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Workers’
Compensation Board
OPINION
ENTERED: June 29, 2018
CLAIM NO. 201700835 & 201699371
FORD MOTOR COMPANY PETITIONER
VS. APPEAL FROM HON. JANE
RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE
TOMIKO MCDANIEL
and HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
VACATING
AND REMANDING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Ford Motor Company (“Ford”) seeks review of the January 11, 2018, Opinion,
Award, and Order of Hon. Jane Rice Williams, Administrative Law Judge (“ALJ”)
finding Tomiko McDaniel (“McDaniel”) sustained a work-related August 19, 2015,
right knee injury and November 16, 2016, left knee injury while in the employ
of Ford. Relying upon the opinion of Dr. Jules Barefoot, the ALJ determined
each knee injury resulted in a 20% impairment rating pursuant to the 5th
Edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (“AMA Guides”). The ALJ awarded permanent
partial disability benefits enhanced by the three multiplier pursuant to KRS
342.730(1)(c)1, temporary total disability (“TTD”) benefits, as paid by Ford,
and medical benefits for each injury. Ford also appeals from the February 12,
2018, Order denying its petition for reconsideration.
On appeal, Ford challenges the ALJ’s decision on two
grounds. First, it asserts “the ALJ not only lacks substantial evidence to
support her decision, but also made an arbitrary and capricious finding
regarding causation.” Ford asserts that in the January 11, 2018, decision, the
ALJ ignored and failed to cite to the most credible causation opinion expressed
by Dr. Mark Smith, McDaniel’s treating physician, in a November 6, 2017, letter.
Ford also asserts the ALJ failed to address this shortcoming in response to its
petition for reconsideration which requested the ALJ provide findings “as to why
she did not cite to, review, or make findings relating to her omission of Dr.
Smith’s opinion.”
Ford argues this is not a “typical
substantial evidence appeal,” because of the ALJ’s blatant failure to address Dr.
Smith’s opinion regarding causation in the decision and in the order denying its
petition for reconsideration. Further, the ALJ did not provide a basis for
ignoring Dr. Smith’s opinion concerning causation. Since the ALJ completely
failed to address the opinion of Dr. Smith, Ford maintains the award is
erroneous as a matter of law and must be overturned.
In a related argument, Ford contends the ALJ’s failure to
consider the medical evidence is arbitrary and capricious. It emphasizes the
importance of Dr. Smith’s opinion concerning the issue of causation. Hence, the
ALJ’s failure to consider the report of Dr. Smith without providing a
justification for doing so is arbitrary. As a result, Ford requests the Board
vacate the decision of the ALJ and enter an order directing the claim be
dismissed as non-work-related. It contends to remand the case to the ALJ “would
be a redundant remedy.”
BACKGROUND
The record reflects McDaniel filed separate Form 101s for
each knee injury. By order dated June 5, 2017, the ALJ consolidated the claims.
The Benefit Review Conference Order of November 17, 2017, notes that among the
contested issues was whether McDaniel sustained a work-related injury on either
of the alleged dates.
McDaniel testified at a June 19, 2017, deposition and at
the November 29, 2017, hearing. Her deposition testimony reveals that on the
date of her alleged right knee injury, McDaniel’s job was “front sway bar
install.” McDaniel had performed this job for approximately ten years. McDaniel
provided the following account of how the August 19, 2015, injury occurred:
A: Well, the thing was, I was in the
hole. When I say in the hole, I was running behind. So I was in a hurry to get
the part, and I just turned. And that’s when the knee popped and felt like it
went to jello.
McDaniel explained she “shook it off”
thinking she would be okay, but the same thing happened again while working later
that day. She estimated the bar she attempted to pick up weighed between 17 to 18
pounds. McDaniel testified no part of her job bothered her knee prior to August
19, 2015. She notified her team leader that something was wrong and was sent to
the medical department.
McDaniel testified she returned to
work on August 19, 2015, after her knee was iced and wrapped with an Ace
bandage. She missed the next day of work due to knee pain. She worked off and
on for a month at the same job. During that period, McDaniel experienced
constant knee pain. As a result, Dr. Hart sent her for an MRI.[1]
After undergoing the MRI, she saw Dr. Smith, who administered a Cortisone injection
and a Synvisc injection. He also prescribed an unloader brace. McDaniel wears
the brace mainly at work. McDaniel testified Dr. Smith did not tell her what he
had found but indicated it was bad. As a result, Dr. Smith restricted her to
one to two hours on her feet and instructed her to “work her way up.” Ford
placed her on light duty, and she remained on light duty until the end of 2015.
During this time, she increased the number of hours she worked on her feet.
In January 2016, Ford took her off
work until she saw a doctor. She received TTD benefits from January 2016
through the middle of February 2016. From the middle of February 2016 until May
2016, she performed her regular job without restrictions. In May 2016, because
she reported the pain prevented her from performing her job, McDaniel was again
taken off work. She returned to Dr. Smith who ordered physical therapy and
imposed the previous work restrictions. Because Ford could not provide work
within her restrictions, she remained off work until Labor Day of 2016. After
Labor Day, McDaniel was placed on special assignment which entailed “sitting
and doing documentation on electrical components of the units of trucks.” She
performed this work until the first of November 2016.
At Dr. Hart’s suggestion, she visited
several departments looking for a job she felt she could perform. On November
16, 2016, she began working in the new body shop. She estimated that after
approximately an hour and half of working in the body shop, she jammed her left
knee. McDaniel explained her knee jammed when she turned to retrieve a part and
her knee did not turn all the way. She has been off work since then. As a
result of the last injury, she was taken off work. After her July 19, 2017,
appointment with Dr. Smith and receiving his report, Ford was to determine
whether there was work available.
McDaniel admitted that prior to this
injury, she suffered from osteoarthritis in her knees but denied having a
previous injury. In late 1995 or early 1996, she was treated by Dr. Mike Farmer
in Ford’s medical department who gave her Vol-Care or Celebrex. She then went
to her primary care physician, Dr. Eugene Giles, who referred her to Dr.
Raymond Shea. Dr. Shea prescribed Arthrotec, but did not provide any
restrictions.
At the hearing, McDaniel again emphasized she had been
performing her job for at least eight years without experiencing knee problems.
She testified that, prior to starting her job at Ford in 1995, she had no
symptoms or injury to either knee requiring medical attention.
MEDICAL
EVIDENCE
McDaniel submitted the June 27, 2017, report of Dr.
Barefoot. Dr. Barefoot set forth the history, the results of his examination,
and the medical records and imaging reports he reviewed. Dr. Barefoot’s
diagnosis was end-stage degenerative osteoarthritis of the right and left
knees. Pursuant to the AMA Guides, Dr. Barefoot assessed a 20%
impairment rating for each knee condition. Dr. Barefoot stated he agreed with
Dr. Andrew DeGruccio’s finding that McDaniel had underlying osteoarthritis in
both knees prior to either of her injuries. Since McDaniel was not working
under any restrictions and had not missed work due to this condition, he
concluded she had a non-ratable impairment prior to the work injuries. Dr.
Barefoot concluded the degenerative osteoarthritic condition in both knees was
dormant and non-ratable and apportioned 100% of each impairment rating to each
work injury.
Ford introduced the records of Dr. Shea. Dr. Shea’s December
22, 2008, record reveals a diagnosis of osteoarthritis in both knees, right
worse than the left. He noted McDaniel complained of pain in both knees. She
has had pain and discomfort in both knees, but more recently in the right knee.
She had seen other physicians for this and had undergone an MRI. McDaniel had
varus deformity in both knees which is worse on the right than the left. There
was some lateral instability, but no effusion of the joint and no AP
instability. Dr. Shea compared the MRIs of 2006 and 2008 and found no tear of
the lateral meniscus. There was joint effusion as well as advanced arthritis of
the medial compartment of the knee. There were no apparent changes of the
patella. A standing x-ray revealed medial joint space osteoarthritis with a
moderate degree of narrowing medially. At that time, McDaniel was not an
operative candidate. McDaniel was to secure a lateral heel and sole wedge. He
prescribed Arthrotec twice a day and Vicodin. He would arrange for an Orthovisc
injection on her return from vacation.
Dr. Shea next saw McDaniel on January 12, 2009, and noted
her knee had improved. She was not going to have the injection at that time but
would take Arthrotec and Vicodin. She would return if her knees became
problematic.
Ford submitted the April 7, 2017, report of Dr. DeGruccio.
After obtaining a history, performing an examination, reviewing x-rays, and
conducting a medical records review, Dr. DeGruccio concluded McDaniel had “no
diagnosis in relation to the [August 19, 2015] incident that occurred at work.”
Rather, McDaniel had well-established bilateral advanced osteoarthritis of the
knees. He believed McDaniel had a progressive degenerative condition which was
pre-existing and not work-related. Further, this was not “a situation where [McDaniel]
had a pre-existing dormant or latent and quiescent condition that was aggravated
and brought into disabling reality by a work injury.” Dr. DeGruccio noted
McDaniel was honest “in the fact she had an active pre-existing progressive
condition.” Although she may not have been seeking care for this condition, Dr.
DeGruccio believed it was still active and had reached the point of interfering
with her ability to work. Further, he concluded no impairment rating is attributable
to either alleged incident; instead, the impairment ratings would be
pre-existing. Dr. DeGruccio stated McDaniel had a 36% whole person impairment
rating prior to the work episodes which he attributed wholly to her active
pre-existing progressive osteoarthritis in the face of morbid obesity.
Ford introduced the October 9, 2015, report of Dr. Smith concerning
a chief complaint of right knee pain. Dr. Smith noted McDaniel had an active
problem of unilateral primary osteoarthritis of the left knee. Dr. Smith noted
a history of prior arthritis in her knees and set forth McDaniel’s description
of the alleged August 19, 2015, work injury. Dr. Smith noted the MRI performed
at Jewish Hospital revealed tricompartmental arthritis of the right knee with
particular grade 4 chrondromalacia along the medial femoral condyle and the
medial tibial plateau. There was a large tear of the medial meniscus and some
effusion. Dr. Smith provided the following findings:
X-rays, both knees, standing are
performed. These show severe loss of medial joint space bilaterally with some
sclerosis.
Three views of the right knee are
performed. This does show that there is near complete loss of the
patellofemoral joint space with osteophyte formation and there is squaring of
both the medial and lateral femoral and tibial metaphysis.
Ford also introduced the November 6,
2017, letter of Dr. Smith in which he states:
As you are aware, I have treated Ms.
Tomiko McDaniel in our office at Ellis & Badenhausen, PSC for the right and
left knees. Ms. McDaniel has also been seen by our Physician Assistant, Erin
Gish a number of times. It is my impression that Ms. Tomiko McDaniel does
suffer with significant osteoarthritis of her knees. It is my opinion that she
has, in fact, had two episodes at Ford in which she sprained her knees while
walking, leading to some aggravation of her arthritis. It, is however, also my
medical opinion that, were she not employed at Ford Motor Company, there is a
very high likelihood, based on the natural history of her severe arthritis, she
would have suffered with similar severe knee pain. In this respect, I would
agree with both Dr. Andrew DeGruccio and Dr. Thomas Loeb that treatment of the
osteoarthritis of her knees is not work-related.
ALJ’S
DECISION
In her January 11, 2018, decision,
the ALJ provided the following summary of Dr. Smith’s records:
Plaintiff
introduced the October 9, 2015 office note stating the active problem was
unilateral primary osteoarthritis of the left knee with the chief complaint
being the right knee at that time. The description of the injury is in the
report. The MRI showed a large tear of the medial meniscus and fusion. She had
gained 30 pounds since the injury. Dr. Smith’s note states:
She had had a pre-existing arthritis of
her knee but then suffered a twisting injury which has likely completed the
medial meniscal tear and caused her to decompensate.
Plaintiff
returned to Dr. Smith on January 20, 2017 complaining of continued right knee
pain and a left knee injury occurring on November 16, 2016. He diagnosed left
knee strain with osteoarthritis of the left knee. He recommended a brace,
physical therapy and continued monitoring.[2]
In resolving the issue of causation,
the ALJ entered the following findings of fact and conclusions of law:
After careful consideration of the medical evidence, it is found that
Plaintiff’s impairment is due to her work injuries to her bilateral knees. No
one disputes she had preexisting osteoarthritis in both knees. However, she
worked full time without restrictions for Ford for nearly 20 years. The two
events where she injured her knees are not in question. The opinion of Dr.
DeGruccio is compelling but is not relied upon. On the contrary, the opinion
provided by Dr. Smith clearly states his opinion with regard to the first
injury that she had a preexisting dormant non disabling condition brought into
disabling reality as a result of the work injury. Dr. Barefoot agrees this to
be the case with both knees.
The ALJ found McDaniel had a 20%
impairment rating for each knee injury and is entitled to enhancement by the three
multiplier reasoning as follows:
Although differing in opinions on causation, Dr. DeGruccio and Dr.
Barefoot agree to the impairment rating of 36%, the combined value for whole
person impairment of both knees. Dr. Barefoot found the impairment in each knee
to be 20%. As for the multiplier, although McDaniel attempted to return to her
same work and was in fact allowed to return to her preinjury position by Dr.
Smith, she did not ever do her job fully. Her preinjury position required her
to stand 8 - 10 hours a day. When Dr. Smith returned her to her preinjury job,
he had her working to gradually build her stand time beginning with only a few
hours a day. Her knee was in pain and she wore a brace. Eventually, she
informed her employer she could not do the job. Because she never returned to
the same job, the 3x multiplier applies pursuant to KRS 342.730(1)(c)(1).
Following the second injury, she has never returned to her job. KRS
342.730(1)(c)(1) also applies the 3x multiplier to the second injury.
To calculate her award, her impairment for the first injury would be 20%
x 3. Following the second injury, her impairment would be 20% x 3.
As previously noted, the ALJ also
awarded TTD benefits and medical benefits.
Ford filed a petition for reconsideration alluding to the
records of Dr. Smith addressed by the ALJ, but noting the ALJ failed to include
in her summary of the evidence, the contents of Dr. Smith’s November 15, 2017, letter.
Ford noted the ALJ relied upon the medical record of Dr. Smith in stating he
found McDaniel had a pre-existing dormant condition brought into disabling
reality as a result of the work injury. Ford posited the ALJ clearly found Dr.
Smith credible as he was the treating physician. However, it noted she ignored
Dr. Smith’s November 15, 2017, letter in which Ford contends Dr. Smith opined,
“the knee injuries and impairment are not work-related.”
Ford also took issue with the ALJ’s finding
that it was responsible for the cure and relief of the work injury because
McDaniel did not have ongoing treatment for her bilateral knees until after the
work injuries. Ford pointed out the ALJ had ignored the evidence establishing
Dr. Smith’s records reveal McDaniel had been treated for knee pain since 2008.
Further, the records reveal that, prior to seeing Dr. Smith, McDaniel was
treated by another orthopedic surgeon. Ford requested the ALJ provide
additional findings of fact relative to the issues raised in the petition for
reconsideration. Ford stated additional findings of fact regarding the petition
for reconsideration were necessary so as to inform it of the basis for the
decision.
In an Order dated February 12, 2018, the ALJ summarily
overruled Ford’s petition for reconsideration. Because the ALJ failed to
summarize and address the November 6, 2017, letter of Dr. Smith, we vacate the
ALJ’s opinion, award, and order and remand.
ANALYSIS
In Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 61-62
(Ky. 2012), the Kentucky Supreme Court instructed as follows:
Mindful that Chapter 342 and
the Kentucky Constitution require review of decisions in post–1987 workers'
compensation claims by the Board, the Court of Appeals, and the Supreme Court,
[footnote omitted] when requested, we conclude that KRS 342.275(2) and KRS 342.285 contemplate an opinion that summarizes the
conflicting evidence concerning disputed facts; weighs that evidence to make
findings of fact; and determines the legal
significance of those findings. Only when an opinion summarizes the conflicting evidence accurately and
states the evidentiary basis for the ALJ's finding [footnote omitted] does it
enable the Board and reviewing courts to determine in the summary manner
contemplated by KRS 342.285(2) whether the finding is supported by substantial
evidence and reasonable. [footnote omitted] (emphasis added).
The ALJ’s January 11, 2018, decision,
did not accurately summarize the medical evidence generated by Dr. Smith. The ALJ must provide a sufficient basis to support her
determination. Cornett v. Corbin Materials, Inc., 807 S.W.2d 56
(Ky. 1991). Parties are entitled to findings sufficient to inform them of the basis for the ALJ’s decision to allow
for meaningful review. 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). This Board is cognizant of
the fact an ALJ is not required to engage
in a detailed discussion of the facts or set
forth the minute details of his reasoning in reaching a particular result. The only requirement is the decision must adequately set forth the basic facts
upon which the ultimate conclusion was drawn so the parties are reasonably apprised of the
basis of the decision. Big Sandy Community Action
Program v. Chafins, 502 S.W.2d 526 (Ky. 1973). Here, the ALJ failed to
summarize a letter from McDaniel’s treating physician specifically addressing
causation.
Ford’s petition for reconsideration correctly brought to the ALJ’s
attention the fact she had failed to summarize the contents of Dr. Smith’s
November 6, 2017, letter. In her order ruling on the petition for
reconsideration, the ALJ did not address this failure. Significantly, in her
decision, the ALJ stated Dr. Smith clearly stated his opinion McDaniel had a
pre-existing dormant non-disabling condition brought into disabling reality as
a result of the first work injury. We can find no such statement by Dr. Smith
within his records and the November 6, 2017, letter. The closest Dr. Smith came
to making such a statement is contained in his October 9, 2015, report in which
he stated under the heading “Assessment,” that McDaniel had “pre-existing
arthritis of her knee but then suffered a twisting injury which has likely
completed a meniscal tear and caused her to decompensate.”
All parties to a workers’
compensation dispute are entitled to findings of fact based upon a correct
understanding of the evidence submitted during adjudication of the claim. Where
it is demonstrated the fact-finder may have held an erroneous understanding of
relevant evidence in reaching a decision, the Courts has authorized remand to
the ALJ for further findings. See Cook
v. Paducah Recapping Service, 694 S.W.2d 684 (Ky. 1985); Whitaker v.
Peabody Coal Company, 788 S.W.2d 269 (Ky. 1990). We have consistently held
when a party raises in a petition for reconsideration the ALJ’s failure to
address evidence which is relevant to an issue before her, remand is necessary
for the ALJ to address this deficiency and provide further findings of fact if requested
in the petition for reconsideration.
Certainly, Dr. Smith’s November 6,
2017, letter casts doubt on the work-relatedness of the osteoarthritis in
McDaniel’s knees. In assessing his impairment rating, Dr. Barefoot found
end-stage osteoarthritis in both knees which he believed were dormant
conditions aroused into disabling reality by the injuries. Thus, an issue
existed as to whether the osteoarthritis in both knees was a pre-existing
active or a dormant condition. In that respect, the opinions expressed by Dr.
Smith in his November 6, 2017, letter are germane to the issue before the ALJ.
The ALJ’s failure to address Dr. Smith’s opinions in this letter, in the wake
of a petition for reconsideration pointing out that failure and requesting the
ALJ to provide additional findings of fact, is error.
Accordingly, the January 11, 2018,
Opinion, Award, and Order finding McDaniel sustained work-related injuries to
her right knee on August 19, 2015, and to her left knee on November 16, 2016,
is VACATED. We decline Ford’s
request that this Board enter a decision on this merit and dismiss McDaniel’s
claim as this Board has no fact-finding authority. The ALJ determines the
significance of and the weight to be attributed to the evidence and must enter
a decision on the merits. On REMAND,
the ALJ shall render an amended opinion after reviewing the November 6, 2017,
letter of Dr. Smith and determining the weight to which she will attribute to
it, if any. We express no opinion as to the outcome on remand.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON ELIZABETH M HAHN
HON PRISCILLA C PAGE
401 S FOURTH ST STE 2200
LOUISVILLE KY 40202
COUNSEL
FOR RESPONDENT:
HON JOSEPH MAYHORN
401 W MAIN ST STE 1910
LOUISVILLE KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
657 CHAMBERLIN AVE
FRANKFORT KY 40601
