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June 30, 2017 201480159

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED: June 30, 2017

 

 

CLAIM NO. 201480159

 

 

BRYAN K. BYRNE                                 PETITIONER

 

 

 

VS.       APPEAL FROM HON. JONATHAN R. WEATHERBY,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

OWENSBORO MUNICIPAL UTILITIES

and HON. JONATHAN R. WEATHERBY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

VACATING IN PART AND REMANDING

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BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

STIVERS, Member. Bryan K. Byrne (“Byrne”) seeks review of the December 28, 2016, Opinion and Order of Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ”) finding Byrne “had not satisfied his burden to establish the work-relatedness and causation of the condition requiring surgery” and dismissing his claim for a right shoulder injury against Owensboro Municipal Utilities (“OMU”).  Byrne also appeals from the undated Order denying his petition for reconsideration.

          On appeal, Byrne challenges the ALJ’s finding that he did not satisfy his burden regarding work-relatedness and causation of his right shoulder condition.  Byrne also notes the sole issue to be decided by the ALJ was whether the proposed surgery is compensable and whether temporary total disability (“TTD”) benefits should be paid.  We vacate the orders and remand for further proceedings.

          Byrne’s Form 101 alleges he injured his right shoulder and upper extremity “tilting 55 gallon drums on their edges (that weigh 450 to 500 pounds), and moving them – repetitive movements causing injury which worsened over several weeks.”  Although the Form 101 lists April 20, 2014, as the date of injury, Byrne testified he could not identify a specific traumatic event which caused his right shoulder problems.

          OMU introduced the April 20, 2015, Independent Medical Evaluation report of Dr. Richard Sheridan which was based on an examination on that same date.  Dr. Sheridan diagnosed a work-related acute right shoulder strain which had resolved.  OMU also introduced the February 13, 2015, Physician Review Report of Dr. Peter Kirsch in which he opined the diagnosis of right AC joint arthritis was not related, either directly or indirectly, to the work injury of May 10, 2014.  OMU also introduced the October 23, 2015, Utilization Review report of Dr. Kirsch in which he opined “active effects of the 5/10/2014 event have resolved, the issues are healed, and there is no significant objective injury residual.” Dr. Kirsch also stated the “right shoulder arthroscopy with rotator cuff repair and open distal clavicle excision is not medically reasonable and necessary for the cure and/or relief of the work injury of [May 10, 2014].” 

          Byrne introduced the records of Dr. Gayle Rhodes, an occupational physician, and Dr. Mark McGinnis, an orthopedic surgeon, as well as Dr. McGinnis’ June 8, 2016, deposition. Dr. McGinnis testified Byrne had been referred by Dr. Rhodes.  Dr. McGinnis testified an MRI revealed acromioclavicular arthropathy or AC joint arthritis, partial thickness tear of the supraspinatus, and a tear of the labrum with a paralabral cyst.  Dr. McGinnis recommended surgery for the diagnosed conditions.  Dr. McGinnis’ deposition focused on whether Byrne’s right shoulder condition is due to his repetitive work activity of moving 55-gallon drums on a regular basis.           

          On July 11, 2016, Byrne filed a motion requesting the claim be bifurcated “for purposes of TTD benefits and payment of surgery.”  Byrne asserted his treating physician had requested approval of shoulder surgery which had been denied.  Byrne contended the initial issues were whether the surgery should be ordered and, if it occurs, whether he is entitled to TTD benefits while off work.

          On August 9, 2016, OMU introduced Byrne’s July 12, 2016, deposition. 

          In a September 9, 2016, Order, the ALJ noted a telephonic conference had been conducted concerning the medical dispute pending on OMU’s motion to reopen.  A Benefit Review Conference (“BRC”) was set for September 27, 2016. 

          The September 27, 2016, BRC Order reflects the parties stipulated Byrne sustained an alleged work-related injury on April 20, 2014, and OMU had received due and timely notice.  No TTD benefits had been paid but medical expenses had been paid in the amount of $3,523.00.  The only other stipulations concerned Byrne’s date of birth and educational level.  The boxes under the heading of “Contested Issues” were not checked.  However, under “Other” is the following: “Bifurcated on the sole issue of compensability of proposed surgery and corresponding TTD.”  Both attorneys signed the BRC Order.

          On that same date, the ALJ entered a hearing order identifying the witness to testify and the evidence introduced by the parties.  Briefs were to be simultaneously filed within thirty days.

          The ALJ also conducted a formal hearing on September 27, 2016, during which he stated, prior to taking any testimony, as follows:

THE COURT: Twelfth grade education. The contested issues, this matter is bifurcated on the sole issue of compensability of a proposed surgery and any corresponding TTD related thereto. Is that correct? 

MS. HIGDON: Yes, Your Honor.

MR. MILLER: Yes.

          Only Byrne testified at the formal hearing.

          On October 13, 2016, the parties entered a Joint Stipulation as to Byrne’s average weekly wage.

          OMU filed its brief on October 27, 2016, and Byrne’s brief was filed on October 28, 2016.  In addition to arguing Byrne did not sustain a permanent injury, OMU further argued in violation of the BRC order, that the claim should be dismissed.  OMU asserted as follows:

The right shoulder strain did not cause a permanent injury and claims for future medical benefits (including right shoulder surgery recommended by Dr. McGinnis) and claims for temporary total disability benefits should be dismissed.

          In spite of its medical proof, OMU argued Byrne did not sustain an injury as defined by the Act.  OMU concluded as follows:

     Bryan Byrne did not sustain an ‘injury’ as defined by the Act. Based upon the clear, objective medical evidence, and consistent with the diagnostic imaging studies, the April 20, 2014 minor incident did not cause a permanent harmful change to the human organism. At most, plaintiff sustained a right shoulder strain which has completely resolved without permanent impairment and without the need for future medical treatment.

          In the December 28, 2016, Opinion and Order, the ALJ entered the following findings of fact and conclusions of law:

8. In a post-judgment Motion to Reopen to Assert a Medical Fee Dispute, the Defendant Employer has the burden of proving that the contested medical expenses and/or proposed medical procedure is unreasonable or unnecessary, while the Plaintiff maintains the burden of proving that the contested medical expenses and/or proposed medical procedure is causally related treatment for the effects of the work-related injury. Mitee Enterprises vs. Yates, 865 SW2d 654 (KY 1993) Square D Company vs. Tipton, 862 SW2d 308 (KY 1993) Addington Resources, Inc. vs. Perkins, 947 SW2d 42 (KY App. 1997).

9. The Plaintiff has offered the opinion of Dr. McGinnis to support the request for surgery. Dr. McGinnis stated that the Plaintiff had pre-existing AC joint arthritis that could have been aggravated by his line of work as well as the partial thickness rotator cuff tear and a labral tear. The opinion of Dr. McGinnis is not stated definitively enough to satisfy the Plaintiff’s burden to establish work-relatedness and causation.

10. The ALJ therefore finds that the Plaintiff has not satisfied his burden to establish the work relatedness and causation of the condition requiring surgery.   

          The order dismissed Byrne’s claim.

          Byrne filed a petition for reconsideration taking issue with the ALJ’s characterization of Dr. McGinnis’ testimony.  Byrne also noted the claim had been bifurcated on the issue of the compensability of the surgery and his entitlement to TTD benefits.  Byrne requested additional findings regarding the conditions diagnosed by Dr. McGinnis.  Byrne also requested the ALJ explain why the entire claim was dismissed as the evidence showed he had sustained an injury at work.  Byrne requested the claim not be dismissed and a finding entered he is entitled to medical benefits pursuant to KRS 342.020. 

          The undated order of the ALJ denying the petition for reconsideration reads as follows:

This matter is before the ALJ upon Petition for Reconsideration filed by the Plaintiff seeking additional findings regarding whether or not the Plaintiff established work-relatedness and specifically, the weight afforded the opinion of Dr. McGinnis. The Petition fails to point out any patent error appearing upon the face of the Opinion and Order. The Petition is therefore hereby DENIED.

          On appeal, Byrne argues “the arousal of a pre-existing dormant condition by work activities is compensable.”  Byrne notes both Drs. Kirsch and Sheridan believed he merely had a right shoulder strain and Dr. Kirsch believed the underlying arthritis condition was not caused by work.  Although Byrne primarily addresses the ALJ’s findings regarding the testimony of Dr. McGinnis and his opinions, he also notes as follows:

     It would be stated that the sole issues at this time of the decision by the Administrative Law Judge is whether a surgery would be deemed compensable and thereafter, TTD paid.

     In the Judge’s summary of the evidence, it states ‘Dr. McGinnis believes that he had a pre-existing condition that was aggravated by his work.’ Dr. McGinnis disagreed with the physician who found that the Plaintiff had a resolved acute right shoulder strain. Dr. McGinnis thought surgery was reasonable.

          Based on our review of the record, we conclude the ALJ improperly granted Byrne’s motion to bifurcate the proceedings to determine whether he is entitled to surgery and, if surgery was appropriate, the period to which he was entitled to TTD benefits.  Before resolving Byrne’s entitlement to surgery, the ALJ should have first determined whether Byrne sustained a work-related injury.  If the ALJ concluded Byrne sustained a work-related injury, he must then determine the extent of that injury i.e. whether it is temporary or permanent.  Determining whether Byrne was entitled to surgery without first determining whether he had sustained a work-related injury put the cart before the horse.       

          The ALJ also erred in dismissing Byrne’s claim, since by agreement of the parties, the claim was bifurcated to first resolve the issues as set forth in the September 27, 2016, BRC Order and reaffirmed by the ALJ at the September 27, 2016, hearing – i.e. whether Byrne was entitled to undergo surgery for a work-related right shoulder condition and a period of TTD benefits.  In his December 28, 2016, Opinion and Order, the ALJ specifically noted the claim was bifurcated for a decision on the “sole issue of compensability of the proposed surgery and corresponding TTD.”  The September 9, 2016, Order indicates the telephonic conference related to a medical dispute pending on OMU’s motion to reopen.  Further, in the first sentence of the first paragraph of his findings of fact, the ALJ spelled out each parties’ burden of proof relating to a post-judgment motion to reopen asserting a medical fee dispute.  Before resolving the above issues, the ALJ should have first determined whether Byrne sustained a work-related injury and, if so, the extent of that injury.      

          Significantly, the findings of fact and conclusions of law contain no finding as to whether Byrne sustained a work-related injury.  After stating the opinion of Dr. McGinnis was not stated definitively enough to satisfy Byrne’s burden to establish work-relatedness and causation, the ALJ improperly dismissed Byrne’s claim.  We note with interest that OMU, in its brief to this Board, asserts the ALJ’s dismissal of Byrne’s claim was proper, arguing as follows:

It was proper for the Administrative Law Judge to consider the ancillary issue of ‘injury’ as defined by the Act when addressing the issues of work relatedness and causation of the right shoulder condition and the proposed surgery.    

          We find OMU’s argument in its brief to the ALJ seeking dismissal of the claim, in contravention of the September 27, 2016, BRC Order, to be highly improper.  OMU agreed the sole issue to be decided by the ALJ was whether Byrne was entitled to surgery and a period of TTD benefits if the surgery was found to be compensable.  Consequently, OMU’s assertion on appeal that the dismissal of Byrne’s claim should be affirmed is baseless.    

          The presence of a work-related injury can only be established by medical evidence.  Currently, the medical evidence in the record establishes Byrne at least sustained an acute right shoulder strain which has resolved.  Dr. Sheridan opined Byrne attained maximum medical improvement from the injury on November 10, 2014.  We note Byrne had not introduced evidence as to whether he had sustained a temporary or permanent shoulder injury and whether that injury merited an impairment rating pursuant to the AMA Guides.  Thus, the parties should be allowed to introduce additional medical evidence and thereafter the ALJ determine whether Byrne sustained a work-related shoulder injury, and whether the injury was temporary or permanent.       

          We decline to address Byrne’s argument concerning the ALJ’s decision regarding his entitlement to right shoulder surgery and a period of TTD benefits, as the ALJ should have first determined whether Byrne sustained a work-related shoulder injury, and the nature and extent of the injury.     

          Accordingly, the December 28, 2016, Opinion and Order and the undated Order denying the petition for reconsideration are VACATED.  The claim is REMANDED to the ALJ for further proceedings in accordance with the views expressed herein.

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON SCOTT M MILLER

P O BOX 685

SHEPHERDSVILLE KY 40165

COUNSEL FOR RESPONDENT:

HON R CHRISTION HUTSON

P O BOX 995
PADUCAH KY 42002

ADMINISTRATIVE LAW JUDGE:

HON JONATHAN R WEATHERBY

657 CHAMBERLIN AVE

FRANKFORT KY 40601