No. 00-57272 (2002). Shouse v. Hill.

• Case Date: July 24, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 00-57272 (2002). Shouse v. Hill MARILYN SUE SHOUSE PETITIONER vs. FEDERAL HILL AND HON. ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: July 24, 2002 CLAIM NO. 00-57272APPEAL FROM HON. ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE AFFIRMING IN PART, REVERSING IN PART, AND REMANDING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.STANLEY, Member. Marilyn Sue Shouse ("Shouse") appeals from a decision rendered February 6, 2002, by Hon. Roger D. Riggs, Administrative Law Judge ("ALJ"), dismissing her claim for workers' compensation benefits against the respondent, Federal Hill ("Federal"). In that opinion, the ALJ determined that Shouse's injury was, at worse, a temporary exacerbation of a prior noncompensable condition producing no permanent disability. Shouse also appeals from an order issued March 12, 2002, denying her petition for reconsideration. On appeal, Shouse charges the ALJ's ruling that she was suffering from a pre-existing active disability attributable to an injury with an earlier employer is unsupported by the medical evidence of record. Although Shouse concedes she had prior medical problems, she argues the evidence compels a finding that her work injury at Federal has produced additional worsening of that condition which is permanent and therefore compensable. At the very least, Shouse argues an award of temporary total disability ("TTD") benefits already paid and continuing medical care is warranted. After thoroughly reviewing the evidence of record and the applicable law, we agree with Shouse that she is entitled to a finding with regard to her entitlement to TTD benefits and payment for temporary medical care during her period of exacerbation. For that reason, we reverse and remand Shouse's claim to the ALJ for additional consideration of those issues. As to Shouse's remaining argument, however, we affirm. The facts of this case are relatively undisputed. Shouse was born on September 30, 1955, and is a resident of Bardstown, Kentucky. She has a ninth grade education and has been certified as a nurse's assistant since 1986. Shouse's past relevant work experience consists of employment as a nurse's assistant at various nursing homes since 1987. She first worked for Federal from 1987 to 1996. She then entered the employ of Colonial Nursing Home ("Colonial") where she remained until early 2000. Shouse subsequently returned to work as a nurse's assistant with Federal in April 2000. Shouse sustained the work-related injury that is the subject of this claim on December 25, 2000. On that occasion, while lifting a patient from a bed for transfer to the bathroom, she experienced a pulling sensation and immediate pain in her low back radiating into both lower extremities. After reporting the accident to her supervisor, Shouse completed the remainder of her shift. The next morning, Shouse's employer instructed her to seek medical treatment. She went to Flaget Health Care, Inc. ("Flaget") where she was seen by an emergency room physician and taken off work. Shouse has not worked anywhere since December 26, 2000. Medical records reflect that she was prescribed pain medication and muscle relaxers and sent to Bardstown Physical Therapy for treatment in January 2001. In February 2001 she was referred to Dr. Dale Horne, a neurosurgeon. Shouse testified that initially, Dr. Horne did not perform any diagnostic studies or prescribe medications. Instead, he elected to follow a course of conservative medical management and recommended light duty work. No light duty was apparently available at Federal, however. X-rays were performed of Shouse's lumbar spine at Flaget on February 14, 2001 which revealed mild multilevel osteophyte formation and minimal narrowing of the "L5/S1 disk." When Shouse failed to improve symptomatically, a lumbar myelogram was performed on March 26, 2001 pursuant to Dr. Horne's recommendations. The myelogram revealed a broad-based disc protrusion at L5-S1 which the radiologist noted showed some very slight posterior deviation of the S1 nerve roots, greater on the right than on the left. Nevertheless, Dr. Horne felt that Shouse's subjective complaints exceeded her objective medical findings and indicated that some form of psychogenic overlay was involved. Consequently, he recommended against surgery and suggested that all means of conservative treatment be exhausted. In May 2001, Dr. Horne referred Shouse to Dr. Ellen M. Ballard for a determination as to the petitioner's suitability for entry into a pain management program. Dr. Ballard, following an evaluation, recommended against pain management and further medical treatment. She felt that Shouse should be returned to full duty. In response to Dr. Ballard's findings, on June 13, 2001 Dr. Horne released Shouse to return to work without restrictions. Nevertheless, Shouse has not returned to work anywhere since her December 25, 2000 accident. At present, she believes she cannot engage in her normal and customary job activities as a nurse's assistant due to ongoing problems with her low back. Central to this appeal is the fact that Shouse suffered a prior work-related injury to her neck and low back while working for Colonial, either on November 12, 1999 or December 25, 1999. On that occasion, while attempting to transfer a patient to a wheelchair, the patient fell on Shouse. She immediately experienced the onset of neck pain radiating into her upper...