No. 00-73504 (2002). Jones v. Branstutter Concrete.

Case DateMarch 28, 2002
CourtKentucky
Kentucky Workers Compensation 2002. No. 00-73504 (2002). Jones v. Branstutter Concrete HEATH I. JONES PETITIONER vs. BRANSTUTTER CONCRETE and HON. RONALD W. MAY, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: March 28, 2002CLAIM NO. 00-73504 APPEAL FROM HON. RONALD W. MAY, ADMINISTRATIVE LAW JUDGE AFFIRMING IN PART, VACATING IN PART, AND REMANDING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.STANLEY, Member. Heath I. Jones ("Jones") appeals from an opinion and award rendered November 26, 2001, by Hon. Ronald W. May, Administrative Law Judge, granting Jones an award of permanent partial disability against the respondent, Branstutter Concrete ("Branstutter"), based upon a 17.5% disability rating. Jones also appeals from an order issued December 11, 2001, by the ALJ, overruling his petition for reconsideration. On appeal, Jones raises five issues. First, Jones argues the ALJ abused his discretion by rejecting the Range of Motion Model of impairment assessment under the AMA Guides, Fifth Edition, utilized by Dr. James Owen in favor of the DRE method calculated by the same physician. It is unrefuted in the record that Dr. Owen testified the Range of Motion Model under the Fifth Edition of the AMA Guides is preferred to the DRE Model where there is either multi-level involvement, prior surgeries, or recurrent injuries. The evidence establishes that Jones had both a recurrent disc herniation and prior surgeries involving the same area or region of his lumbar spine. Second, Jones argues the ALJ erred by failing to address whether he was rendered totally disabled as a result of his most recent injury while in the employ of Branstutter. Next, Jones argues that the ALJ erred by permitting Branstutter to amend its Form 111 to include as an issue causation/work-relatedness at the benefit review conference. Fourth, Jones contends he was prejudiced by the fact that the ALJ permitted Branstutter to submit additional medical records outside of its proof time without a proper motion for extension of time. Finally, petitioner alleges that the ALJ abused his discretion in allowing Branstutter to introduce into the record photographs taken of Jones by a private investigator without proper authentication pursuant to KRE 901. In response, Branstutter alleges that the ALJ's decision to reject the Range of Motion Model is supported by substantial evidence. Branstutter also makes the same argument regarding the ALJ's determination that Jones is not permanently and totally disabled. Finally, Branstutter asserts that the ALJ's decision to allow it to amend its Form 111 to include causation/work-relatedness as an issue at the hearing and to introduce the photographs in question are moot in that Jones received an award of benefits. Branstutter further points out that the photographs were properly allowed into evidence because Jones himself authenticated them. Jones was born on February 6, 1967 and is a resident of Covington, Kenton County, Kentucky. Although Jones quit school in the ninth grade, he ultimately received his GED. He also has two years vocational training in mechanics. Past relevant work experience includes employment as a tire changer and mechanic, maintenance worker at a restaurant, and laborer for a moving and storage company. Jones entered the employ of Branstutter in April 2000 as a laborer pouring and finishing concrete. On June 20, 2000, Jones suffered a work-related injury to his low back. On that occasion, the respondent was assisting his foreman, Tony Belew, to pour a driveway, sidewalk, and porch at a residential construction site. At the end of his shift, Jones and Belew transported a "bobcat" by trailer back to Branstutter's business location. After Belew drove the bobcat off the trailer, Jones began unhooking the trailer from the company truck. As he lifted the trailer off the trailer hitch, he experienced a sharp pain in his low back. The accident occurred on a Friday. Jones returned to work the following Monday, but continued to experience low back discomfort with pain and tingling radiating down his leg. On June 26, 2000, Jones noted a significant increase in low back pain with radiation into both legs while raking gravel on the job. His pain was allegedly so severe that he dropped the rake and screamed "some obscenities." He allegedly sought medical attention from Dr. Kevin E. Reilly at Wellington Orthopaedic and Sports Medicine the following day and was ultimately referred to Dr. Jesse Portugal for medical treatment. Of primary significance to this claim is the fact that Jones had previously injured his back as the result of an automobile accident in July 1987. The accident involved a head-on collision. As a result of the 1987 incident, Jones testified he underwent two separate low back surgeries involving the same "ruptured" disc at L5-S1. He received physical therapy and conservative management after that time, but stated he was not able to walk normal again until approximately October 1989. He remained off work from the date of the 1987 automobile accident until released by his treating physician at the end of October 1989. Thereafter, through June 2000, Jones stated he experienced occasional bouts of low back pain and stiffness. He eventually returned to work for a tire discount store in 1990 changing tires, fixing flats, performing brake work, flushing radiators, changing oil, and stocking tires. Some of the tires would weigh up to two hundred pounds. He stated he continued to work regularly thereafter, performing various manual labor activities for different employers until sustaining his injury while working for Branstutter in 2000. Since June 2000, Jones testified he has been physically unable to return to work. He has continued to receive conservative medical treatment from a variety of doctors since that time, including Dr. Portugal and Dr. John Kelly. Jones filed an Application for Resolution of Injury Claim with the Department of Workers' Claims on May 7, 2001. By order of the Commissioner issued May 25, 2001, Jones' claim for benefits was assigned to ALJ May for final adjudication. In addition to Jones' testimony by deposition and at hearing, medical evidence in the form of reports, records and/or depositions, was submitted from Dr. Portugal, Dr. Owen, Dr. Kelly, Dr. Richard Sheridan, Dr. John Larkin, and Wellington Orthopaedic and Sports medicine. Additionally, lay testimony, which is of limited significance to this appeal, was submitted by deposition from Tony Belew and Clifford Todd Hamilton. Afterward, Branstutter filed a Form 111, notice of claim denial or acceptance, before ALJ May on July 5, 2001. In that pleading, Branstutter admitted that Jones' injury was covered under the Workers' Compensation Act, occurred or became disabling on June 20, 2000, and that Jones gave due and timely notice of his injury. Based on that pleading, the claim was accepted as compensable, but Branstutter indicated there was a dispute concerning the amount of compensation owed to Jones. Branstutter also indicated that the claim was being denied based on allegations of a prior active disability. It was Branstutter's contention, in the Form 111, that the June 20, 2000 incident was merely a temporary exacerbation of Jones' prior active back problems. Subsequently, on August 20, 2001, Branstutter elected to take the deposition of Jones' supervisor, Tony Belew. He testified that Jones did not, to the best of his knowledge, lift the trailer off the trailer hitch on June 20, 2000 as alleged, nor did Jones at any time provide notice to Belew of the occurrence of any work-related injury regarding that...

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