January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  November 17, 2017



CLAIM NO. 201682331





















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



RECHTER, Member.  Phoenix Process Equipment (“Phoenix”) appeals from the June 9, 2017 Opinion, Award and Order and two July 25, 2017 Orders rendered by Hon. R. Roland Case, Administrative Law Judge (“ALJ”), awarding Ronald Jackson (“Jackson”) medical benefits for treatment of blood clots.  On appeal, Phoenix argues the ALJ erred in finding the treatment compensable.  We affirm.

Jackson worked for Phoenix as a service technician, which required him to regularly travel to international destinations such as Australia, India, and South Africa.  In June of 2014, while on a flight to Australia, he began having leg pain.  When he returned home, he sought treatment at Primary Care Medical Center, where he was diagnosed with blood clots in his left leg and abdomen.  The medical records from Primary Care Medical Center note a family history of deep vein thrombosis (“DVT”) and a personal history of blood clots.  A June 24, 2014 CT scan of the chest revealed multiple pulmonary thromboemboli involving the right lower lobe and minimal atelectasis or pulmonary parenchymal scarring within the posterior aspect of the right lower lobe. 

          Jackson next treated with Dr. Christina Breit from July 3, 2014 through July 25, 2016.  On July 3, 2014, after reviewing CT scans, Dr. Breit diagnosed pulmonary emboli and DVT.  Following blood work, she also diagnosed a protein S deficiency.  However, Dr. Breit’s office notes indicate she could not be certain about the cause of the protein S deficiency: 

[Discussed with] patient that since blood was drawn while already on anticoagulant for 2 days may not be correct.  Will need to stay on xalerto for next 6 months then will have evaluation by hematology to determine if he needs to be on the medication for life or can come off since propagated by long overseas flight. If med is stopped will advise to have labs redrawn to see if correct diagnosis of Protein S.   


          In a November 25, 2014 note, Dr. Breit indicated Jackson “has no known risk factors for DVT/PE.”  She recommended he continue blood thinners “until no longer flying internationally for business.”  In a letter dated July 25, 2016, Dr. Breit noted Jackson had been treated for DVT and pulmonary emobli, and was found to have a protein S deficiency.  She explained, “This diagnosis with his international travel is believed to be the cause of his blood clots.  If he was no longer traveling he would not require continued DVT prophylaxis.”

          Jackson testified he continues to travel internationally for Phoenix.  He intends to continue working another ten years.

          It should be noted Jackson did not seek income benefits, nor did he claim he suffers a permanent impairment rating.  Therefore, the ALJ considered only whether Jackson is entitled to medical benefits.  The ALJ’s findings are as follows:

     In this case, it is uncontroverted that the plaintiff’s job required him to be on an airplane for long periods of time. This required him to be in a seated position for long periods of time. Clearly, the work activity of flying long distances on an airplane can qualify as a compensable injury if it produces a harmful change in the human organism. See Ryan’s Family Stackhouse vs. Thomasson, 82 SW3d 889 (Ky 2002). Hence, the issue becomes whether the plaintiff suffered a harmful change to the human organism as confirmed by objective medical findings. In this case, a CT scan confirmed blood clots in the plaintiff’s lungs. Medical records indicate he also had blood clots in his legs. Certainly, blood clots in the lung and body is a harmful change. Not only are blood clots a harmful change they can sometimes result in death. Hence, the record clearly establishes the plaintiff suffered a harmful change in the human organism. The issue [then] becomes whether or not this was work related.


     The evidence relative to causation consists of the opinion report of Dr. Christina Breit. Her single page report of July 25, 2016 provides “Mr. Ronald Jackson has been treated for deep vein thrombosis and pulmonary emboli since last year. He was found to have a protein S deficiency. This diagnosis with his international travel is believed to be the cause of his blood clots.” The issue then becomes whether or not this report establishes a prima facie case. The Administrative Law Judge has reviewed all the medical evidence of record along with the testimony of the plaintiff. Based on the totality of the circumstances and the timeline in this claim, the ALJ is persuaded that the plaintiff’s international travel and long flights in a plane was the cause of the plaintiff’s blood clots. The blood clots obviously are a harmful change in the plaintiff’s human organism. The ALJ is persuaded that the plane travel did cause the blood clots. Hence, there was a harmful change in the human organism.


     The defendant relies on American Bakeries vs Hatzell, 771 SW2d 333 (Ky 1989). However, the employer’s reliance on that case is misplaced. In Hatzell the Court held that angina pectoris is only a symptomatic pain emanating from the underlying heart disease. They specifically noted that the claimant’s heart and arteries were the same condition after the angina pain as they were before it. The Court concluded, “Consequently, there was no harmful change to the human organism.” However, in this case there was a harmful change to the human organism in the nature of blood clots. Hence, it is readily apparent that in Hatzell, Supra, there was no harmful change; however, in the instant case there was a harmful change to the human organism.


     In conclusion, the ALJ is persuaded that the plaintiff did sustain an injury as defined by the Act resulting in a harmful change to the human organism. The plaintiff does not seek temporary total disability benefits or permanent partial disability benefits but only reasonable medical treatment. The ALJ is persuaded that the plaintiff has established an injury as defined by the Act and is entitled to the appropriate medical treatment for his injury. The appropriate award will be entered.


          Jackson filed a petition for reconsideration requesting a specific finding on the compensability of the emergency room treatment for a pulmonary embolism and ongoing medical treatment, including prescriptions for Xarelto and office visits related to that prescription.  In a July 25, 2017 Order, the ALJ sustained Jackson’s petition for reconsideration, and determined the emergency room visit and Xarelto are compensable.

          Phoenix filed a petition for reconsideration requesting additional findings as to whether Jackson suffered a permanent harmful change, whether he established a prima facie case, and why symptoms of the underlying non-work condition are compensable.  Phoenix also argued any recovery of medical benefits should be limited to the period in which he is flying while in the course of his work duties.

          In a second Order dated July 25, 2017, the ALJ denied Phoenix’s petition for reconsideration as a re-argument of the merits of the claim.  As to Phoenix’s request that the award be limited to periods in which Jackson is flying for work, the ALJ opined this argument is prospective and properly raised in a motion to reopen should that circumstance arise.  

          Phoenix now appeals, arguing the ALJ erred in finding Jackson suffered a harmful change to the human organism.  It claims Dr. Breit’s opinion establishes Jackson’s blood clots were merely a symptom of his protein S deficiency, which is not a work-related condition.  We disagree.     

          Jackson bore the burden of proving each of the essential elements of his cause of action.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Because he was successful in that 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 reviewing an ALJ’s decision, the Board is limited to determining whether the decision is so unreasonable under the evidence that it 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 could be drawn from the evidence.  Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).   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 injury is “any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the court of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings.” KRS 342.0011(1).  The CT scans establish Jackson first developed blood clots in June 2014 after flying to Australia.  Dr. Breit opined the long haul flights and the protein S deficiency combined to cause Jackson’s blood clots.  We conclude this evidence constitutes the requisite proof to support the ALJ’s conclusion that Jackson’s 2014 blood clots were work-related.

          Phoenix advances several arguments to challenge the ALJ’s conclusion Jackson suffered a work-related injury.  Its argument that a blood clot is not a harmful change in the human organism is devoid of any merit and warrants no extended discussion.  A blood clot is not a normally-ocurring, innocuous condition in the human organism.

          Phoenix also claims the blood clot is merely a symptom of Jackson’s protein S condition.  Dr. Breit’s medical opinion plainly refutes this contention; she unequivocally concluded the protein S condition along with the lengthy flights caused Jackson’s blood clots.  Furthermore, we must note it has not been established whether Jackson’s protein S condition is genetic or resulting from his use of Xarelto to thin his blood.

          The fact Jackson’s blood clots have now resolved due to pharmaceutical therapy does not render them non-compensable.  A harmful change may or may not be permanent.  Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky. 2001).  An award of medical benefits does not require a finding of permanent impairment.  FEI Installation, Inc. v. Williams, 214 S.W.3d 313 (Ky. 2007).           

          Contrary to Phoenix’s assertions, Jackson’s condition is unlike the situation in American Bakeries Co. v. Hatzell, 771 S.W.2d 333 (Ky. 1989).  Hatzell suffered pain in his chest as a symptom of underlying heart disease.  He argued the stress of his work caused the chest pain.  The Kentucky Supreme Court concluded the chest pain, known as angina pectoris, is merely a symptom of the underlying atherosclerotic heart disease.  The medical proof established Hatzell’s underlying heart disease could have caused the chest pain at any time. 

          The key difference in this claim is Dr. Breit’s opinion that the protein S defiency combined with the long haul flights caused Jackson’s blood clots.  She additionally noted Jackson has no other risk factors for or history of blood clots.  In this claim, the clots Jackson sustained were a physical manifestation that constitute a departure from his normal state of health.  Jackson’s work requires lengthy intercontinental flights, clearly necessitating continued treatment with Xarelto as long as he continues those flights.   

          Phoenix bore the burden of proving any pre-existing active condition.  Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007).  Here, the evidence does not compel a finding that Jackson had a pre-existing Protein S deficiency.  Dr. Breit’s records indicate the diagnosis of a Protein S deficiency based upon blood work performed after Jackson began treatment with Xarelto could be incorrect.  She indicated testing after he ceases taking the medication would indicate whether the diagnosis of the deficiency is correct.  Jackson had no treatment for blood clots prior to June 2014.  No medical evidence indicates there was a Protein S deficiency or problems with clotting prior to the work-related blood clots in June 2014.  Rather, Phoenix seems to base its position entirely on some family history of blood clots.  The evidence falls far short of compelling a finding that Jackson had a pre-existing active Protein S deficiency.

          We agree it would be premature to limit Jackson’s medical benefits to periods when he is flying internationally.  Whether Jackson has a protein S deficiency will not be known until he is retested after ceasing blood thinners.  What constitutes reasonable and necessary treatment in the future cannot be determined prospectively.   Phoenix remains liable for medical treatment reasonably required for the cure and relief from the effects of Jackson’s work-related injury, subject to the rules and procedures set forth in the statute and its accompanying regulations pertaining to the compensability and contest of medical expenses.  Phoenix retains the right to challenge the reasonableness and necessity of care in the future.

          Accordingly, the June 9, 2017 Opinion, Award and Order and the July 25, 2017 Orders rendered by Hon. R. Roland Case, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.






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