No. 00-01447 and 98-62170 (2002). Tempur-Pedic, Inc. v. Hall.
Case Date | May 21, 2002 |
Court | Kentucky |
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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