DUGAN & MEYERS, LLC PETITIONER
v.
MICHAEL NIX AND HON. JOHN B. COLEMAN, ADMINISTRATIVE LAW JUDGE RESPONDENTS
No. 201999917
Kentucky Workers Compensation
Commonwealth of Kentucky Workers’ Compensation Board
February 5, 2021
APPEAL
FROM HON. JOHN B. COLEMAN, ADMINISTRATIVE LAW JUDGE.
COUNSEL FOR PETITIONER: LMS HON WALTER E. HARDING
COUNSEL FOR RESPONDENT: LMS HON TAMARA TODD COTTON
BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.
OPINION
AFFIRMING
BORDERS, Member.
Dugan
& Meyers, LLC (“Dugan”) appeals from the
October 2, 2020 Opinion and Award, and the November 2, 2020
Order on Petition for Reconsideration rendered by Hon. John
B. Coleman, Administrative Law Judge (“ALJ”). The
ALJ determined Michael Nix (“Nix”) suffered a
work-related lumbar spine injury on August 31, 2018. The ALJ
awarded permanent partial disability (“PPD”)
benefits based on a 7% impairment rating, temporary total
disability (“TTD”) benefits, and medical
benefits.
On
appeal, Dugan argues the ALJ erred in determining Nix
suffered a work-related injury, awarding medical benefits,
including surgery, and relying on the impairment rating
assessed by Dr. Jules Barefoot. For reasons set forth herein,
we affirm.
Nix
testified by deposition on May 18, 2020 and at the Hearing
held August 12, 2020. Nix worked for Dugan as a lead
carpenter. His work was strenuous in nature and required
frequent lifting of 30 to 50 pounds, as well as climbing,
pushing, and pulling while setting and resetting concrete
forms. He also controlled the pump hose on the concrete truck
to fill forms with concrete. Nix cannot recall the incident
on August 31, 2018, but understands he was struck in the head
and lower back by a heavy pump hose. He briefly lost
consciousness and felt dazed when he awoke. As a result of
the accident, he has stabbing pain with swelling and numbness
in his lower back, along with pain radiating into his right
lower extremity, often down into his foot. He described
having a nodule in the area of his low back and right
buttock, making it difficult to sit or lie on his right side.
He denied having the nodule prior to the work incident. He
had surgery to remove the nodule on June 11, 2019. After the
surgery, he was able to sit for longer periods and he no
longer experiences stabbing pain. However, he continues to
have intermittent sharp pain in his right lower extremity
down to his knee. He also has constant pain that increases
with activity and pressure in his lower back making it
difficult to bend.
Nix
filed records from Concentra documenting treatment from
September 5, 2018 through October 11, 2018. Nix provided a
history of a concrete hose striking him in the head and back,
causing him to fall. Diagnoses included a head injury, lumbar
contusion, forearm abrasion, scalp laceration, contusion of
the right hip, and acute right-sided low back pain without
sciatica. Nix returned to work on September 6, 2018 with
restrictions against lifting, pushing, or pulling greater
than 15 pounds. He was also advised to alternate his position
as needed. An October 8, 2018 MRI revealed multilevel
degenerative changes most prominent at L2-3, L4-5, and L5-S1.
He was subsequently referred to a neurologist for evaluation.
Dr.
Noel Reloj, a neurologist, evaluated Nix on October 18, 2018
for back pain and a head injury. Dr. Reloj diagnosed
lumbosacral radiculopathy. He noted a lumbar MRI showed
multilevel degenerative changes and a 4cm lesion from L5-S1
to the sacrum. A CT scan of the pelvis on November 15, 2018
revealed nonspecific, ill-defined, subcutaneous soft tissue
in the posterior lower back. Dr. Reloj felt this could be
secondary to soft tissue inflammation or contusion, but no
discrete fluid collection or soft tissue masses were
identified. The records indicate Dr. Reloj continued to treat
Nix for lumbosacral radiculopathy through June 24, 2019.
Dr.
Todd Chadwell, a general surgeon, evaluated Nix on February
4, 2019 for a back mass. He stated Nix did not have a
sebaceous cyst. Dr. Chadwell noted Nix had a bony prominence
above the top of the gluteal cleft and to the right of
midline. Dr. Chadwell stated he did not know if the bony
prominence is related to the injury. He did not recommend
surgery.
Dr.
Kimathi Doss, a neurosurgeon, evaluated Nix on April 1, 2019.
Nix complained of worsening low back pain with occasional
right leg pain. He reported constant stabbing pain in the low
back occasionally radiating into the right leg. On physical
examination, Nix exhibited tenderness along the lumbosacral
spine and right paraspinal regions. A tender, hard, palpable
mass was found on examination. Dr. Doss reviewed an April 30,
2019 MRI of the lumbar spine that revealed multiple levels of
spondylosis and facet arthropathy with annular tears at L2-3
and L4-5. He noted some mild foraminal narrowing at L4-5 on
the right. There was no significant central canal stenosis.
Nix had a visible lesion along the right subcutaneous region
with fluid collection. Dr. Doss opined the lesion may be fat
necrosis. Dr. Doss referred Nix to a plastic surgeon, Dr.
Jarrod Little.
Dr.
Little saw Nix on May 21, 2019 for evaluation of a lower back
mass. He reviewed an MRI and diagnosed a subcutaneous nodule.
Dr. Little performed an excision of the nodule on June 11,
2019. He saw Nix for follow-up on June 28, 2019 and noted the
pathology of the nodule was consistent with fat necrosis. Nix
reported relief of his lower back pain but he...
