Workers’
Compensation Board
OPINION ENTERED: March 1,
2019
CLAIM
NO. 200896990
YELVINGTON
FIRE DEPARTMENT PETITIONER
VS. APPEAL FROM HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE
LAW JUDGE
STEVEN
MATTINGLY and
HON.
JONATHAN R. WEATHERBY,
ADMINISTRATIVE
LAW JUDGE RESPONDENTS
OPINION
VACATING & REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and
RECHTER, Members.
ALVEY, Chairman. Yelvington Fire Department (“Yelvington”)
appeals from the Opinion, Award and Order rendered October 3, 2018, by Hon.
Jonathan R. Weatherby, Administrative Law Judge (“ALJ”). The ALJ found Steven Mattingly (“Mattingly”)
permanently totally disabled due to injuries he sustained in a work-related
accident when he was struck by a motor vehicle on December 22, 2007. The ALJ awarded temporary total disability
(“TTD”) benefits from December 22, 2007 through July 6, 2011, permanent total disability
(“PTD”) benefits, and medical benefits. Yelvington
also appeals from the November 6, 2018 Order[1]
denying its petition for reconsideration.
On appeal, Yelvington argues
the ALJ erred in finding Mattingly sustained work-related injuries to his low
back, SI joint, right shoulder, and neck.
Yelvington also argues the ALJ erred in finding Mattingly permanently
totally disabled. We vacate the ALJ’s
determinations regarding Mattingly’s low back, SI joint, right shoulder and
neck, and remand for additional findings to support his determination of
work-related injuries to those body parts.
We additionally vacate the ALJ’s award of PTD benefits, and remand for a
determination based solely on the injuries supported by the record. We make no determination regarding whether
Yelvington is entitled to PTD benefits, and the ALJ may make any award supported
by the evidence of record.
On October 6, 2014,
Mattingly filed a Form 101 alleging he injured his right knee, right shoulder,
left shoulder, left arm, right hip, head, neck and back, along with
difficulties to his vision, when he was struck by a motor vehicle while
directing traffic at the scene of a fire.
The Form 104 filed in support of the claim indicates Mattingly served as
a volunteer firefighter from the early 1990’s until the accident. His work history also includes working as a
safety patrolman for the Kentucky Transportation Cabinet at the time of the
accident. His employment history
additionally includes work as a security guard, emergency medical technician
(“EMT”),
rental equipment deliverer, line worker for manufacturers, and as a dispatcher
for an ambulance service. Mattingly is a
high school graduate, and he took courses at the local technical college to
obtain his certification as an EMT.
Mattingly
testified by deposition on August 29, 2017, and again at the hearing held
August 6, 2018. He was born on September
17, 1967. He testified his first job was
on a manufacturing line at a factory in Owensboro, Kentucky, but he left work
there after a few months due to pneumonia.
He next worked as an EMT for a local ambulance service, and later became
the communications supervisor in charge of 911 dispatch. He left that job to work for a security
company where he supervised seven security guards. That job entailed scheduling and completing
forms in addition to his work as a guard.
He later worked for the Kentucky Transportation Cabinet where his job
was safety patrol/motor assist. This
required him to provide mechanical and medical assistance to motorists, and
removal of road debris, including animal carcasses. He began that job in November 2007. He also testified he began as a volunteer
firefighter in 1992 where he assisted with fighting fires, and served as an
EMT.
On December
22, 2007, Mattingly had completed his job that day for the Kentucky
Transportation Cabinet. He met his wife
to pick up a trampoline for his children.
On the way home, he received notification of a structure fire to which
he responded. Since he was already wearing
a reflective suit due to his job as a safety patrolman, he was asked to block
traffic. As he was going to his vehicle
to obtain a flashlight and to deploy highway flares, he was struck by a motor
vehicle. He remembers nothing else from
the scene of the accident. He next
remembered going home from the hospital in Owensboro where he was treated for a
few days.
Mattingly
testified he has treated with multiple medical providers for the injuries he
sustained in the accident. He
experienced a broken right leg, left shoulder injuries, a torn bicep, right hip
injuries, a facial fracture, and right shoulder injuries from the
accident. He has undergone three left
shoulder surgeries, at least one right shoulder surgery, and two right hip
surgeries. His primary treating
physician is Dr. Jeremy Bradley, his family physician. He also treated with Dr. Eric Davis, D.C.,
which did not provide much relief. Dr.
Cyna Khalily performed surgery on his shoulders, right hip and right knee. Dr. Alan Mullins operated on his foot to
remove a staph infection. Dr. Darren
Petty performed additional right shoulder surgery, and injections to his right
knee. Dr. Keith Moore operated on his
right knee. He has seen Dr. Chris Shafer
and Dr. Michael Sowell, both neurologists. He treated with Dr. Matthew Taylor
for facial fractures, and later for a ringing sensation in his ears. He has also seen Dr. Michael Mayron. He additionally saw Dr. Richard Edelson for
his mental stability, on referral from Dr. Bradley. He also saw Dr. Thomas Byrd. He was also evaluated by Dr. Robert P.
Granacher, Jr. and Dr. Gregory Gleis.
Mattingly
testified he currently experiences right knee instability, right shoulder
problems, as well as creaking and popping in his left shoulder, with the
sensation that it is trying to pop out of the socket. He testified he also has aches in the top of
his left arm. He has problems with his
right hip including pain, and the sensation it is going to pop out of
joint. He also experiences occasional
low back pain into his left leg. He
also experiences daily headaches. He
testified he had never experienced those problems prior to the work
accident. He additionally noted he
began having low back problems while performing physical therapy. He has had to alter his sitting style due to
his right hip and low back pain. He also
has some memory loss.
Mattingly
stated he would be unable to return to either his work with the Transportation
Cabinet or as a volunteer firefighter due to his physical problems. He would have difficulty providing assistance
or lifting debris from the roadway due to his inability to lift, stoop, or
bend, and he has difficulty driving due to vision problems. He does not believe he retains the capacity to
perform any of his pre-injury jobs.
In support
of his claim, Mattingly filed Dr. Byrd’s September 23, 2014 report. Dr. Byrd assessed a 5% impairment rating for
Mattingly’s left hip injury pursuant to the 5th Edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”).
Mattingly
also filed Dr. Gleis’ report dated January 23, 2012. Dr. Gleis noted Mattingly was a pedestrian
who was struck by an automobile on December 22, 2007 who suffered multiple
injuries. He noted the history of loss
of consciousness and concussion, right tibial plateau fracture, right
infra-orbital facial fracture, right hip injury, and left shoulder injury, all
due to the work injury. Dr. Gleis opined
Mattingly’s low back, right shoulder, and neck complaints are not work-related. He declined to render an opinion regarding
Mattingly’s skin lesions or head injury since these are outside his area of
expertise. Based upon the left shoulder,
right knee, and right hip, he assessed a 17% impairment rating pursuant to the
AMA Guides.
Mattingly
additionally filed Dr. Granacher’s report dated December 15, 2009, from an
evaluation he performed on December 3 and 4, 2009. Dr. Granacher diagnosed Mattingly with a
cognitive disorder due to blunt force head trauma occurring on December 22,
2007. He found Mattingly had reached
maximum medical improvement (“MMI”). He
assessed a 10% impairment rating pursuant to the AMA Guides, 2nd
Edition, for the cognitive disorder.
Mattingly
subsequently filed Dr. Mayron’s May 18, 2015 report. Dr. Mayron noted the history of traumatic
brain injury along with fractured right leg, migraine headaches, tinnitus, and
dizziness. He diagnosed Mattingly with
post-traumatic sensory seizure disorder and post-traumatic migraines. In his May 8, 2018 note, Dr. Mayron diagnosed
post-traumatic sensory seizures, migraines and optic neuropathy along with
intractable migraines. On June 7, 2018,
he also noted Mattingly has tinnitus.
Mattingly
also filed Dr. Bradley’s July 14, 2017 record.
Dr. Bradley stated he has been Mattingly’s primary care physician for a
number of years. He noted the December
22, 2007 accident. Dr. Bradley noted
Mattingly has treated with a number of specialists for orthopedic injuries he
sustained in the work accident. He has
primarily treated Mattingly’s amnesia disorder which is a direct result of the
accident. He noted Mattingly’s memory
loss also impacts his ability to assimilate new information. He noted Mattingly also has difficulty
concentrating for any lengthy period. He
is unable to return to work where there is any significant noise, vibration, or
bright lights. He also noted Mattingly
should not be exposed to heights, and has developed tinnitus.
Mattingly
filed Dr. Daniel Weinberg’s October 30, 2017 report. Dr. Weinberg diagnosed Mattingly with
traumatic optic neuropathy. He stated
this resulted in a Class 3 whole person impairment, which he determined was 46%
based upon the AMA Guides for his vision/optical condition.
Mattingly
also filed Dr. Khalily’s October 12, 2008 report. He recommended additional right shoulder
surgery. He stated Mattingly will have a
functional impairment rating for the right knee, right hip and left shoulder,
but he was unable to determine the ratings at that time. He additionally stated Mattingly would never
be able to resume full duty work.
Yelvington filed Dr.
Bradley’s mostly illegible note dated December 2, 2011. The note reflects Mattingly has amnesia from
the head injury he sustained in the motor vehicle accident. A January 12, 2012 note states Mattingly is
unable to work due to his amnesia.
Included in Dr. Bradley’s records is the March 3, 2009 report from Dr.
Sowell, a neuropsychologist, who evaluated Mattingly for memory loss at Dr.
Bradley’s request. He diagnosed
Mattingly with amnestic disorder due to head trauma and attention deficit
hyperactivity disorder, all due to the work accident. He stated Mattingly would not reach MMI until
the end of 2009, and is unable to return to work. Also included in Dr. Bradley’s records is Dr.
Edelson’s December 7, 2011 report. Dr.
Edelson, a psychologist, noted Mattingly has continued attentional and memory
difficulty. He diagnosed Mattingly with
depressive disorder not otherwise specified.
Yelvington also filed a
report prepared by Dr. Petty dated November 8, 2010. He noted the December 22, 2007 injury, and
found Mattingly had reached MMI by August 25, 2010. He assessed a 6% impairment rating pursuant
to the AMA Guides. On December
19, 2011, Dr. Petty noted Mattingly has persistent pain from a rotator cuff
tear, SLAP lesion, or has a new injury.
He noted arthroscopy was required, most likely as an aggravation of the
initial injury.
Yelvington additionally
filed Dr. Weinberg’s April 2, 2014 report.
He stated Mattingly was at MMI for any vision problems, and does not
qualify for an impairment rating pursuant to the AMA Guides.
Yelvington additionally
filed a number of records which are apparently from Mattingly’s claim for
Social Security disability benefits. Dr.
Jane Brake, on September 27, 2013, diagnosed Mattingly with organic mental
disorders. She determined he would have
no restrictions, nor difficulty with social functioning. She stated he would have mild difficulty with
maintaining concentration with no episodes of decompression. On April 22, 2014, Dr. Ilze Sillers noted
Mattingly has organic mental disorders which does not impact his ability to
perform basic work functions.
Dr. Diosado Irlandez, on
September 26, 2013, determined Mattingly should have restrictions of no lifting
greater than twenty pounds on a maximum basis, nor over ten pounds frequently,
and he can stand or sit up to six hours per day. He noted Mattingly’s lumbar range of motion
was essentially normal. In her report
dated April 23, 2014, Dr. Donna Sadler indicated she would impose the same
restrictions as those assigned by Dr. Irlandez.
In his report dated
August 10, 2013, Dr. Edgar Lopez-Suescum noted Mattingly’s December 22, 2007
work accident. He diagnosed multiple
musculoskeletal injury of unspecific nature (per the patient), suspect
personality disorder, and tobacco use disorder.
He determined Mattingly has “no obvious skeletal limitations.” He noted Mattingly has normal standing,
sitting and lifting.
In his note dated
January 3, 2008, Dr. Taylor stated he had treated Mattingly’s orbital blow-out
which resulted in a minimally displaced orbital floor fracture. He saw no need for surgical
intervention. Yelvington also filed the
report of an EEG performed by Dr. Francis Kadiyamjuttiyil on October 1, 2009. The EEG was normal.
A benefit review conference
(“BRC”) was held August 6, 2018. The
BRC Order and Memorandum indicates the parties stipulated that Mattingly does
not retain the physical capacity to return to the type of work performed at the
time of the injury. The issues preserved
for determination included benefits per KRS 342.730,
work-relatedness/causation, unpaid or contested medical bills, injury as
defined by the Act, TTD, PTD vs. permanent injury pertaining to vision, left
arm, low back, neck, and right shoulder.
The parties also preserved as an issue the work-relatedness and
causation of the low back, right shoulder, neck, and seizures, as well as the
proper rating per the AMA Guides (Dr. Weinberg).
In the
Opinion, Award, and Order rendered October 3, 2018, the ALJ awarded Mattingly
TTD benefits from December 22, 2007 through July 6, 2011, “and the sum of
$283.60 per week for 100% permanent disability commencing on December 22, 2007,
and continuing for so long as he is so disabled.” The ALJ additionally stated, “All benefits
shall terminate in accordance with KRS 342.730(4).” The ALJ also awarded medical benefits.
Regarding
the work-relatedness of Mattingly’s alleged neck, low back, right shoulder and
SI joint injuries, the ALJ found as follows:
Work-Relatedness and
Causation
Low Back, Right
Shoulder, Neck, and Seizures
20.
The ALJ finds that it is undisputed that the Plaintiff
sustained a work-related injury us a result
of an automobile accident resulting in blunt force trauma to the head and
accepted injuries to the right knee, left shoulder, right hip, and head.
21.
The Defendant Employer disputes the
work-relatedness of the right shoulder
condition despite documentation that references a right shoulder contusion
immediately following the accident. Dr. Glies[sic] disputes this because there
was no additional documentation of any right shoulder pain until May 19, 2009.
The physical therapy records reflect
that the Plaintiff was engaged in activities with his right arm due to the
inability to use his left. In short,
the ALJ is not persuaded that this delay excuses the Defendant for being
responsible for this injury.
22.
The ALJ notes that Dr. Glies[sic] opined that when there are serious injuries,
minor ones are often overlooked initially, while in the same document arguing
that any injury appearing
after a six month delay is not causally work-related. The opinion of Dr.
Glies[sic] on this point is not persuasive as Dr. Glies[sic] also noted in his opinion
the absence of pre-existing problems
with the right shoulder. The ALJ therefore finds that the Plaintiff’s right
shoulder condition is causally work-related.
23.
Dr. Glies[sic] also found that the medical
records did not show low back and right SI joint complaints until six months
after the injury,
and therefore, opined
that those injuries
are also not related to the work
injury. Dr. Glies[sic] assessed a 0%
lumbar impairment.
24.
Dr. Glies[sic] also opined that the Plaintiff’s neck pain was not related
to the work
injury because it developed when he was putting up a swimming
pool and because
again he did not complain about neck pain at the time of the exam. Dr. Glies[sic] also assessed a 0% impairment for the neck adding that the Plaintiff’s reports of “twitching” in his face and
extremities were not work-related and
did not require any restrictions.
25. The ALJ finds
with respect to the seizure
condition, that the Plaintiff was asymptomatic prior to the significant head trauma associated
with the work accident. Dr. Mayron noted that the Plaintiff
complained of hissing in his ears,
sudden jolts throughout his body, and numbness in the feet and hands
when walking. He diagnosed
post-traumatic sensory seizures, post-traumatic migraines, post-traumatic optic
neuropathy, and intractable migraines. This opinion has convinced the ALJ and the ALJ thus finds that the Plaintiff’s seizures, migraines, and optic neuropathy are causally work-related.
26. The ALJ finds that Dr. Glies[sic] deferred
when asked to give an opinion
regarding the Plaintiff’s cognitive impairment but held the Plaintiff
strictly accountable for accurately describing all of his symptoms
in a timely manner. This inconsistent approach renders the opinion of Dr. Glies[sic] on these matters less than credible. The ALJ therefore finds
based upon the absence of evidence that the Plaintiff was symptomatic prior to the
work injury, that the Plaintiff’s low back, SI joint, and neck pain are all causally work- related. (Emphasis added).
27. Dr. Glies[sic] also made a reference to a left arm injury but the ALJ finds that
there is insufficient evidence to establish the occurrence of such an injury
and the Plaintiff’s claim for benefits as a result of a left arm injury is
hereby DISMISSED.
Yelvington
filed a petition for reconsideration requesting additional findings of fact
“regarding his finding of permanent total disability and whether he finds
Plaintiff is permanently totally disabled due to his head injury alone, or due
to other injuries, and if so, which injuries.”
Yelvington additionally requested findings regarding the evidence the
ALJ relied upon in determining Mattingly’s low back, SI joint, neck, and right
shoulder are work-related. In the
alternative, Yelvington requested the ALJ find it is not responsible for future
medical benefits for those conditions since he found the low back, SI joint,
and neck injuries were temporary in nature.
The ALJ
issued an Amended Award and Order on November 6, 2018, which states as follows:
This matter is before the ALJ upon the Petition for Reconsideration
filed by the Defendant Employer
seeking additional findings, a clarification of the medical benefits awarded,
and a clarification of the stipulation reached
regarding interest accrued during the abeyance period. Having reviewed
the Petition and the Response thereto, the following additional findings and AMENDED
AWARD AND ORDER are hereby entered:
1.
The ALJ finds that it is undisputed that this Plaintiff was struck by a vehicle
in view of his wife and children
during work. The Plaintiff credibly
testified that his injuries included a fractured
right tibia, an injury to the left shoulder including a torn bicep, a right hip injury, a fracture on the right side of his head, and an
injury causing problems
with his right
shoulder.
2.
The ALJ finds that the Plaintiff
testified credibly that he had no such issues
prior to his work-related collision with a moving
vehicle.
3.
The ALJ further
finds that the Plaintiff testified credibly that he had undergone five right
knee surgeries, three left shoulder surgeries, two right shoulder
surguries,[sic] and two right hip surgeries leaving him with constant headaches, back pain, and the
inability to lift a gallon of milk using one hand among other issues more fully
detailed in the original Opinion and Award.
4.
The ALJ finds that
the credibility of the Plaintiff's description of his post accident symptoms
and the lack of pre-accident injuries lends credibility to the medical findings of work-relatedness and causation
summarized and referenced in the
underlying Opinion and Award dated October 3, 2018. The ALJ thus reiterates the
finding of work-relatedness and causation previously made.
5. The ALJ finds
that the medical
benefits awarded herein
are hereby clarified such that future medical
benefits shall not be owed for the low back, SI joint, and neck injuries in accordance with the finding
that these injuries
were temporary and ultimately resolved.
In an effort to
more clearly delineate the medical benefits awarded and the stipulation reached
regarding past due interest accrued during this matter, the following AMENDED AWARD AND ORDER is hereby issued:
AMENDED AWARD AND
ORDER
IT IS HEREBY ORDERED AND ADJUDGED as follows:
1. The Plaintiff, Steve Mattingly, shall recover from the Defendant, Yelvington Fire Department., and/or its insurance
carrier temporary total disability
benefits in the weekly amount of $283.60,
from December 22, 2007, through July 6, 2011, and the sum of $283.60 per week for 100%
permanent disability commencing on December 22, 2007, and continuing
for so long as he is so disabled, together
with interest at the applicable statutory rate on all past due and unpaid
installments of such
compensation such that 12% interest
is to be paid on amounts due up to and including June 28, 2017,
and 6% interest is to be paid for past due
amounts thereafter, but said permanent partial disability award is to be interrupted by any corresponding applicable periods of temporary total
disability. Despite the foregoing, interest
on past due benefits has been waived
by agreement from March 11, 2015, through
June 21, 2017.
The Defendant shall
take credit for any payment of such compensation heretofore made, including those payments of temporary total disability benefits
already made. All
benefits shall terminate in accordance with KRS 342.730(4).
2. The Plaintiff shall recover
of the Defendant-employer and/or its insurance
carrier, such medical expenses including
but not limited
to provider’s fees, hospital treatment, surgical
care, nursing supplies, and appliances as may be reasonably required for the cure and relief from the effects of the work- related low back, SI joint, neck,
right knee, left shoulder, right
hip, and head
injuries found herein,
along with the associated vision
problems found herein. Future medical benefits shall not be due to the Plaintiff for the work-related low back, SI joint, and neck injuries
that were found to have
resolved. The Defendant’s obligation shall be commensurate with the limits set by the Kentucky Medical Fee
Schedule.
On appeal,
Yelvington argues the ALJ erred in finding the low back, SI joint, right
shoulder, and neck are work-related. It
argues the ALJ, in his order on reconsideration, did not address its request
for additional findings regarding the evidence relied upon in finding the low
back, SI joint, neck, and right shoulder are work-related. Yelvington argues the ALJ did not identify
any medical opinion supporting the work-relatedness of those conditions. Yelvington additionally argues the ALJ erred
in finding Mattingly is permanently totally disabled.
We initially note that
Mattingly had the burden of proving each of the essential elements of his
claim. Durham v. Peabody Coal Co., 272 S.W.3d 192, 195 (Ky. 2008); Snawder
v. Stice, 576 S.W.2d 276 (Ky. App. 1979).
Essential elements include the work-relatedness/causation of an
injury. Burton v. Foster Wheeler
Corp., 72 S.W.3d 925 (Ky. 2002). If
the cause of a condition is not readily apparent to a layperson, then medical
testimony regarding causation is required.
Mengel v. Hawaiian-Tropic Northwest and Central Distributors, Inc.,
618 S.W.2d 184 (Ky. App., 1981). The
mere possibility of work-related causation is insufficient. Pierce v. Kentucky Galvanizing Co., Inc.,
606 S.W.2d 165 (Ky. App. 1980).
We also acknowledge that
an ALJ has wide-ranging discretion in reaching his or her decision. Seventh
Street Road Tobacco Warehouse v. Stillwell, 550 S.W.2d 469 (Ky. 1976); Colwell
v. Dresser Instrument Div., 217 S.W.3d 213, 219 (Ky. 2006). KRS 342.285 designates the ALJ as the finder
of fact, and he/she is granted the sole discretion in determining the quality,
character, and substance of evidence. Paramount
Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). Likewise, the ALJ, as fact-finder, may choose
whom and what to believe and, in doing so, 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 party’s total proof. Caudill v. Maloney’s
Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977); Pruitt v. Bugg Brothers,
547 S.W.2d 123 (Ky. 1977).
However, such discretion
is not unlimited. While authority
generally establishes that an ALJ must effectively set forth adequate findings
of fact from the evidence in order to apprise the parties of the basis for his
decision, he is not required to recount the record with line-by-line
specificity nor engage in a detailed explanation of the minutiae of his
reasoning in reaching a particular result.
However, in reaching a determination, the ALJ must provide findings sufficient to inform the parties of the basis
for the 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); Big Sandy Community Action Program
v. Chafins, 502 S.W.2d 526 (Ky. 1973).
In Arnold v. Toyota Motor Manufacturing, 375 S.W.3d 56, 61-62
(Ky. 2012), the Kentucky Supreme Court directed as follows:
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.
As pointed out by
Yelvington, Mattingly bore the burden of proving all elements of his claim,
including whether he sustained compensable work-related injuries to his low
back, SI joint, neck and right shoulder.
It was not Yelvington’s burden to disprove the claim until Mattingly
established his claim with substantial evidence. In order to establish his claim for those specific
injuries, Mattingly was required to submit supporting medical evidence. Mengel
v. Hawaiian-Tropic Northwest and Central Distributors, Inc., supra.
The record does not appear to contain evidence supporting Mattingly’s
contention that he sustained injuries to the back, neck or SI joint, and
equivocal evidence regarding the right shoulder. Yelvington requested additional findings by
the ALJ to support his determination regarding these conditions. A review of the order on reconsideration
reveals that the ALJ did not do so. We
are therefore compelled to vacate the ALJ’s determinations regarding
compensability, and remand for additional findings as requested by
Yelvington.
On remand, the ALJ may
make any determination regarding compensable injuries caused by the December
22, 2007 accident, which is supported by the evidence. This Board may not and does not direct any
particular result because we are not permitted to engage in fact-finding. See KRS
342.285(2); Paramount Foods, Inc. v. Burkhardt, supra. The evidence must support any determination by
the ALJ.
We additionally vacate
the ALJ’s determination that Mattingly is entitled to an award of PTD
benefits. On remand, the ALJ, after
reviewing the evidence, may make any award supported by the evidence, including
PTD benefits based upon the compensable injuries supported by the
evidence. Again, we direct no particular
result.
Accordingly, the October
3, 2018 Opinion, Award and Order, and the November 6, 2018 Order on Yelvington’s
petition for reconsideration, rendered by Hon. Jonathan R. Weatherby,
Administrative Law Judge, are hereby VACATED. This claim is REMANDED to the Administrative Law Judge for additional findings of fact and entry of an amended opinion in conformity with the views expressed herein.
ALL CONCUR.
DISTRIBUTION:
COUNSEL FOR PETITIONER: LMS
HON
SARAH C ROGERS
HON
K LANCE LUCAS
1511
CAVALRY LN, STE 201
FLORENCE,
KY 41042
COUNSEL FOR RESPONDENT: LMS
HON
STEPHEN B LEE
PO
BOX 308
OWENSBORO,
KY 42302
ADMINISTRATIVE LAW JUDGE: LMS
HON
JONATHAN R WEATHERBY
657
CHAMBERLIN AVE
FRANKFORT,
KY 40601
[1]
Although the order bears the date
of October 6, 2018, that was prior to the filing of the Petition for
Reconsideration by Yelvington. LMS
reflects the order was filed on November 6, 2018.