*/
Workers’
Compensation Board
OPINION ENTERED: July 27, 2018
CLAIM
NO. 201365071
BULLITT
COUNTY TECHNOLOGY CENTER PETITIONER
VS. APPEAL FROM HON. JONATHAN WEATHERBY,
ADMINISTRATIVE
LAW JUDGE
DENISE
HARNED
JAY
GRIDER, M.D.
and
HON. JONATHAN WEATHERBY,
ADMINISTRATIVE
LAW JUDGE RESPONDENTS
OPINION
AFFIRMING IN PART, VACATING IN PART
& REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and
RECHTER, Members.
STIVERS, Member. Bullitt County
Technology Center (Bullitt County”) appeals from the November 18, 2017, Order on
Remand of Hon. Jonathan Weatherby, Administrative Law Judge (“ALJ”) resolving a
medical fee dispute in favor of Bullitt County and awarding Denise Harned
(“Harned”) additional temporary total disability (“TTD”) benefits. Bullitt
County also appeals from the January 9, 2018, Order amending the November 18,
2017, decision. In the January 9, 2018, Order, the ALJ found Harned reached
maximum medical improvement (“MMI”) on January 15, 2015, determined Harned was
totally occupationally disabled, and awarded permanent total disability (“PTD”)
benefits. The ALJ ordered Harned’s benefits tiered down pursuant to the 1994
version of KRS 342.730(4). Bullitt County also appeals from the subsequent
orders denying Harned’s petition for reconsideration.
BACKGROUND
Harned’s
Form 101 alleged she sustained a low back injury on August 13, 2013, “while
practicing safe crisis management training ‘moves,’ simulating an out of control
student, being twisted, pulled, and being resistant to two physically stronger
staff members, my low back was injured.”
On March 21, 2016, Bullitt County filed a
Special Answer asserting Harned’s claim is barred by her unreasonable failure
to follow medical advice and her failure to provide due and timely notice of
the alleged August 13, 2013, injury.
During her March 16, 2016, deposition,
concerning her mandatory training on August 13, 2013, Harned testified:
A: We had to
practice the maneuvers of one staff member would pretend to be an
out-of-control teenager and resist the other staff member, restraining,
pushing, pulling, or deflecting them.
Q: Okay. And
were you, I guess, acting as the student or the instructor restraining a
student when this accident happened?
A: I – the
first one, I was the student so I had to forcibly resist the pressure of being
pushed.
Q: Okay. And
do you recall which one of the other teachers it was who was acting as the
instructor in that – in that situation?
A: The
carpentry teacher.
Q: Okay. And
you told me you’re 5’2”, is that what you said? How –
A: Yeah.
Q: - how big
–
A: 5’4”.
Q: 5’4”,
5’4”. How big was he if you recall?
A: 6’3”,
6’4”, 230, 250, somewhere around that vicinity.
Q: Okay. And
did you get thrown to the floor or what happened when you were being restrained
by him?
A: I was
forcibly resisting and he was pushing me which caused a lot of pain to be in my
lower back and down my legs.
Q: Okay.
Then did you continue, I guess, in this – in this activity?
A: So once
they stopped the ac – I had told them before I took that assignment, ‘I can’t
do this.’ They laughed and told me I needed to. But then once I changed, we
rotated that my principal was the person I had to restrain, so I was pushing
and pulling my principal and after those two maneuvers, I immediately stopped and
left the training.
. . .
A: It was
across my lower back and down into my thighs by the time that I left after the
training. I don’t know if I specifically could tell you it was after being with
Ron or if – I know it was after being with Brady. Because after I finished with
Ron, I looked at the – the trainer, the female trainer and Brady and said, ‘I
cannot do this.’
Q: That was
after you were acting as the student you got – that you got pushed and you
looked at them and told them that?
A: I told them
that before I went with Ron, but then I was even more emphatic after pretending
with Ron.
Q: Okay. So
after the first part of that when you were acting as the student, it was before
that you told them – I’m sorry. Let me back up here.
A: Yeah.
Q: I want to
just make sure we’re clear on it. So you looked at the instructor and Ron
before you were acting as the student and told them, ‘I can’t – I can’t do
this.’ I mean –
A: I said –
Q: - why did
you tell them that?
A: I told them I just wasn’t sure about doing this with Ron. I
had – yeah. And then after finishing with Ron, I was more emphatic and said, ‘I
can’t,’ and actually looked at the instructor. We locked eyes, and looked at
Brady, and we locked eyes.
The
record reflects Harned had been treated for chronic regional pain syndrome (“CRPS”)
by Dr. Jay Grider at the University of Kentucky Medical Center prior to the
August 13, 2013, injury. Bullitt County introduced Dr. Grider’s December 3,
2012, letter outlining Harned’s treatment for CRPS:
I have been asked to write a letter
regarding work restrictions and work limitations for Denise Harned. I am happy
to do so. Mrs. Harned is trained as a nurse and has undergone a remarkable set
of life events. She injured herself in a motor vehicle accident in 2007 with
pain in the left lower extremity down to the left foot that was excruciating.
She had symptoms that were consistent with complex regional pain syndrome which
had been poorly or misdiagnosed by previous physicians. In our center the
diagnosis of complex regional pain syndrome was clearly established through
diagnostic blocks. She has undergone rather remarkable treatment with spinal
cord stimulation to the point that she is re-engaged in work activities. This
is hardly ever the case with someone with complex regional pain syndrome as the
neuropathic-related pain is debilitating and has resulted in pain that was so
severe that people have committed suicide. Mrs. Harned had not responded to
oral medications or oral adjunctive neuropathic pain medications but has had a
rather remarkable turn of events with spinal cord stimulation. Recently she has
had a small setback as she started work in that she was lifting some boxes and
had a slight shift in her programming. She has been re-programmed today and
extensive setting in our office and has regained stimulation. She describes her
pain level after programming as returning to 2 to 3/10 on numeric pain rating
scale. She is able to wear her shoe and walk without significant impairment at
this point. She has some small limitations which will have to be accommodated.
She really should not be bending or lifting or twisting objects greater than 10
to 15 pounds. She would never be able to return to the rigors of floor nursing
such as having to move a patient or assist a patient off of a bedside commode,
however she is more than capable of doing activities such as nursing education
or nurse management which require less physical activity. With her restriction
of lifting or twisting or overhead reaching of greater than 15 pounds, Mrs.
Harned does have some slight restrictions, however the ability to have her
re-engage in meaningful employment, and her willingness to do so, are rather
remarkable testaments to her ongoing treatment with spinal cord stimulation.
Harned
introduced an undated letter from Dr. Grider outlining her treatment following
the August 13, 2013, injury:
This letter
is intended in response to questions by the attorneys for Ms. Denise Harned.
Ms. Harned is a lady who had successfully returned to work after treatment for
complex regional pain syndrome (a quite unusual occurrence) who is later
injured in 2013 in a simulation disaster training at work that resulted in
injury and subsequent spinal surgery by Dr. Carter Cassidy at the University of
Kentucky Medical Center. Ms. Harned continues to suffer from radicular
symptomatology and low back pain that is intractable. She is seen [sic] Dr.
Russell Travis who is a friend and colleague. Dr. Travis though a
well-respected neurosurgeon and expert and [sic] spinal cord disorders
diagnosed Mrs. Harned with symptom magnification. This was of course done on
one visit and he does not have the benefit of several years of experience
treating a patient who had previously been on oral opiates weaned herself off of
them to return to work only to find herself injured for a second time. I
believe that [sic] the benefit of this history Dr. Travis and any reasonable
treating physician would believe that the patient has proven herself as
motivated for work and is try [sic] to optimize her physical functioning. The
patient does have relief with periodic signal nerve root injections suggesting
the diagnosis of lumbosacral radiculitis is accurate and continues to be the
source of her ongoing pain problem.
The treatment of her problem has proven to be elusive and
symptomatic in nature. We had discussed previously an intrathecal pump though
there are new stimulation devices coming on the market that are able to target
specific nerve roots which may be more applicable to her current problem. In
any case the question posed to me is a) is a [sic] reasonable that the series
of events at work caused the ongoing problem for Mrs. Harned, the answer is
yes. The second part of the question is do I believe that the physical
impairment evaluation by Dr. Russell Travis is accurate, the answered [sic]
this question is no I do not believe that Dr. Travis has the extensive history
necessary to make this judgment about this extremely complex case. I do again
say this with all respect to Dr. Travis.
On July 19, 2016, Bullitt County filed a Form 112 describing the nature
of the medical dispute as follows:
The
Respondent allegedly sustained a low back injury on August 13, 2013, while
participating in crisis management training. She underwent surgery on April 11,
2014, consisting of an L3-4 right lumbar micro-discectomy to address a disc
herniation at L3-4. The Respondent previously had an implantation of a spinal
cord stimulator on April 3, 2012, secondary to a diagnosis of complex regional
pain syndrome.
Dr. Jay S.
Grider has proposed that the Respondent undergo implantation of a dorsal column
spinal cord stimulator. Said request was submitted for utilization review,
which was performed on June 20, 2016, by Dr. Howard Grattan. Dr. Grattan
recommended denial of the request for a dorsal column spinal cord stimulator,
explaining as follows:
There is no
indication for the requested dorsal column spinal cord stimulator at this time
given that the patient currently has a stimulator that is providing efficacy
with the patient’s pain control. Any rationale for this request is (sic) not
been provided for review. As such, the request is noncertified.
Therefore, the Movant is seeking to be relieved from
responsibility for payment of the dorsal column spinal cord stimulator
recommended by Dr. Grider.
The December 6, 2016, Benefit Review
Conference (“BRC”) Order and Memorandum, 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; exclusion for
pre-existing disability/impairment; TTD.” Under “Other” is the following:
“Apportionment; Barred for unreasonable failure to follow medical advice; MFD
via 112 (Spinal Cord Stimulator); PTD.”
In a February 6, 2017, Opinion and Award,
the ALJ found Harned had given notice as soon as practicable and had not
unreasonably failed to follow medical advice. Relying upon the opinion of Dr.
Jules Barefoot, the ALJ found Harned sustained a 13% impairment rating pursuant
to the 5th Edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (“AMA Guides”) and her
condition was asymptomatic and non-disabling prior to the work injury. The ALJ
concluded Harned was permanently totally disabled and terminated TTD benefits
on September 29, 2015, the date Dr. Barefoot concluded Harned reached MMI.
Bullitt County filed a petition for
reconsideration asserting the ALJ’s analysis of permanent total disability was
insufficient as a matter of law. In the March 23, 2017, Order, the ALJ amended
the award in accordance with his findings but did not change the award of PTD
benefits.
Bullitt County appealed making several
arguments which we outlined in our July 7, 2017, Opinion as follows:
Bullitt County asserts several arguments on appeal. First, Bullitt
County argues the ALJ’s determination of permanent total disability is
premature, as the ALJ must first decide the pending medical fee dispute.
Second, Bullitt County asserts the ALJ failed to make sufficient findings of
fact in support of his determination Harned is permanently totally disabled and
requests remand for additional findings. Third, Bullitt County maintains the
ALJ failed to make sufficient findings of fact regarding Harned’s unreasonable
failure to follow medical advice, as the ALJ disregarded medical records from
Eriksen Chiropractic pertaining to the issue of causation, and he found Dr.
Jules Barefoot to be more credible than Dr. Russell Travis. Bullitt County
seeks remand for additional findings on this issue. Finally, Bullitt County
claims the ALJ failed to address the issue of a carve-out of 76% for
pre-existing disability. Again, remand for additional findings on this issue is
sought.
OUR PREVIOUS DECISION
In our July 7, 2017, Opinion, we affirmed
in part, vacated in part, and remanded. In vacating, we held as follows:
As
an initial matter, the ALJ was required to resolve the medical fee dispute
since it was listed as a contested issue on the December 6, 2016, BRC Order. See 803 KAR 25.010 §13(14). That said,
the February 6, 2017, Opinion and Award demonstrates the ALJ relied upon the
opinions and 13% impairment rating of Dr. Barefoot as set forth in his
September 29, 2015, report in determining Harned is permanently totally
disabled. However, at the time Dr. Barefoot assessed the 13% impairment rating,
regarding MMI, Dr. Barefoot opined Harned appears to be at MMI “if no
further treatment is available.” (emphasis added). He also opined Dr.
Grider’s recommendation of further interventional pain management in the form
of an intrathecal catheter is reasonable. During his deposition, Dr. Barefoot
unequivocally stated that if further treatment would be made available to
Harned, she is not at MMI.
The
definition of permanent total disability, as set forth in KRS 342.011(11)(a)
requires, in part, a permanent impairment rating. The 5th Edition of
the American Medical Association, Guides to the Evaluation of Permanent
Impairment (“AMA Guides”), defines permanent
impairment as follows:
An impairment
is considered permanent when it has reached maximum medical improvement (“MMI”), meaning it is well stabilized and
unlikely to change substantially in the next year with or without medical
treatment.
“MMI,” as defined by the Supreme Court of Kentucky, “refers to
the time at which a worker’s condition stabilizes so that any impairment
may reasonably be viewed as being
permanent.” Tokico (USA), Inc. v. Kelly, 281 S.W.3d 771, 775-776 (Ky.
2009).
The ALJ’s
determination of permanent total disability must be vacated, as the 13%
impairment rating assessed by Dr. Barefoot and relied upon by the ALJ may not
satisfy the definition of a permanent impairment as set forth in the AMA Guides.
In the case sub judice, before
determining the appropriate impairment rating, the ALJ should have first
resolved the medical fee dispute regarding the reasonableness, necessity, and
work-relatedness of the spinal cord stimulator proposed by Dr. Grider. Should
the ALJ resolve the medical fee dispute in Harned’s favor and determine the
spinal cord stimulator is necessary treatment of the work injury and
compensable, the ALJ cannot rely upon Dr. Barefoot’s 13% impairment rating
without simultaneously relying upon an MMI date which precedes September 29,
2015, the date Dr. Barefoot assessed the impairment rating, since the
impairment rating was assessed before Harned achieved MMI. If there is no MMI
date in the record that pre-dates September 29, 2015, the ALJ may not rely upon
Dr. Barefoot’s impairment rating. However, should the ALJ resolve the medical
fee dispute in Bullitt County’s favor, the ALJ may rely upon Dr. Barefoot’s
impairment rating, as it would be reasonable for the ALJ to infer Dr. Barefoot
deemed Harned to be at MMI as of September 29, 2015, the date of Dr. Barefoot’s
IME report and impairment rating, as no further treatment was available to her.
Bullitt
County’s second argument is the ALJ failed to provide the proper legal analysis
in finding permanent total disability. Even though we are vacating the ALJ’s
finding of permanent total disability based upon his reliance upon Dr.
Barefoot’s impairment rating and remanding for additional findings, we will
address the ALJ’s analysis of permanent total disability.
Permanent total disability is defined
as the condition of an employee who, due to an injury, has a permanent
disability rating and has a complete and permanent inability to perform any
type of work as a result of an injury. KRS 342.0011(11)(c). “Work” is defined as providing services to
another in return for remuneration on a regular and sustained basis in a
competitive economy. KRS 342.0011(34). In determining whether a worker is
totally disabled, the ALJ must
consider several factors including the workers’ age, educational level, vocational
skills, medical restrictions, and the likelihood he can resume some type of
work under normal employment conditions. Ira A. Watson Department Store v. Hamilton, 34 S.W.2d. 48 (Ky. 2000). Additionally, a claimant’s own
testimony as to his condition has some probative value and is appropriate for
consideration by the ALJ. Hush v. Abrams, 584 S.W.2d 48 (Ky. 1979). The
ALJ enjoys wide ranging discretion in granting or denying an award of permanent total disability benefits. Seventh Street Road
Tobacco Warehouse v. Stillwell, 550 S.W.2d 469 (Ky. 1976); Colwell v.
Dresser Instrument Div., 217 S.W.3d 213 (Ky. 2006).
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).
Here, the ALJ failed to engage in the appropriate analysis of
the factors set forth in Ira A. Watson Department Store v. Hamilton, supra.
In finding Harned is permanently totally disabled, the ALJ cited only the restrictions set forth by Dr.
Barefoot. Despite Bullitt County’s request for additional findings on the issue
of permanent total disability, the ALJ failed to expand his analysis in the
March 23, 2017, Order ruling on Bullitt County’s petition for reconsideration.
The ALJ’s rendition of Dr. Barefoot’s restrictions falls short of the analysis
required for a finding of permanent totally disability.
On remand,
should the ALJ adopt a permanent impairment rating in accord with the AMA Guides,
in considering whether Harned is permanently totally disabled, the ALJ must set
forth a complete analysis which includes specific findings regarding Harned’s post-injury physical, emotional, intellectual, and
vocational status and how those factors interact and effect Harned’s ability to
perform any type of work. A mere recitation of medical restrictions is
insufficient.
We
affirmed the ALJ’s determination Harned did not unreasonably fail to follow
medical advice. We also affirmed the ALJ’s determination Harned did not have a
pre-existing active disability as defined in Finley v. DBM Technologies,
217 S.W.3d 261, 265 (Ky. App. 2007) holding as follows:
In Finley v.
DBM Technologies, 217 S.W.3d
261, 265 (Ky. App. 2007), the Court of Appeals stated a
pre-existing condition is deemed active, and therefore not compensable, if it
is "symptomatic and impairment ratable pursuant to the AMA Guidelines
immediately prior to the occurrence of the work-related injury." Moreover,
as an affirmative defense, the burden to prove the existence of a pre-existing
active condition falls on the employer. Id. Since Bullitt County was unsuccessful in its
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). The function of the Board in
reviewing the ALJ’s decision is limited to a determination of whether the
findings made by the ALJ are so unreasonable under the evidence that they must
be reversed as a matter of law. Ira A. Watson Department Store v. Hamilton,
supra.
In
resolving the issue of an alleged pre-existing active disability, the ALJ
relied upon Dr. Grider’s testimony comparing Harned’s pre-injury symptomatology
to her post-injury symptomatology. As acknowledged by the ALJ in the February
6, 2017, Opinion and Award, Dr. Grider’s testimony consistently recognizes
Harned became symptomatic and required narcotic medication only after the
August 13, 2013, injury. Indeed, Dr. Grider’s deposition testimony delineates
the difference in the symptomatology associated with CRPS from that which
Harned developed following the August 13, 2013, injury. Additionally, Dr.
Grider testified Harned was off all narcotic pain medication at the time of the
work injury. Thus, the ALJ could reasonably infer from this testimony that
Harned was not suffering from an active and impairment ratable pre-existing
condition at the time of the August 13, 2013, injury. Consequently, this
determination will not be disturbed.
We instructed as follows:
Accordingly, to
the extent the ALJ determined Harned is permanently totally disabled, the
February 6, 2017, Opinion and Award and the March 23, 2017, Order ruling on
Bullitt County’s petition for reconsideration is VACATED. This claim is REMANDED
to the ALJ for additional findings, including resolution of Bullitt County’s
medical fee dispute, in accordance with the views set forth herein. On all
other issues raised on appeal, the February 6, 2017, Opinion and Award and the
March 23, 2017, Order ruling on Bullitt County’s petition for reconsideration
are AFFIRMED.
An
appeal was not taken from the Board’s decision.
ORDERS ENTERED ON REMAND
In
the November 18, 2017, Order, the ALJ again adopted his findings of facts and
conclusions of law concerning the issues of notice and unreasonable failure to
follow medical advice. However, the ALJ did not resolve the issue of Harned’s
occupational disability by determining whether she was totally occupationally
disabled. Instead, the ALJ found as follows:
1. The ALJ finds that the most convincing evidence regarding the occurrence
of the Plaintiff’s injury is the observations of Dr. Grider indicating the difference
between the Plaintiff’s condition before and after the injury date.
2. The ALJ finds in accordance with the opinion of Dr. Grider that the Plaintiff
became symptomatic and required narcotic medication after the work incident and
therefore she sustained a work-related harmful change to the human organism and
has thus suffered an injury as defined by the Act.
3. The ALJ is presented with the impairment ratings of Dr. Barefoot and
Dr. Travis. The ALJ notes that Dr. Travis has updated his opinion and has attributed
50% of his impairment to a pre-existing active condition due to chiropractic
records and some of the statements attributed to the Plaintiff therein. The ALJ
is not persuaded by this evidence and notes that the records were available
prior to Dr. Travis’ addendum.
4. The ALJ finds that the opinion of Dr. Barefoot is more persuasive, consistent,
and convincing than that of Dr. Travis and constitutes the most credible
evidence in this matter regarding the impairment of the Plaintiff.
5. The ALJ finds in accordance with the opinion of Dr. Barefoot that the
Plaintiff has sustained a 13% whole person impairment to the lumbar spine
pursuant to the AMA Guides (absent additional treatment) and that her condition
was asymptomatic and non-disabling prior to the work injury but that as of the
date hereof, she may not have reached maximum medical improvement. This finding
is based upon the findings by Dr. Barefoot that she had reached MMI only if no
additional treatment was approved and the fact that additional treatment was
administered.
6. The ALJ therefore finds that the Plaintiff is entitled to additional temporary
total disability benefits.
In accordance with the
directive of the Board, the ALJ resolved the medical fee dispute finding in
favor of Bullitt County as follows:
1. It is the employer’s responsibility to pay for the cure and relief
from the effects of an injury or occupational disease the medical, surgical, hospital
treatment, including nursing, medical and surgical supplies and appliances as
may reasonably be required at the time of injury and thereafter during
disability…KRS 342.020.
2. The ALJ again relies upon the sound reasoning provided by Dr.
Barefoot who said that despite the Plaintiff having undergone placement of a spinal
cord stimulator for RSD symptoms, her condition was asymptomatic and
non-disabling prior to her work injury.
3. This opinion has convinced that ALJ and the ALJ therefore finds that
the expenses incurred for a spinal cord stimulator are non-compensable herein
because they are not causally work-related.
The ALJ awarded TTD
benefits based on the opinion of Dr. Barefoot that Harned had reached MMI as of
September 29, 2015, examination. The ALJ entered the following interlocutory
award:
1. The Plaintiff, Denise Harned, shall recover from the Defendant,
Bullitt County Technology Center, and/or its insurance carrier temporary total disability
benefits in the weekly amount of $539.69, from August 13, 2013, until she is
credibly found to have attained maximum medical improvement. The Defendant
shall take credit for any payment of such compensation heretofore made,
including those payments of temporary total disability benefits already made.
2. Plaintiff shall recover of the Defendant-employer and/or its
insurance carrier, such medical expenses including but not limited to
provider’s fees, hospital treatment, surgical care, nursing supplies, and
appliances as may be reasonably required for the cure and relief from the
effects of the work-related lumbar spine injury found herein. Defendant’s
obligation shall be commensurate with the limits set by the Kentucky Medical
Fee Schedule.
. . .
The above interlocutory award prompted
Bullitt County to file a petition for reconsideration. In its petition for
reconsideration, Bullitt County asserted, “[i]t has already been adjudicated
that the first TTD period ran from September 24, 2013 to June 15, 2014, and the
subsequent TTD period commenced on August 1, 2014 and ended on September 29,
2015.” It noted the ALJ resolved the medical fee dispute regarding the spinal
cord stimulator in its favor. It also noted that in this Board’s July 7, 2017,
Opinion, we directed that if the medical fee dispute was resolved in Bullitt
County’s favor, the ALJ was permitted to rely upon Dr. Barefoot’s 13% whole
person impairment rating. However, the Board also stated the ALJ would then be
required to perform a proper analysis as to whether Harned was permanently
totally disabled in line with the factors set forth in Ira A. Watson
Department Store v. Hamilton, 34 S.W.2d 48 (Ky. 2000). It requested the ALJ
address the award of permanent indemnity benefits and whether Harned was
permanently totally disabled in accordance with the Board’s opinion. If the ALJ
found Harned was permanently totally disabled, it requested findings of fact
concerning the extent of “pre-existing impairment and pre-existing occupational
disability” that should be carved out of the award. Bullitt County also
requested an order clarifying that TTD benefits were not currently payable in
light of the ALJ’s finding Harned reached MMI on September 29, 2015.
Harned also filed a petition
for reconsideration. Since the ALJ’s ruling on that petition for
reconsideration is not at issue, we will not address it.
In the January 9, 2018,
Order, the ALJ amended his previous Order finding Harned permanently totally
disabled and awarding PTD benefits based on the following:
1. The ALJ finds that the most convincing evidence regarding the
occurrence of the Plaintiff’s injury is the observations of Dr. Grider
indicating the difference between the Plaintiff’s condition before and after
the injury date. The ALJ finds in accordance with the opinion of Dr. Grider
that the Plaintiff became symptomatic and required narcotic medication after
the work incident and therefore she sustained a work-related harmful change to
the human organism and has thus suffered an injury as defined by the Act.
2. The ALJ is presented with the impairment ratings of Dr. Barefoot and
Dr. Travis. The ALJ notes that Dr. Travis has updated his opinion and has attributed
50% of his impairment to a pre-existing active condition due to chiropractic
records and some of the statements attributed to the Plaintiff therein. The ALJ
is not persuaded by this evidence and notes that the records were available
prior to Dr. Travis’ addendum.
3. The ALJ finds that the opinion of Dr. Barefoot is more persuasive,
consistent, and convincing than that of Dr. Travis and constitutes the most
credible evidence in this matter regarding the impairment of the Plaintiff. The
ALJ finds in accordance with the opinion of Dr. Barefoot that the Plaintiff has
sustained a 13% impairment pursuant to the AMA Guides and that her condition
was asymptomatic and non-disabling prior to the work injury.
4. Permanent total disability is defined in KRS 342.0011(11)(c) as the
condition of an employee who, due to an injury, has a permanent disability
rating and has a complete and permanent inability to perform any type of work
as a result of an injury. Hill v. Sextet
Mining Corporation , 65 SW3d 503 (KY 2001).
5. “Work” is defined in KRS 342.0011(34) as providing services to
another in return for remuneration on a regular and sustained basis in a
competitive economy. The statutory definition does not require that a worker be
rendered homebound by his injury, but does mandate consideration of whether he
will be able to work reliably and whether his physical restrictions will
interfere with his vocational capabilities. Ira
A.Watson Department Store v. Hamilton , 34 SW3d 48 (KY
2000).
6. The ALJ is presented with the opinions of vocational experts and
doctors in this matter regarding the Plaintiff’s ability to return to the work
force or the lack thereof. The ALJ notes that Dr. Barefoot permanently
restricted the Plaintiff to no sitting or standing for long periods of time; to
maintain the ability to change positions as needed; no climbing or descending
stairs repetitively; no operation of machinery with foot controls; no walking
on uneven surfaces; no squatting, kneeling, crouching, and crawling; and no
lifting or carrying more than negligible amounts.
7. The ALJ is persuaded by these restrictions and finds that the opinion
of Rick Pounds regarding symptom magnification lacks credibility. The ALJ
therefore finds that the detailed and specific restrictions that have been
credibly issued by Dr. Barefoot, prevent the Plaintiff from providing services
to another in return for remuneration on a regular and sustained basis in a
competitive economy. The ALJ therefore finds that the Plaintiff is permanently
and totally disabled.
8. Temporary total disability means the condition of an employee who has
not reached maximum medical improvement from an injury and has not reached a
level of improvement that would permit a return to employment…KRS 342.0011(11)(a)
32. The ALJ finds, based upon the credible opinion of Dr. Grider, that the
Plaintiff reached maximum medical improvement as of January 15, 2015. The
Plaintiff is therefore entitled to temporary total disability benefits from the
date of injury until the January 15, 2015.
On January 23, 2018, Harned filed a
petition for reconsideration asserting the ALJ incorrectly determined her
benefits should be tiered-down pursuant to the 1994 version of KRS 342.730(4).
On February 8, 2018, before the ALJ
entered an order ruling on Harned’s petition for reconsideration, Bullitt
County filed a Notice of Appeal. Significantly, Bullitt County did not file a
petition for reconsideration after the January 9, 2018, award and order.
On February 12, 2018, the ALJ
entered an order overruling Harned’s petition for reconsideration. Because the
ALJ’s order was entered after Bullitt County’s Notice of Appeal, this Board
placed the appeal in abeyance and remanded the claim for the ALJ to set aside
his February 12, 2108, Order since he did not have jurisdiction of the claim.
The ALJ was directed to enter a new and separate order.
On April 19, 2018, the ALJ entered
an order rescinding his February 12, 2018, and also entered an order overruling
Harned’s petition for reconsideration.
Bullitt County did not file a
petition for reconsideration but timely filed a “Renewed Notice of Appeal to
Workers’ Compensation Board.”
BULLITT
COUNTY’S ARGUMENT
On appeal, Bullitt County again
argues the ALJ failed to make sufficient findings of fact and failed to provide
the required legal analysis regarding whether Harned met her burden of proving
permanent total disability. It seeks remand for sufficient findings of fact and
legal analysis concerning the issue of permanent total disability.[1]
Bullitt County also asserts the tier-down provision should not apply, but the
award should be governed by the new version of KRS 342.730(4) effective July
14, 2018. Finally, Bullitt County asserts as follows:
The Petitioner/Defendant respectfully preserves the
issue of whether it is due a carve-out for pre-existing disability. The
Workers’ Compensation Board ruled against the Petitioner on this issue in its
prior opinion of July 7, 2017. However, the Petitioner respectfully disagrees
with the Board’s analysis of this issue and preserves its right to appeal this
issue to the Court of Appeals at the appropriate time.
SCOPE
OF REVIEW
Harned, as the claimant in a workers’
compensation proceeding, had the burden of proving each of the essential
elements of her cause of action, including her entitlement to PTD benefits. See KRS 342.0011(1); Snawder v. Stice,
576 S.W.2d 276 (
In
rendering a decision, KRS 342.285 grants an ALJ as fact-finder the sole
discretion to determine the quality, character, and substance of evidence. Square D
Co. v. Tipton, 862 S.W.2d 308 (
The
function of the Board in reviewing an ALJ’s decision is limited to a
determination of whether the findings made are so unreasonable under the
evidence that they must be reversed as a matter of law. Ira A. Watson
Department Store v.
ANALYSIS
We first note that pursuant to KRS
342.285, in
the absence of a petition for reconsideration, on questions of fact, the Board is limited to a determination of whether there is substantial evidence in the record to
support the ALJ’s conclusion. Stated otherwise, inadequate, incomplete, or
even inaccurate fact-finding on the part of an ALJ will not justify reversal or
remand if there is substantial evidence in the record that supports the
ultimate conclusion. Eaton Axle Corp. v. Nally, 688 S.W.2d 334
(Ky. 1985).
After the ALJ entered the January 9,
2018, Order finding Harned totally occupationally disabled, Bullitt County did
not file a petition for reconsideration asserting, as it does on appeal, the
ALJ failed to make sufficient findings concerning the issue of permanent total
disability and failed to provide the requisite analysis mandated in Ira A.
Watson Department Store v. Hamilton, supra. Thus, our sole task on
appeal is to determine whether substantial evidence supports the ALJ’s decision
Harned is totally occupationally disabled. We conclude substantial evidence
supports the ALJ’s determination that Harned is totally occupationally
disabled.
In the January 9, 2018, Order,
determining Harned is totally occupationally disabled, the ALJ relied upon Dr.
Barefoot’s restrictions set forth in his September 29, 2015, report which the
ALJ listed. We note that during Dr. Barefoot’s June 14, 2016, deposition, he
testified Harned did not have the capacity to return to her previous job
explaining as follows:
Q: If she was –
you know, just thinking about the teachers that I had in school and how they
went about, you know, and being in front of the class and teaching – if she was
just teaching, what about these specific restrictions would prevent her from
doing her job as a teacher?
A: Well, I think
the biggest issue for her right now is the – her complaints of ongoing chronic
pain that she has in her back. I mean, obviously, teaching what,
kindergarteners, community college?
Q: Yeah. Yes.
Yeah; I’m just speaking specifically of her teaching at a con [sic] – at a
technical school, teaching nursing students?
A: Right.
Q: Yeah.
A: Well, her
specific restrictions, that – once again, what is she teaching? I mean, is she
teaching bedside nursing? Is she teaching interventional nursing? Is she
teaching how to put in NGs and IVs? So, it’d kind of depend on what she’s
teaching or is she teaching the whole gamut of that stuff, too.
So would that interfere with her
teaching? Well if she’s having to demonstrate certain techniques to the
students on patient care, yes, that would interfere with that ability to return
to work.
Q: Okay. If – if
she could shift between standing and sitting as often as she needed to, do you
feel like she would be able to continue teaching?
A: Well once
again, you need to be a little more specific in describing her – her specific
duties as a teacher.
Q: Okay.
A: I mean, are
these hour and 15 minute classes? Are they 50-minute classes? Do they run back
to back? Is it like murst [sic] – most nursing schools, where it’s an 8-hour
day in class?
Q: Yeah; say if
it is just a full day where maybe she just has, you know, short breaks here and
– here and there and a lunch break, would she be able to teach throughout a
day, if she could alternate between sitting and standing as often as she would
like or needed to?
A: I would say
it’d be very doubtful that she’d be able to work a full day on a regular basis.
Dr. Grider offered a similar
opinion in his July 29, 2016, deposition stating as follows:
Q: If we’re
thinking in terms of her current ability to engage in work activity, and when I
say work activity, I’m thinking in terms of, you know, eight hours a day, five
days a week, 50 weeks a year, what we would think of as regular full time
employment. My question would be, in your opinion, does she have that ability
at this time?
A: I do not
believe that she does.
Q: Can you
explain why you hold that – that belief?
A: She has
difficulty maintaining a consistent position, so needing to move from seated to
standing with frequent changes of position is – is important. She has
difficulty with focus, she has an anxiety and a fearfulness to her that was not
present in that intervening time. She – it is un [sic] – it’s hard to determine
whether the difficulty focusing is via her pain or via the medications that she
is utilizing to control her pain.
Q: Could both be
a source of that problem?
A: Both could be,
she did not have that problem whenever she was off oral pain medications, she
did have that problem whenever she was on oral pain medications –
Q: Before.
A: -- for the
CRPS.
Q: Before she did
or did not?
A: She did.
Q: She did. Okay.
A: Yes.
Q: Alright.
A: Which is why
she wanted to be off of oral pain medications. So I – I do not believe that she
would be able to function in any of the capacities that she was previously and
I think she would have difficulty holding down a job at present.
Moreover, in Robert G. Piper’s June
24, 2016, Vocational Assessment Report, he expressed the opinion Harned is
totally occupationally disabled:
Based upon pain
interfering with attention and concentration, the need to frequently change
positions, the inability to be present at the job for even 4 hours in an 8 hour
workday, the need for unscheduled breaks, and the expected absenteeism, it is
my vocational opinion that Ms. Harned would be unable to perform fulltime
competitive employment at the present time. This opinion is based upon the pain
and the functional limitations that have resulted from her injury of 8/13/13.
Finally, in her March 16, 2016,
deposition, Harned testified she did not believe she could return to the job
she held with Bullitt County or any other nursing job:
Q: Okay. As far
as we sit here today, do you feel like you could return to doing your job at
the Bullitt County Technology Center?
A: No.
Q: Why not?
A: Because I
don’t think I can – I can’t reach above my shoulders. I can’t bend below to be
able to write on the chalkboard. I can’t demonstrate how to do a transfer, a
patient transfer. I can’t get down on the floor and perform – you know, teach
CPR, and demonstrate CPR and assess the students in that. I can’t lift a
textbook to be able to hand it to the kids. Yeah.
Q: And then
thinking back, because I know you’ve worked in a variety – we’ve talked about a
variety of different nursing positions –
A: Right.
Q: -- you know,
as a school nurse, you know, at a medical practice, and several different
hospitals. Thinking back on any of the nursing positions you’ve had, and of
course those have been varied, it sounded like over the years.
A: Right.
Q: Do you feel
like you could return to any of those nursing jobs in some capacity?
A: No. Even the
administrative nursing job that I had, still required me to sit at a desk to
perform, to do paperwork, schedules. But also if an influx of patients came in,
I would have to provide patient care in whatever capacity the patient needed. I
don’t think I could run anywhere. And if an emergency happens, that’s what we
have to do. No, I don’t think so.
Harned’s testimony is competent
evidence of her physical condition and
her ability to perform various duties prior to and after her injury. Hush v.
Abrams, 584 S.W.2d 48 (Ky. 1979). The restrictions and opinion of Dr.
Barefoot, the opinions of Dr. Grider and Mr. Piper, as well as Harned’s
testimony constitute substantial evidence supporting the ALJ’s determination
Harned is totally occupationally disabled.
We agree with Bullitt County that
the award is subject to the current provision of KRS 342.730(4) which became effective
on July 14, 2018. Therefore, the claim will be remanded to the ALJ for entry of
an opinion and award consistent with the current provision of KRS 342.730(4).
Finally, Bullitt County’s third
argument regarding the Board’s affirmation of the ALJ’s finding Harned did not
have a pre-existing disability and a carve-out of the award of PTD benefits was
not required, is controlled by the law of the case. In our July 7, 2017,
Opinion, we affirmed the ALJ’s determination that Harned did not suffer from a
pre-existing active impairment ratable condition stating as follows:
Thus, the ALJ could reasonably infer from
this testimony that Harned was not suffering from an active and impairment ratable
pre-existing condition at the time of the August 13, 2013, injury.
Consequently, this determination will not be disturbed.
Since this determination was not
appealed, it is now the law of the case. As such, all parties are bound by the
determination and it cannot be revisited in a subsequent appeal. In Garrett
Mining Co. v. Nye, 122 S.W.3d 513, 522 (Ky. 2003), the Kentucky Supreme
Court held:
However,
once an ALJ-adjudicated award and order becomes final, the ALJ's determinations
with respect to, e.g., causation, notice, apportionment, etc., cannot be
readdressed under KRS 342.125
except upon an allegation of fraud, newly discovered evidence, or mistake,
grounds that do not exist and are not asserted in this case. The reason, of
course, is that revisiting issues previously decided is precluded by the
principle of res judicata. “The doctrine of res judicata applies to the rulings
of a Workmen's Compensation Board the same as it does to the decisions of a
court.” Hysteam Coal
Corp. v. Ingram, 283 Ky. 411, 141 S.W.2d 570, 572
(1940). See Keefe v. O.K.
Precision Tool & Die Co., Ky. App., 566 S.W.2d 804, 809
(1978) (method of computing original award could not be changed
on reopening for “mistake” to conform to Supreme Court's later interpretation
of computation statute in Apache Coal
Co. v. Fuller, Ky., 541 S.W.2d 933 (1976));
compare General Elec.
Co. v. Morris, Ky., 670 S.W.2d 854, 856 (1984)
(on reopening of prior settlement agreement because of change of
condition, new award could be computed in accordance with Apache
); cf. Whittaker v.
Cecil, Ky., 69 S.W.3d 69, 73 (2002)
(employer precluded by res judicata from challenging ALJ's apportionment
decision by way of 803 KAR
25:075 § 3, a regulation permitting an employer to challenge the
Special Fund's calculation of the employer's credit for commuted attorney's
fees); Whittaker v.
Morgan, Ky., 52 S.W.3d 567, 569–70 (2001)
(Special Fund's failure to appeal ALJ's manner of calculating credit would have
resulted in that calculation becoming the “law of the case”).
In McGuire v. Coal Ventures
Holding Company, Inc., 2009-SC-000114-WC, rendered October 29, 2009,
Designated Not To Be Published, the Supreme Court explained:
The doctrines of res judicata
and the law of the case relate to the preclusive effect of previous judicial
decisions. Res judicata, a Latin term meaning “a matter adjudged,”
stands for the principle that a final judgment on the merits is conclusive of
causes of action (claim preclusion) and facts or issues (issue
preclusion/collateral estoppel) thereby litigated as to the parties and their
privies. [footnote omitted] The law of the case doctrine concerns the
preclusive effect of judicial determinations in the course of a single
litigation before a final judgment. [footnote omitted] As applied to workers'
compensation cases, a final decision of law by an appellate court [footnote
omitted] or the Board [footnote omitted] establishes the law of the case and must be
followed in all later proceedings in the same case.
Slip Op. at 3.
The doctrine of res judicata bars the re-litigation of a cause of action previously
adjudicated between the same parties. Parson v. Union Underwear Company,
758 S.W.2d 43 (Ky. App. 1988); Beale v. Faultless Hardware, 837 S.W.2d
893 (Ky. 1992). A final judgment, identity of subject matter, and mutuality of
parties is required. BTC Leasing Inc. v. Martin, 685 S.W.2d 191 (Ky.
App. 1984). “The doctrine of res judicata applies to the rulings of a
Workmen’s Compensation Board the same as it does to the decisions of a court.” Hysteam
Coal Corp. v. Ingram, 141 S.W.2d 570, 572 (Ky. App. 1940).
Thus,
the issue of whether Harned had a pre-existing active impairment ratable condition
has been resolved and is no longer subject to dispute. Since the Board’s
decision resolving this issue was not appealed, the parties are bound by the
ALJ’s determination, as affirmed by this Board, Harned did not suffer from a
pre-existing active impairment ratable condition at the time of the August 13,
2013, injury.
Accordingly, those portions of the
November 18, 2017, Order, the January 9, 2018, Order amending the award, and
the April 19, 2018, Order relating to the ALJ’s finding that Harned is totally
occupationally disabled are AFFIRMED.
Those portions of the January 9, 2018, Order and the April 19, 2018, Order
limiting the award pursuant to the tier-down provision contained in 1994
version of KRS 342.730(4) are VACATED.
This claim is REMANDED to the ALJ
for entry of an order subjecting the award to the current version of KRS
342.730(4).
ALL
CONCUR.
COUNSEL FOR PETITIONER:
HON
ROBERT FERRERI
614
W MAIN ST STE 5500
LOUISVILLE
KY 40202
COUNSEL FOR RESPONDENT:
HON
AUDREY HAYDON
P
O BOX 1155
BARDSTOWN
KY 40004
RESPONDENT:
JAY
GRIDER MD
2400
GREATSTONE POINT STE A100
LEXINGTON
KY 40504
ADMINISTRATIVE LAW
JUDGE:
HON
JONATHAN WEATHERBY
657
CHAMBERLIN AVE
FRANKFORT
KY 40601
[1] Bullitt County does not challenge the award of TTD and PTD benefits based on the ALJ’s determination of the date of MMI.
