shoulder injury:
Q: Okay. So, to your knowledge, do you think that the employer
knew that you had right- a right-shoulder injury?
A: Yeah, I told them that it was bothering me
real bad.
Q: Do you remember when the first time you
told them of the right shoulder was?
A: I think I told them when I was getting the
heating pad on there, and they was [sic] asking me about it. I said, 'My
shoulder had been both' - I told them, 'My shoulder had been bothering me.' And
he said, 'It doesn't sound- that doesn't sound good.'
Q: So this would have been during physical
therapy when you were getting the heating pad; right?
A: Right.
Q: So you don't think you told Lynn Womack
about your right shoulder on Thursday, October 2nd?
A: What are you talking about? My
primary-care doctor?
Q: I'm sorry. I-
A: You're talking about-
Q: Laura Whitlock.
A: No, I just told her about- you- oh, you're
talking about when I initially got hit- hit- got hurt?
Q: Yes.
A: Oh, no, I just told her that- you know,
that- my elbow, and it was- pain was going all the way up to my shoulder.
Q: Okay.
A: Of course, I was telling everybody that at work, because I
was going- walking around.
Q: Sure. So you think the first time you told
Laura Whitlock about your right shoulder specifically was during physical
therapy after; right?
A: Right.
...
Q: Okay. And then as soon as you started
feeling the- your right shoulder, you know, you're- you're really hurting in
it, did you re- who did you report that to?
A: I told them at physical therapy. And then
I told them at work, also, when I went over- when I went over and turned [sic]
the paperwork over there, I told them I was having pain in my shoulder. And
they said, 'You probably ought to have it looked at.'
Q: I mean, you know, I know you said that to
Aida, but there's no paperwork. You didn't fill out any additional paperwork
about when you're- you know, you're telling us that you're taking your
paperwork over there and you're saying, 'Oh, my shoulder hurts.' And they're-
A: Right. Right.
Q: - whatever was said.
A: Yeah.
Q: There's no documentation of that.
A: That's true.
Q: Okay. You didn't write anything down. You
don't have your employer write anything down.
A: That's true.
Q: Okay. But then, again, you never reviewed
the first report of injury, so if there were paperwork, would you even know
that there was?
A: No.
McDowell disagreed with Dr. Bonnarens'
summary of the work incident in his March 19, 2015, report:
Q: Okay. So on his March 19th, 2015 note- I'm
going to read this to you; okay- he says, [reads] The patient said that when he
hit his elbow on the conveyor, that was because he was actually falling
backwards. And he fell backwards into the conveyor striking his elbow.
Does that sound like an accurate description
of what happened on October 2nd, 2014?
A: No, it doesn't.
...
Q: -description of your medical condition;
but that description right there, is there any mention of a fall onto the
ground?
A: No, there's no mention of a fall on the
ground.
Q: And is there any mention of a fall onto the
ground of the tractor-trailer?
A: No, there isn't.
Q: Okay. So is it your testimony that this is
an inaccurate description of what happened on October 2nd, 2014?
A: Yeah, it's an inaccurate description. See,
when I was talking- when he told me- he- he had said something to me about
this, the reason why that they did not want to cover the- the workmen's comp is
not wanting to cover the surgery.
And I told him- I told him, then, when he-
when he brought up the- when he read that part to me, I told him that I hit my
shoulder, too. And he said he wasn't told- he said he wasn't told that.
And I told him that- and then he dir-
redirected it. I don't know. He said he was- he- well, he has one of those-
well, he- you know what I mean? He has a recorder, and he was speaking into it,
and he redirected it.
I don't know if he sent it to them or what he
did. And he told them about me- about me falling to the floor.
...
Q: You, as his patient, isn't it your
responsibility to describe to him how you got hurt?
A: Yes, it is.
Q: Okay. And so the information that he's gathering about what
happened on October 2nd, 2014 is coming from you; is that correct?
A: That's correct.
Q: Okay. So this description that he has that
you just read to us from March 29th, are you saying you disagree with that
description?
A: What- what I just read there?
Q: Yes.
A: Yeah, I do disagree with it.
Q: Okay. So you still maintain that you
actually fell to the floor on October 2nd, 2014, the floor of the
tractor-trailer.
A: Yes.
Q: Okay. But that's not something that Dr.
Bonnarens documented, to your knowledge; is that right?
A: That's right.
Q: And that's not something that any of the
doctors at BaptistWorx [sic] documented, to your knowledge; right?
A: Right.
Later in his deposition, McDowell was
asked again to explain how he sustained his alleged shoulder injury:
A: I hit the shoulder right against the side,
just- just below- just below the floor. That's how I ended up on the floor.
Q: Just below the floor?
A: What I mean is- here's the wall. Here's
the wall.
...
A: In other words, like scraping the wall.
It's going to the floor.
Q: Okay. So-
A: Maybe that'll make you understand a little bit better.
Q: So, basically, the- the wall was kind of
slowing the fall, but the brunt of the full [sic]-
A: Oh, it didn't stop it. It didn't stop it.
Q: Okay. So the brunt- you- like so your- did
your shoulder-
A: In other words-
Q: -hit the ground and take the brunt of the
fall on the ground, or did the brunt of the fall- was the wall taking the brunt
of your fall?
A: It hit the wall coming down.
Q: Okay. So your shoulder eventually hit the
ground.
A: Oh, it took enough of it hitting the wall.
Q: Okay. All right. All right. So- because
when we sent you to Dr. Roberts, he indicated that you fell back striking your
elbow on the conveyor belt and then striking the shoulder on the ground. Was he
wrong when he says it like that?
A: Well, I'm trying to explain it the best I
can-
Q: Uh-huh.
A: -but I told him- I told him the same as I
told you, that I ended up- I- when I ended up on the ground- ended up on the
ground.
Q: Okay.
A: But I was-
Q: So what-
A: -trying- but, basically, what I was trying
to- I was trying to tell you exactly how it happened, you know.
Q: Okay.
A: It took a lick there, and it took a lick
on the ground, too.
Q: Okay. So when you hit the ground, what
body part hit the ground first?
A: My shoulder.
Q: The right shoulder?
A: Yes.
Q: Okay. All right. So that's why it was
confusing to me, because when [sic] were explaining it to Aida, it sounded like
the brunt of that fall on your shoulder was the wall and not the ground.
A: Well, really, I could say my head, too,
because all of it hit.
Q: Okay. But you're not having any head
problems.
A: No.
...
Q: Okay. All right. So your shoulder hit- the
right shoulder hit the ground.
Is that the-
A: Yeah.
Q: Okay. But on the way down it hits the
wall.
A: Yes.
Q: Okay. All right. That's what I was
confused about, because I- I was trying to make sure that Dr. Roberts wasn't
wrong when he reported that-
A: Okay.
Q: - your shoulder hitting the ground; okay.
So after this happens, you're- you said, and you told Aida this, that you had
pain in your- your elbow and it went up to the shoulder; is that right?
A: Correct.
Q: Okay. Did you report- when you reported
the injury, did you say, 'I have- I- you know, I have pain in my elbow, but
it's up to my shoulder. I have pain up to my shoulder'?
A: Yes, I did.
Q: Okay. And that was to Gene Lilly?
A: I told him, but when I made the report to
Laura, she had- I told her about it, too.
Q: Okay.
A: Well, you know, they pass- you know, the
buck doesn't stop there. He told me to report it to her- or he called her on this-
his radio, and she came down-
Q: Okay.
A: -and talked to me.
McDowell testified that his shoulder
was causing him "stiffness" after the incident. When he went to
BaptistWorx on October 6, 2014, he allegedly was experiencing pain
"slightly."
Q: Do you know why they didn't document that-
well, let me take that back.
Do you remember telling them that you were
experiencing slight pain in your right shoulder?
A: Well, I told them that- when I was there,
that it was hurting for- for my arm all the way up to my shoulder. Whether they
documented it or not, that's what I told them.
Q: Okay. So you told them that your pain was
in your right elbow, and it was going up-
A: Going up to the-
Q: -to your shoulder.
A: -shoulder.
Q: Do-
A: That's correct.
McDowell did not remember telling
BaptistWorx about specific pain in his shoulder
or that he fell to the floor of the tractor-trailer.
McDowell also testified at the
December 15, 2015, hearing. Concerning the work incident, McDowell testified:
A: Okay. We was [sic] working inside the
truck. We had a conveyor there and there was [sic] proceeding down the line,
and we was [sic] going at a rapid speed because we was [sic] doing internet.
And it started to pile up, so we was [sic] stacking pretty rapidly and they
started to come back. There was [sic] about two or three of us in the truck.
And everybody started to back up and it came forward and was trying to block
them and then I hit my elbow and when I fell back I hit my shoulder against the
side of the truck.
Q: Okay. What kind of- did you have immediate pain?
A: No. I got up, you know, that's when I felt
a little bit funny and I got up and then we went to break. And then after break
then, you know, it started feeling kind of funny and started swelling. By
lunchtime it had swollen [sic] up.
Q: Okay.
Swelling where?
A: In my elbow.
Q: Okay. And were you feeling any pain by
then?
A: Yes, I was feeling pain.
Q: Okay. And where were you feeling the pain?
...
A: Up through the elbow.
Q: Okay. And you're pointing above your
elbow?
A: Yeah. But it wasn't all the way up to my shoulder. Because
see, I did not- in other words I went home. You know, I reported it, but I went
home and then came back the next day and by that [sic], you know, it was worse.
Q: Okay. And what was the pain like the next
day?
A: Oh, it was excruciating. It was coming up.
Q: Okay. And where was the pain located?
A: It was located from my wrist all the way
up to my shoulder.
Q: Okay. So by the day after your shoulder
was hurting as well?
A: Yes, it was.
...
McDowell was asked to provide a timeline
of events following the work-related incident:
Q: Okay. Now, after the incident that
happened on Thursday, October 2nd, which I do want to talk about in a second,
but just to get a time line, that Friday, so October 3rd, 2014, you came to
work?
A: Yes, I did.
Q: Okay. And you did work your full shift
that Friday; right?
A: Yes, I did.
Q: Okay. Now, that Saturday, October 4th,
2014, that was a mandatory overtime day that you did not want to miss; is that
right?
A: That's correct.
Q: So you come into work that Saturday, October 4th, and worked
your full shift; correct?
A: Yes.
Q: Okay. Sunday, October 5th you were off; is
that right?
A: Right.
Q: And then Monday, October 6th, 2014 you
came into work again; is that right?
A: Right.
Q: But at that time did the employer send you
to BaptistWorx [sic] to be checked out?
A: Right about 11- about 11:15, 11:20.
McDowell testified he reported his
injury to a supervisor, Laura Whitlock, the same day it happened. "I told
her I fell and hit my elbow and stuff, just like that."
The October 6, 2014, Baptist Health
Occupational Medicine/BaptistWorx report under the heading "complaint,"
reads: "right elbow pain." Under "diagnosis" is "right
olecranon process failure."
Regarding the injury mechanism, the
October 6, 2014, First Report of Injury or Illness reads: "EE WAS WORKING
LOADING A TRAILER, WHEN HE HIT HIS ELBOW IN THE COVEYOR [sic], CAUSING R
OLECRANON PROCESS FRACTURE TO R ELBOW." Importantly, the injury report indicates
it was not signed by McDowell.
Attached to the Form 101 is the
October 9, 2014, record of Dr. Bonnarens in which he provided the following
"history":
The patient is a 59-year-old white male who
presents [sic] complaining of pain in the right elbow. He said he was loading
things on to [sic] conveyor when he struck the elbow. He said it hurts when he
bends it. He describes the pain as 9/10. Keeping it still makes it hurt less.
Bending it makes it hurt more. The patient has had no testing done other than
the x-rays he presents with. Patient did not report any falls.
Under
"impression" is the following: "Overall impression is that we
are dealing with olecranon bursitis, early."
Also attached to the Form 101 is Dr.
Bonnarens’ November 6, 2014, record which states as follows:
The patient presents today complaining of
pain in both his right elbow and shoulder. He said the elbow actually feel like
it is doing better where he struck it, but he has noticed that he is having a
lot more pain in the right shoulder with difficulty moving it and difficulty
with his activities of daily living. He describes it as an aching pain. He said
the medicines do help sometimes. He demonstrates good passive range of motion
of the shoulder, but limited active range of motion. He has significant
weakness with abduction and external rotation against resistance. Neuro is
intact. Pulses are present. No evidence of lymphadenopathy. No warmth,
erythema, or drainage is present. in [sic] regards to his elbow, he has a good
range of motion. Minimal, if any, tenderness. Neuro is intact. [sic] Pulses are
present. [sic] No evidence of lymphadenopathy. It looks like the elbow is doing
much better but in the shoulder it looks like we are dealing with a rotator
cuff tear. The plan is to obtain an arthrogram MRI of the right shoulder and
see him return with results.
The December 16, 2014, MRI report,
attached to the Form 101, sets forth the following impression:
1. Full-thickness anterior
supraspinatus insertion tear measures 9-10 mm in maximal AP dimension.
2. Rotator cuff tendinosis.
3. Undermining and partial detachment of the
superior to posterosuperior labrum with adjacent pitting and cystic change in
the superior glenoid.
4. Moderate acromioclavicular joint
arthrosis.
5. Rotator cuff muscle atrophy, as
described.
Dr. Bonnarens' December 18, 2014,
medical record, attached to the Form 101, states, in relevant part, as follows:
The patient returns today in followup on his
right shoulder saying he is continuing with pain. It is 8/10. He feels a little
bit better since the arthrogram, but he found that rather painful. Range of
motion, etc., are unchanged. Still has the weakness. This was discussed in
detail with the patient. MRI does show a tear of the supraspinatus tendon,
shows partial tearing of the labruam, and AC joint arthropathy. It looks like
we are dealing primarily with a rotator cuff tear. This is consistent with the
injury that he describes.
Dr. Bonnarens' March 19, 2015, medical
report, also attached to the Form 101, states as follows:
The patient returns today in following on his
elbow and on his shoulder. The history of [sic] clarified. The patient said
that when he hit his elbow on the conveyor that was because he was actually
falling backwards and he fell backwards into the conveyor, striking his elbow.
He said that they have been stacking boxes up to five high and the boxes were
actually falling on him and fell, pushing him backwards into the conveyor. He
said that his elbow is doing fine, but he is still having weakness in the
shoulder. He said the elbow had been hurting so much that he had not noticed
the shoulder as a problem, until the pain left his elbow and he realized he was
left with the pain in the shoulder. Examination of the elbow shows that he has
full range of motion. No laxity. No warmth or erythema is present. No
tenderness. Neuro is intact. It looks like the elbow is doing great. The
patient still has the weakness in the shoulder with limitations in active range
of motion secondary to pain consistent with his tear. Based on the information
and the history provided by the patient, it does look like that the rotator
cuff tear was reasonably related to his fall and the elbow looks like it is at
maximum medical improvement and the patient is doing well with that. Plan at
this point is to proceed with the surgery. As far as his elbow is concerned, no
further treatment is needed. The patient should be considered at MMI for his
right elbow.
Also attached to the Form 101 is the
April 23, 2015, medical record of Dr. Bonnarens which reads:
The patient returns today in followup [sic]
on his shoulder saying that he is still having pain, difficulty with his activities
of daily living. The patient now has the medical clearance in order to proceed
with surgery. Evaluation and history are completely unchanged. Still has
weakness in the same pattern, but good range of motion. In view of the fact the
history, evaluation, and examination are all unchanged. [sic]. The patient
continues to be symptomatic. He said that he would like to proceed with the
surgery. He understands risks, benefits, and potential complications associated
with this. He said he will be doing this under his private health insurance
since it has been denied as a work injury and we will go ahead and get him
scheduled for that.
Also attached to the Form 101 is the
Baptist Eastpoint Surgery Center Operative Report concerning the May 13, 2015, surgery
on McDowell’s right shoulder, performed by Dr. Bonnarens.
Ann Taylor introduced questionnaires
completed by Dr. Bonnarens on March 6, 18, and September 11, 2015. In the March
6, 2015, questionnaire, Dr. Bonnarens responded as follows:
Thank you for your continued care to Mr.
McDowell. You requested Rotator [sic] cuff surgery for this employee. This
employee injured his elbow at work after hitting it on a conveyor belt.
Please answer the following questions so we
can handle our claim accordingly.
1) Is the major contributing cause and need
for surgery related to this WC accident? [Dr. Bonnarens checked
"no."]
2) Is the recommended rotator cuff surgery
causality [sic] related to the work injury of 10/2/14? [Dr. Bonnarens checked
"no."]
3) But for the work event would he require
the rotator cuff surgery? [Dr. Bonnarens checked "no" and wrote the
following: "pt was asymptomatic prior to work incident."]
In the March 18, 2015, questionnaire
response, Dr. Bonnarens opined McDowell reached maximum medical improvement for
his elbow.
In the September 11, 2015,
questionnaire response regarding McDowell's right shoulder, Dr. Bonnarens
opined:
5. You have reviewed Mr. McDowell's deposition transcript taken
on 9/3/15. Is the mechanism of injury that Mr. McDowell describes in his
deposition transcript consistent with the mechanism of injury he described to
you during the office visit on March 19, 2015? Why or why not?
[handwritten: "No- It would have
required a 180° spin"]
6. Do you believe that Mr. McDowell's right
shoulder condition was caused by the mechanism of injury as he describes during
his deposition?
[handwritten: "No if he had to spin Yes
if he did hit shoulder on the wall"]
7. Do you believe that the right shoulder
surgery performed on May 13, 2015 was related to the work injury occurring on
October 2, 2014?
[handwritten: "Based on he [sic] yes”
and “Based on reconstruction of accident no"]
In the February 15, 2016, Opinion,
Award, and Order, the ALJ set forth the following "Analysis":
There
is little doubt that James McDowell, a
60-year-old employee of Ann [sic], Inc. sustained some sort of work-related
injury on Thursday, October 2, 2014. The Defendant maintains that the only
reported injury was to his right elbow.
The Plaintiff maintains that he also suffered an injury to his right
shoulder, which was later confirmed by the necessity for rotator cuff surgery
by his treating orthopedic surgeon.
On the date of injury, Mr. McDowell continued working and
subsequently returned to work again on Friday, October 3, Saturday, October 4,
and Monday, October 6, 2014. He did not
report his injury until that following Monday, complaining to his supervisor of
right elbow pain. Four (4) pieces of
evidence recorded within a short period of time after the work event
corroborate that the Plaintiff sustained a right elbow injury only. Thus, the
crux of the case is whether the Plaintiff has carried his burden to show that
he suffered a work-related injury to his right shoulder while working for the Defendant
and that he gave due and timely notice of same.
The
burden of proof in a Workers’ Compensation claim is on the claimant (Plaintiff
herein) to prove each and every essential element of his claim. Snawder v.
Stice 576 S.W.2d 276 (Ky. App. 1978). Specifically, the Plaintiff must
establish a causal relationship between the work incident and the condition. Jones
v. Newburg, 890 S.W.2d 284 (Ky. 1994).
Pursuant to KRS 342.0011, an injury must be work-related and be
the “proximate cause” producing a
harmful change in the human organism in order to be compensable. (Emphasis ours). Black’s Law Dictionary defines
“proximate cause” as “that which, in a natural and continuous sequence,
unbroken by any efficient intervening cause, produces injury, and without which
the result would not have occurred.”
The Court discussed the statutory requirement of objective
medical findings in the case of Gibbs v. Premier Scale Co., 50 S.W. 3d
754 (Ky. 2000). The Court held that “a
diagnosis based upon a worker’s complaints of symptoms but not supported by
objective medical findings is insufficient to prove an injury for the purposes
of Chapter 342.” The
courts have held that in order for an injury to be work related, it must arise
out of and in the course of employment. Armco
Steel Corp. v. Lyons, 561 S.W.2d 676 (Ky. App. 1978). Furthermore, the burden is on the claimant to
establish that the injury is work connected.
Hudson v. Owens, 439 S.W.2d 565 (Ky. 1969).
Even if a finding of work-relatedness is
merited, due and timely notice of the injury must be given to the employer by
the injured employee. When
a worker must provide notice to an employer is explicated in KRS 342.185(1):
[N]o proceeding under this chapter for compensation for an injury or
death shall be maintained unless a notice of the accident shall have been given
to the employer as soon as practicable after the happening thereof and unless
an application for adjustment of claim for compensation with respect to the
injury shall have been made with the department within two (2) years after the
date of the accident, or in case of death, within two (2) years after the
death, whether or not a claim has been made by the employee himself or herself
for compensation.
Hence, the statute requires notice of an accident to be given to the
employer as soon as practicable after the accident. Moreover, the employee has the burden of
proving that notice was given. Church v. Turner Elkhorn Coal Co., 492
S.W.2d 877, 878 (Ky. 1973). The determination of whether the notice was timely
is a circumstantial determination based on the facts of the case. Marc
Blackburn Brick Co. v. Yates, 424 S.W.2d 814, 816 (Ky. 1968). I am aware of
the facts and holding in the case of Autozone, Inc. v. Brewer, 127 S.W.
3d 653 (Ky. 2004). However, I believe that decision to be distinguished on its
facts. Notice of an alleged injury to the right shoulder is a substantial issue
in this claim.
In
this case, the facts are critical to a determination of both issues.
First, there are multiple versions of when the employer was
notified of the Plaintiff’s work-related injury. Upon presenting to Baptist
Worx [sic] on October 6, 2014 to seek medical treatment for the first time
following the work incident, Plaintiff completed a “New Injury Patient
Information” Form. This form is required
by all patients of Baptist Worx, [sic] who sustain on-the-job injuries and was
completed independently by Plaintiff as admitted by him at the formal hearing. He described the visit as being for “a hurt
elbow.” Mr. McDowell also indicates that
the injury occurred while he was “loading boxes in trailer, hit elbow on
conveyor.” Nowhere on the “New Injury
Patient Information Form” completed by the Plaintiff himself does he allege any
right shoulder injury symptoms or complaints.
Second, the First Report of Injury or Illness, Form IA-1 (FROI)
completed by shipping supervisor, Laura Whitlock in the presence of Plaintiff
reports a specific injury to the right elbow occurring while, “EE was working
loading the trailer, when he hit his elbow in the conveyor causing a right
olecranon process fracture to right elbow.”
No right shoulder injury or symptoms are recorded, and this is the only
FROI relevant to the October 2, 2014 work incident. The Defendant asserts that Plaintiff failed
to report a right shoulder injury or any falls on Monday, October 6, 2014 while
providing notice of the October 2, 2014 work incident to his employer.
Upon referral to orthopedic surgeon, Dr. Frank Bonnarens,
Plaintiff presented for his initial appointment on October 9, 2014, exactly one
(1) week post-injury. Dr. Bonnarens
describes the patient’s history as follows:
“…presents
complaining of pain in the right elbow.
He said he was loading things on to conveyor when he struck the elbow. He said it hurts when he bends it. He describes the pain as 9/10. Keeping it still makes it hurt less. Bending it makes it hurt more. The patient had no testing done other than
the x-rays he presents with. Patient did
not report any falls.”
Based upon this documented history, I can only conclude that
Plaintiff failed to report a right shoulder injury, symptoms or any falls
occurring on October 2, 2014 to Dr. Bonnarens one week after the now alleged
occurrence of a fall or collision with the wall of the truck at the time he
also injured his left elbow. This is significant because the statute does not
necessarily require an injured worker to be aware of, and report each injury
resulting from an accident, but must report the accident itself. Reliance
Diecasting Co. v. Freeman, 471 S.W.2d 311 (Ky. 1971). Here, the employer
was only timely apprised of an accident involving harmful contact of the
employee’s right elbow with a conveyor. There was no report of a fall that
caused injury or a potential injury.
On February 6, 2015, the insurance adjuster assigned to this
claim, Jessica Whitmire, obtained a recorded statement from Plaintiff. In the statement, the Plaintiff failed to
mention any specific right shoulder injury or falls occurring on 10/2/2014. He
vaguely references arthritis and pain developing in the right shoulder
post-physical therapy.
Despite
the consistent reporting of right elbow pain after injury to the right elbow
only, Plaintiff now presents with claims of right shoulder pain and a right
shoulder injury. Of significance is that he is not only claiming a new body
part that sustained an injury on Thursday, October 2, 2014, but also a separate
mechanism of injury.
It
was only on 12/16/2014, some 2 ½ months after the supposed date of injury that
Dr. Bonnarens was presumably informed of the alleged right shoulder injury as
that is when he ordered an arthrogram MRI of right shoulder, arthroscopic
repair of rotator cuff and physical therapy. The MRI of right shoulder dated
12/16/2014 revealed a tear of the supraspinatus tendon, also showing partial
tearing of the labrum, and AC joint arthropathy.
The Plaintiff now reports that not only did he hit his right
elbow on the conveyor, but also falling boxes caused him to completely fall
backward onto the side of the truck and as a result, he struck his right
shoulder on the truck wall. Plaintiff’s
reporting of the new mechanism of injury and body parts injured months after it
occurred is inconsistent.
In
his report dated 03/06/2015, Dr. Bonnarens determined that the right shoulder
injury and need for subsequent surgery is not related to the events of October
2, 2014.
In his subsequent report dated 09/11/2015, Dr. Bonnarens
concluded that the mechanism of injury described by the Plaintiff in his
deposition transcript was physically impossible and would require a 180-degree
spin. As such, Dr. Bonnarens determined
that the event described by the Plaintiff in his deposition transcript,
inconsistent with his initial reporting of the incident, did not cause his
current right shoulder condition or the subsequent need for right shoulder
arthroscopic surgery.
What is also compelling to the undersigned is the fact that the
Plaintiff insists that he reported his alleged fall to supervisor Gene Lilly.
The compelling fact is that although the Plaintiff claimed that three other
employees were working with him at the time of his accident and he immediately
reported the accident to Mr. Lilly, no lay testimony was produced to
corroborate anything he said. No statement from Gene Lilly appears in the
record.
Mr. McDowell changed his story several times during his
deposition and testimony at the final hearing. He claimed that he fell to the ground as 2
to 3 boxes fell on him and when he hit the ground, his elbow and his shoulder
hit the side of the truck. He also claimed that he did not fall to the ground
but rather hit the side of the truck, which caught his fall, striking the right
side of his entire body.
He
added more confusion to the history of mechanism of injury during his various
testimonies. He claimed that he was on the back of the tractor-trailer loading
boxes from a conveyor that was running through the middle of the
tractor-trailer on to the right side of the truck. He claimed his back was
turned to the boxes and he was facing the left side of the truck and the
conveyor belt. As the boxes behind him
began to fall, he turned around fully, hit his right elbow on the conveyor in
the middle of the truck, and somehow hit the remaining right side of his body
on the side of the truck itself. He then changed his answer and claimed that he
hit his right shoulder against the side just below the floor.
At the time of the injury he states that he did not feel pain in
his right shoulder. He didn’t even feel stiffness in the right shoulder
immediately after the incident. His “focus” was on his elbow because it was the
source of his pain. Yet, if he suffered a contemporaneous torn rotator cuff, it
is difficult to understand why he would not notice pain from that condition
until 2 ½ months post-trauma.
He didn’t recall why he waited until the following Monday to
report the incident. He thought he had
reported the elbow injury to Laura on Friday, the 3d. He didn’t recall what he
did during the weekend of October 4-5, 2014 and then, he didn’t recall if he
worked on October 3, 2014. He then testified that he had told Gene Lilly, the
supervisor on the late afternoon of the 2d [sic] and apparently told Laura that
he didn’t want to go see about his injury that day, which would mean that he
reported the injury on 10/02/2014, but did not seek treatment until four days
later and that his supervisor Laura did not fill out a first Report of
Injury until four days later. But then he testified that Laura made him go to
Baptist Worx [sic] on the 3rd of October, which is demonstrably not
true by the records of Baptist Worx [sic]. Those records prove that he did not
present to Baptist Worx [sic] with his elbow injury until 10/06/2014.
The contradictory versions concerning how and when the alleged
injury to Plaintiff’s right shoulder occurred, coupled with the medical
evidence in the record creates serious concerns regarding the Plaintiff’s
credibility as a witness. This lack of credibility compels a conclusion that Plaintiff’s
current post-injury condition to his right shoulder is wholly unrelated to the
Thursday, October 2, 2014 work incident and should be dismissed for his failure
to establish work-relatedness between a very real rotator cuff tear and what
seems to be a completely fictitious version as to how and when that condition
occurred.
The
Defendant/Employer also asserts that the Plaintiff’s claim should be dismissed
for failure to give due and proper notice of the alleged right shoulder
injury.
The
Kentucky Supreme Court has held that notice must be given as soon as
practicable after the occurrence of an accident under the theory that its
purpose is: 1) to give the employer to place the employee under the care of a
competent physician in order to minimize his disability and employer’s
subsequent liability; 2) to enable the employer to investigate at an early time
the facts pertaining to the injury; and 3) to prevent fictitious claims where
lapse of time makes proof of lack of genuineness difficult. Smith v. Cardinal Construction Co., 13
S.W.3d 823 (Ky. 2000); Harlan Fuel Co. v. Burkhart, 296 S.W.2d 722 (Ky.
1956); Buckles v. Kroger Grocery and Baking Co., 134 S.W.2d 221 (Ky.
1939). Whether notice is due and timely
depends upon the facts and circumstances of the individual case and a question
solely within the province of the ALJ as the trier of fact. Furthermore, notice of an injury is mandatory
and, if there is a delay giving notice, the burden is upon the injured party to
explain why he did not give notice. Buckles
v. Kroger Grocery and Baking Co., 134 S.W.2d 221 (Ky. 1939); Sexton v.
Black Star Coal Corp., 296 S.W.2d 450 (Ky. 1956).
The
Defendant/Employer asserts that it has been prejudiced with respect to all
three prongs identified in the Smith and Harlan Fuel Co. claims supra because Plaintiff told Defendant
explicitly, on multiple occasions, that he had injured right elbow only as a
result of the incident on Thursday, October 2, 2014. In fact, not only did he
emphasize an injury to the right elbow to his employer, he also failed to
report any right shoulder injury to anyone, including his treating providers at
Baptist Worx [sic] as well as Dr. Bonnarens, until over one month after the
injury. More importantly, the Plaintiff also did not report a work-related
accident involving his right shoulder.
The
mechanism of injury that was repeatedly reported to the employer, medical
providers, and adjuster during the recorded statement obtained in February,
2015 does not corroborate with Plaintiff’s current reporting of the incident
and alleged mechanism of injury of an alleged fall. The Defendant asserts that
Plaintiff has failed his burden under Buckles supra to establish due and proper notice and that he has likewise
failed in his burden to prove a reasonable explanation as to why notice was not
given.
As
I have noted previously, his current allegations of reporting a right shoulder
injury to his employer immediately following the incident is not consistent or
corroborated in the employer’s records, First Report of Injury, medical
records, or recorded statement obtained in February, 2015, over four months
post-injury. His current version of
events is simply not credible in comparison to the version of events that was
presented on several occasions within a temporal proximity to the incident in
question. Consequently, I find that
Plaintiff’s claim of right shoulder injury should also be dismissed for failure
to give due and timely notice to the employer.
I
do find that the Plaintiff has proven by competent evidence that he has
sustained a work-related injury to his right elbow as the direct and proximate
result of the work-related accident of 10/02/2014.
Dr.
Bonnarens, the treating orthopedic surgeon affirmed that the Plaintiff reached
MMI as to his right elbow on 3/18/2015. He also opined that Mr. McDowell does
not retain a whole person impairment for his right elbow and that his rating
for the elbow according to the AMA Guides,
5th Edition is 0%. Dr. Roberts, on the other hand, assigned a
permanent whole person rating for the elbow of 2% due to deficits in
range-of-motion. I cannot find that Dr. Bonnarens conducted any range of motion
studies on Mr. McDowell’s right elbow.
As
to Mr. McDowell’s right elbow injury, I find the testimony of Dr. Roberts to be
persuasive as it is based on objective criteria pursuant to the AMA Guides, 5th Edition.
Although Mr. McDowell has not returned to employment, that is due
to the ongoing problem with his right shoulder condition, which I have deemed
to be non-compensable. There is no evidence in the record that Mr. McDowell’s
right elbow condition would physically prevent him from performing the same or
similar job duties as he was engaged in at the time of his work injury, so I do
not believe that he is entitled to a statutory multiplier pursuant to KRS
342.730 (1) (c) 1 or 2.
As to the issue of TTD, Plaintiff argues the
Defendant/Employer paid TTD benefits consistent with the elbow claim only as
Dr. Bonnarens had Mr. McDowell at MMI for the elbow on March 18, 2015. Mr. McDowell is requesting the shoulder claim
be awarded as compensable and additional TTD awarded.
Since
I have determined that the shoulder claim is not compensable, my only remaining
inquiry is limited to whether the TTD paid is sufficient in rate and duration.
The
parties stipulated that temporary total disability benefits were paid at the
rate of $290.67 per week from October 6, 2014 to March 29, 2015 for a total of
$7,266.75.
Plaintiff’s
average weekly wage has been stipulated at $452.68. My calculations show that
by dividing the stipulated AWW by 3, then multiplying the product of that
calculation by 2, one arrives at a figure of $301.79 as being 2/3 of
Plaintiff’s AWW. As that figure comes within the parameters of KRS 342.730 (1)
(a), Mr. McDowell would be entitled to an award of $301.79 per week from
October 6, 2014 to March 18, 2015. The Defendant/Employer would be entitled to
a credit for TTD paid.
McDowell filed a petition for
reconsideration requesting additional findings concerning the issues of notice
and causation regarding his right shoulder injury. In the March 11, 2016, Order
on Petition for Reconsideration, the ALJ stated as follows:
Plaintiff
complains of a lack of findings of fact as to how the employer was harmed by the
notice on the right shoulder injury, additional findings of fact on the
evidence of record as to notice given by McDowell “was against the policy of
employer,” and how plaintiff was required to give notice of a medical condition
he was not aware of.
If
the plaintiff will direct his attention to Finding of Fact and Conclusion of
Law No. 2 on page 24 of the Opinion, Award and Order of February 15, 2016, the
following language will be noted: “Findings of fact and conclusions of law made
by the undersigned ALJ as set out in the foregoing “Analysis” which are
incorporated by reference herein, the same as if set out in words and letters.”
Beginning
on page 14 and continuing through page 22, I rendered a thorough explanation of
the findings of fact and conclusions of law that I relied upon in concluding
that plaintiff’s claim for a right shoulder injury should be dismissed. I am
only required to adduce such facts and conclusions as support my ultimate
finding, whatever that may be. I am not required to parse out the evidence to
the satisfaction of a particular party if I am of the opinion that the evidence
is not relevant or material to my decision.
To
my understanding, the employer does not have a burden to establish how it has
been harmed by a failure to give timely notice and plaintiff has provided no
authority to the contrary. Nevertheless, that harm (or potential harm) is or
should be apparent. Failure to give timely notice of an injury deprives that
defendant of the opportunity to investigate the circumstances surrounding the
alleged injury, get a proper and timely medical evaluation of the alleged
injury or consider the proper treatment and employment status of the employee,
e.g. should he be on restrictions, etc.
Plaintiff’s
argument is also not well taken because he fails to distinguish between the
reporting of the accident/injury and the reporting of causation. This is not a
cumulative trauma situation. The plaintiff claims to have been, and on the
evidence was, involved in a traumatic incident while unloading freight. He had
no obligation to report a specific medical condition until that condition was
diagnosed and causation established. However, he did have an obligation to
timely report an alleged injury to a body part. He had the presence of mind to
report that he had struck his elbow and it hurt. He made no such report as to
his shoulder, not even that it had been struck in the same incident.
The
employer is harmed because two to four months down the road there is absolutely
no way to determine the source of that torn rotator cuff. As our law
recognizes, the burden of proof in a Workers’ Compensation claim is on the
claimant (Plaintiff herein) to prove each and every essential element of his
claim. Snawder v. Stice 576 S.W.2d 276 (Ky. App. 1978). Specifically,
notice of an injury is mandatory and, if there is a delay giving notice, the
burden is upon the injured party to explain why he did not give notice. Buckles v. Kroger Grocery and Baking Co.,
134 S.W.2d 221 (Ky. 1939); Sexton v. Black Star Coal Corp., 296 S.W.2d
450 (Ky. 1956). Here, I found plaintiff’s explanation not to be credible.
As
to the remainder of plaintiff’s arguments, his allegation of error patently
appearing on the face of the Opinion, Award & Order is a disagreement with
my interpretation of the medical evidence in the record, which is not within
the scope of my review under the provisions of KRS 342.281. Francis v.
Glenmore Distilleries, 718 S.W.2d 953 (Ky. App. 1986).
Plaintiff’s
petition for reconsideration, having failed to point out error patently
appearing on the face of the Opinion, Award and Order of February 15, 2016 is
therefore DENIED and DISMISSED.
McDowell's first argument on appeal is
the ALJ erred in dismissing his right
shoulder claim due to failure to give due and proper notice.
As the claimant in a workers’
compensation proceeding, McDowell had 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). Since McDowell was unsuccessful in that
burden, the question on appeal is whether the evidence compels a different
result. Wolf Creek Collieries v. Crum,
673 S.W.2d 735 (Ky. App. 1984). “Compelling evidence” is defined as evidence
that is so overwhelming no reasonable person could reach the same conclusion as
the ALJ. REO Mechanical v. Barnes,
691 S.W.2d 224 (Ky. App. 1985). Here,
the record compels a different conclusion on the issue of due and proper notice
regarding McDowell's right shoulder injury.
There is no specific timeframe for
satisfying the notice requirement pursuant to KRS 342.185, as the statute
requires notice "of the accident" to be given to the employer
"as soon as practicable after the happening thereof." See
Marc Blackburn Brick Co. v. Yates, 424 S.W.2d 814 (Ky. 1968). While notice is mandatory, the Court of
Appeals has indicated "the statute should be liberally construed in favor
of the employee to effectuate the beneficent purposes of the Compensation
Act." Id.
In the February 15, 2016, Opinion,
Award, and Order, the ALJ determined "the employer was only timely
apprised of an accident involving harmful contact of the employee's right elbow
with the conveyor." However, notice to an employer of
a physical injury carries with it notice
of all conditions that may reasonably be anticipated to
result from that injury. See Dawkins Lumbar Co. v. Hale, 299 S.W. 991 (Ky.
1927). See also Reliance Die Casting v. Freeman, 471 S.W.2d 311 (Ky.
1971). Additionally, and as
acknowledged by the ALJ in the February 15, 2016, Opinion, Award, and Order,
"the statute does not necessarily require an injured worker to be aware
of, and report each injury resulting from an accident, but must report the
accident itself. Reliance Diecasting Co. v. Freeman, 471 S.W.2d 311 (Ky.
1971)."
We
acknowledge the October 6, 2014, First Report of Injury or Illness only mentions
McDowell striking his elbow on the conveyor belt; however, McDowell testified that he never reviewed the injury report,
and the report shows he did not sign it. Attached to McDowell's Form 101
are several medical reports by Dr. Bonnarens. These records indicate that on
November 6, 2014, one month after the accident, McDowell complained to Dr.
Bonnarens of "aching pain" in his right shoulder. The reports also
indicate a right shoulder rotator cuff tear was diagnosed by Dr. Bonnarens on
December 18, 2014, two months after the October 2, 2014, work incident, and Dr.
Bonnarens opined that a rotator cuff tear "is consistent with the injury
that he describes." Additionally, in his March 19, 2015, report, Dr.
Bonnarens stated "the rotator cuff was reasonably related to his
fall." Dr. Bonnarens stated in his April 23, 2015, report that McDowell's
surgery was going to be covered under his private healthcare insurance since it
was denied as a work-related injury. Surgery was performed on May 13, 2015, and
the Form 101 was filed on August 3, 2015, to which all pertinent records of Dr.
Bonnarens were attached.
McDowell testified he gave notice of
the accident the day that it occurred, and an injury report was filled out four
days later on October 6, 2014. McDowell further testified that at the time the
injury report was filled out, he reported that he had pain all the way up to
his shoulder. As stated, McDowell testified that he was unable to review the
injury report, and the report itself indicates that he did not sign it. Based
on this fact alone, it would be impossible for the ALJ to determine exactly
what McDowell gave notice of regarding shoulder pain when the injury report was
filled out. The ALJ's dismissal of McDowell's right shoulder claim due to lack
of due and proper notice is erroneous and reversed as a matter of law.
McDowell's second argument on appeal
is the ALJ failed to make adequate findings of fact on the issue of causation
regarding McDowell's alleged right shoulder condition. McDowell requests remand
for additional findings.
In the February 15, 2016, Opinion,
Award, and Order, citing no medical evidence and only addressing the issue of
McDowell's credibility, the ALJ devoted two sentences to the issue of causation
regarding McDowell's right shoulder condition. In his petition for
reconsideration, McDowell specifically requested additional findings on the
issue of causation. These findings were not rendered in the March 11, 2016,
Order on Petition for Reconsideration.
While an ALJ is not required to set forth the minute details of his reasoning in reaching a
particular result, he must adequately set forth the basic
facts upon which the ultimate conclusion was
drawn so the parties
are reasonably apprised of the basis of the decision. Big Sandy Community Action Program v.
Chafins, 502 S.W.2d 526 (Ky. 1973). The
parties are entitled to findings sufficient to inform
them of the basis for the ALJ’s decision to allow for meaningful
appellate 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). The ALJ must articulate sufficient findings
to apprise both the parties and this Board of the reasons for his ultimate
conclusions. This is particularly important when additional findings were specifically requested in a petition for
reconsideration as they were here.
The two sentences the ALJ provided concerning
the issue of causation regarding McDowell's right shoulder injury, do not
sufficiently apprise the parties or this Board of the basis for the ALJ's
decision. The ALJ concluded McDowell’s lack of credibility compelled a finding
the shoulder condition is not work-related. This conclusion was based, in part,
upon the medical evidence which the ALJ did not identify. Thus, the parties and
the Board can only surmise as to the medical evidence upon which he relied.
That being the case, remand for additional findings regarding causation as
requested by McDowell, is necessary. This is particularly important in light of
the fact that Dr. Bonnarens in fact expressed opinions establishing a causal
connection between the work incident and McDowell's right shoulder injury. We vacate
the ALJ's determination McDowell failed to establish the work-relatedness of
the alleged right shoulder condition and remand for additional findings.
Accordingly, the February 15, 2016,
Opinion, Award, and Order and the March 11, 2016, Order on Petition for
Reconsideration are REVERSED to the
extent the ALJ determined notice of the alleged right shoulder injury was not
due and proper. In an amended opinion and order, the ALJ shall find that notice
of McDowell's right shoulder condition was due and proper. The ALJ's
determination that McDowell's alleged right shoulder condition is not causally
related to the work accident is VACATED.
This claim is REMANDED for
additional findings on the issue of causation of the right shoulder injury in
conformity with the views set forth herein.
CHAIRMAN, ALVEY, CONCURS.
RECHTER, MEMBER, DISSENTS WITHOUT SEPARATE OPINION.
COUNSEL
FOR PETITIONER:
HON JOHN W SPIES
420 W LIBERTY ST STE 260
LOUISVILLE KY 40202
COUNSEL
FOR RESPONDENT:
HON JAMES FOGLE
333 GUTHRIE GREEN STE 201
LOUISVILLE KY 40202
CHIEF
ADMINISTRATIVE LAW JUDGE:
HON ROBERT L SWISHER
657 CHAMBERLIN AVE
FRANKFORT KY 40601
