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.
...