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July 7, 2017 201365071

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED: July 7, 2017

 

 

CLAIM NO. 201365071

 

 

BULLITT COUNTY TECHNOLOGY CENTER               PETITIONER

 

 

 

VS.       APPEAL FROM HON. JONATHAN R. WEATHERBY,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

DENISE HARNED

JAY GRIDER, M.D.

and HON. JONATHAN R. WEATHERBY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING IN PART,

VACATING IN PART, AND REMANDING

                       * * * * * *

 

 

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

 

STIVERS, Member. Bullitt County Technology Center (“Bullitt County”) appeals from the February 6, 2017, Opinion and Award and the March 23, 2017, Order ruling on Bullitt County’s petition for reconsideration of Hon. Jonathan Weatherby, Administrative Law Judge (“ALJ”). The ALJ awarded Denise Harned (“Harned”) temporary total disability (“TTD”) benefits in the amount of $539.69 per week from August 13, 2013, through September 29, 2015; permanent total disability (“PTD”) benefits in the amount of $539.69 per week interrupted by any overlapping periods of TTD benefits; and medical benefits.

          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.

The Form 101 alleges Harned sustained injuries to her low back on August 13, 2013, while in the employ of Bullitt County in the following manner: “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, when she was injured, 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.

 

Harned reiterated her testimony about the training session at the December 6, 2016, hearing.

Bullitt County introduced the July 6, 2016, deposition of Brady Southwood (“Southwood”), principal at Bullitt County at the time of Harned’s injury.

Bullitt County also introduced a December 3, 2012, letter from Dr. Jay Grider in which he stated as follows:

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 in which he stated as follows:

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.

 

During his July 29, 2016, deposition, Dr. Grider testified regarding options of additional pain management for Harned’s work injury:

Q: I know that one of the issues that’s come up concerns – concerns the potential for additional spinal cord stimulation of some type, is that correct?

 

A: Yes, sir.

 

Q: I mean, there are some other options, I guess, is what I’m saying?

 

A: There is a new FDA approved product that is specifically designed for the type of problem that she has, a specific nerve root that has been irritated or damaged. It would also theoretically be an advancement over what she has for complex regional pain syndrome. So it has been suggested to her that – that she could trial [sic] this new system.

 

Q: I have a question about that, okay? Would that then mean she would have two spinal cord stimulators or does the old one have to come out and then the other one is a complete replacement?

 

A: It could really be either way. So, it may be that we would be able to shift her over to this new system, there’s some advantages to that. Old spinal cord stimulation you feel a painless tingling and that is what helps mask the pain. The new system, you don’t have that, the reason why that’s important is, even whenever you have a stimulation system in place that covers the tingling, and it decreases the pain where you can function better, you still have a reminder that you are ‘sick,’ because you have this tingling sensation that is not natural. The new spinal cord stimulator system allows you to have pain relief without that tingling that is generated by the electrical device, therefore you become less focused on the symptoms that you have. So there’s a psychology behind it as well as an improvement in technology and – and treatment application.

 

Q: And – and as I understand what you’re saying, in – in – in your opinion, she’s – she’s an appropriate candidate for this type of treatment and therapy?

 

A: She is- she is out of options. We had considered briefly for a while an intrathecal pump for her back pain, as that was – would be the only other state of the art thing that had not been tried.

 

Q: And what is that?

 

A: That is where we deliver her pain medication into the spinal fluid in an attempt to place it directly where she needs it rather than systemically. For a variety of reasons, I think that a new stimulation system would be advantageous to her because I don’t think the pump would provide the degree of relief that she needed, and I told her that. But she has asked on numerous occasions, ‘Is there anything else we can do? Is there anything else we can try?’ She herself wants to get off of the oral medications.

 

Q: Okay. And so that’s where things stand right now –

A: Yes, sir.

 

Q: - as far as her treatment?

 

A: Yes, sir.

 

Q: Is that – is that a fair statement? Was – and you may not know this, because this is a little bit outside of just the actual practice, but was the – this new spinal cord stimulator, was it requested for approval through her workers’ comp and denied? Or has that not been done? Or do you just not have knowledge of that?

 

A: I do not think we’ve actually requested it.

 

Q: That would be the next step?

 

A: That would be the next step, yes.

 

Dr. Grider also testified that the activities causing Harned’s August 13, 2013, work injury were not encompassed by the restrictions he imposed. His testimony is as follows:

Q: Doctor, looking on down – and this is just a two page note, looking down near the bottom –

 

A: Uh-huh.

 

Q: - you had stated that she would never be able to return to moving patients or assisting with moving patients from one place to another such as on and off a bedside commode, you felt she would be able to engage in nursing education activities but not moving patients?

 

A: Yes.

 

Q: So at that time you felt she had permanently lost the physical capacity to move or assist with moving patients, correct?

 

A: The reason why I had said that was because she has a spinal cord stimulator in place, bending, lifting, twisting activities are commonly associated with lead migration. And given the degree of pain relief she was receiving with the spinal cord stimulation, I had suggested to her that I did not think it was [sic] her best interest to engage in activities that would potentially risk that. Bending, lifting, and twisting are specifically activities in which a percutaneous spinal cord stimulator is at risk for lead migration, that was the reason why.

 

Q: Okay. So that was a permanent restriction you were giving at that time though, that she would – she should not move or assist with moving patients any longer?

 

A: That was my assessment.

 

Q: Okay. And then also in this same note you stated she should not be bending or lifting or twisting with objects greater than ten to 15 pounds, was that a permanent restriction also?

 

A: It was.

 

Q: Now Ms. Harned had testified that she was in this work event of August 13th, 2013 that she was forcibly resisting an adult male pushing on her from behind, and then they switched roles and she was pushing on the adult male from behind as he resisted her. Wouldn’t this activity be outside those restrictions?

 

A: That would – that would not have been an ideal situation.

 

Q: Okay. But with – with – I mean, that weight restriction and no bending, twisting, lifting, that would have – that kind of activity would have been with that – outside of those restrictions, correct?

 

A: It would have been.

 

Dr. Grider testified Harned was not taking narcotic pain medication before her work injury. Dr. Grider also testified the pain Harned currently experiences for which she needs the new spinal cord stimulation system, is separate and distinct from the pain she experienced before the injury. That testimony is as follows:

A: Her symptomatology was considerably different.

 

Q: And can you explain that?

A: Her symptomatology was on the opposite side of her body, it was spinally mediated in nature.

Q: What does that mean?

 

A: So she had a significant amount of back pain, a significant amount of what we would call radicular lower extremity pain.

 

Q: Okay.

 

A: That’s very different from complex regional pain syndrome.

 

Q: Okay.

 

A: That is nerve burning, irritation, tingling, numbness, and a very specific distribution across the low back and into the front of the thighs.

 

Q: The area of her body where her symptoms were located, was that low back and then one of the extremities?

 

A: Yes.

 

Q: Was it left or right?

 

A: I believe that it was the right lower extremity.

 

Q: Right lower extremity. Okay. And can you sort of take us through the course of treatment, when she returns and what was done and – and where we – bring us up to where we are now.

 

A: Whenever – whenever I first saw Ms. Harned she was somebody who could barely walk or use a shoe to ambulate. She went from that individual following the spinal cord stimulatory to somebody who went off of opiates and returned to work, her entire demeanor and continence [sic] changed 100 percent. She was upbeat, she was engaged, and she was very hopeful and optimistic about the future. Literally almost immediately upon that first visit –

 

Q: After this –

 

A: - after this injury, we had somebody who had become quite fearful, quite anxious about what was happening, and somebody who had a significant change, that is why I took this exceptionally seriously. We obtained a CT scan, we could not obtain an MRI because of her spinal cord stimulator, and in that process we did find that she had what we considered to be neural foraminal narrowing, or an encroachment on the – the section where the nerve exits the spine, that may have been impenging [sic] on a nerve root. We tried multiple treatment to include trigger point injections for her back spasms, single nerve root injections for her leg and back pain, and ultimately referred her to my surgical colleague, Dr. Carter Cassidy, who operated and did a foraminectomy/discectomy in an attempt to open up and free up the – the nerve root that was irritated.

. . .

Q: Alright. And – and – and then here’s an – it’s a related question, but I – I want to ask it this way, too. You have a history from her of this work event that happened while she was engaged in this exercise or training or whatever, in – in your opinion – in your opinion, her current situation, the current symptoms, is it related to that event?

 

A: According to her history it is related to that event. Something that happened in and around that time that was dramatic and caused a dramatic shift in her clinical symptoms.

 

Harned introduced the September 29, 2015, Independent Medical Examination (“IME”) report of Dr. Barefoot. After performing an examination and a medical records review, Dr. Barefoot provided the following diagnoses:

1.      Right L3-L4 disc herniation.

 

2.      Status post L3-L4 right lumbar discectomy April 11, 2014.

 

3.      Chronic severe, incapacitating low back pain.

 

4.      History of spinal cord stimulator placement 2012.

 

5.      Anxiety and depression.

 

The “Discussion” section of the report contains the following questions and answers:

1.      What is your opinion as to Ms. Harned’s work related diagnosis?

 

My opinion, as to her work related injury and diagnosis, is a right L3-L4 disc herniation that required a right lumbar microdiscectomy on April 11, 2014.

 

Additionally, because of her persistent pain and loss of mobility, she has had increasingly severe anxiety and depression.

 

2.      Has Ms. Harned reached maximal medical improvement?

 

Ms. Harned does appear to be at MMI if no further treatment is available.

 

3.      Does Ms. Harned have any permanent restrictions?

 

Ms. Harned does have marked restrictions.

She is unable to sit and stand for prolonged periods.

 

She must move about or change position for relief of pain and discomfort.

 

She is not able to climb and descend stairs in a repetitive fashion.

 

She is not able to operate machinery with foot controls.

 

She is unable to walk on unlevel surfaces.

 

She is unable to squat, kneel, crouch and crawl.

 

She is unable to lift and carry more than negligible amounts intermittently.

 

These restrictions would preclude a return to her usual employment.

 

On July 19, 2016, Bullitt County filed a Form 112 Medical Fee Dispute, describing the nature of the 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.

 

Dr. Barefoot was deposed on June 14, 2016, and provided the following testimony concerning maximum medical improvement (“MMI”):

Q: Now, in your report you stated you felt she had he [sic] reached MMI as of that [sic] date of your report, which was September 29th, 2015, but there wasn’t a specific MMI date listed.

 

Would you agree with Dr. Cassidy’s placement of her at MMI as of - - excuse me, as of October 20th, 2014?

 

A: October 20, 2014?

 

Q: Yes, sir.

A: [examines document] No, sir. Because it looks like she continued to treat with Dr. Grider after that date. By the records I had, it looks like she had a Botox injection given October 22nd; he followed back up on December 9, noting that it did not help.

 

Following that, December of 2014 she had a repeat CT myelogram. Looks like she continued to see Dr. Cassidy into January of 2015, where he did review that CT myelogram. And then, obviously, the treatment continued on from there.

 

Q: Okay. Do you have an opinion as far as [sic] MMI date?

 

A: Well, given the records, I had available, she continued with treatment with Dr. Grider through – the last note I had from him was April 30, 2015.

 

I saw her in September of 2015. Figure six months from that April 30 date is about when I saw her, so September 29, 2015.

 

. . .

 

Q: Doctor, in looking at your report it looks like Dr. Cassidy may have actually amended his MMI date to January 22nd of 2015. Does that look correct to you? I’m looking at Page – the bottom of 10 to 11.

 

A: [examines document] Yes, ma’am; that is correct. He did state that on January 22nd-

 

Q: And then –

 

A: - 2015.

 

Q: - And it sounds like today you had indicated that given that treatment was ongoing following that, that you felt like MMI would’ve been appropriate September 29th, 2015; is that right?

 

A: Yes, ma’am.

 

Q: Would you agree if she were to go forward with the pain pump in – procedure then she would, I guess, potentially not be at MMI if she had that further treatment?

 

A: Well, if any further treatment is made available to her, she would not be at MMI. (emphasis added).

 

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 the February 6, 2017, Opinion and Award, the ALJ put forth the following Findings of Fact and Conclusions of Law:

     NOTICE

No proceeding 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…KRS 342.185

17. The Plaintiff has testified that she informed Mr. Southwood about her injury shortly after it happened. Mr. Southwood testified that he could not remember that conversation but it is clear that the Plaintiff believed that she had given notice in a timely fashion.

18. The ALJ finds that based upon the answers of Mr. Southwood that were not definitive in nature, that the Plaintiff was correct that she gave notice as soon as practicable.

Unreasonable Failure to Follow Medical Advice

19. The Plaintiff has testified that she did not want to participate in the training session wherein the injury occurred but that she was pressured into doing so. The Plaintiff even recalled telling Mr. Southwood and quoted his response which shall not be repeated here.

20. The ALJ finds that the Plaintiff is more credible on this issue than is Mr. Southwood who does not recall any such discussion taking place but has other fairly specific memories from the training session.

21. The ALJ therefore finds that the Plaintiff was pressured into participating and therefore did not unreasonably fail to follow medical advice.

Benefits Per KRS 342.730/Injury as Defined by the Act / PTD Work-Relatedness and Causation / Apportionment for Pre-existing

22. 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.

23. 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.

24. The ALJ is presented with the impairment ratings of Dr. Barefot 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.

25. 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.

26. 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.

27. 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).

28. “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).

29. 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.

30. 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.

Temporary Total Disability

31. 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. Barefoot, that the Plaintiff reached maximum medical improvement as of his examination date of September 29, 2015. The Plaintiff is therefore entitled to temporary total disability benefits from the date of injury until the attainment of maximum medical improvement.

 

Bullitt County filed a petition for reconsideration asserting several errors and requesting additional findings. In the March 23, 2017, Order, the ALJ determined as follows:

This matter is before the ALJ upon Motion of the Defendant seeking a correction of the misstated dates of temporary total disability as stated in the Opinion and Award, correction of the beginning date for the permanent total disability award, and seeking additional findings regarding the finding of permanent total disability. The ALJ hereby finds as follows:

1. The dates of temporary total disability are hereby AMENDED and restated as follows: Temporary total disability benefits were paid from August 1, 2014, through January 22, 2015.

2. The ALJ hereby finds that the date upon which the permanent total disability award shall commence is the date upon which a lost time injury was sustained which is September 24, 2013.

3. The ALJ further finds that the Award of permanent total disability is supported by sufficient findings and therefore hereby declines to disturb the result.

4. The Award portion of the Opinion and Award is hereby AMENDED as follows:

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 1, 2014, through January 22, 2015, and the sum of $539.69 per week for 100% permanent disability commencing on September 24, 2013, and continuing for so long as she is so disabled, together with interest at the rate of 12% per annum on all due and unpaid installments of such compensation, but to be interrupted by any applicable corresponding periods of temporary total disability. The Defendant shall take credit for any payment of such compensation heretofore made, including those payments of temporary total disability benefits already made. All benefits shall terminate pursuant to KRS 342.730(4) as of the date on which the Plaintiff qualifies for normal old-age Social Security retirement benefits.

. . .

        

On appeal, Bullitt County first contends the ALJ’s determination Harned is permanently totally disabled is premature, as the ALJ must first resolve the pending medical fee dispute regarding the spinal cord stimulator proposed by Dr. Grider. We vacate the ALJ’s finding of permanent totally disability and remand for additional findings.

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.

          The first portion of Bullitt County’s third argument is the ALJ failed to set forth sufficient findings of fact regarding Harned’s alleged “unreasonable failure to follow medical advice.” We disagree and affirm on this issue.

          KRS 342.035(3) provides no compensation shall be payable for the death or disability of an employee if his death is caused, or if and insofar as his disability is aggravated, caused, or continued, by an unreasonable failure to submit to or follow any competent surgical treatment, medical aide or advice. However, KRS 342.035(3) is not available to a defendant/employer when a different body part is affected in the subsequent injury. Dr. Grider imposed the restrictions upon Harned, as set forth in his December 3, 2012, report, which Bullitt County claims Harned unreasonably failed to follow at the August 13, 2013, training session. However, the restrictions were imposed for complex regional pain syndrome (“CRPS”) which Dr. Grider opined, also in the December 3, 2012, report, was the result of a motor vehicle accident. However, Dr. Grider’s unequivocal deposition testimony establishes that the work-related injury at issue in this litigation is a separate and distinct injury with separate and distinct symptomatology from Harned’s CRPS.  Therefore, it appears the same physician who imposed the restrictions Bullitt County alleges Harned “unreasonably failed to follow” also opined the injury Harned received during the training session on August 13, 2013, is unrelated to Harned’s CRPS. Therefore, KRS 342.035(3) is not available to Bullitt County as a defense.

          Assuming, arguendo, KRS 342.035(3) is available to Bullitt County as a defense in the case sub judice, the ALJ determined Harned’s testimony regarding the training session during which the work injury occurred was more credible than the testimony of Southwood. He concluded that Harned was pressured into participating in the training session. Therefore, the ALJ concluded Harned’s failure to follow Dr. Grider’s medical restrictions was not unreasonable. 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 (Ky. 1993). An ALJ may draw reasonable inferences from the evidence, reject any testimony, and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof. Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).

          The function of the Board in reviewing an ALJ’s decision is limited to a determination of whether the findings are so unreasonable under the evidence that they must be reversed as a matter of law. Ira A. Watson Department Store v. Hamilton, supra. The Board, as an appellate tribunal, may not usurp the ALJ's role as fact-finder by superimposing its own appraisals as to weight and credibility or by noting other conclusions or reasonable inferences that otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).    

          The ALJ has the sole discretion to pick and choose amongst conflicting testimony and resolve issues of credibility, and this Board will not interfere with the ALJ’s proper exercise of this discretion. The ALJ’s determination regarding Harned’s alleged failure to follow medical advice will not be disturbed. 

          The second and third portions of Bullitt County’s third argument seek additional findings explaining why the ALJ did not find a particular medical record generated by Eriksen Chiropractic to be convincing and why the ALJ found Dr. Barefoot more credible than Dr. Travis. These issues can be dispensed with simultaneously.

          The ALJ, as fact-finder, has full discretion to determine the physician or physicians upon which he relies.  If “the physicians in a case genuinely express medically sound, but differing opinions as to the severity of a claimant's injury, the ALJ has the discretion to choose which physician's opinion to believe.” Jones v. Brasch-Barry General Contractors, 189 S.W.3d 149, 153 (Ky. App. 2006). While an ALJ 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, an ALJ is not required to set forth the minute details of his reasoning in reaching a particular result. Big Sandy Community Action Program v. Chafins, supra.  The ALJ is not required to set forth an exhaustive comparison of the medical evidence in the record and the reasons he chose to rely upon certain medical evidence and not others. It is enough that the ALJ sufficiently set forth the medical evidence upon which he relied, and he has done so here. Remand for additional findings on these issues is unnecessary.

          Finally, Bullitt County asserts the ALJ should be directed to reduce Harned’s award of PTD benefits by 76%, as the “evidence concerning pre-existing active disability is uncontroverted.” We affirm on this issue.

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.

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.

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON ROBERT F FERRERI

614 W MAIN ST STE 5500

LOUISVILLE KY 40202

COUNSEL FOR RESPONDENT:

HON AUDREY HAYDON

P O BOX 1155

BARDSTOWN KY 40004

RESPONDENT:

DR JAY GRIDER

2400 GREATSTONE POINT STE A100

LEXINGTON KY 40504

ADMINISTRATIVE LAW JUDGE:

HON JONATHAN R WEATHERBY

657 CHAMBERLIN AVE

FRANKFORT KY 40601