No. 00-01447 and 98-62170 (2002). Tempur-Pedic, Inc. v. Hall.

Case DateMay 21, 2002
CourtKentucky
Kentucky Workers Compensation 2002. No. 00-01447 and 98-62170 (2002). Tempur-Pedic, Inc. v. Hall TEMPUR-PEDIC, INC. PETITIONER/(GREAT AMERICAN INSURANCE COMPANY) CROSS-RESPONDENT vs. EDGAR HALL; RESPONDENTS/TEMPUR-PEDIC, INC. CROSS-PETITIONERS (LEGION INSURANCE) AND HON. LLOYD R. EDENS, ADMINSITRATIVE LAW JUDGE RESPONDENTOPINION ENTERED: May 21, 2002CLAIM NO. 00-01447 and 98-62170APPEAL FROM HON. LLOYD R. EDENS, ADMINISTRATIVE LAW JUDGE AFFIRMING IN PART, REVERSING IN PART AND REMANDING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.STANLEY, Member. Tempur-Pedic, Inc. ("Tempur-Pedic") as insured by Great American Insurance Company, ("Great American") appeals and Tempur-Pedic, as insured by Legion Insurance ("Legion"), and Edgar Hall ("Hall) cross-appeal from an opinion and award rendered July 23, 2001 by Hon. Lloyd R. Edens, Administrative Law Judge ("ALJ"), granting Hall an award of total and permanent occupational disability benefits apportioned equally between Legion Insurance and Great American. Both Legion and Great American also appeal from an order issued October 2, 2001, denying their petitions for reconsideration. Hall sustained two work-related injuries while in the employ of Tempur-Pedic, both involving his low back. The first injury occurred in 1998 while Tempur-Pedic was insured by Great American (Claim No. 98-62170). As a result of his 1998 injury, Hall remained off work until February 23, 1999. He then returned to work but continued to have back pain that according to Hall gradually worsened. Prior to the filing of an Application for Resolution of Injury Claim, Hall and Great American entered into an agreement settling his 1998 cause of action. The negotiated settlement was approved by then Chief Arbitrator, J. Kevin King, on December 14, 1999. Under this agreement, Hall received a lump sum payment based upon a disability rating of 3.75%, enhanced by a multiplier of 1.5 pursuant to KRS 342.730(1)(b) and (c)1. Then on February 17, 2000, Hall experienced a second work injury involving his back. At the time of the February 2000 incident, Tempur-Pedic was insured by Legion (Claim No. 00-01447). On August 21, 2000, Hall moved to reopen Claim No. 98-62170, alleging an increase in occupational disability pursuant to KRS 342.125. By order issued September 21, 2000 by Chief ALJ Sheila Lowther, Hall's motion was granted to the extent his claim on reopening was ordered assigned to an Administrative Law Judge for further litigation. Thereafter, on December 7, 2000, Hall filed an Application for Resolution of Injury Claim with the Department of Workers' Claims, seeking benefits as a result of cumulative trauma and secondary psychological overlay. Ultimately, Claim Nos. 00-01447 and 98-62170 were consolidated and assigned to ALJ Edens for final adjudication. In addition to Hall's testimony by deposition and at final hearing, evidence submitted for the ALJ's consideration consisted of medical reports, records, and depositions from Dr. James R. Bean, Dr. William Lester, Dr. James Owen, Dr. Nicci Pittman, Lexington MRI Clinic, MRI Associates and Cardinal Hill Rehabilitation Hospital. Psychiatric or psychological evidence was submitted from Dr. Pittman, Dr. R. Kathleen Riggs and Dr. David Shraberg. Also submitted were lay depositions from Scott Shear, director of human resources for Tempur-Pedic; Karrol Pinney, facilities manager for Tempur-Pedic; and, Dr. Luca Conte, a vocational expert. The deposition of James Higdon, a private investigator, who testified regarding a surveillance videotape, was ordered stricken from the record by the ALJ based on evidentiary objections made by Hall. Nevertheless, Higdon's testimony remains part of the record by avowal. Portions of the depositions from Dr. Lester, Dr. Shraberg and Dr. Conte, all of whom were asked by Tempur-Pedic to view the surveillance material, were also ordered to be stricken. That testimony also remains in the record. Hall initially testified by deposition for purposes of his reopening of Claim No. 98-62170 on November 10, 2000, prior to the filing of Claim No. 00-01447. At that time, he professed to have an eighth grade education with no vocational or specialized job training. Hall indicated that his past relevant work experience includes employment as a farm laborer, apartment manager, electrician's helper, and car parts cleaner. He entered the employ of Tempur-Pedic as a manual laborer in its warehouse in 1997. In that job, he was responsible for packing mattresses and pillows, and stacking pallets. Hall testified he suffered a work-related injury to his low back while in Tempur-Pedic's employ on September 22, 1998. On that occasion, while stacking pallets, he experienced a sharp stabbing pain in his low back. He reported the injury immediately and left work early to allegedly seek medical treatment. However, he did not go to the doctor until four days later. Initially, Hall sought treatment from his family physician, Dr. Pittman. Apparently, Dr. Pittman conducted an MRI, which revealed bulging discs at L4-5 and L5-S1 and an annular tear with a small focal protrusion on the right side at L3-4. Thereafter, Dr. Pittman referred Hall to the Cardinal Hill Out-Patient Center for a work hardening program in which he participated from January 11, 1999 through February 19, 1999. Following his 1998 injury, Hall remained off work until February 23, 1999. Hall testified that upon returning to work for Tempur-Pedic following work hardening, although he worked full-time, his job duties were restricted. Hall was no longer required to lift mattresses or pallets. Rather, he was restricted to packing and lifting boxes of pillows weighing up to sixty pounds. In due course, because of increasing symptoms involving his back, Hall stated he was assigned to lighter duty wherein he was no longer permitted to lift more than two pillows at a time weighing a total of ten pounds. Hall testified that following his settlement on December 14, 1999 with Tempur-Pedic, his work activities did not change. Nevertheless, he testified that in 2000, his back condition became noticeably worse. He subsequently returned to Dr. Lester for medical treatment on February 29, 2000 and was referred to Dr. Bean, a neurosurgeon, in April 2000. Hall further stated that since February 2000, he has been treated for secondary psychological overlay. Hall testified at a final hearing before the ALJ on May 24, 2001. At that time, he stated he had been forced to leave his employment with Tempur-Pedic due to ongoing and increasing low back symptoms in the first week of May 2000. He has not worked anywhere since that time. Hall further confirmed that he continues to see and treat with a psychologist. Hall testified that at present, he suffers from severe pain that universally limits his general activities of daily living. Hall described his condition as follows: "I don't feel good at all. I hurt all the time, I'm up and down all the time, I can't sleep at night much, I sleep a lot of day, you know, when I can, I roam round, you know, that's about all I do." Hall testified that since leaving Tempur-Pedic's employ in May 2000, he feels he is no longer able to perform any kind of work on a regular or consistent basis. With regard to his mental and emotional condition, Hall stated that, at present, he uses Prozac and has considered suicide. Additionally, Hall testified that both his physical and emotional problems are worsening. He further testified that prior to 1998, he suffered no problems or injuries involving his low back. He further denied ever having experienced mental or emotional problems prior to that time. Scott Shear testified he was director of human resources for Tempur-Pedic. As part of his job responsibilities, he indicated he was in charge of monitoring and supervising workers' compensation claims filed against the company. Shear confirmed that in 1998, Hall worked in Tempur-Pedic's warehouse as a packer. Shear further confirmed that following Hall's return to work in 1999, he missed work "fairly regularly" due to low back complaints. Shear denied that Hall provided notice to Tempur-Pedic of any additional injuries occurring in either 1999 or 2000. However, Shear admitted he was provided with a medical excuse by Hall from Dr. Pittman dated February 17, 2000, indicating Hall was having a flare-up of his low back and needed to be off work. A similar excuse was provided by Hall to Shear dated February 24, 2000. Shear testified that based on these releases, he naturally assumed Hall had suffered an increase in his back problems. Nevertheless, he did not prepare a new injury report or discuss the "flare-up" with Hall. Rather, he assumed Hall's problems were the result of his prior 1998 injury. Karrol Pinney testified that since October 1999, she has been the facilities manager for Tempur-Pedic. Pinney confirmed that in February 2000, Hall complained to her of having sustained another lifting injury at Tempur-Pedic. In documents prepared on June 9, 2000, Pinney verified she listed Hall's second injury date as February 17, 2000. She further substantiated that Hall last worked for Tempur-Pedic on May 10, 2000. Pinney testified that Tempur-Pedic notified Legion, the company's new workers' compensation carrier, of Hall's February 17, 2000 injury shortly after it occurred. Pinney established that Tempur-Pedic was covered for purposes of workers' compensation by Great American at the time of...

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