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Workers’
Compensation Board
OPINION
ENTERED: May 19, 2017
CLAIM NO. 201560923
JOHN RAY RICE, JR. PETITIONER
VS. APPEAL FROM HON. CHRIS
DAVIS,
ADMINISTRATIVE LAW JUDGE
BEST DEAL DUMPSTERS and
HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART,
VACATING
IN PART & REMANDING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. John Ray Rice, Jr., (“Rice”) appeals from the Opinion and Order
rendered November 17, 2016, by Hon. Chris Davis, Administrative Law Judge
(“ALJ”), who found he sustained only a temporary injury. The ALJ awarded a short period of medical
benefits for the injuries Rice claimed he sustained while working for Best Deal
Dumpsters (“Best Deal”). Rice also
appeals from the January 5, 2017 order denying his petition for
reconsideration.
On appeal, Rice argues
the ALJ exceeded the scope of the bifurcated issues presented at the
hearing. The Benefit Review Conference
(“BRC”) Order and Memorandum dated August 23, 2016, reflects, “Claim is
bifurcated on the issues of whether or not the incident even occurred and
notice, and any disputed medical treatment and TTD.” Because the claim was bifurcated with only
the limited issues reflected in the BRC Order and Memorandum for initial
determination, thereby preventing the parties from introducing evidence
regarding the permanency of Rice’s condition, we vacate the ALJ’s decision, in
part. We remand for additional
proceedings, the allowance of proof time regarding the permanency of Rice’s
condition, the scheduling of a BRC, if necessary, and the scheduling of a
hearing, if appropriate.
Rice filed a Form 101 on
March 15, 2016 alleging he sustained low back and hip injuries on October 28,
2015 when he climbed onto a dumpster to compress its contents to make it safe
for hauling. He stated when he twisted
he experienced a pop and pain in his low back.
He additionally stated he reported this work-related injury to his
supervisor at the end of the work shift.
Rice completed the eleventh grade, and does not have a GED. At the time of the accident, he had a
Commercial Driver’s License. He had
worked for Best Deal for approximately two months at the time of the
accident. He had worked at a similar job
for a competitor for approximately five years prior to his employment at Best
Deal, but left there for better wages.
Rice testified by deposition
on May 3, 2016, and at the hearing held on August 23, 2016. He was born on July 31, 1976, and resides in
Pleasureville, Henry County, Kentucky.
His work experience includes installing furnaces and air conditioning
units, machine operation, landscaping, truck driving, driving and rigging for a
house and building moving company, and hauling dumpsters. He quit working for the building moving company
after he was injured in a motorcycle accident.
On October 28, 2015, Rice
was supposed to move a dumpster. When he
arrived, the dumpster was overfilled, and garbage was scattered around it. He picked up the garbage beside the
dumpster. He then climbed on top of the
dumpster to push or compress the garbage so he could tarp and load it. As he was doing so, his leg twisted causing a
pop in his low back with ensuing pain in his low back and left leg. He completed his shift that day, and reported
the incident and injury to Will Hurley (“Hurley”), the business owner. Rice admitted he did not advise Hurley of the
accident at the time it happened, or at any time until the end of the work
shift, although they had exchanged numerous text messages throughout the day.
Rice did not seek immediate medical
treatment, but his condition continued to worsen. On November 14, 2015, he sought treatment at
Baptist Health-LaGrange. He never
returned to work after he sought medical treatment.
Rice disagreed with the
medical records, which indicate he fell.
Since the accident, he has taken Gabapentin, a muscle relaxer, and
Ibuprofen. He has also had two
injections, of which only one provided partial relief. A lumbar MRI was recommended. His physician has also recommended he see a
neurosurgeon, and indicated he may need lumbar surgery. Rice stated he has low back pain after
prolonged sitting, with tingling down his left leg, behind the left kneecap,
and into his left foot. Rice denied
previous low back or left lower extremity problems prior to the October 28,
2015 accident.
Hurley also testified at the
August 23, 2016 hearing. He has owned
Best Deal since 2008. He stated Rice did
not inform him he was claiming a work-related back injury until November 25,
2015. If he had reported a work-related
injury, paperwork would have been completed, and the insurer notified. Hurley stated Rice complained of low back
pain shortly after he was employed at Best Deal, and discussed obtaining health
insurance. He stated Rice had never
advised he sustained a work-related injury.
He stated there was no verbal communication with Rice after a text was
sent on November 16, 2015, requesting a worker’s compensation number to
authorize treatment.
In support of the Form 101,
Rice submitted a note from the Baptist Health-LaGrange Emergency Room, dated
November 14, 2015, which limited his lifting and strenuous activity. The note also reflects he was to remain off
work for four days. Rice also submitted
a bill from Baptist Health-LaGrange in the amount of $1,360.54, with a date of
service of November 14, 2015. He also
submitted records from Lori Abney, ARNP (“Nurse Abney”), who works with Dr.
Damon Gatewood. In a record dated
November 17, 2015, Nurse Abney noted Rice had twisted his back at work two and
a half weeks prior, and complained of pain in the low back and down the left
leg. Rice also provided an off-work slip
from Nurse Abney excusing him from work from November 19, 2015 through November
30, 2015.
Best Deal filed a Form 111
Claim Denial on April 18, 2016. It
stated Rice’s condition did not arise out of the course of his employment. Best Deal also denied Rice provided due and
timely notice, and raised issues concerning pre-existing active disability,
causation/work-relatedness, liability for medical treatment, extent and
duration, temporary total disability (“TTD”), and requested an offset credit
for unemployment benefits.
Best Deal filed multiple
medical records, including a record from Baptist Health-LaGrange dated November
14, 2015, nurses notes, and notes from the emergency room physician from that
visit. Those records noted Rice
complained of low back pain with left lower extremity radiculopathy, and his
symptoms had worsened after a fall at work two weeks before. Best Deal also filed a radiology report from
Dr. Richard Waggener dated May 29, 2011 which stated Rice had non-displaced
transverse process fractures at L3 and L4 on the right. Best Deal also filed the November 20, 2015
record of Nurse Abney noting two and a half weeks prior, Rice had twisted his
back while lifting at work and it popped.
The pain has worsened and is going down his left leg. She recommended an MRI.
Dr. Rick Lyon, an
orthopaedic surgeon, evaluated Rice at Best Deal’s request on June 16,
2016. Dr. Lyon noted Rice complained of
a pop in his low back in late October 2015 when he climbed onto a dumpster to
compress trash. Rice first treated at an
emergency room two weeks later. He
underwent two epidural steroid injections.
The first provided no relief, and the second provided only partial
relief for two weeks. Rice complained of
left ankle swelling in the morning along with paresthesias in the left
mid-calf. Dr. Lyon noted Rice’s previous
motorcycle accident in May 2011 when he collided with a deer.
Dr. Lyon diagnosed Rice with
non-verifiable radiculopathy. He found
no objective evidence supporting an injury due to a work event. He stated if Rice had sustained a work injury,
he had not reached maximum medical improvement (“MMI”). Dr. Lyon stated Rice would have a 10%
impairment rating due to his previous transverse process fractures. He also stated Rice could return to light
duty with avoidance of repetitive bending, stooping, or squatting. He additionally stated that after the
completion of treatment, Rice could return to his pre-injury work.
As noted above, a BRC was
held on August 23, 2016, and the claim was bifurcated regarding the issues
previously listed. The parties submitted
briefs, and the ALJ issued an Opinion and Order on November 17, 2016. The ALJ determined as follows:
Occurrence of the Incident
While
I understand the Defendant’s argument regarding whether or not the incident
ever occurred, and I am of course free to reject the Plaintiff’s unrebutted
testimony, I do not think that this case hinges on this issue but rather issues
that are procedurally factually different.
In
short I find that on October 28, 2015, while twisting in a dumpster, the
Plaintiff felt pain in his low back. As
such the actual incident on that date did occur. This is the Plaintiff’s unrebutted testimony.
Injury as Defined by the Act
The
Plaintiff presented for the emergency room, to Nurse Abney and for diagnostic
testing on November 14-17, 2015. At all
locations he complained of low back pain and reported it began at work. At none of locations, other than noting his
allegations, did any medical provider make a finding of a permanent
work-related injury. None of these
providers, according to the records in evidence, were aware of his prior
medical history.
Dr.
Lyon examined the Plaintiff, extensively.
He reviewed all of the most recent diagnostic tests and was aware of the
prior non-work-related injury. Dr. Lyon
concluded that the recent MRI did not show any new acute or traumatic
injury. Dr. Lyon was of the opinion that
the Plaintiff’s injury was not work-related.
Dr.
Lyon is a highly respected physician and evaluator. He had the most complete
history of the Plaintiff and was able to conduct the most thorough documented
physical exam. In reliance on Dr. Lyon
the Plaintiff does not have a permanent work-related condition.
The
Plaintiff did have a temporary exacerbation of his pre-existing lumbar
condition. He reached MMI for that on
November 17, 2015.
Unpaid or Contested Medical Expenses
The
Plaintiff did have a temporary injury.
The Defendant is responsible for all medical expenses, including those
from Dr. Gatewood and Baptist Health LaGrange from October 28, 2015 through
November 17, 2015.
Temporary Total Disability
The
Plaintiff reached MMI on November 17, 2015.
He did not miss sufficient work prior to that date to trigger TTD. No TTD is owed.
Notice
I
find the Plaintiff gave sufficient notice of his incident. It is easy for people to attach a different
level of importance to a statement or to more than a year after the fact
remember it differently. Especially when
the Plaintiff continued to work for more than two weeks. That does not mean the Plaintiff did not
mention, On October 28, 2015, that he hurt his back at work.
Rice filed a petition for
reconsideration arguing, as he does on appeal, the claim was bifurcated on the
issues of whether or not the work injury or event occurred, and whether he gave
timely notice. He noted the parties had
not yet argued or introduced evidence of whether Rice’s condition was temporary
or permanent. He also argued the
evidence clearly sets forth he had not reached MMI. Rice additionally argued because the ALJ
found he had sustained a work injury, for which he gave appropriate notice, he
should be awarded TTD benefits until he reaches MMI, and medical benefits. He also argued proof time should be
reopened. Rice additionally noted that
in its brief, Best Deal admitted the claim had been bifurcated to determine
whether he had sustained a work-related injury, and whether notice had been
provided.
In the order denying the
petition for reconsideration, issued on January 5, 2017, the ALJ stated as
follows:
This
matter comes before the undersigned on the Plaintiff’s Petition for
Reconsideration and the Defendant’s Response thereto. Entitlement to medical benefits and injury as
defined by the Act were issues preserved for adjudication in the bifurcation of
this claim. I have found the Plaintiff
is not entitled to any medical benefits after November 17, 2015 because he did
not have any permanent work related injury, as defined by the Act, and his
transitory injury resolved on November 17, 2015. These were issues resolved in favor of the
Defendant. The Petition is OVERRULED.
It is well settled an ALJ
has broad discretion to control the taking and presentation
of proof in a worker’s compensation proceeding. New Directions Housing Authority v. Walker,
149 S.W.3d 354 (Ky. 2004). Thus, as a
general proposition, any purported error by the fact-finder must be reviewed
under the abuse of discretion standard. Abuse of discretion by
definition “implies arbitrary action or capricious disposition under the
circumstances, at least an unreasonable and unfair decision.” Kentucky
National Park Commission v. Russell, 301 Ky. 187, 191 S.W.2d 214 (1945).
This Board may not and does
not direct any particular result because we are not permitted to engage in
fact-finding. See KRS 342.285(2); Paramount Foods, Inc. v. Burkhardt, 695
S.W.2d 418 (Ky. 1985). However, it is
noted the parties agreed to bifurcate the claim for a determination of
threshold issues of occurrence of a work injury, notice, medical treatment, and
entitlement to TTD benefits; not whether the injury was temporary or permanent
in nature, or the extent of disability.
The parties did not submit evidence regarding the permanency of Rice’s
condition. Once the ALJ made a
determination Rice indeed sustained a work injury, and provided due and timely
notice, he should have allowed additional time to introduce evidence regarding
whether Rice had reached MMI, and whether additional medical treatment was
needed.
The ALJ made numerous
references to Rice having reached MMI on November 17, 2015. There is no evidence in the record to support
this determination. As noted in the
ALJ’s decision on November 17, 2015, Nurse Abney observed Rice was tender to
palpation, and she recommended physical therapy and an MRI. The ALJ also noted Rice was restricted from
working from November 19, 2015 through November 30, 2015, which would indicate
he had not yet reached MMI. Even Dr.
Lyon, who opined Rice did not have objective evidence of a work-related injury,
noted that if indeed he had sustained such an injury, he had not reached MMI.
Based upon the foregoing, we
believe once the ALJ determined Rice sustained a work-related injury, and had
provided due and timely notice, he should have issued a scheduling order
allowing the parties to introduce evidence on the remaining issues. Therefore, we vacate the ALJ’s determination
regarding medical treatment, TTD benefits and when Rice reached MMI. The ALJ is directed to allow the parties
appropriate time to introduce evidence on the remaining issues, and to hold an
additional BRC and Hearing if appropriate.
We do not direct any particular result, and the ALJ is free to enter any
decision supported by the evidence.
The October 17,
2016 Opinion and Order and the January 5, 2017 order denying Rice’s petition
for reconsideration issued by Hon. Chris Davis,
Administrative Law Judge, are hereby AFFIRMED
IN PART regarding the determinations of the occurrence of a work-related
injury and notice, and the remainder of the decision and order are VACATED. This claim is REMANDED to the ALJ for additional proceedings as outlined above.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON J FOLLACE FIELDS, II
1204 WINCHESTER RD, STE 100
LEXINGTON, KY 40505
COUNSEL
FOR RESPONDENT:
HON BRIAN T GANNON
1315 HERR LANE, STE 210
LOUISVILLE, KY 40222
ADMINISTRATIVE
LAW JUDGE:
HON CHRIS DAVIS
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
