No. 01-98887 (2003). Foley v. Zip Express.

• Case Date: October 01, 2003
• Court: Kentucky

Kentucky Workers Compensation 2003. No. 01-98887 (2003). Foley v. Zip Express JUDY ANN FOLEY PETITIONER vs. ZIP EXPRESS and HON. DONNA H. TERRY, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: October 1, 2003CLAIM NO. 01-98887APPEAL FROM HON. DONNA H. TERRY, ADMINISTRATIVE LAW JUDGEAFFIRMING * * * * * * * * * * * *BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.LOVAN, Chairman. Judy Ann Foley ("Foley") appeals from the decision of Hon. Donna H. Terry, Administrative Law Judge ("ALJ"), finding Foley sustained a permanent partial disability as the result of a work-related motor vehicle accident while employed by Zip Express ("Zip"). On appeal, Foley argues she is totally disabled and the ALJ erred in granting Zip a credit for payments made in a settlement of her claim against the third party tort feasor and payments from Zip's underinsured carrier. Foley was employed by Zip as a delivery driver when she was injured in a motor vehicle accident on April 28, 2000. The vehicle she was driving was struck from behind by another motorist. Following the accident, Foley testified she did not experience any immediate pain but her back began to hurt while she was filling out forms. She first sought medical treatment approximately one week later with Dr. Urda. She was off work from May 15, 2000 through June 11, 2000 and then returned to work from June 12 through June 14. She was again taken off work June 15 through August 13 and worked August 14 through August 16. She has not worked since August 16, 2000 and has not sought employment since that time. She has applied for Social Security disability benefits. Foley indicated she was able to do housework and attempts home exercise. She walks 15 to 20 minutes a day. She continues to have constant low back pain but the leg pain was significantly improved by surgery. Foley, who is 54 years of age, has a high school education and six months of computer training at Dietrick Vocational School. Her past work history includes work as a delivery driver for Kentucky Fried Chicken and American Film Processing Company. She has worked as a factory assembler at Mother's Cookies and has performed housekeeping duties at the Holiday Inn. She also worked as a housekeeper at Senior Citizens East. When she began working for Zip, she performed a bank route, picking up and delivering boxes of documents weighing 15 to 20 pounds. In 1994, she was re-assigned to a longer distance route that occasionally required her to lift up to 70 pounds. Foley submitted records from Dr. John Guarnaschelli, who began treating her July 10, 2000. Dr. Guarnaschelli treated Foley conservatively, including physical therapy and steroid epidural blocks. He released her to return to work on August 9, 2000, noting she was much improved. On January 18, 2001, Foley again treated with Dr. Guarnaschelli. She advised him her symptoms had worsened to the point she would consider surgery. Surgery was performed a decompressive hemilaminectomy, partial facetectomy and microsurgical diskectomy at L5/S1 on January 25, 2001. Following surgery, Dr. Guarnaschelli again prescribed physical therapy. He noted Foley's neuroradicular leg pain had improved but she continued to complain of low back pain. A July 11, 2001 MRI showed no evidence of a recurrent disk herniation but did indicate some post-operative changes at L5/S1 on the left as well as moderate neuroforamenal stenosis at L5/S1 on the left. A letter from Dr. Guarnaschelli to Foley's personal injury attorney indicated a 10% impairment rating would be assessed but there was no mention of the AMA Guides or whether the rating was performed under those standards. Foley submitted the report of Dr. Dean Collis, who performed an independent medical examination on February 29, 2002. Dr. Collis indicated he was unaware of Foley's prior job duties and did not indicate whether she retained the physical capacity to return to the same job. He recommended restrictions against bending, squatting or lifting more than 20 pounds on an occasional basis. He assessed a 13% impairment rating under DRE lumbar category III. Dr. Collis completed an additional form indicating further recommendations, including the ability to take two to three short unscheduled breaks during a work day and restrictions against standing for more than two hours in an eight hour day. Foley submitted the report of Dr. Henry Garretson, a neurosurgeon, who performed an independent medical examination on December 4, 2001. Dr. Garretson diagnosed status-post left L5/S1 diskectomy, facet arthropathy and degenerative osteoarthritic changes in the lumbar spine, knees and ankles. Dr. Garretson also diagnosed obesity and hypertension by history. He indicated Foley had reached maximum medical improvement and assessed a 10% impairment under the DRE lumbar category III of the Fifth Edition of the AMA Guides. He stated Foley's long-term work restrictions would depend on her ability to lose a significant amount of weight and her response to appropriate anti-arthritis medication. He noted Foley had difficulty with her knees and ankles in addition to the work-related low back pain. Zip introduced medical records from Dr. Ellen Ballard covering treatment rendered prior to Foley's surgery. On November 2, 2000, Dr. Ballard noted Foley underwent a functional capacity evaluation which indicated she could return to work with a 40 pound lifting limit and with restrictions against repetitive bending or stooping and prolonged standing or sitting. On that date, Dr. Ballard concluded Foley had reached maximum medical improvement with a 5% permanent partial impairment rating. Zip introduced the report of Dr. Gregory Gleis, an orthopedic surgeon, who performed an independent medical examination on July 31, 2002 as well a review of medical records. He indicated Foley had reached maximum medical improvement on October 24, 2001 following...