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...