CASSENS TRANSPORT CO. PETITIONER
v.
TIMOTHY MARIANO; and HON. CHRISTINA D. HAJJAR, ADMINISTRATIVE LAW JUDGE RESPONDENTS
No. 201586551
Kentucky Workers Compensation
Commonwealth of Kentucky Workers’ Compensation Board
June 14, 2019
APPEAL
FROM HON. CHRISTINA D. HAJJAR, ADMINISTRATIVE LAW JUDGE
COUNSEL FOR PETITIONER: HON WALTER E HARDING
COUNSEL FOR RESPONDENT: HON JOY L BUCHENBERGER
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
OPINION
ALVEY,
CHAIRMAN.
Cassens
Transport Company (“Cassens”) appeals from the
January 15, 2019 Opinion and Order rendered by Hon. Christina
D. Hajjar, Administrative Law Judge (“ALJ”),
granting Timothy Mariano’s (“Mariano”)
motion to reopen and awarding him additional temporary total
disability (“TTD”) stemming from a March 20, 2015
work injury. Cassens also appeals the February 5, 2019 Order
denying its petition for reconsideration. On appeal, Cassens
argues the ALJ’s determination is unsupported by
substantial evidence. We disagree and affirm.
Mariano
filed a Form 101 on May 25, 2017. He alleged he sustained a
cumulative trauma injury to his low back due to heavy
repetitive work, manifesting on March 20, 2015. At all
relevant times, Mariano worked as a truck driver hauling cars
for Cassens. Mariano filed a first report of injury and
records from Dr. Jung Kim in support of his claim. The first
report of injury, prepared by Kevin Nelson, notes Mariano was
standing in snow as he reached up to unlock a safety pin from
a trailer on March 20, 2015. Mariano reported he sank in the
snow, injuring his back and also had symptoms in his left
hip, leg, foot and shoulder. Mr. Nelson also completed an
investigative report reflecting the same date and mechanism
of injury.
Subsequent
to a hearing held February 28, 2018, the parties entered into
a settlement agreement approved by the ALJ on April 19, 2018.
The agreement reflects March 20, 2015 as the injury date. It
notes that although Mariano alleged a cumulative trauma
injury in the Form 101, he testified he suffered a specific,
acute trauma to his low back on March 20, 2015. The agreement
reflects Cassens paid TTD benefits from March 25, 2015 to
July 12, 2015, and medical expenses in 2015, but not in 2017.
The parties settled for a lump sum for permanent partial
disability benefits based upon a compromised impairment
rating and additional TTD benefits for periods Mariano was
off work in 2017. Mariano retained his right to reopen and
entitlement to past/future medical benefits.
Nearly
two months later on June 14, 2018, Mariano filed a motion to
reopen for additional TTD benefits, which was sustained by
the ALJ on July 25, 2018. A benefit review conference was
held on October 16, 2018. The parties identified the
contested issues as entitlement to additional TTD benefits
from June 14, 2018 to August 7, 2018, and whether Mariano
sustained a new injury barred by the settlement agreement.
Mariano
testified by deposition on July 26, 2017, and at hearings
held February 28, 2018 and December 12, 2018. Mariano resides
in Youngstown, Ohio. Mariano has worked as a car hauler for
Cassens since March 2011. He typically drives a dedicated
route, picking up vehicles at Ford in Louisville, Kentucky
and hauling them to various dealerships in New York. Mariano
is responsible for loading and unloading the cars from the
trailer. Mariano is paid by the mile and drives an average of
two thousand miles per week.
Mariano
testified he was standing in a pile of snow approximately
three feet high on the side of the road in New York on March
20, 2015. As he was pulling a pin from the trailer, the snow
gave way causing him to fall and injure his low back. His
pain was located in his left low back and hip, and radiated
down his left leg. He reported the incident to his
supervisor. Mariano completed his delivery and drove back to
Youngstown, Ohio. He then sought treatment with a company
physician at Mercy Health Occupation Medicine (“Mercy
Health”) who recommended physical therapy. Mariano was
off work for approximately four months, and then returned to
his regular job at Cassens with no restrictions in June 2015.
Cassens voluntarily paid his medical expenses and TTD
benefits in 2015. Mariano continued to work his regular job
and sought no additional treatment until March 2017.
In
March 2017, Mariano experienced gradual pain down his left
side. He testified it was “the same pain I had from the
original injury” and agreed the pain was located in the
same general area as before in March 2015. Mariano reported
his symptoms to his supervisor and returned to a different
company physician at Mercy Health. Dr. Kim recommended
physical therapy, which Mariano did not undergo since all
treatment in 2017 was denied by the workers’
compensation insurance carrier. Mariano was off work from
March 1, 2017 to June 15, 2017...
