CAMBRIAN HOLDING COMPANY, INC. PETITIONER
v.
LD SEXTON; APPALACHIAN REHABILITATION TEAM; DR. JAMES VARNEY, PIKEVILLE MEDICAL CENTER; DR. JOHN GILBERT, SPINE AND BRAIN NEUROSURGICAL; FUGATE FAMILY CHIROPRACTIC; KENTUCKY MOUNTAIN HEALTH; KENTUCKY PAIN MAINAGEMENT SERVICES; MOUNTAIN COMPREHENSIVE HEALTH CORPORATION; PIKEVILLE NEUROLOGY; WHITESBURG ARH; DR. VAN BREEDING; AND HON. PETER NAAKE, ADMINISTRATIVE LAW JUDGE RESPONDENTS
Nos. 201901095, 201900595, 201860509
Kentucky Workers Compensation
Commonwealth of Kentucky Workers’ Compensation Board
March 26, 2021
APPEAL
FROM HON. PETER NAAKE, ADMINISTRATIVE LAW JUDGE.
COUNSEL FOR PETITIONER: LMS HON EMILY WETMORE
COUNSEL FOR RESPONDENT: LMS HON BARRY LEWIS
RESPONDENTS: APPALACHIAN REHABILITATION TEAM USPS, DR JAMES
VARNEY USPS PIKEVILLE MEDICAL CENTER, DR JAMES VARNEY USPS
PIKEVILLE MEDICAL CENTER, DR VAN BREEDING USPS, FUGATE FAMILY
CHIROPRACTIC USPS, KENTUCKY MOUNTAIN HEALTH USPS, KENTUCKY
PAIN MANAGEMENT SERVICES USPS, MOUNTIAN COMPREHENSIVE HEALTH
CORPORATION USPS, PIKEVILLE NEUROLOGY USPS, WHITESBURG ARH
USPS
BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.
OPINION
AFFIRMING
BORDERS, Member.
Cambrian
Holding Company, Inc. (“Cambrian”) appeals from
the October 9, 2020 Opinion, Award, and Order and the
November 11, 2020 Order denying it’s Petition for
Reconsideration, rendered by Hon. Peter Naake, Administrative
Law Judge (“ALJ”). On appeal, Cambrian argues the
ALJ erred in finding LD Sexton (“Sexton”)
sustained a cervical injury, is permanently and totally
disabled due to the cervical injury, and in determining the
forty-five-day rule for submitting medical expenses does not
apply pre-judgment. For the foregoing reasons, we affirm.
Sexton
filed applications for resolution of a specific injury claim
alleging cervical, thoracic, lumbar, and psychiatric injuries
occurring on October 9, 2018, when he struck his head on the
mine ceiling. He also filed applications for resolution of
hearing loss and coal workers’ pneumoconiosis
(“CWP”) claims. All the claims were consolidated
for purposes of litigation.
The ALJ
dismissed Sexton’s CWP and hearing loss claims,
however, he awarded medical benefits for the hearing loss
claim. The ALJ also dismissed Sexton’s claim for
psychiatric injury and for injuries to his thoracic and
lumbar spine. The ALJ determined the cervical spine condition
was causally related to the work incident and awarded
permanent total disability (“PTD”) benefits, as
well as medical benefits for the cervical condition inclusive
of payment for the cervical surgery.
Cambrian
filed a Petition for Reconsideration seeking review of the
PTD benefits and the average weekly wage (“AWW”)
calculation, otherwise restating its original argument. The
ALJ denied the Petition for Reconsideration, in part, and
provided additional findings for his determination. The
petition was sustained to the extent the AWW calculation was
corrected. This appeal followed. For the reasons to be set
forth herein, we affirm.
Sexton
testified by deposition on June 24, 2019 and at the Final
Hearing held on August 28, 2020. Sexton is 50 years old and
is a high school graduate. He has worked as a coal miner
since he was 19 or 20 years old, primarily underground. He
has worked for either Cambrian or their predecessors since
2007. He worked as a mobile bridge operator on the date of
his accident. He operated machine levers but also maintained
the equipment and moved the belts. The job description
indicates he was required to lift up to 75 lbs., with
occasional lifting of 100 lbs.
Sexton
was injured on October 9, 2018, when he was walking from the
mine face and struck his head on the mine roof. The blow
addled him, and it felt like a lightning bolt went through
his body, bringing him to his knees. His foreman witnessed
the accident. He reported to work the next day but was unable
to raise his arms and presented himself to Dr. Van S.
Breeding for treatment. He was thereafter seen by Dr. Sujati
Gutti, Dr. Phillip Tibbs, and eventually came under the care
of Dr. John Gilbert who performed cervical surgery. Sexton
denied having any prior neck pain on a regular basis. He has
not returned to work and has filed for Social Security
disability benefits.
The ALJ
considered the records from Dr. Breeding, Sexton’s
primary care physician, who has treated him since 2013 for
complaints of headaches, back pain, neck pain, anxiety,
tremors, and concentration difficulties. He first saw Sexton
for his work injuries on October 10, 2018. Dr. Breeding felt
Sexton’s symptoms and complaints were severe enough to
require a neurosurgical consultation with Dr. Tibbs. Dr.
Breeding believed Sexton’s neck condition worsened
after the work incident, and he was of the opinion it was
causally related to the October 9, 2018 work incident.
Dr.
Gutti performed EMG/NCV studies which she felt indicated
cervical radiculopathy. Dr. Gutti also diagnosed Sexton with
cervical disc herniations. She recommended a lumbar MRI.
Dr.
Tibbs saw Sexton on March 29, 2019 for a neurosurgical
consultation. He received a history of the October 9, 2018
work incident with increasing complaints of neck pain. Sexton
complained of numbness and tingling in his fingers with
difficulty closing his hands and severe headaches, along with
memory and vision problems. Dr. Tibbs examined Sexton,
reviewed a cervical MRI, and recommended cervical epidurals
and a C5-6-7 discectomy if those were unsuccessful.
Dr.
Gilbert evaluated Sexton on August 20, 2019. Dr. Gilbert
reviewed all medical records both before and after the
October 9, 2018 accident, reviewed diagnostic studies, and
performed a physical examination. He diagnosed Sexton with a
C3-7 disc rupture, causally related to the October 9, 2018
work incident. Dr. Gilbert assessed an 18% impairment rating
pursuant to the 5
th Edition of the American
Medical Association, Guides to the Evaluation of
Permanent Impairment (“AMA
Guides”), for the injury, and restricted
Sexton to sedentary work.
On May
4, 2020, Dr. Gilbert opined Sexton’s cervical fusion
surgery was reasonable and necessary. Dr. Gilbert determined
Sexton has a 28% impairment rating pursuant to the AMA
Guides for his cervical injury.
Dr.
Russell Travis evaluated Sexton on February 19, 2019. He
noted a history of the October 9, 2018 work incident and
reviewed medical records and diagnostic studies. He also
performed a physical examination. Dr. Travis found no
objective findings of injury. Dr. Travis assessed a 0%
impairment rating pursuant to the AMA Guides. Dr.
Travis prepared a supplemental report dated November 21, 2019
opining Sexton’s cervical spine problems were all
pre-existing and symptomatic, and reiterated his 0%
impairment rating. In a second addendum dated July 10, 2020,
he opined the cervical surgery performed by Dr. Gilbert was
not work-related.
Dr.
David Muffly performed a review of medical records generated
both before and after the October 9, 2018 work incident. Dr.
Muffly opined Sexton suffered from a prior active cervical
spine condition for which he retains a 0% impairment rating
pursuant to the AMA Guides. He later amended his
opinion to opine Sexton has a 30% impairment rating to the
cervical spine that was pre-existing and active. He also
opined the surgery performed by Dr. Gilbert was not for
treatment of a work-related condition.
After
considering the evidence, the ALJ entered the following
Findings of Facts and Conclusions of Law, relevant to the
issue of causation of the cervical condition, which are set
forth verbatim:
The Administrative Law Judge finds that the Plaintiff’s
description of his injury as a severe blow to the top of his
head while walking in the underground coal mine, striking the
top of his head against the roof of the mine, while his body
continued to move, and feeling a sudden shock from his neck
to his feet, and near loss of consciousness while he fell to
his knees, is credible. The Plaintiff’s testimony at
his deposition, and at the Hearing in this matter, and the
facts of his loss of occupation, voluntarily undergoing a
major surgery to his neck, and demeanor during his deposition
and at the Hearing, are all persuasive that the
Plaintiff’s injury was not a mere bump on the head, but
instead was one which traumatized the cervical spine, causing
severe headaches and requiring a cervical fusion surgery.
There is no countervailing testimony that he merely bumped
his head. The Plaintiff testified that the next day he could
not dress himself and he had severe headaches thereafter. The
Administrative Law
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