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May 11, 2018 201260344

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  May 11, 2018

 

 

CLAIM NO. 201260344

 

 

ERRON BENSON                                   PETITIONER

 

 

 

VS.       APPEAL FROM HON. JONATHAN R. WEATHERBY,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

JEFFERSON COUNTY PUBLIC SCHOOLS and

HON. JONATHAN R. WEATHERBY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

AND

 

 

JEFFERSON COUNTY PUBLIC SCHOOLS                PETITIONER

 

 

VS.

 

 

ERRON BENSON and

HON. JONATHAN R. WEATHERBY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING IN PART,

VACATING IN PART & REMANDING

                       * * * * * *

 

 

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

ALVEY, Chairman.   Erron Benson (“Benson”) and Jefferson County Public Schools (“JCPS”) appeal from the July 24, 2017 Opinion and Award, and the October 3, 2017 Order on petitions for reconsideration rendered by Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ”).  The ALJ awarded Benson temporary total disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits, and medical benefits for a work-related lumbar injury he sustained on November 2, 2012. The ALJ determined the second lumbar surgery performed by Dr. John Harpring is unrelated to the November 1, 2012 work injury. 

          On appeal, Benson argues the ALJ erred in carving out 5% of the 13% impairment rating, since the evidence does not support a finding of a pre-existing symptomatic and ratable condition.  Benson requests the claim be remanded for further findings since the ALJ failed to consider Dr. Harpring’s opinion in determining the second surgery is not work-related.  Benson argues the ALJ did not understand the evidence, failed in his duty to weigh the evidence, and did not provide a sufficient analysis explaining why he choose to rely on Drs. Gregory Gleis’ and Russell Travis’ opinions rather than that of Dr. Harpring.  Benson argues 12% interest should be applied to all past due benefits.  JCPS argues the ALJ erred in awarding TTD benefits from January 17, 2015 through April 26, 2015 since the second surgery is non-compensable.  Because substantial evidence supports the ALJ’s determination the second surgery is unrelated to the work injury, we affirm in part.  However, we vacate and remand for additional analysis regarding the carve-out for a pre-existing disability in accordance with Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007); Benson’s entitlement to TTD benefits for the work-related low back injury; Benson’s entitlement to TTD benefits and/or medical benefits for the left knee injury; and application of the appropriate interest rate.       

          Benson filed a Form 101 alleging he injured his low back and left leg on November 2, 2012 when he experienced an acute pain when he made a left turn driving a school bus for JCPS. 

          Benson testified by deposition on May 4, 2016, and at the hearing held May 23, 2017.  Benson was born in November 1988.  Benson neither experienced nor treated for low back pain prior to his employment with JCPS.  JCPS hired Benson as a school bus driver in June 2012.  At some point during his employment, Benson was assigned to drive an older bus which did not have an adjustable driver’s seat.  He testified the steering wheel was placed too far away to reach comfortably.  Benson’s job primarily involved sitting and driving, although he performed pre-inspections every morning.  Benson drove two routes per day.

          In the three weeks prior to November 2, 2012, Benson experienced low back soreness and aches, but did not seek treatment because he did not believe his symptoms were serious.  Benson stated those symptoms did not prevent him from performing his job duties, and he did not experience any left leg problems during that time.  On November 2, 2012, Benson experienced a sharp low back pain as he was making a left turn while driving the school bus, which was different and more severe than the soreness felt in the prior three weeks. 

          Benson sought treatment at an immediate care center on November 6, 2012, and then at Occupational Physician Services (“OPS”).  He subsequently treated with Dr. Warren Bilkey, Dr. Mitchell Campbell, and Dr. Thomas Kelly.  He ultimately treated with Dr. Harpring, who performed surgery at L4-5 on January 17, 2014.  Despite the surgery, Benson continued to experience numbness and tingling in his left leg, as well as low back pain.  Dr. Harpring performed a second surgery at L5-S1 on January 19, 2015, which Benson believes improved, but did not resolve his symptoms. 

          Subsequent to the November 2, 2012 work incident, Benson injured his neck in a motor vehicle accident on September 1, 2012.  Benson testified the accident temporarily aggravated his low back condition.  On April 26, 2015, Benson’s left leg gave way while he was walking, causing him to fall and injure his left knee.  Benson visited the emergency room, and subsequently treated with Dr. Samuel Carter.          

          Benson continued to work as a school bus driver until December 10, 2012.  Other than an attempt to work for one day in April 2013, Benson has not returned to driving a school bus for JCPS.  Benson returned to work for multiple subsequent employers beginning in November 2015.  Benson does not believe he can return to his former job with JCPS as a bus driver. 

          The medical records indicate Benson visited Norton Healthcare on November 6, 2012, and reported worsening low back pain for three weeks after he was assigned to the older bus.  He also treated conservatively at OPS from November 28, 2012, through April 9, 2013. 

          Benson treated with Dr. Warren Bilkey from January to August 2013 for complaints of progressive low back pain radiating into the left leg, as well as numbness and tingling, due to the November 2, 2012 work injury.  A February 1, 2013 MRI revealed a left L4-5 paracentral disc herniation, impingement of the L5 nerve root, mild to moderate spinal stenosis and lateral recess encroachment; L5-S1 disc herniation, spinal stenosis, lateral recess and foraminal encroachment; and usual morphology, with contour irregularity and hypoplasia of the L5-S1 facet joint.  Dr. Bilkey restricted Benson from work and referred him to Dr. Campbell.

          Dr. Campbell treated Benson from March 2013 through August 2013.  He noted the lumbar MRI demonstrated evidence of a protruding disc at L4-5 and L5-S1.  Dr. Campbell referred Benson to Dr. Kelly, a pain management physician, who prescribed medication and diagnosed a lumbar disc herniation, lumbar stenosis and back pain with radiation.  Subsequently, Benson’s left leg symptoms worsened, and Dr. Campbell referred him to Dr. Harpring for possible decompression surgery.  

          Benson began treating with Dr. Harpring in September 2013.  On January 17, 2014, Dr. Harpring performed a left L4-5 discectomy for the herniated disc.  Despite surgery, Benson continued to complain of back pain radiating into his left leg, as well as numbness and tingling.  A May 21, 2014 MRI demonstrated no recurrent disc herniation at L4-5.  Dr. Harping noted, “I think that L4-5 was causing some of his left leg pain but in retrospect the problem above at L5-S1 on the left was also contributing.”  He later stated the L4-5 surgery relieved one-half of Benson’s pain, but the residual pain is from L5-S1.  On January 19, 2015, Dr. Harpring performed a left L5-S1 discectomy for a herniated disc.  Despite the second surgery, Benson reported low back and left leg symptoms in 2016 and 2017. 

          Benson also treated for his left knee at Norton Healthcare and with Dr. Carter.  On April 26, 2015, Benson sought treatment at the emergency room reporting his leg gave out and he felt a pop in his left knee.  Benson was diagnosed with left knee pain.  Dr. Carter noted a similar injury history and ordered an MRI.  On July 2, 2015, Dr. Carter diagnosed left knee lateral patellar tracking and chondromalacia patella.  He recommended physical therapy, a knee sleeve and medication. 

          In support of his claim, Benson filed the March 17, 2016 questionnaire completed by Dr. Harpring.  Dr. Harpring noted the records reflect Benson’s pain came on gradually over a three-week period culminating in severe pain when he turned the wheel while driving on November 2, 2012.  Dr. Harpring opined the L4-5 herniated disc directly resulted from the November 2, 2012 work injury.  He also opined the L5-S1 condition, which necessitated the second surgery, was a dormant condition aroused and brought into a disabling reality by the work injury.  Dr. Harpring found Benson did not have a prior active disability, and the September 1, 2013 motor vehicle accident did not cause a permanent low back injury.  Dr. Harpring noted Benson reached maximum medical improvement (“MMI”) on January 19, 2016.  He assessed a 12% impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”).  However, Dr. Harpring found Dr. Bilkey’s methodology of impairment was more appropriate, and deferred to his 20% impairment rating.  Dr. Harpring assigned permanent restrictions and opined Benson does not retain the physical capacity to return to work driving a school bus.

          Benson also filed the February 24, 2016 report, the January 13, 2017 addendum, the March 9, 2017 questionnaire and the May 19, 2017 addendum prepared by Dr. Bilkey.  In the February 24, 2016 report, Dr. Bilkey diagnosed: 1) 11/2/12 work injury, lumbar strain, aggravation of lumbar degenerative disc disease, lumbar radiculopathy, lumbar disc herniation at L4-5 and L5-S1, undergoing two discectomies/ decompressions; and 2)left knee strain, contusion injury, aggravation of chondromalacia patella.  Dr. Bilkey opined the diagnoses are due to the November 2, 2012 work injury and found no evidence of a pre-existing, active impairment.  He found Benson had reached MMI and assigned restrictions, which would preclude him from returning to work as a bus driver.  Pursuant to the AMA Guides, Dr. Bilkey assessed a 20% impairment rating for the low back and a 2% impairment for the left knee, yielding a combined 22% impairment rating attributable to the November 2, 2012 work injury.  Dr. Bilkey noted that although Benson had a pre-existing and significant structural abnormality affecting his spine, it was asymptomatic and dormant prior to November 2, 2012 and then brought into disabling reality by his work injury.  Dr. Bilkey opined the left knee injury is also work-related.  

          In the January 13, 2017 addendum, Dr. Bilkey discussed his disagreement with Dr. Gleis’ opinions.  In the March 9, 2017 questionnaire, Dr. Bilkey opined Benson sustained an additional 3% permanent impairment rating for erectile dysfunction, which was substantially caused by the November 2, 2012 work injury.  In the May 19, 2017 report, Dr. Bilkey reiterated his opinions regarding Benson’s erectile dysfunction.  

          JCPS filed the September 2, 2014 report of Dr. John Guarnaschelli.  He agreed the February 2013 MRI demonstrated a left-sided L4-5 disc herniation, but also diagnosed evidence of multi-level, pre-existing degenerative changes and spinal stenosis, which pre-dated the November 2, 2012 work injury.  Dr. Guarnaschelli opined that although the second recommended L5-S1 surgery may be necessary, it is unrelated to the November 1, 2012 work injury.  He noted Benson had radiographic evidence of pre-existing degenerative changes at the lower two lumbar levels, which essentially remained unchanged in terms of the underlying stenosis and degenerative changes.  Dr. Guarnaschelli opined Benson reached MMI from the first lumbar surgery twelve months after the operation in January 2015. 

          JCPS filed the November 10, 2013 medical records review report and the July 15, 2014 addendum prepared by Dr. Russell Travis.  In the report, Dr. Travis opined the first surgery at L4-5 was reasonable, necessary and related to the November 2, 2012 work injury.  In the addendum, Dr. Travis found the second proposed L5-S1 surgery was unrelated to the November 2, 2012 work injury.  He stated the second surgery was due to pre-existing facet hypertrophy and degenerative spondylosis.  He also noted Benson complained of only left lower extremity pain after the November 2, 2012 incident, which is consistent with left L4-5 disc fragmentation.

          JCPS filed Dr. Gleis’ April 27, 2016 report.  He noted Benson provided a history of experiencing low back pain at the end of a bus run for two to three weeks prior to November 2, 2012.  On that date, Benson reported low back pain as he was making a left turn.  Dr. Gleis found Benson had a pre-existing, active and symptomatic lumbar condition, since he reported his symptoms in the three weeks prior to November 2, 2012, which is consistent with the medical records.  Dr. Gleis noted although the pre-existing condition did not limit Benson’s ability to work, he reported he could not fully play with his three-year old daughter.  Dr. Gleis assessed a 5% impairment rating for the pre-existing condition based upon Benson’s subjective complaints and the November 6, 2012 record. 

          Dr. Gleis further opined the November 2, 2012 work event exacerbated or aggravated Benson’s L4-5 chronic degenerative findings into a more symptomatic condition. He opined the first L4-5 surgery was work-related.  Dr. Gleis assessed a 13% impairment rating pursuant to the AMA Guides, attributing 8% to the work-related condition and 5% to pre-existing condition.  Dr. Gleis opined Benson attained MMI from the L4-5 condition one year from the date of surgery, January 17, 2015, and assigned restrictions. 

          Dr. Gleis opined the second L5-S1 surgery is unrelated to the work accident.  He agreed the L5-S1 degenerative changes are unrelated to the November 2, 2012 work-related symptom aggravation, therefore, the second surgery is not causally related to the work accident.  He opined Benson has attained MMI from the second procedure since one year has elapsed since the surgery.  

          Dr. Gleis opined the left knee injury did not result in a permanent injury qualifying for an impairment rating pursuant to the AMA Guides.  He found Benson attained MMI for the left knee injury on July 2, 2015.  Dr. Gleis also expressed his disagreement with Dr. Bilkey’s opinions.   

          Finally, JCPS filed the April 17, 2017 urological report of Dr. Trevor Soergel.  He opined Benson’s erectile dysfunction is unrelated to the November 1, 2012 work injury. 

          A benefit review conference was held on May 23, 2017.  The parties identified the following contested issues:  benefits per KRS 342.730, work-relatedness/causation (second surgery), unpaid or contested medical expenses, exclusion for pre-existing disability/impairment, TTD, and compensability of second surgery (work-relatedness).  

          In addressing the work-relatedness/causation of the second surgery, the ALJ noted he was presented with the opinions of Drs. Bilkey, Travis and Gleis.  He found the consensus opinions reached by Drs. Travis and Gleis were more convincing than that of Dr. Bilkey.  The ALJ found persuasive Dr. Travis’ opinion that Benson only complained of left lower extremity pain after the work injury, which is consistent with left L4-5 disc fragmentation.  He also found convincing his statement the second surgery at L5-S1 is related to pre-existing degenerative spondylosis and has no relationship to the work injury.  The ALJ also relied upon Dr. Gleis’ opinion. 

          The ALJ next found Benson’s claim of erectile dysfunction is unrelated to the work injury, and he relied upon Dr. Soergel’s opinion in dismissing that portion of the claim.

          The ALJ found as follows regarding benefits per KRS 342.730:    

23.  The ALJ is most persuaded by the definitive and concise opinion expressed by Dr. Glies[sic] with regard to the impairment sustained in the lumbar spine and left knee injuries alleged herein.

 

24.  Dr. Gleis found that the Plaintiff suffered a work injury, which he described as an exacerbation/aggravation. The ALJ finds that Dr. Bilkey was most persuasive on the point that the Plaintiff was not actively symptomatic prior to the date of injury but declines to follow his opinion on impairment as it is less credible than the opinions offered by Dr. Glies[sic]. The ALJ finds that Dr. Glies[sic]  was convincing in his opinion that the Plaintiff’s left knee had no permanent injury and that MMI was reached with regard to the left knee on July 2, 2015.

 

25.  The opinion of Dr. Glies[sic]  has also convinced the ALJ and the ALJ finds in accordance with his credible opinion that the Plaintiff has sustained a 13% impairment with 5% apportioned the pre-existing condition and 8% to the work-related exacerbation injury of the lumbar spine. The ALJ therefore finds that the Plaintiff has suffered an 8% whole person impairment as a result of the work injury to the lumbar spine and that specifically the injury aroused a dormant non-symptomatic but impairment ratable condition into disabling reality.    

                                  

          The ALJ found the three multiplier inapplicable.  The ALJ did not address Benson’s entitlement to TTD benefits.  The ALJ awarded TTD benefits from November 2, 2012, through July 2, 2015, PPD benefits and medical benefits for the low back injury.  He awarded 12% interest on all past due amounts.

          Both parties filed petitions for reconsideration, raising the same arguments they now raise on appeal.  In the October 3, 2017 order, the ALJ summarily denied Benson’s petition.  The ALJ did not address JCPS’s argument regarding TTD benefits.  The ALJ noted JCPS seeks redetermination of the interest owed on past due benefits that was awarded at 12%.  The ALJ then stated, “The ALJ acknowledges that KRS 342.040(1) has been amended effective June 29, 2017.  The ALJ hereby ORDERS that past due and unpaid benefits as of that date be paid along with 6% interest per the amendment to the statute.” 

          On appeal, JCPS argues the evidence does not support an award of TTD benefits from January 17, 2015 to April 26, 2015 since the ALJ found the second surgery non-compensable.  JCPS asserts Dr. Gleis’ opinion supports a finding Benson attained MMI from the first surgery on January 17, 2015, one year after it was performed.  He then injured his left knee on April 26, 2015, and attained MMI from that condition on July 2, 2015, based again upon Dr. Gleis’ opinion.  Therefore, JCPS argues the ALJ erred in awarding TTD benefits after January 17, 2015 through April 25, 2015. 

          On appeal, Benson argues the ALJ’s award based upon carve-out for a pre-existing disability should be reversed.  Benson points out the ALJ specifically found he was not actively symptomatic prior to the date of injury.  He also argues there is no evidence he suffered from any low back pain prior to his work injury.  Pursuant to Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007), to be characterized as an active disability, the underlying pre-existing condition must be symptomatic and impairment ratable pursuant to the AMA Guides immediately prior to the work injury.  Benson states there is no evidence of an pre-existing active condition in this case. 

          Benson requests the claim be remanded for additional findings of fact since the ALJ failed to consider Dr. Harpring’s opinion in determining the second surgery is unrelated to the work injury.  Similarly, Benson argues the ALJ failed in his duty to compare and contrast the evidence, and provide an explanation as to why he found Drs. Travis’ and Gleis’ opinions more persuasive than Dr. Harpring’s.  

          Benson additionally argues the ALJ erred in awarding 6% interest on all past due amounts.  Benson argues he is entitled to 12% interest on the entirety of the award, or at the very least, 12% interest on due and owing benefits through June 28, 2017, and 6% thereafter pursuant to Stovall v. Couch, 658 S.W.2d 437 (Ky. App. 1983).  Benson briefly argues he is entitled to TTD benefits for the left knee injury since the ALJ appears to find he sustained a temporary injury based upon Dr. Gleis’ opinion. 

          As the claimant in a workers’ compensation proceeding, Benson had the burden of proving each of the essential elements of his cause of action, including causation/work-relatedness.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Because Benson was unsuccessful in his burden regarding the compensability of the second lumbar procedure, 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 they must be reversed as a matter of law.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).  

          As fact-finder, the ALJ has the sole authority to determine the weight, credibility and substance of the evidence.  Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).  Similarly, the ALJ has the sole authority to judge all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979).  An ALJ is vested with broad authority to decide questions involving causation.  Dravo Lime Co. v. Eakins, 156 S.W.3d 283 (Ky. 2003).  The ALJ may 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.  Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal.  Id.  In order to reverse the decision of the ALJ, it must be shown there was no substantial evidence of probative value to support his decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).

          The Board, as an appellate tribunal, may not usurp an ALJ’s role as fact-finder by superimposing its own appraisals as to the weight and credibility to be afforded the evidence or by noting reasonable inferences could otherwise have been drawn from the record.  Whittaker v. Rowland, supra.  As long as the ALJ’s ruling with regard to an issue is supported by substantial evidence, it may not be disturbed on appeal.  Special Fund v. Francis, supra.

          We begin by finding the opinions of Drs. Travis and Gleis constitute substantial evidence supporting the ALJ’s determination the second lumbar surgery is unrelated to the November 2, 2012 work injury.  Drs. Travis and Gleis, as well as Dr. Guarnaschelli, opined the second L5-S1 surgery is unrelated to the November 2, 2012 work injury.  The ALJ also relied upon Dr. Travis’ observation that Benson complained only of left lower extremity pain after the November 2, 2012 incident, which is consistent with left L4-5 disc fragmentation.  These opinions amply support the ALJ’s determination the second lumbar surgery is not related to the work accident.  We further note the ALJ summarized Dr. Harpring’s medical records and opinions, and specifically noted he opined both surgeries were work-related and attributed the impairment rating to the November 2, 2012 work injury.  Although not specifically stated in the analysis section, we believe the ALJ was fully aware of Dr. Harpring’s opinion, in addition to those of Drs. Bilkey, Travis, Gleis and Guarnaschelli, and simply found those opinions most persuasive.  Therefore, because substantial evidence supports the ALJ’s determination, and we affirm on the issue of work-relatedness/causation of the second surgery. 

          With that said, we vacate and remand for additional findings of fact on the remaining issues.  In this instance, the ALJ carved out 5% for an asymptomatic pre-existing condition.  The arousal of a pre-existing dormant condition into disabling reality by a work injury is compensable.  However, an employer is not responsible for a pre-existing active condition present at the time of the alleged work-related event.  McNutt Construction/First General Services vs. Scott, 40 S.W.3d 854 (Ky. 2001).  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 [Guides] 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.  The Court concluded by stating as follows:

To summarize, a pre-existing condition that is both asymptomatic and produces no impairment prior to the work-related injury constitutes a pre-existing dormant condition. When a pre-existing dormant condition is aroused into disabling reality by a work-related injury, any impairment or medical expense related solely to the pre-existing condition is compensable. A pre-existing condition may be either temporarily or permanently aroused. If the pre-existing condition completely reverts to its pre-injury dormant state, the arousal is considered temporary. If the pre-existing condition does not completely revert to its pre-injury dormant state, the arousal is considered permanent, rather than temporary. With these legal principals in mind, we shall undertake a review of the ALJ's award.  Id. (emphasis ours)

 

          With the above standards in mind, we find the ALJ’s analysis conflicts with, and does not in conform to the direction in Finley v. DBM Technologies, supra.  The ALJ found Dr. Gleis’ opinion most persuasive in that the November 2, 2012 work event exacerbated or aggravated Benson’s L4-5 chronic degenerative findings.  The ALJ then found Benson was not actively symptomatic prior to the date of injury.  However, he then carved out 5% to a pre-existing condition.  He found the work injury aroused a dormant non-symptomatic but impairment ratable condition into disabling reality.  Further, exclusion for pre-existing disability/impairment was identified as a contested issue and Benson requested clarification on this issue in his petition for reconsideration, which the ALJ failed to provide.   

          In light of the above, the ALJ is directed on remand to conduct an analysis pursuant to McNutt Construction/First General Services vs. Scott, supra, and Finley v. DBM Technologies, supra, in determining whether Benson’s pre-existing condition was symptomatic and impairment ratable pursuant to the AMA Guides immediately prior to the work-related injury.  If not, a carve-out for the pre-existing condition is inappropriate.

          We also vacate and remand for additional findings and a determination regarding Benson’s entitlement to TTD benefits for the work-related low back injury.  In the opinion, the ALJ awarded TTD benefits from November 2, 2012 through July 2, 2015 without any analysis and failed to cure this deficiency in the Order on petition for reconsideration.  We further note TTD was identified as a contested issue at the BRC.   

          Temporary total disability is defined as the condition of an employee who has not reached MMI from an injury and has not reached a level of improvement permitting a return to employment.  KRS 342.0011(11)(a).  This definition has been determined by our courts to be a codification of the principles originally espoused in W.L. Harper Construction Company v. Baker, 858 S.W.2d 202, 205 (Ky. App. 1993), wherein the Court of Appeals stated generally:

TTD is payable until the medical evidence establishes the recovery process, including any treatment reasonably rendered in an effort to improve the claimant's condition, is over, or the underlying condition has stabilized such that the claimant is capable of returning to his job, or some other employment, of which he is capable, which is available in the local labor market. Moreover, . . . the question presented is one of fact no matter how TTD is defined.

 

          As noted above, the ALJ found Benson sustained a work-related low back injury on November 2, 2012, and only the first surgery was compensable.  It was incumbent upon the ALJ to provide an analysis determining Benson’s entitlement to TTD benefits for the low back injury.  We decline to determine when Benson reached MMI from the first surgery, as requested by JCPS.  This duty lies with the ALJ, as fact-finder.  However, we note the date of July 2, 2015 used by the ALJ appears to be when Dr. Gleis opined Benson attained MMI for the left knee injury, and does not appear to support a finding of MMI for the low back injury.  On remand, the ALJ is directed to provide additional analysis addressing Benson’s entitlement to TTD benefits for the low back injury.   

          We next note 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).  Regarding the left knee injury, the ALJ found, “Dr. Glies [sic] was convincing in his opinion that the Plaintiff’s left knee had no permanent injury and that MMI was reached with regard to the left knee on July 2, 2015.”  Although this statement at the very least implies a temporary left knee injury, the ALJ prematurely ended his analysis regarding Benson’s entitlement to TTD benefits and medical benefits.  

          Since the rendition of Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky. 2001), this Board has consistently held it is possible for an injured worker to establish a temporary injury for which temporary benefits may be paid, but fail to prove a permanent harmful change to the human organism for which permanent benefits are payable.  In Robertson, the ALJ determined the claimant failed to prove more than a temporary exacerbation and sustained no permanent disability due to his injury.  Therefore, the ALJ found the worker was entitled to only medical expenses the employer had paid for the treatment of the temporary flare-up of symptoms.  The Kentucky Supreme Court noted the ALJ concluded Robertson suffered a work-related injury, but its effect was only transient and resulted in no permanent disability or change in the claimant's pre-existing spondylolisthesis.  The Court stated:

Thus, the claimant was not entitled to income benefits for permanent partial disability or entitled to future medical expenses, but he was entitled to be compensated for the medical expenses that were incurred in treating the temporary flare-up of symptoms that resulted from the incident.  Id. at 286.

 

          On remand, the ALJ must determine whether Benson sustained a temporary work-related left knee injury, and if so, whether he is entitled TTD benefits, and medical benefits, either temporary or permanent, for that condition.  The ALJ may make any determination he deems appropriate as long as it is supported by the evidence.  We direct no particular result. 

          Finally, we vacate and remand for clarification regarding the interest rate on past due benefits.  The ALJ awarded 12% interest on all past due benefits in the opinion.  In the Order on reconsideration, the ALJ ordered, “past due and unpaid benefits as of that date be paid along with 6% interest per the amendment to the statute.”  In their briefs on appeal, it is clear this language has resulted in confusion regarding the applicable interest rate. 

          House Bill 223 (“HB 223”), enacted by the General Assembly effective June 29, 2017, changed the legal rate of interest from 12% per annum to 6% per annum.  We have recently considered the issue of the appropriate interest rate in Limb Walker Tree Service v. Ovens (WCB No. 2015-78695, December 22, 2017), and Lake Cumberland Health Dep’t v. Oliver (WCB No. 2012-71309, December 21, 2017).  In those cases, we relied upon Stovall v. Couch, 658 S.W.2d 437 (Ky. App. 1983), to conclude a change in the legal interest rate applies prospectively.  As applied to this claim, Benson’s entitlement to PPD benefits vested as of November 2, 2012.  Thus, from that date and through June 28, 2017, Benson is entitled to 12% interest on all past due benefits.  Benson is entitled to 6% interest on income benefits accrued from and after June 29, 2017.  On remand, the ALJ is directed to clarify the award of interest to reflect 12% interest shall be paid on unpaid benefits due on or before June 28, 2017, and 6% interest shall be paid on unpaid benefits due thereafter. 

          Accordingly, the July 24, 2017 Opinion and Award and the October 3, 2017 Order on petitions for reconsideration rendered by Hon. Jonathan R. Weatherby, Administrative Law Judge, are AFFIRMED IN PART regarding the compensability of the second lumbar surgery.  We VACATE the remainder of his determinations and REMAND this claim to the ALJ for entry of an award in accordance with the views expressed herein.

          STIVERS, MEMBER, CONCURS.

 

          RECHTER, MEMBER, CONCURS IN RESULT ONLY.

 

 


 

 

COUNSEL FOR PETITIONER ERRON BENSON:

 

HON DOUGLAS M LAMB

PO BOX 34275

LOUISVILLE, KY 40232

 

COUNSEL FOR RESPONDENT JEFFERSON COUNTY PUBLIC SCHOOLS:

 

HON TIMOTHY P O’MARA

401 SOUTH FOURTH ST, STE 2600

LOUISVILLE, KY 40202

 

ADMINISTRATIVE LAW JUDGE:

 

HON JONATHAN R WEATHERBY

657 CHAMBERLIN AVE

FRANKFORT, KY 40601