Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED: June 22, 2018

 

 

CLAIM NO. 201468234

 

 

FORD MOTOR COMPANY (KTP)                       PETITIONER

 

 

 

VS.       APPEAL FROM HON. STEPHANIE L. KINNEY,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

JOHN BANNON                                             

DR. JOSEPH WERNER

DR. GREGORY NAZAR

and HON. STEPHANIE L. KINNEY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

                       * * * * * *

 

 

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

 

STIVERS, Member. Ford Motor Company (KTP) (“Ford”) seeks review of the September 29, 2017, Opinion, Award, and Order of Hon. Stephanie L. Kinney, Administrative Law Judge (“ALJ”) finding John Bannon (“Bannon”) sustained a work-related lumbar injury and 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. Ford also appeals from the February 20, 2018, Order denying its petition for reconsideration except to the extent the ALJ corrected a typographical error in the opinion.[1]

          On appeal, Ford challenges the ALJ’s decision on three grounds. First, it asserts the ALJ erred in relying upon the 27% impairment rating of Dr. Warren Bilkey and by enhancing Bannon’s benefits by the three multiplier. Next, Ford asserts the ALJ erred in finding the second surgical procedure performed by Drs. Gregory Nazar and Joseph Werner compensable. Finally, Ford asserts the ALJ erred in not capping Bannon’s benefits. Ford asserts “the real issue is not revival of KRS 342.730(4) but a correction of the explosion of benefits which are now available to workers who previously would have been capped in their benefit periods.” Ford requests this Board to abate all appeals until House Bill 2 becomes effective and apply the provisions which are deemed retroactive including the cap of benefits pursuant to the new version of KRS 342.730(4).[2]

PROCEDURAL BACKGROUND

          Bannon alleged low back injuries on August 9, 2013, and August 29, 2014.[3]

          On September 19, 2016, Ford filed a medical fee dispute contesting the “lumbar laminectomy with fusion at L3-4” performed on June 30, 2016. In support of its medical fee dispute, Ford attached the report of Dr. Norman Ellingsen who opined the medical necessity for the surgery was not supported by clinical documentation or evidence-based medical guidelines. The ALJ later ordered Drs. Werner and Nazar joined as parties to the claim.

          Ford relied upon the reports of Dr. Thomas Loeb who assessed a 17% permanent impairment rating which he attributed to the two work injuries.     Bannon relied upon the reports of Dr. Bilkey who assessed a 27% impairment rating due to the work injury of August 9, 2013. Significantly, both doctors provided work restrictions.

          Bannon testified at an October 26, 2016, deposition and at the July 31, 2017, Hearing. At his deposition, Bannon testified he began working for Ford in 1996 as a vehicle assembly technician. As such, he worked at different areas along the assembly line. Bannon testified that, although he experienced pain and discomfort in his back prior to August 9, 2013, on that date his pain worsened. As a result, he went to Ford’s medical department and advised Ford personnel he experienced a back problem. After being treated there, he returned to work and finished his shift. During the rest of the shift, he continued to experience lower back and leg pain. He was followed by Ford’s medical department for the next four to six months during which time he performed the same job. In February 2014, Bannon’s pain began to worsen and he was sent for an MRI. After receiving the results of the MRI, Ford placed him in an easier job working on the passenger doors on the assembly line. He performed this job for four or five months and was subsequently moved to an easier job.

          Bannon experienced the second injury on August 29, 2014, the last Friday of the month. On that day, Bannon immediately experienced severe low back pain when he bent down to pick up a bit he had dropped. After going to Ford’s medical department, he returned to work and finished his shift. Bannon continued to experience problems over the Labor Day weekend. When he returned to work on Tuesday after Labor Day, Ford’s medical department took him off work and obtained an appointment with Dr. Nazar. When seen by Dr. Nazar, Bannon was taken off work. Surgery was performed on November 3, 2014. Dr. Bilkey’s October 12, 2016, report reveals the first surgery performed by Dr. Nazar was a “micro lumbar laminectomy and discectomy bilateral L3-4 level to treat a post-operative diagnosis of lumbar disc herniation bilateral L3-4.”

          Bannon testified he was paid TTD benefits from the date he was taken off work by Ford on September 3, 2014, through April 3, 2016. When he returned to work in early April 2016, he worked a short period of time and was again placed off work. Bannon testified the November 3, 2014, surgery substantially relieved his leg pain and lessened his lower back pain. However, he still had numbness and tingling in his toes. He underwent physical therapy after the surgery.

          Because of his symptoms, Dr. Nazar ordered another MRI in November 2015. After reviewing the MRI in December 2015, Dr. Nazar recommended another surgery. Dr. Nazar referred Bannon to Dr. Werner who referred him to physical therapy. When his symptoms persisted and physical therapy was not beneficial, Dr. Werner recommended a second surgery. He underwent surgery on June 30, 2016. Bannon was last seen by Dr. Werner a week and half prior to his deposition. At that time, Dr. Werner took him off work through October 31, 2016.

          Bannon testified he will retire because he does not want to return to work and chance re-injury. He testified he still has “a little bit” of lower back pain and tingling in his toes. The second surgery was paid for by Bannon and his health insurance carrier. Bannon testified the second surgery was helpful because he no longer has pain in his legs. At the time of his deposition, he experienced pain off and on in his lower back and tingling in his toes. He was taking medication approximately once a week. Bannon believed he could not return to work performing his pre-injury job because of the resulting pain. He explained the lifting, twisting, possibly bending, and the length of time he stands at work would be painful.

          At the Hearing, Bannon provided the following testimony regarding his job duties: 

Q: And it’s the door job. Tell the judge exactly physically what you were doing on that job?

A: It’s a door panel job, the racks coming down the line will just have doors that were off of the trucks, and behind me would be the door panel rack where I would reach around, pull down the front door panel or a rear door panel, turn around and run the wire – or shoot the speaker in the door first, put the speaker – or put the panels up, pull the wiring harness through the door panel, secure it to a control panel for the windows and then seat the door, hammer it down, put the pins in the holes that are on the door itself and shove it down so it’s secure against the door.

          Bannon testified the weight of a door panel ranges from five to twelve pounds depending on its size. His job requires him to bend down to insert the door panel into the interior side of the door. He estimated he handles 170 doors per hour, 30% of which require extra effort in order to insert the door panels. Bannon worked 10 hours a day, five days a week. He has not seen Dr. Werner since October 2016. Bannon did not believe there was a job he could perform at Ford. He currently experiences dull pain in his lower back and daily numbness and tingling in his feet and toes. His pain increases with increased turning, twisting, and sitting, and to that end, any increased activity generates more pain. He takes no medication for his symptoms.

ALJ’S DECISION

          In the September 29, 2017, decision, based on the opinions of Drs. Bilkey and Loeb, the ALJ found Bannon sustained low back injuries on August 9, 2013, and August 29, 2014. The ALJ accepted the 27% impairment rating of Dr. Bilkey reasoning as follows:

     Dr. Loeb did not find Plaintiff had any range of motion deficits with extension, whereas Dr. Bilkey found Plaintiff’s extension range of motion deficits warranted 7% impairment. This ALJ has carefully considered each impairment rating proffered and notes these evaluations were performed approximately two months apart. After careful contemplation, this ALJ finds Plaintiff retains 28% [sic] whole person permanent impairment as a result of the August 9, 2013 work injury, relying on Dr. Bilkey. Ultimately, this decision came down to which range of motion measurements this ALJ felt was most appropriate. Considering Plaintiff underwent a lumbar fusion, which required hardware placement, this ALJ feels that Dr. Bilkey’s range of motion measurements are more in line with the deficits associated with that procedure.

          The ALJ concluded Bannon did not retain the ability to return to the job he was performing at the time of the injury finding as follows:

     Plaintiff’s capacity to perform his pre-injury work has been preserved as an issue in this claim. Both Drs. Bilkey and Loeb have recommended significant lifting restrictions. Dr. Bilkey has recommended occasional lifting of no more than 20 pounds and no bending. Dr. Loeb opined Plaintiff could return to work with restrictions, including no lifting greater than 35-40 pounds regularly and no bending, stooping or twisting of the lumbar spine. Dr. Loeb later lowered the limit on lifting to 20 pounds on a repetitive basis and 25-30 pounds occasionally. Based upon the restrictions outlined by Drs. Bilkey and Loeb, this ALJ does not feel Plaintiff retains the physical capacity to return to his pre-injury job duties. This ALJ does not believe Plaintiff has the physical capacity to perform the repetitive bending his pre-injury job duties required. This ALJ does not feel Plaintiff could engage in the forceful lifting that was required to install the door frames that ultimately led to Plaintiff’s injury.

          The ALJ resolved the medical fee dispute concerning the June 30, 2016, surgery in favor of Bannon explaining as follows:

     The Defendant contests the compensability of Plaintiff’s second low back surgery, a decompression and instrumental fusion at L3-4. Dr. Ellingson [sic] completed a Utilization Review and indicated the recommended fusion was not compensable. Dr. Ellingston [sic] felt there was no instability at the L3-4 level. However, Dr. Loeb reviewed Plaintiff’s October 28, 2015 lumbar MRI and noted three millimeters of anterolisthesis and an additional three to four millimeters on the actual disc bulge. Dr. Loeb concluded there was instability, which required stabilization with fusion. Dr. Loeb reviewed Plaintiff’s diagnostic testing and found evidence which warranted stabilization with a fusion. Thus, this ALJ finds the decompression and instrumental fusion performed by Drs. Nazar and Werner was reasonably necessary for Plaintiff’s work injuries. In making this finding, the ALJ relies on the opinions of Dr. Loeb, and to a lesser extent Dr. Bilkey. The pending Medical Fee Dispute is resolved in Plaintiff’s favor.

          Both parties filed petitions for reconsideration. As the ruling on Bannon’s petition for reconsideration is not at issue, we will not discuss it. In its petition for reconsideration, Ford requested the ALJ reconsider her findings of a 27% impairment rating and that the three multiplier was applicable. It contended Dr. Loeb’s impairment rating is more persuasive and consistent with the balance of the medical records. Ford also argued Bannon had voluntarily removed himself from the workplace and never attempted to return to work following his second surgery. Since Bannon chose to retire and did not intend to return to work, Ford argued he is not entitled to enhanced benefits. Ford also noted Dr. Werner had returned Bannon to work on November 1, 2016. Similarly, it contended Dr. Loeb opined Bannon could return to his prior employment. It also noted Dr. Bilkey initially indicated Bannon could return to work; however, in an addendum to his report stated he had changed his mind. Ford asserted there is not substantial evidence to support enhancement by the three multiplier.

          Ford requested the ALJ revisit her finding that the second surgery performed by Drs. Nazar and Werner is compensable. Significantly, Ford did not request additional findings of fact or assert the ALJ’s findings were incomplete or inaccurate. As previously noted, the ALJ overruled the petition for reconsideration except to correct a typographical error in the opinion.

ANALYSIS

          Bannon, as the claimant in a workers’ compensation proceeding, had the burden of proving each of the essential elements of his cause of action, including establishing the surgery performed on June 30, 2016, is compensable. See KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since Bannon 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 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); Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000). 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).

          We find no merit in Ford’s argument the ALJ committed error in finding Bannon had a 27% impairment rating as a result of the injury. Notably, Ford does not assert Dr. Bilkey’s report is not in accordance with the 5^th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”). In his written report, Dr. Bilkey explained why he assessed the 27% impairment rating.

          In Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206 (Ky. 2003), the Kentucky Supreme Court instructed that the proper interpretation of the AMA Guides is a medical question solely within the province of the medical experts. Consequently, while an ALJ may elect to consult the AMA Guides in assessing the weight and credibility to be afforded an expert’s impairment assessment, as the trier of fact the ALJ is never required to do so.   

          Even though Ford argues Dr. Bilkey’s report did not address the second date of injury and he changed his opinion regarding Bannon’s work restrictions, those facts merely go to the weight to be afforded his opinions and not to the admissibility of those opinions. Our courts have consistently stated that the proper method for impeaching a physician’s methodology under the AMA Guides is through cross-examination or the opinion of another medical expert. Brasch-Berry General Contractors v. Jones, 189 S.W.3d 149 (Ky. App. 2006). That did not occur in this case.

          We also find no merit in Ford’s allegation substantial evidence does not support the finding the three multiplier is applicable. Although the ALJ did not rely upon Bannon’s testimony in concluding the three multiplier was applicable, she cited to the restrictions of Drs. Bilkey and Loeb. She noted Dr. Loeb had increased Bannon’s lifting limitations to 20 pounds on a repetitive basis and 20 to 30 pounds occasionally. Based on the restrictions imposed by the doctors, the ALJ concluded Bannon did not retain the physical capacity to return to his pre-injury job duties. This is consistent with Bannon’s testimony regarding his physical problems and limitations and the pain he experiences with increased activity. Bannon’s description of his work activities and physical problems combined with the restrictions of the doctors constitute substantial evidence supporting the ALJ’s determination the three multiplier is applicable.

          Significantly, in his February 1, 2017, addendum, Dr. Bilkey imposed the restriction of no bending due to the August 9, 2013, work injury. Dr. Bilkey opined his restrictions precluded Bannon from being able to return to the full scope of his usual work duties performed prior to the August 9, 2013, injury. Dr. Bilkey’s opinions alone constitute substantial evidence supporting enhancement of the PPD benefits by the three multiplier.

          We also find no merit in Ford’s second argument in which it asserts the ALJ erred in finding the instrumental fusion compensable. As reflected in the reports of Drs. Bilkey and Loeb, there is no question the second MRI obtained by Dr. Nazar demonstrated additional anatomical problems leading Drs. Nazar and Werner to conclude a second surgery was necessary. We specifically note the November 22, 2016, report of Dr. Loeb, Ford’s doctor, reflects the following:

However, MRI scan performed on 10/28/2015, which was recommended by Dr. Nazar demonstrated three millimeters of anterolisthesis and an additional three to four millimeters of disc bulge. Dr. Werner also felt that there was instability with spondylolisthesis and acquired spondylolisthesis at L3-4 from progressive degenerative changes. Also, there was moderate effacement of the L3 and possibly L4 nerve roots on the left side at the time of the 10/28/2015 MRI. It was felt that this disc space unequivocally was unstable and needed stabilization with fusion. The second operation, which was a posterior lumbar interbody fusion, was performed on 6/30/2016 and Mr. Bannon has done well with the exception of persistence of numbness and tingling in his right great toe and second toe, which had been constant since just after his first operation, but not before that date. 

          Dr. Loeb concluded with the following:

I believe this gentleman has had excellent intervention to this date and no further treatment is recommended other than persistence of core strengthening and good conditioning.

           In finding the surgery compensable, the ALJ specifically cited Dr. Loeb’s report. The ALJ found Dr. Loeb concluded there was instability which required stabilization with fusion. She also noted that, after reviewing the diagnostic testing, Dr. Loeb found evidence which warranted stabilization with fusion. Although Dr. Loeb did not specifically state the above, we believe the ALJ could reasonably deduce from Dr. Loeb’s report that he believed there was instability within the lumbar region requiring stabilization through fusion surgery since the diagnostic testing had demonstrated stabilization with fusion was warranted. Moreover, a reasonable inference from Dr. Loeb’s statement that Bannon has had excellent intervention to date is that he believed the second surgery performed by Drs. Nazar and Werner was reasonable and necessary and causally related to Bannon’s work injuries. Since Dr. Loeb’s opinions constitute substantial evidence supporting the ALJ’s determination the June 30, 2016, surgery is compensable, the ALJ’s decision will not be disturbed.

          We reject Ford’s third argument in which it asserts the Board should abate all claims until House Bill 2 becomes effective and apply all provisions which are deemed retroactive including the cap on benefits set forth in the legislation. We refuse to abate this appeal in order to subject Bannon’s award to the limits contained in the newly enacted version of KRS 342.730(4) as set forth in House Bill 2 which has yet to take effect. Because this law was not in effect at the time of the injury and the ALJ’s award, and will not be in effect at the time of rendition of this opinion, we decline to entertain this argument.

          Accordingly, the September 29, 2017, Opinion, Award, and Order and the February 20, 2018, Order ruling on Ford’s petition for reconsideration are AFFIRMED.

          ALVEY, CHAIRMAN, CONCURS.

          RECHTER, MEMBER, CONCURS IN RESULT ONLY.

 

COUNSEL FOR PETITIONER:

HON GEORGE T T KITCHEN III

730 W MAIN ST STE 300

LOUISVILLE KY 40202

COUNSEL FOR RESPONDENT:

HON CHED JENNINGS

401 W MAIN ST STE 1910

LOUISVILLE KY 40202

RESPONDENT:

DR JOSEPH WERNER

4001 KRESGE WAY STE 100

LOUISVILLE KY 40207

RESPONDENT:

DR GREGORY NAZAR

2011 INDIAN CHUTE

LOUISVILLE KY 40217

ADMINISTRATIVE LAW JUDGE:

HON STEPHANIE L KINNEY

657 CHAMBERLIN AVE

FRANKFORT KY 40601