Ormsco, Inc. v. Blackburn, 063017 KYWC, 201491750

Case DateJune 30, 2017
CourtKentucky
ORMSCO, INC. PETITIONER
v.
GARY BLACKBURN, DR. ERIN GREER/ KENTUCKY ONE HEALTH-PCA, and HON. JOHN B. COLEMAN, ADMINISTRATIVE LAW JUDGE RESPONDENTS
No. 201491750
Kentucky Workers Compensation
Commonwealth of Kentucky Workers’ Compensation Board
June 30, 2017
         APPEAL FROM HON. JOHN B. COLEMAN, ADMINISTRATIVE LAW JUDGE.           COUNSEL FOR PETITIONER: HON SCOTT M BROWN           COUNSEL FOR RESPONDENT: HON MCKINNLEY MORGAN           RESPONDENT: DR ERIN GREER KENTUCKY ONE HEALTH-PCA           BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.           OPINION           ALVEY, Chairman.          ORMSCO, Inc. (“ORMSCO”) appeals from the February 1, 2017 Opinion, Award and Order rendered by Hon. John B. Coleman, Administrative Law Judge (“ALJ”), awarding temporary total disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits, enhanced by the two-multiplier pursuant to KRS 342.730(1)(c)2, and medical benefits to Gary Blackburn (“Blackburn”) for a compression fracture injury to the L3 vertebra he sustained at work on March 7, 2014. ORMSCO also appeals from the March 1, 2017 order denying its petition for reconsideration.          On appeal, ORMSCO argues the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”) require an impairment rating to be assessed based upon a condition as it exists when an injured worker reaches maximum medical improvement (“MMI”), not upon signs or symptoms prior to that time. ORMSCO also argues the two independent medical evaluation reports submitted by Blackburn do not constitute substantial evidence supporting the impairment rating adopted by the ALJ. It is apparent the impairment rating adopted by the ALJ in this case is based upon Blackburn’s condition both prior to reaching MMI, and in fact prior to undergoing kyphoplasty surgery, and includes a rating for a condition which is not work-related. Therefore, the ALJ’s decision is vacated and remanded for a determination of impairment and commensurate PPD benefits based upon Blackburn’s condition once MMI was reached based solely upon the effects of the work-related injury, and in accordance with the evidence in the record.          Blackburn filed a Form 101 on November 16, 2015 alleging he sustained a back injury on March 7, 2014 as he was pulling on a trailer. At that time, he experienced a pop, and felt pain in his back.          Blackburn testified by deposition on January 15, 2016, and again at the hearing held December 7, 2016. Blackburn is a resident of East Bernstadt, Laurel County, Kentucky. He was born on April 8, 1964. He is a high school graduate with vocational training in small engine repair. He worked as a shift supervisor for a pie company from 1982 to 1996. From 1996 until 2009, he was self-employed performing construction work, welding, plumbing, dry walling, masonry and carpentry. In 2009, he was hired by ORMSCO to repair lawn mowers, chainsaws, small engines, weed eaters, and other equipment. ORMSCO is an equipment rental business. He testified the heaviest part of his job with ORMSCO involved loading and moving equipment, including riding mowers, floor grinders, and trowel machines. He earned $8.25 per hour prior to the date of the accident. When he last worked for ORMSCO, he earned $11.00 per hour.          On March 7, 2014, a trailer Blackburn was using to retrieve a lawn mower became stuck. As he manually attempted to free it, he injured his back. He testified he experienced a pop and pain in his back. He delivered the trailer to the ORMSCO lot, and then drove himself to the emergency room at St. Joseph Hospital in London, Kentucky. When he arrived at the emergency room, he complained of pain in the middle of the back above the belt line, along with tingling and numbness in his left leg and toes. Dr. Jean Page performed kyphoplasty surgery to repair the compression fracture at L3.          In addition to Dr. Page, Blackburn treated with Dr. Shelly Stanko, his primary care physician, and also underwent physical therapy. He was released to return to work with a back brace on June 24, 2014. He testified he wore the brace while working, and avoided lifting over twenty-five pounds. However, he continued to experience minor back pain for which he was prescribed Hydrocodone 7.5 mg, and Flexeril, which he still takes. He also had continued tingling in his left leg into the big toe. Blackburn no longer works for ORMSCO. At his deposition, Blackburn testified he could perform most of his job duties, although his condition was worsening.          Blackburn last worked for ORMSCO on July 15, 2016. He was terminated, and did not receive any unemployment benefits. He continues to have left leg and back pain. At the hearing, he testified he can hardly walk, and suffers from some mental difficulty due to problems associated with his back condition. He additionally testified he does not believe he is able to perform the duties required of his job at ORMSCO. He alleged he sustained a second injury on June 12, 2015 for which he treated at St. Joseph Primary Care on June 15, 2015.          In support of his claim, Blackburn filed records reflecting treatment at the St. Joseph Hospital from March 7, 2014 through March 9, 2014. He was diagnosed with an acute L3 compression fracture, back pain and hypertension. The records reflect Blackburn experienced a pop in his back with associated lower extremity numbness and tingling after attempting to lift a trailer from a truck. The surgical pathological report reflects he experienced a burst fracture at L3.          Blackburn also filed records of his treatment with Dr. Page from March 8, 2014 through September 18, 2014. In his March 8, 2014 record, Dr. Page noted Blackburn underwent reduction and internal fixation by kyphoplasty, and the fracture was reduced almost ninety percent. Prior to...

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