STATE BOARD OF WORKERS' COMPENSATION 270 Peachtree Street, NW Atlanta, Georgia (404)

Transcription

1 Trial 270 Peachtree Street, NW Atlanta, Georgia (404) STATEMENT OF THE CASE The above-styled claim was heard before the undersigned on April 28, 2010, in Atlanta, Fulton County, Georgia, for the purpose of determining whether the Employee underwent a change in condition for the better as of May 19, FINDINGS OF FACT AND CONCLUSIONS OF LAW Upon consideration of all the competent and credible evidence, including Claimant's Exhibits 1 through 5 and Defense Exhibits 1 through 6, I make the following findings of fact and conclusions of law: 1. The Employee began working as a Housekeeper in 1999 and her job duties required her to clean rooms and bathrooms and also make up beds. Additionally, the Employee was responsible for placing newspapers in front of each occupied room every morning. On March 14, 2008, the Employee felt a sudden onset of pain and numbness in her legs and low back as she was placing a newspaper in front of one of the occupied rooms (T-9). 2. The Employer/Insurer initially controverted the Employee s claim as reflected by a Form WC-1 and Form WC-3 both filed on July 3, 2008, wherein the Employer/Insurer indicated the claim was being controverted on the basis that there was no injury arising out of and in the course of employment. On February 18, 2009, the parties entered into a consent order wherein the Employer/Insurer accepted the claim as being compensable and agreed to pay the Employee indemnity benefits from March 14, 2008, forward, as well as pay for medical treatment received by the Employee from the Kostas Chiropractic Clinic, Dr. Ralph D Auria, and Dr. Joseph Saba. Moreover, the parties agreed that Dr. Ralph D Auria would be the Employee s authorized treating physician. 3. The Employee testified that she has not worked anywhere since her March 14, 2008, injury and that she has not completed an application for employment with any employer since that time (T-11). The Employee testified at the hearing that she is unable to return to work. According to the Employee, she currently experiences pain from the center of her low back with the pain radiating down her left leg to about her calf area (T-17). 4. At the hearing, the Employee denied having low back pain prior to her March 14, 2008, injury (T-15). However, the Employee admitted she was involved in a motor vehicle accident on March 21, 2003, and that she received medical treatment from Gwinnett Hospital. According to the Employee, she sustained injuries only to her neck and did not injure her low back (T-16). However, the medical records from Gwinnett Hospital Emergency Room dated March 21, 2003, reflect that the Employee had been involved in a motor vehicle accident and that she complained of left shoulder pain, left side neck pain, and low

2 back pain. It was also noted the Employee was diagnosed as having a cervical and lumbar strain (Defense Exhibit No. 6). 5. After her March 14, 2008, accident, the Employee began treating with Dr. Michael Kostas, a chiropractor. Thereafter, Dr. Kostas referred the Employee to Dr. Ralph D Auria, an orthopedist. On April 8, 2008, Dr. D Auria reported that he had reviewed x-rays taken by Dr. Kostas and that his review did not reveal any evidence of a fracture. At that time, Dr. D Auria recommended the Employee undergo an MRI scan. The Employee underwent a lumbar MRI scan performed on April 23, This scan was interpreted as revealing a diffuse bulged disc with desiccation at the L5-S1 level greater on the left and encroaching upon the S1 nerve root and narrowing of the left neural foramen (Defense Exhibit No. 2). On May 7, 2008, the Employee underwent a needle EMG and nerve conduction velocity studies of the lower extremities to evaluate for lumbosacral radiculopathy. These results were interpreted by Dr. D Auria as being normal and showing no evidence of lumbar radiculopathy, trunkopathy, plexopathy, or neuropathy. Further, Dr. D Auria noted the Employee should continue her treatment with Dr. Kostas and that her condition was not surgical (Defense Exhibit No. 3, p. 1). 6. The Employee underwent an independent medical evaluation performed by Dr. Lee Kelley on June 18, At that time, Dr. Kelley noted the Employee denied having any prior history of a low back injury prior to her March 14, 2008, injury. Dr. Kelley reported that the Employee had some degenerative disc change at the L5-S1 level with some element of disc bulging and that she may have a lateral disc herniation at the L5-S1 level on the left but that this was not conclusive on her current MRI scan. Dr. Kelley further reported that the Employee did have some leftward bulging of the L5-S1 disc and that her symptoms are consistent with discogenic pain at the L5-S1 level with left-sided low back and left buttock and thigh pain. Dr. Kelley noted the Employee did not have any specific findings on examination to indicate radiculopathy and that she had a normal EMG nerve conduction study which also did not indicate active radiculopathy. Dr. Kelley also reported that the Employee was approaching maximum medical improvement and that as of June 18, 2008, she was capable of light duty work restrictions with the restriction against repetitive bending and a lifting limitation of 20 pounds. According to Dr. Kelley, further treatment would entail epidural steroid injections with a maximum of three injections being given. Further, Dr. Kelley reported that after receiving the course of epidural steroid injections, the Employee would be at maximum medical improvement. According to Dr. Kelley, he was of the opinion that after completing the epidural steroid injections course that the Employee would be capable of returning to work without restrictions. Additionally, Dr. Kelley reported that the Employee had sustained a whole person permanent partial impairment rating of seven to 10 percent using the AMA Guides for the Evaluation of Permanent Impairment, Fifth Edition (Defense Exhibit No. 4, p. 3). 7. On November 17, 2008, the Employee underwent another EMG and nerve conduction velocity studies performed by Dr. Joseph Saba. According to Dr. Saba, the Employee s EMG of the paralumbar spinal muscles done on the left side showed fibrillation and positive waves at the lower level. Dr. Saba noted that the same muscles done on the opposite right side were normal and that the nerve conduction velocity of the lower extremities was normal except for some prolongation of the left H reflex. Dr. Saba assessed the Employee as having mild to moderate left S1 radiculopathy (Claimant's Exhibit No. 2, p. 1). 8. On April 27, 2009, Dr. D Auria reported that at the last office visit of March 16, 2009, he had recommended the Employee to complete an active rehabilitation program for strengthening and reconditioning her lumbar spine. At that time, Dr. D Auria noted that no additional passive therapy modalities were indicated and that the Employee s condition was not expected to benefit from additional passive therapy. Dr. D Auria noted the Employee had not yet received the lumbar rehabilitation program

3 that had been previously recommended and that she was still in need of an active strengthening program for her lumbar spine. Dr. D Auria further noted that there would be no benefit from additional passive therapy modalities as previously noted and that there also was no need for epidural steroid injections, trigger point infiltrations, or joint injections as of April 27, Dr. D Auria recommended the Employee start an active rehabilitation program consisting of therapeutic exercise protocols for strengthening and reconditioning of the lumbar region at a frequency of twice per week for eight to 10 weeks (Defense Exhibit No. 1, pp. 2-3). On May 19, 2009, Dr. D Auria reported that the Employee s continued subjective complaints were inconsistent with the expected evolution of her type of injury which had occurred more than one year before. Dr. D Auria noted that EMG and nerve conduction velocity testing were negative for lumbar radiculopathy. Dr. D Auria further reported that the Employee was at maximum medical improvement and that no additional physical therapy or other treatments such as epidural infiltrations or trigger point infiltrations were expected to result in any objective improvement in her condition. Further, Dr. D Auria reported that the Employee could return to work immediately with no restrictions (Defense Exhibit No. 1, p. 1). 9. The Employee was sent by her attorney to Dr. Anthony Cabot on July 29, 2009, for an independent medical evaluation. Dr. Cabot noted that lumbar spine x-rays revealed minimum spurring at the L5-S1 level. Dr. Cabot also reviewed the April 23, 2008, lumbar MRI scan and interpreted it as showing a bulging far lateral left-sided disc herniation at the L5-S1 level noting that the disc was dark and there was mild facet arthritis at the L5-S1 level bilaterally. Dr. Cabot was of the impression that the Employee had low back pain and left sciatica from lumbar disc herniation and lateral recess stenosis at the L5-S1 level. According to Dr. Cabot, he thinks the Employee might benefit from lumbar epidural and/or a selective nerve root injection at the L5-S1 level on the left side. Dr. Cabot also thought it was reasonable for the Employee to take some non-additive pain medicine and some anti-inflammatory pain medication by mouth. Dr. Cabot noted the Employee had had enough physical therapy and chiropractic care and that neither was indicated any longer. Dr. Cabot concluded that the Employee was at maximum medical improvement and that using the AMA Guides for the Evaluation of Permanent Impairment, Fifth Edition, he would assess the Employee as having an eight percent permanent partial impairment. Dr. Cabot also stated that he did not anticipate surgery for the Employee s lumbar spine at that time (Defense Exhibit No. 5, pp. 1-2). 10. The Employee underwent another independent medical evaluation on January 19, 2010, which was performed by Dr. Nabul Muhanna. In this report, Dr. Muhanna was of the impression that the Employee does have degenerative disc disease at the L5-S1 level and has a ruptured disc at the L5-S1 level to the left, to the best of our knowledge. Dr. Muhanna noted that all of the MRI imaging studies were not present with the Employee. Dr. Muhanna also noted that the EMG/nerve conduction studies revealed mild to moderate left S1 radiculopathy. According to Dr. Muhanna, the Employee had three options: 1) continue to live with her pain; 2) undergo a left S1 nerve root block; or, 3) undergo an operation to take the pressure off the nerves in her back. Dr. Muhanna further stated that he would defer a permanent partial disability rating at that time until a treatment option had been decided upon (Claimant's Exhibit No. 4, p. 3). 11. At his deposition, Dr. Muhanna testified that he believed the most successful and shortest route for recovery of the Employee would probably be an L5-S1 discectomy rather than her undergoing injections (Claimant's Exhibit No. 5, p. 20). According to Dr. Muhanna, if the Employee underwent the discectomy, she might sustain a 10 to 15 percent permanent partial disability to the body as a whole (Claimant's Exhibit No. 5, pp ). Dr. Muhanna also noted that activities that involved bending,

4 stooping, lifting, or rotational movements were not indicated for the Employee at this time (Claimant's Exhibit No. 5, p. 23). 12. On cross examination, Dr. Muhanna admitted that he was not aware of the EMG and nerve conduction studies performed on May 2, Further, Dr. Muhanna admitted that he had not asked to review Dr. Kelley s report but that he had read a summary of Dr. Kelley s report contained in a report issued by Dr. Kostas (Claimant's Exhibit No. 5, pp. 26 and 30). Dr. Muhanna also reported that he had not been made aware of the July 29, 2009, independent medical evaluation performed by Dr. Anthony Cabot and that he had not actually reviewed the medical records of Dr. D Auria (Claimant's Exhibit No. 5, p. 31). Dr. Muhanna testified that his opinion was based on his own neurologic and physical examination of the Employee as well as the nerve conduction studies performed by Dr. Saba, the April 23, 2008, MRI scan, and the report of Dr. Kostas (Claimant's Exhibit No. 5, p. 32). Dr. Muhanna further testified that he did not need anybody else s opinion about this case to make up his mind and that his judgment is reasonable and accurate (Claimant's Exhibit No. 5, p. 34). Dr. Muhanna further testified that he was confident enough to know that there was a ruptured disc at the L5-S1 level on the left side with significant supportive evidence of the nerve conduction study (Claimant's Exhibit No. 5, p. 37). 13. All other evidence has been considered. From the foregoing, I find and conclude that the Employee underwent a change in condition for the better as of May 19, 2009, at which time her authorized treating physician, Dr. Ralph D Auria, released her to regular duty work without restrictions. Although there is conflicting evidence from Dr. Nabil Muhanna, I find Dr. D Auria s opinion to be supported by that of Dr. Lee Kelley and Dr. Anthony Cabot. 14. From the medical records of Drs. D Auria, Kelley, and Cabot, I find and conclude that the Employee reached maximum medical improvement as of May 19, 2009, and that no further medical treatment stemming from her compensable accident of March 14, 2008, is indicated. I find and conclude that the Employee sustained a permanent partial impairment rating of eight percent of the body as a whole based on the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition as a result of her compensable accident. AWARD WHEREFORE, based on the foregoing findings of fact and conclusions of law, the Employee underwent a change in condition for the better as of May 19, 2009, and that the suspension by the Employer/Insurer of temporary total disability income benefits as of June 2, 2009, was proper. I further find and conclude that the Employee is entitled to receive permanent partial disability income benefits in the amount of $ per week from May 19, 2009, and to continue for a period of 24 weeks based on an eight percent permanent partial impairment based on the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition. The Employer/Insurer are directed to file a Form WC-2 within 20 days from the date of this Award or upon final determination reflecting payment in accordance with this Award. IT IS SO ORDERED, this the 22nd day of June, 2010.

5 This order is electronically signed and approved. William Murray ADMINISTRATIVE LAW JUDGE

6 Appeal 270 Peachtree Street, N.W. Atlanta, GA This appeal by the Employee is before the Appellate Division for review of an award by Judge Murray, dated June 22, The Employer/Insurer filed a timely cross appeal in this case arguing the administrative law judge erred in finding that the Employee is entitled to receive permanent partial disability (hereafter, PPD) benefits. This appeal was argued orally before the Appellate Division on September 14, After a review of the record as a whole, as well as the arguments presented, the Appellate Division now vacates and reverses in part the award of Judge Murray. FINDINGS OF FACT AND CONCLUSIONS OF LAW In his award, the administrative law judge found the Employee underwent a change in condition for the better as of May 19, 2009 and that the Employer/Insurer s suspension of the Employee s temporary total disability (hereafter, TTD) benefits as of June 2, 2009 was proper. He further found the Employee is entitled to receive PPD benefits in the amount of $ per week from May 19, 2009 and to continue for a period of 24 weeks based upon an 8% PPD rating. From this award, both the Employee and the Employer/Insurer filed timely appeals with the Appellate Division. After a review of the record as a whole, including the enumerations of error and arguments presented by the Employee, we find no error with the administrative law judge s finding that the Employee underwent a change in condition for the better as of May 19, 2009 and that the suspension of Employee s TTD benefits by the Employer/Insurer as of June 2, 2009 was proper. In addition, the Employer/Insurer filed a timely cross appeal in this case arguing that the issue of whether the Employee is entitled to a PPD rating and/or payments was not an issue tried before the administrative law judge at the hearing and was decided by the administrative law judge sua sponte. The Employer/Insurer argues the 8% PPD rating found by the administrative law judge is based upon estimates made by both Dr. Lee Kelley, the Employer/insurer s IME physician and Dr. Anthony Cabot, the Employee s IME physician and is not supported by the facts of this case and therefore should be set aside. We agree. After a review of the record, we find that the issue of PPD was not listed on the WC-14 Form filed by the Employee and therefore was not made a hearing issue. We find the Employer/Insurer where not provided with proper notice that PPD was to be an issue at the hearing and therefore they did not have the opportunity to present evidence and be heard on the issue. See Cypress Insurance Co. v. Duncan, 281 Ga. App. 469, 636 S.E.2d 159 (2006) and Holliday v. Jacky Jones Lincoln-Mercury, 251 Ga. App. 493, 554 S.E.2d 286 (2001). As such, we are unable to make a determination on the issue of whether the Employee is entitled to PPD benefits.

7 Accordingly, based on the foregoing, we find that the administrative law judge erred in the finding and concluding that the Employee has proved entitlement to PPD benefits. See generally Bankhead Enterprises v. Beavers, 267 Ga. 506, 480 S.E.2d 840 (1997); Russ V. American Telephone & Telegraph, 228 Ga. App. 858, 493 S.E.2d 46 (1997); Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137, 473 S.E.2d 166 (1996). To the extent the administrative law judge made findings of fact and conclusions of law inconsistent with our findings and conclusions herein, we reverse, strike and amend his Findings of Fact and Conclusions of Law as necessary to remain consistent and in accordance with our findings and conclusions herein. Id. Finally, except as stated above, the findings of the administrative law judge in this matter are hereby accepted by the Appellate Division as such findings are supported by a preponderance of competent and credible evidence contained within the record on review. See O.C.G.A (a). The Appellate Division adopts the conclusions of law of the administrative law judge as such reflect an appropriate application of the Act to the findings of fact, except as stated above. AWARD Based upon the foregoing, the Appellate Division vacates the award section of Judge Murray, dated June 22, 2010 and replaces it as follows: WHEREFORE, based upon the foregoing findings of fact and conclusions of law, the Employee underwent a change in condition for the better as May 19, 2009, and that the suspension by the Employer/Insurer of temporary total disability benefits as of June 2, 2009, was proper. IT IS SO ORDERED, this the 02nd day of November, Concurring : Judge Warren Massey and Judge Stephen B. Farrow. :lo This order is electronically signed and approved. Richard S. Thompson/s. Presiding Judge Appellate Division