Ruan Transportation v. Grier, 020521 KYWC, 201867710

Case DateFebruary 05, 2021
CourtKentucky
RUAN TRANSPORTATION PETITIONER
v.
DAVID GRIER AND HON. STEPHANIE L. KINNEY, ADMINISTRATIVE LAW JUDGE RESPONDENTS
No. 201867710
Kentucky Workers Compensation
Commonwealth of Kentucky Workers’ Compensation Board
February 5, 2021
         APPEAL FROM HON. STEPHANIE L. KINNEY, ADMINISTRATIVE LAW JUDGE.           COUNSEL FOR PETITIONER: LMS HON WALTER E HARDING           COUNSEL FOR RESPONDENT: LMS HON PAUL A BRIZENDINE           BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.          OPINION AFFIRMING           ALVEY, Chairman.          Ruan Transportation (“Ruan”) appeals from the October 9, 2020 Opinion, Award and Order and the November 6, 2020 Order on Petition for Reconsideration rendered by Hon. Stephanie L. Kinney, Administrative Law Judge (“ALJ”). The ALJ determined David Grier (“Grier”) sustained a work-related right shoulder injury on July 31, 2018, for which she awarded temporary total disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits increased by the three-multiplier pursuant to KRS 342.730(1)(c)1, and medical benefits. On appeal, Ruan argues substantial evidence does not support the ALJ’s determinations regarding causation and the application of the three-multiplier. We disagree and affirm.          Grier filed a Form 101 alleging he injured his right shoulder on July 31, 2018 while securing a load on his trailer. The Form 104 indicates Grier began working for Ruan as a truck driver in July 2018. In the “Notice of Filing of Application” issued on March 17, 2020, Ruan was notified it was required to file a Form 111 within forty-five days. Ruan did not file the Form 111 denying the claim until June 10, 2020. Grier filed a motion to deem all allegations contained in the Form 101 admitted by Ruan due to its tardy Form 111. Ruan did not respond to this motion.          Ruan submitted a job description for a “truck driver-driver-assist unload.” The job description indicates Grier was required to push/pull up to 125 pounds, lift up to 55 pounds, climb, crouch, bend, kneel, and reach overhead.          Grier testified by deposition on June 16, 2020 and at the hearing held August 17, 2020. Grier testified he has worked as a truck driver for twenty years. He previously sustained two separate work-related low back injuries. Grier asserted the 2013 accident referenced in Dr. Alan Roth’s report did not result in a right shoulder injury or treatment. He was also involved in a motor vehicle accident (“MVA”) in 2017, resulting in no right shoulder injury. Grier regularly takes medication for asthma and allergies.          Grier testified he had never sustained any injuries to either upper extremity prior to July 31, 2018. Likewise, Grier did not experience right shoulder symptoms nor did he seek medical treatment for his right shoulder prior to his July 31, 2018 accident. Grier also stated he had no restrictions of his work activities prior to July 31, 2018. Grier testified no physician had ever informed him he had vascular necrosis in either or both of his shoulders prior to July 31, 2018.          Grier began working for Ruan a couple of months prior to the work incident as a flatbed truck driver hauling steel coils and materials fabricated out of steel. Grier was required to secure loads with chains, binders, straps, and sometimes tarps depending on what he was hauling. He hauled loads to various customers, and unsecured the materials for unloading. Grier estimated the tarps weighed 80 to 100 pounds and the chains weighed 25 to 50 pounds depending on their length. In securing and unsecuring loads, Grier was required to climb on and off the flatbed. Grier testified he typically secured and unsecured loads ten to twelve times per day.          On July 31, 2018, Grier was preparing to secure a load with chains and binders. He attempted to retrieve a chain out of a side box. The lid on the box was stuck, requiring him to pull with both hands to free the chain. When he did, he experienced a pop and immediate pain in his right shoulder. Grier estimated the chain he was pulling weighed 30 to 40 pounds. Grier completed his normal work activities and notified Ruan of the work incident. Grier continued to perform his normal job duties, but experienced worsening right shoulder pain. Grier again experienced right shoulder pain several weeks later while cranking on dolly legs and pulling on the fifth wheel pin. Grier initially sought treatment at an immediate care center before seeing Dr. Ryan Krupp for his right shoulder.          Dr. Krupp ultimately performed a total right shoulder replacement on January 14, 2019, and then ordered a course of post-operative physical therapy. Grier was unable to use his right upper extremity afterward for six to eight months, and was unable to return to his job with Ruan. Grier indicated the surgery improved his right shoulder symptoms. While Grier was recuperating from the January 2019 surgery, he began experiencing problems with his left shoulder, which he attributed to overuse compensating for his right shoulder problem. Dr. Krupp eventually performed a total left shoulder replacement, which Grier does not allege to be work-related. Dr. Krupp diagnosed avascular necrosis to both shoulders.          Dr. Krupp released him to return to work on February 17, 2020, with permanent restrictions of no lifting over 30 pounds and limited overhead reaching to no more than two hours per day. Grier continues to have right shoulder pain, which he treats with a topical cream prescribed by Dr. Krupp. He has difficulty lifting heavy objects and reaching up with his right upper extremity. Grier testified he is unable to return to his job with Ruan as a flatbed truck driver because of his limitations and permanent restrictions. Grier now works for Ballard Trucking driving a dry van that is less physically demanding since he is not required to load, unload, or secure loads. Grier works Monday through Friday, earning $200.00 per day, $1,000.00 per week. He testified he currently earns less than he did at Ruan.          Grier filed the August 23, 2018 Norton Occupational Medicine treatment note. Grier presented with right shoulder pain of three weeks duration, and he related the July 31, 2018 incident. A right shoulder X-ray demonstrated a “subcondylar fracture of the right humeral head may represent avascular necrosis following prior trauma.”          Dr. Krupp began treating Grier’s right shoulder on August 29, 2018. Dr. Krupp noted the initial July 31, 2018 work incident and the second work incident occurring on August 21, 2018. Dr. Krupp ordered an MRI and restricted Grier from work. The September 20, 2018 right shoulder MRI demonstrated severe chronic osteonecrosis causing cortical flattening and irregularity along the articular surface and a cortical step-off along the superolateral femoral head; rotator cuff tendinosis; moderate AC arthrosis; GH joint effusion with synovitis; and patch bone edema in the inferomedial humeral head.          On October 1, 2018, after reviewing the MRI and performing an examination, Dr. Krupp diagnosed Grier with right shoulder severe avascular necrosis of the proximal head with fragmentation and cortical step-off. Dr. Krupp ultimately recommended a right shoulder total arthroplasty and assigned restrictions. Dr. Krupp stated as follows regarding causation:
We discussed at length that it is unlikely his acute injury caused the avascular necrosis but based on his history it did cause his symptoms to become a symptomatic reality and exacerbate his underlying condition including possibly worsening the overall condition of the shoulder.
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