BRENDA DORNACHER PETITIONER
v.
COVINGTON PUBLIC SCHOOLS AND HON. STEPHANIE L. KINNEY, ADMINISTRATIVE LAW JUDGE RESPONDENTS
No. 201790399
Kentucky Workers Compensation
Commonwealth of Kentucky Workers’ Compensation Board
February 19, 2021
APPEAL
FROM HON. STEPHANIE L. KINNEY, ADMINISTRATIVE LAW JUDGE.
COUNSEL FOR PETITIONER: HON GREGORY N SCHABELL LMS
COUNSEL FOR RESPONDENT: HON SCOTT M GUENTHER LMS
RESPONDENT: HON DANIEL CAMERON KENTUCKY ATTORNEY GENERAL
BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.
OPINION
AFFIRMING
ALVEY,
Chairman.
Brenda
Dornacher (“Dornacher”) appeals from the November
12, 2020 Opinion, Award & Order rendered by Hon.
Stephanie L. Kinney, Administrative Law Judge
(“ALJ”). The ALJ found Dornacher sustained
compensable work-related right upper extremity injuries when
she tripped and fell while exiting a bus on March 9, 2017, in
the course of her employment with Covington Public Schools
(“Covington”). The ALJ awarded temporary total
disability (“TTD”) benefits, permanent partial
disability (“PPD”) benefits based upon a 25%
impairment rating, and medical benefits. The ALJ determined
KRS 342.730(4) effective July 14, 2018, limits
Dornacher’s award of income benefits. Dornacher also
appeals from the November 25, 2020 Order overruling her
Petition for Reconsideration.
On
appeal, Dornacher argues the application of the amended
version of KRS 342.730(4) is unconstitutional. She also
argues the ALJ failed to properly apply the correct analysis
in finding she is not permanently totally disabled. Finally,
Dornacher argues the evidence supports a finding that she
sustained a compensable work-related neck injury. Because we
find the ALJ appropriately analyzed the claim, substantial
evidence supports her determinations, and a contrary result
is not compelled, we affirm.
Dornacher
filed a Form 101 alleging injuries to her right shoulder,
brain, brachial plexus, neck (C4-C5/C5-C6), carpal tunnel
syndrome, and radiculopathy when she fell on March 9, 2017,
in the course of her employment with Covington. Dornacher
began working as bus driver for Covington on December 1,
2016. She previously drove buses for other school systems,
and worked in that capacity for approximately twenty-three
years. Dornacher’s Form 104 indicated she had also
previously worked as a processor/mail clerk for an
investments company, a medical records clerk, a postal clerk,
a receiving clerk, an assembler, and an airline reservation
clerk.
Dornacher
testified by deposition on April 29, 2019 and at the hearing
held September 14, 2020. Dornacher is a resident of
Independence, Kentucky. She was born on January 12, 1944, and
was 73 years old on the date of injury. Dornacher is a high
school graduate. She worked as an EMT in the late 1960s to
the early 1970s, for which she held a certification that has
long since expired. She also had a CDL when she was driving
buses, but that is no longer valid. She additionally worked
as a professional photographer at one time, for which she
received training from her husband. She no longer works as a
photographer.
Dornacher
began driving buses for Covington on December 1, 2016. She
missed a few weeks of work in early 2017 due to contracting
whooping cough after exposure to one of the students who rode
her bus. Dornacher drove bus routes in the morning, after
school, and had one stop during the mid-day. She earned
$16.50 per hour, and drove approximately twenty-five hours
per week. The accident occurred on March 9, 2017, around 2:30
p.m. Dornacher pulled over to allow an emergency vehicle to
pass. Another vehicle struck the bus after she pulled over.
When she stepped out of the bus to inspect the damage, she
tripped on broken concrete, causing her to fall forward onto
her head and right shoulder.
Dornacher
went directly to St. Elizabeth Business Health for treatment.
She completed an accident report the following day. She
returned to light duty work for Covington until she had her
first right shoulder surgery. She has not worked since, and
has not formally applied for work since then, although she
informally inquired about a bus driving position in Kenton
County. She testified she would like to return to work, but
she is no longer able to drive a bus due to difficulty with
steering. She also testified she is unable to perform any of
her other previous work. Dornacher testified she is no longer
able to cook, do housekeeping, bowl, play her guitar, or
engage in any of the previous activities she enjoyed.
Dornacher
underwent an arthroscopic right rotator cuff repair by Dr.
Bruce Holladay on April 17, 2017. She later underwent a right
shoulder arthroplasty by Dr. Michael Griewe on September 19,
2017. She subsequently underwent injections, and additional
surgery was recommended, which she declined. No additional
surgery is scheduled, although she testified she has constant
right shoulder pain. Dornacher additionally complains of
numbness from her forearm to her right wrist. She also
complains of neck problems and pain between her shoulder
blades. Dr. Howard Schertzinger has treated her neck. Dr.
James Baker has treated her right arm. She explained her neck
pain varies with activity. She has also experienced headaches
and dizziness since the accident. Dornacher underwent
previous bilateral carpal tunnel releases several years
before the work incident. She currently takes multiple
medications for unrelated conditions, including aspirin,
Levothyroxine (thyroid medicine), Torsamide (high blood
pressure), Buproprion (depression), Citalopram (depression),
and Pantoprazole. She only takes over-the-counter Tylenol and
Ibuprofen for the residuals of her work injuries. She
testified she would like to have additional treatment for her
neck and shoulder.
Dornacher
filed medical records from multiple providers in support of
the Form 101. The first record bears no date, nor does it
reflect the name of the physician. However, the initials HJS
are on the document. Therefore, it is presumed to be a note
from Dr. Schertzinger. That document indicates Dornacher was
diagnosed with a traumatic brain injury, cervical sprain,
right brachial plexus strain, C4/5 right foraminal stenosis,
C4/5 spondylotic protrusion, work-related injury on March 9,
2017, and a partial empty...
