M&M CARTAGE CO., INC. PETITIONER
v.
JAMES GARRISON And HON. JONATHAN R. WEATHER BY, ADMINISTRATIVE LAW JUDGE RESPONDENTS
CLAIM NO. 201098764
Kentucky Workers Compensation
Commonwealth of Kentucky Workers’ Compensation Board
March 19, 2021
APPEAL
FROM HON. JONATHAN R. WEATHERBY, ADMINISTRATIVE LAW JUDGE
COUNSEL FOR PETITIONER: LMS HON THOMAS M EDELEN
COUNSEL FOR RESPONDENT: LMS HON ALAN S RUBIN
BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.
OPINION
ALVEY,
Chairman.
M&M
Cartage Company, Inc. (“M&M”) appeals from
the Second Amended Opinion and Award on Remand rendered on
November 25, 2020 by Hon. Jonathan R. Weatherby,
Administrative Law Judge (“ALJ”). The ALJ found
James Garrison’s (“Garrison”) cervical
condition has worsened warranting a 3% increased impairment
rating, and he is now permanently totally disabled. M&M
also appeals from the December 14, 2020 Order overruling its
Petition for Reconsideration.
On
appeal, M&M argues the ALJ exceeded his authority by
reversing his previous finding that Garrison is not
permanently totally disabled. M&M argues the ALJ erred in
commencing the award of permanent total disability
(“PTD”) benefits from the date of the motion to
reopen since that issue is res judicata. M&M
argues the ALJ erred by “combining the non-work-related
impairment with work-related impairment to find Plaintiff
totally disabled.” Finally, M&M argues the ALJ
failed to carve out 1% of the increased impairment to
Garrison’s unrelated C4-5 cervical condition.
We find
the ALJ acted within his authority in determining Garrison is
now permanently totally disabled since this Board in an
Opinion rendered October 2, 2020 vacated his previous
determination on this issue. We also determine the ALJ
followed the directives of this Board and provided a
sufficient and appropriate analysis pursuant to City of
Ashland v. Taylor Stumbo, 461 S.W.3d 392 (Ky. 2015) and
Ira A. Watson Department Store v. Hamilton, 34
S.W.3d 48 (Ky. 2000). We additionally find the ALJ did not
err in commencing of the permanent total disability benefits
award on the date Garrison filed his motion to reopen
pursuant to KRS 342.125(4). Finally, we find no evidence
supporting M&M’s argument the ALJ combined
non-work-related disabilities or impairments with his
work-related disability or impairment in determining Garrison
is permanently totally disabled. Therefore, because
substantial evidence supports the ALJ’s determination
that Garrison sustained a worsening of his work-related
cervical condition and is now permanently totally disabled,
we affirm.
This is
the third time this claim has been appealed to this Board.
Garrison sustained a work-related cervical injury on December
29, 2009 while working as a truck driver for M&M. No Form
101 was filed. Hon. J. Landon Overfield, Administrative Law
Judge, approved a settlement agreement on February 9, 2011.
The settlement agreement reflects that Garrison was
“holding a semi-trailer door when it jerked up,
injuring his neck.” The agreement also reflects
Garrison injured his spine at the C5-C6 and C6-C7 levels and
underwent a two-level fusion and discectomy in May 2010. The
settlement was based upon a 25% impairment rating pursuant to
the 5th Edition of the American Medical
Association, Guides to the Evaluation of Permanent
Impairment (“AMA Guides”). The
agreement reflects Garrison was to receive $149.70 per week
for 425 weeks and M&M had paid medical expenses and
temporary total disability (“TTD”) benefits. On
March 21, 2016, Hon. Robert L. Swisher, Chief Administrative
Law Judge, approved a settlement agreement commuting the
remainder of Garrison’s payments to a lump sum of
$17,168.47.
On
October 10, 2016, Garrison filed a motion to reopen, noting
Dr. George Raque had recommended additional fusion surgery,
and he anticipated an increase in his functional impairment
rating. Garrison requested the initiation of TTD benefits
until reaching maximum medical improvement
(“MMI”) from the surgery. Garrison attached an
October 5, 2016 note from Dr. Raque indicating he should
remain off work until reaching MMI. He also attached Dr.
Raque’s September 23, 2016 note stating recent studies
indicated he had a solid fusion at C6-7, but a nonunion at
C5-6 and a broken screw at C5. Additionally, the myelogram
indicated a disc protrusion at the adjacent C4-5 level. Dr.
Raque recommended a discectomy and fusion surgery at C4-C5
and C5-C6, and he attributed all aspects of the proposed
surgery to the 2009 work injury.
Subsequently,
M&M filed a Form 112 medical dispute challenging the
proposed surgery. M&M filed Dr. Daniel Wolens’
October 13, 2016 report, Dr. Russell Travis’ November
16, 2016 consultation review report, and records from Dr.
Wayne Villanueva, who performed the May 7, 2010 two level
fusion at C5-6 and C6-7. M&M also filed the January 25,
2016 Dr. Michael Doyle’s recommendation of a C5
corpectomy and fusion from C4-6. Dr. Doyle opined the surgery
at C5-6 is related to the 2009 work injury, but the pathology
at C4-5 is not.
An
agreed Order was submitted to the ALJ for a determination
regarding compensability of the proposed surgery. On August
3, 2017, relying upon Dr. Doyle’s opinion, the ALJ
determined the proposed treatment and surgery for the C4-5
level was not compensable. However, he determined the
proposed treatment and surgery for the C5-6 level was
work-related and compensable. In a September 5, 2017 Order
addressing Garrison’s Petition for Reconsideration, the
ALJ awarded TTD benefits to begin on the date of surgery. The
ALJ subsequently denied Garrison’s second Petition for
Reconsideration requesting TTD benefits from the date of
reopening.
Dr.
Raque performed a fusion at C4-6, as well as a C5 corpectomy
on October 11, 2017. Garrison submitted additional records of
Dr. Raque from August 2017 through May 2019, which indicate a
second nonunion. M&M submitted Dr. Robert Sexton’s
November 1, 2018 report and January 9, 2019 supplement
report. Garrison testified by deposition on January 12, 2017
and December 17, 2018, and at the final hearing held on May
21, 2019.
A
Benefit Review Conference was held on April 11, 2019. The
issues preserved for resolution included
work-relatedness/causation of the repeat fusion,
corresponding worsening of condition, future medical
benefits, TTD benefits, and duration of benefits.
The ALJ
rendered an Opinion and Award on July 22, 2019, finding
Garrison’s cervical condition is compensable at the
C5-C7 levels, but the condition at the C4-5 level is not
causally work-related. The ALJ again found Garrison was
entitled to TTD benefits beginning on the date of surgery;
however, he did not address this in the award section of his
opinion. The ALJ determined Garrison is not permanently
totally disabled based upon Dr. Sexton’s restrictions,
noting there was insufficient proof establishing the
restrictions are work-related. The ALJ awarded an increase in
Garrison’s PPD benefits based on the 4% impairment
rating increase assessed by Dr. Sexton, beginning with the
date of the motion to reopen, for the remainder of his
425-week compensable period. Both parties filed Petitions for
Reconsideration.
In the
September 3, 2019 Order on reconsideration, the ALJ
reiterated M&M is only responsible for medical benefits
for treatment of the C5-C7 levels. The ALJ again stated
Garrison is entitled to TTD benefits commencing on the
surgery date, but did not provide a termination date for
those benefits. Regarding the increase in impairment assessed
by Dr. Sexton, the ALJ first found Garrison sustained a 25%
impairment rating due to the December 29, 2009 work injury
resulting in cervical fusion surgery. The ALJ then determined
Garrison sustained a 3% increase in impairment due to the
repeat surgery performed in 2017 by Dr. Raque, based upon Dr.
Sexton’s opinion. The ALJ reiterated his finding that
Garrison is not permanently totally disabled.
The ALJ
concluded Garrison now has a 29% impairment rating for his
cervical condition based upon Dr. Sexton’s supplemental
report, consisting of 26% impairment based upon the two-level
arthrodesis, an additional 2% for the second operation and
another 1% for the additional level pursuant to the AMA
Guides. The ALJ calculated Garrison’s weekly
PPD benefits increased $203.86 from the prior $149.70 weekly
benefit rate. The ALJ awarded Garrison the additional weekly
sum of $54.16 commencing on the date of the filing of the
motion to reopen, October 20, 2016, and continuing for the
remainder of the 425-week period established in the March 21,
2016 settlement agreement. The ALJ awarded medical...
