August 4, 2017 201468574

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  August 4, 2017



CLAIM NO. 201468574




















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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.













LONDON, KY 40741