January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  December 15, 2017



CLAIM NO. 201367483




AMERICAS, INC.                                 PETITIONER


















MARCUS COOTS                                    PEITIONER



















                       * * * * * *



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



RECHTER, Member.  Hitachi Automotive Systems Americas, Inc. (“Hitachi”) appeals from a series of decisions rendered by Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ”), awarding Marcus Coots (“Coots”) temporary total disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits and medical benefits as a result of a September 12, 2013 injury.  The ALJ also determined surgery performed by Dr. Mukut Sharma is non-compensable.  On appeal, Hitachi argues the ALJ erred in awarding TTD benefits related to the surgery.  Coots also appeals, arguing that benefits should be reinstated, and the July 24, 2015 surgery is compensable.  For the reasons set forth herein, we affirm in part and remand for further findings of fact.

          Coots was employed by Hitachi for one and a half days at the time of his injury on September 12, 2013.  His position required him to take struts as they came off the assembly line, then scan and box them.  The struts weighed between thirty-five and forty pounds.  Coots estimated he performed this task about seventy times per hour.  After his first nine-hour shift, his arm was hurting.  On his second day of employment, he noticed a knot the size of a golf ball inside the elbow of his right arm. 

          Coots first went to the emergency room on September 12, 2013, then visited Dr. William Lester later that same day.  He complained of right arm pain and a knot near the elbow.  Dr. Lester diagnosed a right elbow strain, prescribed Lortab, and placed Coots on one-handed duty. 

          At a follow-up on November 20, 2013, Coots complained of numbness in his right fingers.  Dr. Lester diagnosed ulnar neuropathy and prescribed Lyrica and Celebrex.  The pain and numbness in the right hand continued through November 12, 2013.  On that date, Dr. Lester opined Coots may have right elbow nerve entrapment.  He referred Coots to Dr. Robert Taylor for an EMG/NCV study.  The EMG/NCV study was performed on November 18, 2013 and revealed persistent right ulnar sensori-motor neuropathy likely at the right elbow.  Coots also had evidence of moderate median sensori-motor neuropathy at the wrist.

          Dr. Lester also referred Coots to Dr. Ronald Burgess, who first evaluated him on November 20, 2013.  Dr. Burgess found Coots’ presentation “unusual” and referred him to Dr. Leung, a neurologist, for a repeat EMG/NCV.  Coots returned to Dr. Burgess on December 5, 2013.  Relying on the EMG/NCV studies performed by Dr. Leung, Dr. Burgess diagnosed compression of the ulnar nerve.  By January 9, 2014, Coots symptoms had not improved and Dr. Burgess recommended surgical intervention.  However, the surgery was denied by Hitachi’s workers’ compensation insurance carrier.  Coots did not visit Dr. Burgess again until July 24, 2014.  At this time, Coots complained that his symptoms had worsened significantly.  Dr. Burgess requested a repeat nerve conduction study prior to the consideration of surgery. 

          Dr. David Jenkinson performed an independent medical evaluation (“IME”) on August 26, 2014.  Dr. Jenkinson diagnosed transient ulnar neuropathy but found no objective abnormalities to support Coots’ subjective complaints.  Dr. Jenkinson stated there is no convincing evidence Coots had significant trauma to the right elbow.  He further noted the condition had improved considerably by the date of the most recent nerve study on December 4, 2013.  Dr. Jenkinson opined Coots reached maximum medical improvement (“MMI”) as of December 4, 2013 and required no additional treatment or restrictions.  He assessed a 0% impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”).

          Hitachi submitted the August 22, 2014 deposition of Dr. Mark Einbecker, an orthopedic surgeon who specializes in hand and microvascular.  Dr. Einbecker evaluated Coots, though his treatment notes do not appear in the record.  Dr. Einbecker diagnosed cubital tunnel syndrome, but did not believe the short period of work for Hitachi was the cause of the complaints.  Because of the permanent nature of Coots’ complaints, he concluded the complaints were caused by something outside the work activities.  In Dr. Einbecker’s words, “such a brief exposure would [not] take a normally dormant condition and make it unresolvable at this point given the several months he’s been away from that exposure at this point.”  Dr. Einbecker did not feel Coots was at MMI at the time of his examination.  

          The parties agreed to bifurcate the claim.  The ALJ first considered the issue of Coots’ entitlement to surgery and TTD.  In a December 16, 2014 Interlocutory Opinion and Award, the ALJ determined the surgery recommended by Dr. Burgess to be reasonable and necessary, and ordered Hitachi to pay TTD benefits beginning September 12, 2013 until MMI is reached.  The ALJ further ordered Hitachi to immediately pre-authorize payment for the recommended surgery, and all reasonable and necessary medical treatment for “the work-related back injury” pursuant to KRS 342.020. 

          Hitachi filed a petition for reconsideration noting the decision erroneously referred to a back injury, and noting Dr. Burgess testified he would like to see another nerve conduction study before performing surgery.  Hitachi requested the ALJ order the nerve conduction study, and provide Dr. Burgess an opportunity to reevaluate the surgical recommendation.  By order dated January 25, 2015, the ALJ sustained the petition for reconsideration and placed the matter in abeyance.

          On February 4, 2015, Hitachi moved to remove the matter from abeyance.  It submitted a report from Dr. Taylor documenting a January 26, 2015 EMG/NCV study.  Dr. Taylor found improvement in the right ulnar neuropathy and a normal efferent pathway, with evidence of moderate median sensori-motor neuropathy at the right wrist.  Dr. Burgess reviewed the study report and, in a January 16, 2015 office note, opined Coots was at MMI and no longer needed surgery.  He released Coots to full duty work.  Relying on this proof, the ALJ issued an order on February 25, 2015 removing the claim from abeyance, suspending TTD benefits, and setting a proof schedule. 

          Thereafter, Dr. Robert Hoskins conducted an IME on June 1, 2015.  Dr. Hoskins diagnosed right ulnar sensorimotor neuropathy at the elbow, improved from November 2013; right ulnar nerve instability at elbow; right proximal forearm muscle injury; and right median sensorimotor neuropathy at the wrist, unrelated to the events at work on or about September 12, 2013.  He attributed the complaints to repetitive work on September 12, 2013.  Dr. Hoskins indicated it is possible Coots had pre-existing/underlying instability at the right medial elbow prior to that date, but it would have been dormant and non-disabling.  He further opined Coots did not retain the physical capacity to return to the type of work he performed at the time of the injury.  Dr. Hoskins assigned a 7% impairment rating pursuant to the AMA Guides.

          Meanwhile, Coots continued to treat his condition with Dr. Sharma.  Dr. Sharma’s medical records indicate he diagnosed severe right cubital tunnel syndrome attributable to his work injury.  He performed a right ulnar nerve decompression and submuscular transposition and right medial epicondylectomy on July 24, 2015.  Coots reached MMI on November 16, 2015.  Dr. Sharma assigned a 7% impairment rating pursuant to the AMA Guides, and opined Coots did not have an active impairment prior to the work-related injury.        

          On October 5, 2015, several months after the surgery was performed, Coots moved to reinstate TTD benefits, indicating he had undergone surgery by Dr. Sharma on July 24, 2015 and was not at MMI.  Hitachi disputed the compensability of the surgery, arguing Dr. Burgess had deemed the surgery medically unnecessary, and Dr. Sharma had not filed a treatment plan, did not seek pre-authorization, and had not been designated as the Form 113 physician.  By order dated October 29, 2015, the ALJ sustained Coots’ motion to reinstate benefits.   

          The claim then proceeded to a final hearing and the ALJ issued an Opinion and Award on April 18, 2016.  The ALJ was persuaded by Dr. Hoskins’s opinion that if Coots had any pre-existing underlying instability at the right medial elbow prior to the work injury, it would have been in a dormant and non-disabling state.  Relying on Dr. Hoskins’ opinion, the ALJ found the right cubital tunnel release performed on July 24, 2015 was causally work-related, reasonable and necessary.  He concluded Coots reached MMI on November 16, 2015 based on Dr. Sharma’s opinion.  Accordingly, the ALJ awarded TTD benefits from the date of injury through November 16, 2015.  He awarded PPD benefits based upon the 7% impairment rating assessed by Drs. Sharma and Hoskins.  The ALJ found the employer responsible for the reasonable and necessary medical expenses incurred as a result of the work-related injury.

          Hitachi filed a petition for reconsideration.  It requested further consideration and discussion of the fact Dr. Sharma was a non-Form 113 physician, did not seek preauthorization, and failed to provide a treatment plan.  In a June 20, 2016 Order, the ALJ denied the petition.  He explained: “[Hitachi] denied that the Plaintiff sustained an injury while at work and the ALJ found in an interlocutory opinion that the injury and resulting surgery were causally work-related.  The Plaintiff therefore did not unreasonably fail to comply with the applicable requirements as the regulations contemplate.”

          Hitachi filed a second petition for reconsideration on July 5, 2016, arguing the ALJ erred in his recitation of the procedural history of the claim.  Hitachi clarified it had accepted the injury as work-related following the interlocutory opinion.  Hitachi asked the ALJ to address the fact Dr. Sharma was not the Form 113 physician, had not filed a treatment plan, and had not sought pre-authorization for the surgery.    

          In an August 1, 2016 Order, the ALJ entered additional findings of fact.  He found Hitachi complied with its responsibilities upon receipt of the interlocutory opinion and Coots’ failure to designate Dr. Sharma as a 113 physician was not reasonable or excusable.  The ALJ noted Hitachi asserted in a sworn pleading that, to date, no treatment plan or statement of services had been received from Dr. Sharma with respect to the surgery. 

          Notwithstanding Coots’ failure to designate Dr. Sharma as a 113 physician, the ALJ determined 803 KAR 25:096§3(5) does not contemplate the complete termination of TTD benefits.  Instead, the ALJ ordered Coots’ “benefits shall hereby be suspended pending the designation of Dr. Sharma as his Form 113 physician.”  He further ordered Coots’ “surgery by Dr. Sharma dated July 24, 2015 is not compensable per 803 KAR 25:096§6”. 

          Coots filed a petition for reconsideration from this August 1, 2016 Order, arguing Hitachi’s original denial of the claim should preclude the claim’s acceptance at a later date and the surgery performed by Dr. Sharma should be found compensable.  By Order dated March 7, 2017, the ALJ reversed the finding regarding the compensability of Dr. Sharma’s surgery.  The ALJ ordered Hitachi to resume benefits and pay for the contested surgery.

          Hitachi filed a petition for reconsideration contending the reversal of the prior factual finding was not supported by new evidence, fraud, or mistake.  By Order dated May 17, 2017, the ALJ noted the reversal in the March 7, 2017 Order was inadvertent and he had overlooked the August 1, 2016 Order.  The ALJ rescinded the March 7, 2017 Order and again held “the failure to designate Dr. Sharma as a 113 physician was not excusable, and that Dr. Sharma failed to submit a timely treatment plan.” 

          Coots filed a petition for reconsideration requesting an order compelling Hitachi to initiate payment of benefits.  Coots indicated Dr. Sharma completed a Form 113 on August 17, 2016.  The ALJ issued Orders dated July 5, 2017 and August 23, 2017, denying the petition for reconsideration, finding no patent error in the May 17, 2017 Order.  

          Both parties appealed.  Coots argues the ALJ erred in concluding the surgery is non-compensable and terminating income benefits.  In the August 1, 2016 Order, the ALJ stated,

“Plaintiff’s benefits shall hereby be suspended pending the designation of Dr. Sharma as his Form 113 physician.” Coots indicates a Form 113 was submitted by Dr. Sharma on August 23, 2016, and a revised form was provided on October 11, 2016.  Copies of these documents were attached to his petition for reconsideration dated June 2, 2017.  Hitachi argues the ALJ correctly determined the surgery is non-compensable and, as a result, any related income benefits are non-compensable.    

          KRS 342.020(1) requires a medical provider to submit a statement for services within 45 days of the initiation of treatment.  KRS 342.020(1) also provides the statutory authority for 803 KAR 25:096, which regulates the selection of physicians, treatment plans and statements of medical services.  803 KAR 25:096 §5 sets forth the circumstances when a treatment plan must be prepared, though it does not provide any specific penalty for the failure to so provide.  803 KAR 25:096 §6 concerns the statement for services, “If the medical services provider fails to submit a statement for services as required by KRS 342.020(1) without reasonable grounds, the medical bills shall not be compensable.” 

          803 KAR 25:096 §3(5) concerns the employee’s obligation to designate a physician through execution of a Form 113.  That regulation provides:

The unreasonable failure of an employee to comply with the requirements of this section may suspend all benefits payable under KRS Chapter 342 until compliance by the employee and receipt of the Form 113 by the payment obligor has occurred.


          The ALJ made three findings in his August 1, 2016 Order: (1) Dr. Sharma failed to provide a timely treatment plan; (2) Dr. Sharma failed to timely submit a statement of services; and (3) Coots failed to designate Dr. Sharma as a Form 113 physician.  The ALJ’s finding with respect to the failure to provide a treatment plan is inconsequential.  The ALJ did not specifically determine whether a treatment plan was required by 803 KAR 25:096 §5.  Furthermore, that section provides no specific penalty even if the treatment plan was required.

          We next address Dr. Sharma’s failure to submit a statement for services.  The ALJ made a factual finding Dr. Sharma did not provide a timely statement for services, based on Hitachi’s sworn pleading.  Hitachi’s sworn pleading constitutes substantial evidence, and we are not at liberty to disturb a factual finding based on substantial evidence.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).

          Having made the determination Dr. Sharma did not provide a timely statement of services, 803 KAR 25:096 §6 unambiguously states failure to provide a statement of services within 45 days without reasonable grounds results in the medical bill being deemed non-compensable.  The ALJ did not specifically address whether reasonable grounds existed for the failure to timely submit a statement for services.  For this reason, we must remand the claim to the ALJ for a specific determination as to whether reasonable grounds exist which would excuse Dr. Sharma’s failure to timely submit a statement for services.

          Also relating to the failure to submit a statement for services, we disagree with Hitachi that this non-compliance necessarily requires termination of TTD benefits relating to the surgery.  803 KAR 25:096 §6 refers only to “medical bills.”  That section contains no language which would require income benefits to be terminated. 

          Finally, the ALJ determined Coots failed to designate Dr. Sharma as his Form 113 physician.  803 KAR 25:096§3(1) requires the employee to complete a Form 113 within ten days after treatment is commenced.  The ALJ based this finding on the testimony of Jennifer Kidd, the Employee Health Coordinator at Hitachi.  Her testimony constitutes substantial evidence to support this finding. 

          803 KAR 25:096 §3(5) states the unreasonable failure to designate a Form 113 physician “may suspend all benefits payable under KRS Chapter 342 until compliance by the employee and receipt of the Form 113 by the medical payment obligor has occurred.”  We reject the argument that benefits payable during the period of suspension are permanently forfeited. The term “suspended” is not defined in 803 KAR 25:096 §3(5).  A suspension may be either temporary or permanent.  The above provision does not specifically call for the permanent loss or termination of the suspended benefits.  Rather, the suspension is temporary “until compliance” by the employee.

          We are further convinced of this conclusion by reference to KRS 342.205(3).  If an employee refuses to submit to an IME or otherwise obstructs the examination, the employee’s “right to take or prosecute any proceedings under this chapter shall be suspended until the refusal or obstruction ceases.”  KRS 342.205(3) goes on to specifically provide that “[n]o compensation shall be payable for the period during which the refusal or obstruction continues.”  In Finke v. Comair, Inc., 489 S.W.3d 242 (Ky. App. 2016), the Court of Appeals interpreted this provision as a complete forfeiture of compensation during the period of suspension.  Focusing on the statutory provision that, “no compensation shall be payable for the period” during which the obstruction continues, the Court concluded the suspended benefits were permanently forfeited.  “We fail to find any mechanism in the statute for the retroactive restoration of previously suspended benefits.”  Id. at 252.

          Unlike KRS 342.205(3), 803 KAR 25:096 §3(5) contains no language referencing the permanent forfeiture of suspended benefits.  On the contrary, 803 KAR 25:096 §3(5) states benefits will be removed from suspension when compliance is reached.  Absent more specific statutory language requiring the suspension of benefits, we are not at liberty to read a penalty into the regulations which the legislature has not specifically included.          

          Despite the convoluted procedural course of this claim, we conclude Coots’ income benefits have not been permanently terminated.  The ALJ awarded TTD benefits from the date of injury through November 18, 2016, and PPD benefits thereafter.  This period of the TTD award was not altered in the subsequent orders on reconsideration.  In his August 1, 2016 Order, the ALJ noted the regulation does not call for the termination of TTD benefits for the claimant’s failure to comply with the requirement to designate a physician.  In fact, the ALJ ordered benefits suspended “pending the designation of Dr. Sharma as his Form 113 physician.”  If, as Coots asserts, he has complied by designating Dr. Sharma as his Form 113 physician, payment for the entire period of TTD was due as of the date Coots came into compliance by designating Dr. Sharma as his Form 113 physician.  Hitachi remains responsible for the full award of TTD and PPD benefits. 

          Accordingly, the April 18, 2016 Opinion and Order, the May 17, 2017 Order, the August 1, 2016 Order, and the July 5, 2017 Order of Hon. Jonathan R. Weatherby, Administrative Law Judge, are hereby AFFIRMED in part.  This claim is REMANDED for a specific determination as to whether reasonable grounds existed for the failure to timely submit a statement of services. 

          ALL CONCUR.














HARLAN, KY 40831