Workers’
Compensation Board
OPINION
ENTERED: August 4, 2017
CLAIM NO. 201468574
L TECH ENTERPRISES, INC. PETITIONER
VS. APPEAL FROM HON. CHRIS
DAVIS,
ADMINISTRATIVE LAW JUDGE
ROBERT LENHARDT,
MAGDY M. EL-KALLINY, M.D., and
HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
VACATING
AND REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. L-Tech
Enterprises, Inc. (“L-Tech”) appeals from the February 23, 2017 Opinion, Award
and Order rendered by Hon. Chris Davis, Administrative Law Judge (“ALJ”),
awarding temporary total disability (“TTD”) benefits, permanent partial
disability (“PPD”) benefits, enhanced by the three-multiplier pursuant to KRS
342.730(1)(c)1, and medical benefits to Robert Lenhardt (“Lenhardt”). The ALJ determined Lenhardt sustained a work-related
low back injury at L4-5 on September 8, 2014.
L-Tech also appeals from the March 8, 2017 and May 1, 2017 orders on its
petitions for reconsideration.
On appeal, L-Tech
argues the evidentiary record does not support the ALJ’s conclusion that
Lenhardt had epididymitis prior to the alleged work injury. L-Tech also argues Dr. Stephen Autry’s
history regarding work-relatedness/causation is corrupt due to it being
substantially inaccurate and/or largely incomplete. It argues any opinion generated by Dr. Autry
on the issue of causation cannot constitute substantial evidence. A review of the record fails to reveal any
evidence supporting the ALJ’s determination that whatever condition Lenhardt
may have suffered from in June 2014 is due to epididymitis. Likewise, the ALJ failed to provide an
explanation of the basis of the application of the three-multiplier pursuant to
KRS 342.730(1)(c)1 as requested by L-Tech in its petition for
reconsideration. Therefore, the ALJ’s decision
is vacated, and remanded for a determination based upon the evidence of
record. Likewise, we note Dr. Magdy M.
El-Kalliny was joined as a party to this claim upon motion by L-Tech. A review of the evidence fails to demonstrate
Dr. El-Kalliny ever treated or evaluated Lenhardt. On remand, the ALJ is directed to determine
whether Dr. El-Kalliny should be dismissed as a party to this claim.
Lenhardt filed a Form 101 on
July 22, 2016 alleging he sustained a low back injury on September 8, 2014 as
he was pushing a 55-gallon barrel of material with a pallet jack. He stated the material is used in the
manufacture of shotgun shells, and he estimated it weighed 3,200 to 3,600
pounds. He experienced a pop and pain in
his low back and groin. The operative
report attached with the Form 101 indicates he underwent an L4-5
hemi-laminectomy and discectomy on May 28, 2015 to treat the injuries he
sustained in the accident. Lenhardt’s
work history consists of working as a machine operator, construction laborer,
and as a guitarist in a band.
L-Tech filed a Form 111
claim denial on August 30, 2016. It
accepted the claim as compensable, but indicated there was a dispute as to the
amount of compensation owed. It
additionally denied the claim, in part, because Lenhardt had failed to prove he
sustained an “injury” as defined by the Kentucky Workers’ Compensation
Act. L-Tech admitted it paid TTD
benefits from September 11, 2014 through June 21, 2016 at the rate of $379.16
per week for a total of $35,207.67. It
also admitted it paid medical benefits in the same amount, which appears to be
a typographical error since the Benefit Review Conference (“BRC”) Order and
Memorandum reflects the medical benefits paid amounted to $17,096.50.
Lenhardt testified by
deposition on October 7, 2016, and again at the hearing held December 28,
2016. Lenhardt is a resident of
Somerset, Kentucky. He was born on
October 13, 1973. He completed the
eleventh grade and has no specialized or vocational training. He does not have a GED. Lenhardt testified he had previously injured
his low back in 2001 from which he fully recovered. He reported he additionally had an incident
of low back and groin pain in 2005 from which he recovered in a couple of
months.
Lenhardt admitted he
additionally had a low back strain in June 2014, which he classified as a
pulled muscle. He requested to be off
work from June 16, 2014 through June 24, 2014 due to low back pain and a
suspected hernia. He admitted he believed
he was going to have to undergo hernia surgery at that time. He stated the pain was much worse after the
September 8, 2014 incident than it had been in June 2014.
Lenhardt’s job with L-Tech
consisted of feeding material into machines to manufacture shotgun shells. After the shells were completed, they were
packaged, boxed and shipped. He used
pallet jacks to move barrels of resin and shot used in the manufacturing
process.
On September 8, 2014, he was
using a pallet jack to push a 55-gallon barrel of shot used to manufacture
shotgun shells when he experienced a pop in the middle of his back, which he
felt down into his legs. He completed
his shift and worked one or two more days before he sought medical treatment despite worsening pain, especially in his
right lower extremity. He reported the
incident to his supervisor and completed an accident report. He sought treatment on September 10 or 11,
2014, and has not worked since.
Lenhardt was initially
treated for a suspected hernia, but it was eventually determined he had a low
back injury for which he had surgery by Dr. Amr O. El-Naggar. After the surgery, his problems were more on
the left than the right. He stated the
surgery did not improve his back pain.
Subsequent to the surgery, he had an injection in his low back, which
provided no relief. Likewise, physical
therapy was not beneficial. He stated he
is unable to bend over to pull up his socks.
Lenhardt stated he has difficulty with prolonged periods of sitting,
standing or driving. He stated Dr.
El-Naggar has not released him to return to work.
In addition to the operative
report filed with the Form 101, Lenhardt supported his claim with the Form
107-I report prepared by Dr. Autry who examined him on August 10, 2016. Dr. Autry noted the history of low back and
groin pain Lenhardt experienced on September 8, 2014 while moving a barrel of
shot. He diagnosed a lumbar disc
herniation caused by Lenhardt’s work. He
assessed a 13% impairment rating pursuant to the 5th Edition of the
American Medical Association, Guides to the Evaluation of Permanent
Impairment (“AMA Guides”).
Dr. Autry opined Lenhardt had no active impairment rating prior to the
September 8, 2014 injury. He stated
Lenhardt had reached maximum medical improvement (“MMI”). He also stated Lenhardt does not have the
physical capacity to return to the type of work performed at that time of the
injury, and should avoid pushing, pulling, lifting, carrying, stooping,
bending, twisting and turning. Dr. Autry
was not deposed.
Lenhardt additionally filed
records from Dr. El-Naggar. On April 16,
2015, Lenhardt saw Sarah Todd, PA-C, who works with Dr. El-Naggar. Lenhardt complained of thoracic and low back
pain on the right, shooting into his right groin and testicle. Lenhardt was diagnosed with lumbar pain and
radiculopathy, along with thoracic pain.
A May 14, 2015 lumbar MRI revealed disc desiccation with a large
extruded disc at L4-5. Dr. El-Naggar performed
surgery at L4-5 on May 28, 2015. A
subsequent MRI dated July 1, 2015 revealed disc desiccation at L4-5 with mild
narrowing. A thoracic MRI dated July 6,
2015 revealed a mild disc protrusion at C6-7, but no significant thoracic
abnormality. Likewise, a cervical MRI
dated August 27, 2015 revealed no significant abnormalities. An MRI dated October 22, 2015 revealed
post-operative changes at L4-5 with no significant canal or foraminal
narrowing.
Lenhardt also filed records
from Dr. Sean DeLair. The intake sheet
dated September 10, 2015 reflects Lenhardt attributed his injury to lifting,
tugging and pulling a 55-gallon drum of material, and moving a pallet of
ammunition. The September 12, 2014 record notes Lenhardt complained of pain
from the groin to the back. On September
17, 2014, Lenhardt complained of right testicular pain and swelling. The notes reflect Lenhardt was concerned he
had a hernia, and he had a similar issue nine years before which had resolved
within two to three months. An ultrasound
was ordered due to Lenhardt having a tender right epididymis which Dr. DeLair
felt was possibly consistent with epididymitis.
The October 23, 2014 note states an ultrasound revealed no evidence of
epididymitis.
L-Tech filed the September
16, 2016 note of Dr. Steven DeMunbrun.
Lenhardt complained of pain, weakness, numbness and tingling in his
legs. Dr. DeMunbrun diagnosed bilateral
tarsal tunnel syndrome. L-Tech
additionally filed the June 5, 2014 note from the Urgent Medical Center. The note, which is partially illegible,
reflects Lenhardt complained of low back pain from lifting wood four days
prior. L-Tech also filed the
utilization review report of Dr. Richard Mortara dated August 3, 2016 who
recommended Lenhardt undergo EMG/NCV testing prior to authorizing an additional
lumbar MRI.
L-Tech additionally filed
reports from Dr. Russell Travis dated February 29, 2016 and June 19, 2016. Dr. Travis examined Lenhardt at its
request. Lenhardt described the September
8, 2014 injury. He first treated with
Ms. Violet Trueblood, a nurse in Dr. Betsy Reynold’s office. Lenhardt reported he then had a urology
referral. He also saw a general surgeon
for evaluation of a hernia. He was
eventually seen by Dr. El-Naggar who recommended surgery. Lenhardt reported a history of pulled muscles
in his low back. Dr. Travis diagnosed a
central herniated disc at L4-5. He
stated Lenhardt’s complaints of low back pain, numbness and tingling were not
supported by objective findings. He
noted Lenhardt’s complaints did not follow any dermatomal pattern. He recommended EMG/NCV testing. Dr. Travis assessed a 10% impairment rating
pursuant to the AMA Guides.
In his note dated June 19,
2016, Dr. Travis stated Lenhardt had reached MMI as of February 29, 2016. He saw no need for additional medical
treatment or medications. He reaffirmed
the 10% impairment rating he had previously assessed. He stated Lenhardt would require no
restrictions or limitations of his activities after completion of a three to
four week work hardening program. During
the work hardening program, he would restrict Lenhardt to lifting no more than
twenty pounds frequently, nor over fifty pounds on a maximum basis.
Dr. Travis testified by
deposition on December 23, 2016. He
noted Lenhardt complained of testicular pain radiating into his back. He stated it is not uncommon for L4-5 disc
herniations to cause scrotal pain. When
he examined Lenhardt, he was aware of previous complaints of low back and groin
pain in 2002 and 2005. He was not aware
of any complaints between 2005 and the September 8, 2014 injury date. Lenhardt specifically denied any low back
pain prior to September 8, 2014. After
reviewing records from June and July 2014, Dr. Travis opined Lenhardt had
symptomatic low back pain or a radicular condition prior to September 8,
2014. He stated the entirety of the 10%
impairment rating was attributable to the pre-existing active condition. Dr. Travis admitted he was not provided with
evidence Lenhardt had actually missed any work between June 2014 and September
8, 2014, and he agreed moving a heavy barrel of material with a pallet jack
could cause a herniated disc. He also
noted the medications prescribed to Lenhardt in June 2014 were for a short duration. He also stated the tarsal tunnel syndrome is
not related to the work injury.
Dr. Travis stated Lenhardt
has no ongoing objective findings of radicular problems. He additionally noted Lenhardt demonstrated
some symptom magnification. He
specifically noted Lenhardt’s sensory findings were non-dermatomal. He also opined Lenhardt does not need a
fusion at L4-5.
A BRC was held on December
28, 2016. The issues preserved were
whether Lenhardt retains the physical capacity to return to the type of work
performed on the date of injury, benefits per KRS 342.730,
work-relatedness/causation, unpaid/ contested medical bills, injury as defined
by the Act, exclusion for pre-existing active disability, and TTD benefits.
The ALJ issued an Opinion,
Award and Order on February 23, 2017. He
found Lenhardt’s average weekly wage to be $578.89, and awarded TTD benefits
from September 9, 2014 to April 18, 2016 at the rate of $385.93. He awarded PPD benefits based upon the 13%
impairment rating assessed by Dr. Autry, enhanced by the three-multiplier
contained in KRS 342.730(1)(c)1. He also
awarded medical benefits.
Specifically the ALJ found
as follows:
Work-relatedness/causation and Injury as Defined by
the Act
The Defendant argues that
the Plaintiff’s accident causing the lumbar disc herniation occurred in June,
2014, three months prior to the work accident. They[sic] point to the fact that
the Plaintiff complained of low back pain at that time, sought treatment for
low back pain, his words when asking for time off and time saved to have hernia
surgery, and the statements by Dr. Travis.
Dr. Travis stated that a lumbar disc herniation could cause scrotum
pain, such as the Plaintiff was experiencing in June, 2014 and for which he
said he might need surgery. Dr. Travis
has stated that the entire 10% impairment rating he assigned to the Plaintiff
was related to the June, 2014 incident lifting wood at home and therefore none of the condition is work-related.
If I chose I could rely
on the above facts to dismiss the claim as entirely non-work-related and
entirely pre-existing, and active. The above constitutes substantial evidence
to do so and the remainder of the evidence merely constitutes contradictory
evidence.
However, I find and
believe that the Plaintiff’s accident giving rise to his L4-5 disc herniation
and surgery occurred at work on September 8, 2014.
In June, 2014 the
Plaintiff’s primary complaints to his health care providers was of groin and
scrotum pain. He was even referred to a
specialist and tests were done. Ultimately
he was given the diagnosis of epididymitis and surgery was not recommended.
That a L4-5 disc herniation can, sometimes, cause pain in the groin and scrotum
is not a medical diagnosis that this was the source of the groin and scrotum
pain in this instance.
Further the Plaintiff
continued to work up to his accident on September 8, 2014. He never received
any permanent work-related restrictions. He never received any type of surgery,
surgical recommendation or other invasive treatment. Although Dr. Travis
assigned a rating that he said pre-dated September 8, 2014 the Plaintiff never
received a rating until after September 8, 2014.
In reliance on the above
analysis, and with specific reliance on Dr. Autry, the Plaintiff’s L4-5 disc
herniation is work-related and arose on September 8, 2014 and the surgery for
it is also work-related.
(Emphasis added)
L-Tech filed a petition for
reconsideration on February 27, 2017 arguing the ALJ erred in basing his
decision on Dr. Autry who had not reviewed any of the records of Lenhardt’s
condition in June 2014. It also argued
the ALJ erred in enhancing Lenhardt’s benefits pursuant to KRS 342.730(1)(c)1. L-Tech requested additional findings
regarding any “inferences he drew from the evidence that does not appear in the
four corners of the Opinion and Award.”
L-Tech also requested the ALJ to rule on a motion it had filed to amend
the hearing order.
In the order denying the
petition for reconsideration dated March 28, 2017, the ALJ stated he did not
enhance the award of PPD benefits pursuant to the multipliers contained in KRS
342.730(1)(c)1, therefore, “making any further recitation of the job
description unhelpful.”
The ALJ additionally found
as follows:
The
parties are entitled to sufficient analysis to enable them to determine the
factual basis of the decision reached by the ALJ and to allow for meaningful
appellate review. That has already been provided. I found that the June, 2014
incident was epidimytis [sic]. The record amply and more than sufficiently
supports this conclusion. Failure to disclose an inflammation of the skin and
flesh around the scrotum hardly precludes a finding of a work-related herniated
lumbar disc. I have provided sufficient analysis of why I have rejected this
theory and Dr. Travis' testimony. Not only does the evidence support the
Opinion the evidence is even, upon initial review by an objective observer,
more in the Plaintiff's favor.
L-Tech filed a second
petition for reconsideration on March 30, 2017 pointing out the ALJ’s statement
in the order on reconsideration that he did not enhance Lenhardt’s award by the
additional multipliers is inconsistent with the award in the decision. L-Tech requested the ALJ address the
inconsistency, correct the error in the order, and make a determination
regarding whether Lenhardt retains the capacity to return to the type of work
performed at the time of the injury.
In the order on
reconsideration, the ALJ stated as follows:
This matter comes before
the undersigned on the Defendant's Second Petition for Reconsideration. Any
reference to no multipliers, or language to that effect, is a typographical
error. The Award stands as is.
As the claimant in a
workers’ compensation proceeding, Lenhardt had the burden of proving each of
the essential elements of his cause of action. See
KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since he was successful in his burden, the
question on appeal is whether there was substantial evidence
of record to support the ALJ’s decision.
Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App.
1984). “Substantial
evidence” is defined as evidence of relevant consequence having the fitness to
induce conviction in the minds of reasonable persons. Smyzer v. B. F. Goodrich Chemical Co.,
474 S.W.2d 367 (Ky. 1971).
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). In that
regard, an ALJ is vested with broad authority to decide questions involving
causation. Dravo
Lime Co. v. Eakins, 156 S.W.3d 283 (Ky. 2003). Although a party may note evidence that would
have supported a different outcome than that reached by an ALJ, such proof is
not an adequate basis to reverse on appeal. McCloud
v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). Rather, it
must be shown there was no evidence of substantial probative value to support
the decision. Special Fund v. Francis,
708 S.W.2d 641 (Ky. 1986).
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. Hamilton, 34 S.W.3d 48 (Ky. 2000). 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 discretion afforded to an
ALJ is not without limitation. In reaching a determination, the ALJ must provide findings sufficient
to inform the parties of the basis for the decision to allow for meaningful
review, and as noted above the determination must be based upon substantial
evidence. 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); Big Sandy
Community Action Program v. Chafins, 502 S.W.2d 526 (Ky. 1973).
We initially note the inconsistencies
in the ALJ’s decision and the order on the first petition for reconsideration. We also note the ALJ failed to discuss the
basis of his finding Lenhardt had epididymitis in June 2014. The first order on reconsideration
erroneously stated multipliers were not utilized to enhance Lenhardt’s
award. The ALJ also failed to provide or
list the evidence he relied upon in arriving at his decision.
We note Dr. Autry was not deposed, so
it is impossible to tell from the record the extent of the medical
documentation available to him. However,
it is clear the record does not contain any evidence supporting the ALJ’s
determination Lenhardt suffered from epididymitis prior to September 8,
2014. Therefore, we must vacate the
ALJ’s decision regarding the causation of Lenhardt’s condition. On remand, the ALJ must provide an analysis
regarding any award based upon the evidence of record. While the ALJ is not required to outline the
entirety of the minutiae of his decision making process, he must provide an
analysis sufficient to apprise the parties of the basis of his decision. After performing the appropriate analysis,
the ALJ may enter any award supported by the evidence. Such decision may well be consistent with the
decision previously rendered. We do not
direct any particular result.
Finally,
this Board is permitted to sua sponte
reach issues even if unpreserved but not raised on appeal. KRS 342.285(2)(c);
KRS 342.285(3); George Humfleet Mobile Homes v. Christman, 125 S.W.3d
288 (Ky. 2004). We note L-Tech filed a
medical dispute regarding the request for an additional MRI requested by Dr.
El-Naggar. In his decision, the ALJ
found this dispute is moot. We note, however,
L-Tech filed a motion to join Dr. El-Kalliny as a party, not Dr. El-Naggar. There is no evidence that Dr. El-Kalliny ever
saw Lenhardt, or that he made any recommendations for his care. On remand, the ALJ is directed to determine
whether Dr. El-Kalliny should remain a party to this claim, and if not, an
order should be entered dismissing him.
We additionally note it would be inappropriate at this point to join Dr.
El-Naggar, or any other medical provider to the claim.
Accordingly, the February
27, 2017 Opinion, Award, and Order and the March 28, 2017 and May 1, 2017 Orders
on petition for reconsideration rendered by Hon. Chris Davis, Administrative
Law Judge, are hereby VACATED. This claim is REMANDED to the Administrative Law Judge for additional findings of fact and entry of an amended opinion in conformity with the views expressed herein.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON SCOTT M BROWN
300 WEST VINE ST, STE 600
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON MCKINNLEY MORGAN
921 SOUTH MAIN STREET
LONDON, KY 40741
RESPONDENT:
MAGDY M EL-KALLINY, M.D.
75 HAIL KNOB ROAD
SOMERSET, KY 42503
ADMINISTRATIVE
LAW JUDGE:
HON CHRIS DAVIS
657 CHAMBERLIN AVE
FRANKFORT, KY 40601