Opinion
NO. 2017-CA-001407-WC
01-26-2018
ROBERT LENHARDT APPELLANT v. L TECH ENTERPRISES, INC., MAGDY M. EL-KALLINY, M.D., HON. CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE, and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: McKinnley Morgan London, Kentucky BRIEF FOR APPELLEE: L TECH ENTERPRISES, INC. Scott M. Brown Lexington, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-14-68574 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; COMBS AND THOMPSON, JUDGES. COMBS, JUDGE: Appellant, Robert Lenhardt (Lenhardt), seeks review of an Opinion of the Workers' Compensation Board (Board) vacating and remanding the opinion of an Administrative Law Judge (ALJ). For the reasons set forth below, we affirm.
Lenhardt began working for L Tech as a machine operator on July 14, 2013. According to his testimony by deposition and at a hearing, Lenhardt sustained an injury on September 8, 2014, when he was pushing a pallet jack to move a 55-gallon drum of shot weighing 3,200-3,600 pounds. He felt a snap or a pop in his lower back. He initially saw Violet Trueblood (APRN) for treatment and then Dr. Delair. Lenhardt explained that at first, "[t]hey thought it was a hernia and he treated me for, good Lord, probably two months." Lenhardt got a second opinion from Dr. Shelton. "They didn't know whether it was my back or a hernia." Lenhardt also saw Dr. Ritchey for another opinion and ultimately Dr. El-Naggar, who performed back surgery. As stipulated, L Tech voluntarily paid temporary total disability (TTD) benefits from September 11, 2014, through June 21, 2016.
On July 22, 2016, Lenhardt filed an Application for Resolution of Injury Claim (Form 101). L Tech contested the claim on grounds of work-relatedness/causation and preserved the issue of whether there should be an exclusion for pre-existing disability/impairment. Lenhardt had had some back and/or groin problems in the past. In 2001, he pulled muscle in his back at work and missed three or four days of work. In 2005, he had pain in his groin area. "They thought it was a hernia." In June 2014, Lenhardt had what he described as a pulled muscle in his mid-back "because we done a lot of lifting." Lenhardt submitted a request to L Tech be off work from June 16-23, 2014, stating "Back was hurt and have hernia." He testified that he missed work for back and groin pain.
Despite having symptoms and missing work in June, Lenhardt explained that he "didn't feel a pop until September 8th [2014] and ... [has] been permanently down since." After he took off work a couple of weeks in June 2014, Lenhardt returned to his regular job at L Tech and full duty, no restrictions. After the September 2014 incident, Lenhardt "couldn't even ... bend over to put [his] socks on."
By Opinion, Award and Order rendered February 23, 2017, the ALJ found as follows:
Lenhardt testified he experienced low back and groin pain in 2001. He missed work for a period of time. The pain resolved and he was able to return to work. Lenhardt treated in 2005 for a possible hernia but did not have surgery. He returned to work following the incident. He was examined at an immediate care facility on June 5, 2014 for pain in his back. Lenhardt does not remember telling the medical provider he was lifting wood when his back started hurting. He was prescribed medication and taken off work. Lenhardt completed a leave form asking to be excused from work from June 16, 2014 through June 23, 2014 due to back and hernia issues with hernia surgery in the future. Lenhardt return[ed] to work without restrictions.
The ALJ also made detailed findings regarding the medical evidence, which we summarize in the following paragraphs:
On June 5, 2014, Lenhardt went to Urgent Medical Care after loading wood. Toradol was prescribed for a lumbosacral strain/sprain.
On September 12, 2014, Lenhardt saw Violet Trueblood, APRN, for pain in the groin around to the back. He reported a 2005 work injury and reinjuring himself at work on September 10, 2014. He also reported a right testicle mass. The right scrotum was tender with swelling. Trueblood referred Lenhardt to a urologist.
On September 17, 2014, Lenhardt saw Dr. Delair and related right testicular pain and swelling after pushing something heavy at work. His exam revealed that Lenhardt had tenderness, right epididymis. Dr. Delair ordered a scrotal ultrasound, which showed no evidence of epididymitis; a CT scan showed a small intrarenal stone. Lenhard was referred to a general surgeon.
On April 16, 2015, Lenhardt saw Dr. El-Naggar. A May 14, 2015, lumbar MRI revealed a large extruded disc at L4-5. On May 25, 2015, Dr. El-Naggar performed an L4-5 hemilaminectomy and discectomy. As of February 19, 2016, Lenhardt had low back pain radiating down both legs with numbness. Dr. El-Naggar opined that lumbar fusion was the only surgical option. Instead, Lenhardt requested physical therapy, which helped his flexibility but hurt his back.
On February 29, 2016, Dr. Travis performed an Independent Medical Exam (IME). He diagnosed an L4-5 disc herniation appearing to occur on September 8, 2014. Dr. Travis could not find an etiological factor for Lenhardt's ongoing complaints. He recommended additional diagnostic studies. Assuming that if they were negative, Dr. Travis would assign a 10% impairment rating. In his December 23, 2016, deposition testimony, Dr. Travis testified that an L4-5 disc herniation can result in scrotum pain; that Lenhardt had a symptomatic low back or radicular condition before the September 8, 2014, injury date; and that the impairment rating which he assigned had been present before the subject injury date.
Dr. Mortara performed a utilization review of a request for approval of an August 2, 2016, lumbar MRI, which he denied. Dr. Mortara recommended an EMG/nerve conduction study instead.
Dr. Autry performed an IME on August 10, 2016. He reviewed medical records from April 2015 through February 2016. Dr. Autry diagnosed lumbar disc herniation and related Lenhardt's complaints to the work injury at issue. Dr. Autry assigned 13% impairment rating with no prior active impairment. Dr. Autry did not believe that Lenhardt could return to the type of work that he was performing at the time of the injury and recommended against pushing, pulling, lifting, carrying, stooping, bending, twisting, and turning.
Dr. Steven DeMunbrun performed EMG studies. His impression was bilateral tarsal tunnel syndrome.
EasyFill Pharmacy records reflect that Lenhardt was prescribed Tramadol, Naproxen, and Metaxalone on June 5, 2014.
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The ALJ concluded that Lenhardt's "accident giving rise to his L4-5 disc herniation and surgery occurred at work on September 8, 2014." In reaching this conclusion, the ALJ explained that he specifically relied upon Dr. Autry's opinion. In addition, the ALJ found as follows:
In June, 2014 the Plaintiff's primary complaints to his health care provider was [sic] of groin and scrotum pain. He was even referred to a specialist and tests were done. Ultimately he was given the diagnosis of epididymitis and surgery was not recommended. That a L4-5 disc herniation can, sometimes, cause pain in the groin and scrotum is not a medical diagnosis that this was the source of the groin and scrotum pain in this instance.
The ALJ was also persuaded by the fact that Lenhardt worked without restrictions until the September 8, 2014, injury, before which surgery had not been recommended or performed and no impairment rating been assigned.
The ALJ awarded permanent partial disability (PPD) benefits enhanced by the three-multiplier under KRS 342.730(1)(c)1. The ALJ was persuaded by Dr. Autry's 13% impairment rating because he believed that Lenhardt's "ongoing, if subjective, complaints of higher pain and limitations." With respect to the three-multiplier, the ALJ explained: "[p]ursuant to Dr. Autry, Dr. Travis, and the Plaintiff's testimony[,] he lacks the capacity to return to the type of work done on the date of injury. He never returned to equal or greater wages. He is not earning any wages now."
Kentucky Revised Statutes.
KRS 342.730(1)(c)1 provides in relevant part: "If, due to an injury, an employee does not retain the physical capacity to return to the type of work that the employee performed at the time of injury, the benefit for permanent partial disability shall be multiplied by three ...."
L Tech filed a Petition for Reconsideration contending that pursuant to Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004), the ALJ erred as a matter of law in relying upon Dr. Autry's opinion because Dr. Autry did not have a complete medical history. Furthermore, L Tech contended that the ALJ awarded the three-multiplier "under the mistaken belief" that both IME doctors had assigned restrictions when in fact Dr. Travis had not.
By Order rendered on March 28, 2017, the ALJ denied L Tech's petition, stating -- incorrectly -- that no multipliers were awarded pursuant to KRS 342.730(1)(c). Additionally, the ALJ explained that he found that the June 2014, incident was epididymitis.
L Tech filed a second Petition for Reconsideration and requested that the ALJ correct the previous order to reflect the award of the three-multiplier and then address whether Lenhardt retains the capacity to perform the same type of work. By Order of May 1, 2017, the ALJ stated that any reference to "no multipliers ... is a typographical error. The Award stands as it is."
On appeal to the Board, L Tech argued that:
1. The ALJ's conclusion that Plaintiff's condition before the alleged work incident was epididymitis was not supported by the evidentiary record[.]
2. Dr. Autry's history regarding work-related causation is corrupt due to it being substantially inaccurate and/or largely incomplete, any opinion generated by that physician on the issue of causation cannot constitute substantial evidence.
By Opinion entered on August 4, 2017, the Board vacated and remanded and held as follows:
On appeal, L-Tech argues that the evidentiary record does not support the ALJ's conclusion that Lenhardt had epididymitis prior to the alleged work injury. L-Tech also argues Dr. Stephen Autry's history regarding work-relatedness/causation is corrupt due to it being substantially inaccurate and/or largely incomplete. It argues [that Dr. Autry's] opinion ... on the issue of causation cannot constitute substantial evidence. A review of the record fails to reveal any evidence supporting the ALJ's determination that whatever condition Lenhardt may have suffered from in June 2014 is due to epididymitis. Likewise, the ALJ failed to provide an explanation of the basis of the application of the three-multiplier pursuant to KRS 342.730(1)(c)1 as requested by L-Tech in its petition for reconsideration. Therefore, the ALJ's decision is vacated, and remanded for a determination based upon the evidence of record. Likewise, we note Dr. Magdy M. El-Kalliny was joined as a party to this claim upon motion by L-Tech. A review of the evidence fails to demonstrate Dr. El-Kalliny ever treated or evaluated Lenhardt. On remand, the ALJ is directed to determine whether Dr. El-Kalliny should be dismissed as a party to this claim.
After summarizing the record and reciting pertinent authority, the Board again explained as follows:
[T]he ALJ failed to discuss the basis of his finding Lenhardt had epididymitis in June 2014....
We note Dr. Autry was not deposed, so it is impossible to tell from the record the extent of the medical documentation available to him. However, it is clear the record does not contain any evidence supporting the ALJ's determination Lenhardt suffered from epididymitis prior to September 8, 2014. Therefore, we must vacate the ALJ's decision regarding the causation of Lenhard's condition. On remand, the ALJ must provide an analysis regarding any award based upon the evidence of record. While the ALJ is not required to outline the entirety of the minutiae of his decision making process, he must provide an analysis sufficient to apprise the parties of the basis of his decision. After performing the appropriate analysis, the ALJ may enter any award supported by the evidence. Such decision may well be consistent with the decision previously rendered. We do not direct any particular result.
Lenhardt appeals, contending that "the Board erred as a matter of law in vacating and remanding the ALJ's decision by making its own review of the medical evidence and substituting its judgment for that of the ALJ." L Tech responds that there was no evidence to support the ALJ's conclusion that Lenhardt's condition before the alleged work injury was epididymitis.
The ALJ did not believe that the back and groin pain which Lenhardt experienced in June 2014 was due to a herniated disc. Without question, the ALJ believed that the September 8, 2014, injury at L Tech caused the herniated disc. He relied upon Dr. Autry's opinion and the uncontroverted fact that Lenhardt was working full-duty without restrictions up until the subject injury date. The ALJ also stated that he found the June 2014 incident was epididymitis.
The Board is correct that there was "no evidence that whatever condition Lenhardt may have suffered from in June 2014 is due to epididymitis." It is the Board's function "to decide whether the evidence is sufficient to support a particular finding made by the ALJ.... No purpose is served by second-guessing such judgment calls...." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
It is true that there does not appear to be a diagnosis of epididymitis in June 2014. However, there is mention that Lenhardt was thought to have epididymitis in the past. Dr. Travis' IME report, which L Tech filed as evidence, includes a chart summarizing the medical records he reviewed -- although not all of those records were filed as evidence. Noted in Dr. Travis' summary is the 3/3/15 IME report of a Dr. Prince that Lenhardt reported "similar symptoms about nine years ago when he was lifting something heavy and had right testicular swelling and pain. Pain resolved after about two months. He was told he had epididymitis."
We cannot agree with Lenhardt that the Board substituted its judgment for that of the ALJ. As the Board instructed on remand, "after performing the appropriate analysis, the ALJ may enter any award supported by the evidence. Such decision may well be consistent with the decision previously rendered." The Board did not determine that Dr. Autry's opinion did not constitute substantial evidence; rather, the Board noted that "Dr. Autry was not deposed, so it is impossible to tell from the record the extent of the medical documentation available to him."
Lenhardt filed Dr. Autry's Form 107 report as evidence. L Tech did not take his deposition on cross-examination as permitted by 803 KAR 25:010 §10(8): "If a medical report is admitted as direct testimony, an adverse party may depose the reporting physician in a timely manner as if on cross-examination at its own expense." --------
The Board did determine that the ALJ failed to explain the basis of his application of the three-multiplier as L Tech had requested on reconsideration. It instructed the ALJ to make additional findings of fact in conformity with its decision. "[T]he Workers' Compensation Board has the absolute discretion to request further findings of fact from an ALJ." Campbell v. Hauler's Inc., 320 S.W.3d 707, 708 (Ky. App. 2010). We find no error.
The Workers' Compensation Board's August 4, 2017, Opinion Vacating and Remanding is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: McKinnley Morgan
London, Kentucky BRIEF FOR APPELLEE:
L TECH ENTERPRISES, INC. Scott M. Brown
Lexington, Kentucky