Opinion
NO. 2017-CA-001545-WC
03-09-2018
KENTUCKY TRAILER APPELLANT v. KEMAL ZVIZDIC; HONORABLE JONATHAN WEATHERBY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Felicia A. Snyder Lexington, Kentucky BRIEF FOR APPELLEE, KEMAL ZVIZDIC: James D. Howes Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-14-70915 OPINION
AFFIRMING
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BEFORE: ACREE, CLAYTON, AND J. LAMBERT, JUDGES. LAMBERT, J., JUDGE: Kentucky Trailer has petitioned this Court for review of the opinion of the Workers' Compensation Board (the Board) reversing and remanding the 2017 opinion and order of the Administrative Law Judge (ALJ) for reconsideration of Kemal Zvizdic's claim for benefits. We affirm.
Zvizdic, who is currently sixty years old, moved from Bosnia to the United States in 1997, and he first worked at Kentucky Trailer from 2000 to 2006. After working elsewhere for several years, he returned to work at Kentucky Trailer in 2014. Zvizdic alleged that he injured his non-dominant left arm and wrist in the course and scope of his employment for Kentucky Trailer when he slipped and fell from a trailer on August 14, 2014. He began treatment with Dr. Huey Tien, who performed surgery to correct his fractured left wrist and later a left carpal tunnel release. Zvizdic provided notice on the day he was injured, and he filed an Application for Resolution of Injury Claim in October of that year seeking benefits. He was not working at the time he filed his claim. Kentucky Trailer accepted the claim as compensable but disputed the amount of compensation Zvizdic was owed.
In December 2014, Zvizdic moved the ALJ to place the claim in abeyance until he reached maximum medical improvement (MMI). Kentucky Trailer was providing voluntary medical and temporary total disability (TTD) benefits. The ALJ granted the motion in January 2015. In April 2015, Kentucky Trailer moved the ALJ to remove the claim for abeyance and set a proof schedule, which the ALJ granted.
We shall briefly summarize the medical proof in the record. The medical records of treating physician Dr. Tien establish, in part, that on May 20, 2015, Zvizdic was released from his care and to alternative duty pursuant to the permanent restrictions in the functional capacity evaluation (FCE). He had reached MMI at that time and had a permanent partial disability. Dr. Tien had recommended pain management, which he noted had been denied.
Zvizdic underwent an independent medical evaluation (IME) with Dr. Ronald Burgess in April 2015. Dr. Burgess stated that Zvizdic had reached MMI for his left wrist fracture and assessed a whole person permanent partial impairment rating of 5%. Dr. Burgess believed Zvizdic could return to his former employment without restrictions. An addendum to his original report related to Dr. Burgess' review of Zvizdic's FCE and surveillance notes and photographs showing Zvizdic using his left hand and pushing a lawnmower without evidence of discomfort. Dr. Burgess stated that Zvizdic could return to work without any restrictions and that no further management, including pain management, was required.
Dr. Jeffrey Fadel performed an IME on June 18, 2015. Based upon his evaluation, Dr. Fadel diagnosed Zvizdic with having a displaced distal radial fracture of the left upper extremity with perineural fibrosis of the medial nerve and type 1 complex regional pain syndrome (CRPS) of the left upper extremity, both caused by the April 2014 work injury. Dr. Fadel assigned a 29% whole person impairment due to the work accident and noted that Zvizdic had reached MMI since his discharge from Kleinert Kutz Hand Care Center on May 20, 2015. Dr. Fadel also assigned permanent work restrictions.
In an addendum dated June 29, 2015, Dr. Tien stated he had reviewed the surveillance report and video, and as a result agreed with Dr. Burgess that Zvizdic could return to his prior employment without restriction and had a 5% whole body impairment.
Kentucky Trailer filed the surveillance reports and video of Delta Associated Investigations showing Zvizdic using a lawn mower and holding a large ball under his left arm. Zvizdic objected to the filing of this material and moved to strike it, along with the reports of Dr. Burgess and Dr. Tien in which they relied on this information. Kentucky Trailer later provided the material to Zvizdic upon request, and he filed a subsequent report from Dr. Fadel after he reviewed the surveillance report. Dr. Fadel was not dissuaded from his original opinion.
Zvizdic moved the ALJ to schedule a benefit review conference (BRC), stating the claim was ripe to proceed. A telephonic BRC was held on September 29, 2015, where the parties entered into several stipulations. Contested issues were benefits pursuant to Kentucky Revised Statutes (KRS) 342.730, medical expenses, TTD, and whether Zvizdic retained the physical capacity to return to the type of work he performed at the time of the injury. A final hearing was held, and the ALJ indicated the evidence was comprised of Zvizdic's deposition; various medical records from Kleinert Kutz Hand Care Center, Orthopedaedic Associates of KY, Neuro-Diagnostic Center, and KORT; Dr. Fadel's IME report; Dr. Burgess's IME report; and records from Dr. Tien. During the hearing, Zvizdic testified about the surveillance video and report. He said he had been showing his son how to use the lawnmower but could not operate it with one arm. Zvizdic continued to claim that he could not do anything with his left arm.
The parties filed post-hearing briefs. Kentucky Trailer argued, in part, that Zvizdic was entitled to a 5% permanent partial impairment rating and was not entitled to any multipliers due to his ability to return to his pre-injury employment. In his brief, Zvizdic argued that he was entitled to a 29% permanent partial impairment rating with a 3x multiplier as well as all medical expenses he incurred. Zvizdic specifically argued that Dr. Burgess's rating was not based upon the AMA Guides, 5th edition, and could therefore not be considered substantial evidence of probative value upon which an award could be based. Whether Zvizdic had reached MMI was not raised as an issue by either party.
The ALJ entered an interlocutory opinion and award on December 23, 2015. After reviewing the submitted evidence, the ALJ concluded:
[T]he ALJ is persuaded by the testimony of Dr. Tien and Dr. Fadel that Plaintiff is in need of additional medical treatment in the form of pain management and specifically stellate ganglion blocks, and as such, Plaintiff is hereby awarded an Interlocutory Award of medical and TTD benefits.The ALJ went on to state:
Plaintiff is deserving of the opportunity to achieve as much recovery from his injury as possible such that his impairment can be minimized and his ability to return to gainful employment enhanced. Giving Plaintiff the opportunity to undergo additional treatment is especially important given Plaintiff's testimony that in his current condition he has substantial impairment and is unable to return to any type of work utilizing his left arm and hand. As such, the ALJ believes that Plaintiff may yet experience a reduction in his symptoms by the provision of the additional medical treatment and therefore he is deserving of the opportunity to undergo the additional treatment.The ALJ awarded medical and TTD benefits until he entered a further order once the awarded medical treatment related to CRPS was completed. The remaining contested issues were deferred, and the matter was placed into abeyance.
In addition, the ALJ further notes that Dr. Fadel indicated the stellate ganglion blocks can also be utilized to confirm or rule out the presence of CRPS and as such, the additional treatment will likely enhance the certainty of the diagnosis of Plaintiff's condition, and this is a further reason that Plaintiff should be allowed the opportunity to undergo the additional treatment.
While the ALJ considered the opinion of Dr. Burgess that Plaintiff does not suffer from CRPS, the ALJ considers such an opinion premature at this point given Plaintiff has yet to undergo the additional medical treatment awarded above, which, as noted, may confirm the presence of CRPS or allow it to be ruled out.
Zvizdic filed a petition for reconsideration, arguing that the ALJ's inference that he had not reached MMI was erroneous on its face because it was not based upon a medical opinion in the record. Zvizdic requested that the ALJ vacate the interlocutory opinion and award and render an opinion and award based on the proof in the record. He stated that the future medical care award would determine his treatment for CRPS.
On February 17, 2016, the ALJ entered an order denying Zvizdic's petition for reconsideration. He found the recommendations by Dr. Tien and Dr. Fadel for "additional treatment that might be substantially effective in ameliorating Plaintiff's symptoms were inconsistent with their opinions that Plaintiff had reached MMI." Based on these inconsistencies, the ALJ was more persuaded by the recommendations for additional treatment rather than their conclusions that Zvizdic had reached MMI.
The ALJ entered an order on February 19, 2016, following a telephonic BRC. He noted that Zvizdic had been scheduled to undergo injections pursuant to the interlocutory opinion and order and denied Kentucky Trailer's motion to delay the start of the payment of TTD benefits until the date of the order on Zvizdic's petition for reconsideration. The ALJ scheduled a telephonic BRC for March 18, 2016.
Following the February telephonic BRC, Kentucky Trailer filed a medical report from Dr. Dean Collis, who had examined Zvizdic the previous month. Dr. Collis decided to hold off on injective therapy based upon his examination and discussion with Zvizdic. Kentucky Trailer also filed an updated report from Dr. Tien, in which he stated that he did not recommend stellate ganglion blocks. He said that treatment did not work well in chronic situations and that Zvizdic would not get a significant benefit from that treatment. Finally, Kentucky Trailer filed an updated report from Dr. Burgess stating that his 5% impairment was based upon the AMA Guides, 5th edition.
On March 18, 2016, the ALJ scheduled another telephonic BRC for the following month. There is no other documentary record from the ALJ memorializing what happened during this conference.
In April 2016, Zvizdic objected to the filing of Dr. Burgess's updated report and moved to strike it, stating that it was only meant to rehabilitate his incompetent testimony. Zvizdic had argued in his brief that Dr. Burgess's rating was not based upon the AMA Guides, 5th edition, as required in Kentucky. Kentucky Trailer objected, stating that at the March 18, 2016, conference, the parties had agreed to extend proof time and continue TTD payments until the next BRC in April. Therefore, it filed the report within proof time. In reply, Zvizdic stated that he had not agreed to an extension of proof time that would permit Kentucky Trailer to rehabilitate Dr. Burgess's IME report.
At the April 26, 2016, telephonic BRC, the ALJ scheduled another conference for July and granted Kentucky Trailer's motion to terminate TTD payments as of that date. The ALJ would also set a KRS 342.215 examination of Zvizdic by further order. However, in June, the ALJ canceled the July BRC pending reassignment of the claim to another ALJ. By a later order, the original ALJ denied Zvizdic's motion to strike. A new ALJ was assigned in August.
In October 2016, Zvizdic moved the ALJ to strike the additional proof and for a final opinion. He stated that the original ALJ created an issue related to MMI, as MMI was not a contested issue, and improperly found that he had not reached MMI. Following the entry of the interlocutory opinion, no physician could offer any further treatment to Zvizdic, he asserts, because he was at MMI. Zvizdic had received no medical care and his physical condition had not changed. He went on to argue that Kentucky Trailer should not be permitted to update medical testimony solely to cure a defect in its evidence. Zvizdic requested that the ALJ strike all three medical reports filed by Kentucky Trailer after the entry of the interlocutory opinion and award and that the final opinion be based on the record that existed at the time the interlocutory version was entered. In response, Kentucky Trailer continued to argue that the parties had agreed to extend proof during the March BRC. It also pointed out that the original ALJ had already denied Zvizdic's previous motion to strike. Zvizdic then filed a verified notice to correct the record to provide that he never agreed to extend proof time but had always contested the ALJ's decision to place the claim in abeyance and order medical care. The ALJ denied the motion to strike by order entered November 3, 2016, and scheduled a telephonic status conference, after which the matter was submitted without another final hearing. Briefs were ordered.
In its brief, Kentucky Trailer addressed the issue of admissibility of the medical evidence filed after the interlocutory opinion and award was entered. It stated that "[s]ince the claim was placed in abeyance and there was not anything in the record advising parties that there was a limit on proof time, it was clear that the record was open for additional submission of evidence into the record by both parties." Therefore, Kentucky Trailer contended that the new medical records were admissible. In his brief, Zvizdic continued to argue that the claim should be decided on the basis of the evidence in the record when the interlocutory opinion and award was entered and that the medical reports filed after that should be stricken.
The ALJ entered a final opinion and award on March 6, 2017. The ALJ rejected Zvizdic's argument that the new evidence was inappropriately admitted, finding:
The ALJ notes the impassioned pleas of the Plaintiff regarding the additional time and evidence ultimately allowed by the prior ALJ. The ALJ finds that the decision to place this claim into abeyance and the resulting need to allow additional proof was made in good faith as an effort to explore any available option to assist the Plaintiff in pain management. The additional evidence that came in as a result thereof will hereby be considered and ultimately in part relied upon.The ALJ was persuaded by the opinions of Dr. Burgess and Tien made after their interpretations of the surveillance footage, including footage of Zvizdic mowing the lawn, which the ALJ believed contradicted Zvizdic's testimony as to the extent of his abilities. Therefore, the ALJ found that Zvizdic had a 5% whole person impairment and retained the ability to perform the same type of work. The ALJ, again relying upon the opinions of Dr. Tien and Dr. Burgess, did not find that any additional medical treatment was warranted. The ALJ ultimately awarded Zvizdic $12.93 per week in permanent partial disability benefits.
Zvizdic filed a petition for reconsideration, seeking clarification of several rulings and stating that the ALJ failed to provide a legal basis for his ruling that a good faith basis supported the prior ALJ's decision to place the claim in abeyance. Zvizdic also asked the ALJ to identify any medical records supporting the finding that he had not reached MMI when the interlocutory opinion and award was entered. Kentucky Trailer objected to the petition, which the ALJ denied on April 18, 2017.
Zvizdic appealed the ALJ's decision to the Board. In his brief, Zvizdic asserted that the original ALJ erred in entering the interlocutory opinion and award because he invaded the province of the physicians and made medical decisions without any authority to do so, that the new ALJ erred in ruling that this was proper, and that the ALJ's opinion and award was not supported by substantial evidence. Kentucky Trailer, in its brief, argued that the original ALJ had the authority and discretion to place Zvizdic's claim in abeyance and enter the interlocutory opinion and award based upon the medical opinions of Dr. Tien and Dr. Fadel that Zvizdic needed additional medical treatment. Kentucky Trailer went on to argue that the additional medical records were entered while the appeal was in abeyance without any proof time limits having been established and that the opinion and award was based on substantial evidence of record.
The Board entered an opinion reversing and remanding on September 1, 2017. It held:
We conclude it was outside Judge Polites' [the original ALJ] authority to reject the uncontroverted medical evidence indicating Zvizdic was at MMI as of the December 21, 2015 Interlocutory Opinion. It is apparent Judge Polites was attempting to procure further treatment for Zvizdic, and sympathized with his
difficulty in obtaining stellate ganglion blocks during the period when they would have been effective. However, the proof does not support Judge Polites' assertion that additional treatment could result in a reduction in Zvizdic's impairment and disability. Dr. Fadel suspected Zvizdic suffered from CRPS, and recommended further treatment to "confirm the diagnosis." Nonetheless, he still placed Zvizdic at MMI. Furthermore, he never indicated that a reduction in symptoms would reduce impairment or disability. Likewise, Dr. Tien, who recommended the stellate ganglion blocks in March, nonetheless placed Zvizdic at MMI by May 2015. Thus, there is no substantial basis to reject the medical opinions stating Zvizdic was at MMI at the time of the Interlocutory Opinion. As such, we conclude it was improper for Judge Polites to place the claim in abeyance for further treatment.The Board went on to discuss the proper remedy for the ALJ's error:
At first blush, it seems Zvizdic was not substantially prejudiced by this error. His claim for permanent benefits was ultimately adjudicated by Judge Weatherby [the second ALJ] despite the delay resulting from Judge Polites' order. However, we cannot ignore the fact [that] Kentucky Trailer gained an advantage from the Interlocutory Order. Because the issue of permanent disability remained open, Kentucky Trailer enjoyed the opportunity to resuscitate Dr. Burgess' opinion by virtue of the Interlocutory Order.
Neither Chapter 342 nor its corresponding regulations permit an appeal from an interlocutory order. Under the circumstances of this case, if we determine Judge Polites' error is harmless, Zvizdic is essentially left without a remedy. The uncontroverted medical proof indicated Zvizdic was at MMI no later than June 18, 2015. Judge Polites erred in placing the claim in abeyance and extending the period of TTD benefits, a circumstance which permitted the submission of
additional evidence. As such, this claim must be remanded. On remand, Judge Weatherby is directed to exclude any proof submitted after the date of the Interlocutory Order and to reconsider the claim.The Board Chairman dissented by separate opinion, believing that Judge Polites acted appropriately within his discretion in entering the interlocutory opinion and in permitting the introduction of additional evidence into the record. This petition for review now follows.
Our standard of review in workers' compensation appeals is well-settled in the Commonwealth. "The function of further review of the [Board] in the Court of Appeals is to correct the Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
We shall first consider whether the ALJ had the authority to enter the interlocutory opinion and order. This necessarily addresses the issue of whether Zvizdic had reached MMI because in entering the interlocutory opinion and order, the ALJ implicitly found that Zvizdic had not reached that level of improvement. "The date that an injured worker reaches MMI and the assessment of a permanent impairment rating under the American Medical Association's Guides to the Evaluation of Permanent Impairment (Guides) are medical questions to be answered by the medical experts." Kroger v. Ligon, 338 S.W.3d 269, 274 (Ky. 2011) (citing Ky. River Enterprises, Inc. v. Elkins, 107 S.W.3d 206, 210 (Ky. 2003)). The medical experts whose evidence the ALJ reviewed all opined that Zvizdic had reached MMI, despite recommending injection therapy or further treatment to address Zvizdic's possible CRPS diagnosis. Furthermore, the issue of whether Zvizdic had reached MMI was not a disputed issue between the parties. Therefore, we agree with the Board that the ALJ exceeded his authority and erred as a matter of law when he sua sponte placed the appeal in abeyance and ordered additional medical treatment.
We shall next consider whether the evidence filed after the entry of the interlocutory opinion and order was properly admitted. In this particular situation, we hold that it was not.
There is no question that the ALJ has the authority and discretion to control what evidence may be admitted in a workers' compensation action, not the Board. See Western Baptist Hosp., 827 S.W.2d at 687 ("The ALJs were created and empowered to function the same as a trial court trying a case without a jury. The [Board] was divested of the fact-finding function and restructured to carry out the same functions as an intermediate court reviewing the decisions of a court of original jurisdiction, to perform the error correcting function normally assigned to the Kentucky Court of Appeals, lacking only the power of constitutional review."). But in this case, we have already held above that the ALJ did not have the authority to enter the interlocutory opinion and award, the entry of which led to the submission of the additional medical records by Kentucky Trailer. Kentucky Trailer would not have had the opportunity to file the new records had the ALJ properly considered the original evidence and entered a final opinion and award based on that evidence. Therefore, this is not a situation where the Board is attempting to control the introduction of evidence; rather, it was fashioning an appropriate remedy to counter the ALJ's error once the matter is remanded.
Finally, we reject Kentucky Trailer's argument that Zvizdic would not have been left without a remedy in the event the Board had deemed the ALJ's error to be harmless. The apparent reopening of proof time permitted Kentucky Trailer to rehabilitate the evidence it submitted from Dr. Burgess to address an issue with it that had been raised in Zvizdic's initial brief before the ALJ. Kentucky Trailer also argues that Zvizdic chose not to introduce any additional evidence in support of his claim following the entry of the interlocutory opinion and award. However, the record clearly establishes that Zvizdic objected to and sought to overturn the ALJ's interlocutory opinion and award.
Accordingly, we hold that the Board did not commit any error in reversing the ALJ's opinion and award, remanding the matter to the ALJ for reconsideration, and limiting the evidence to that which had been filed prior to the entry of the interlocutory opinion and order.
For the foregoing reasons, the opinion of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Felicia A. Snyder
Lexington, Kentucky BRIEF FOR APPELLEE, KEMAL
ZVIZDIC: James D. Howes
Louisville, Kentucky