Ann Taylor, Inc. v. McDowell
| Decision Date | 26 January 2018 |
| Docket Number | NO. 2016-CA-001265-WC,2016-CA-001265-WC |
| Parties | ANN TAYLOR, INC. APPELLANT v. JAMES MCDOWELL; HONORABLE STEVEN G. BOLTON, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
OPINIONAFFIRMING
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BEFORE: MAZE, TAYLOR AND THOMPSON, JUDGES.
THOMPSON, JUDGE: Ann Taylor, Inc., appeals from the Workers' Compensation Board opinion reversing in part, vacating in part and remanding the Administrative Law Judge's (ALJ) opinion, award and order regarding the ALJ's denial and dismissal of James McDowell's claim as to his right shoulder injury on the basis that he did not give adequate notice of this injury to Ann Taylor and he did not prove his work-related accident was the proximate cause of this injury.
On Thursday, October 2, 2014, McDowell, who was employed by Ann Taylor in shipping and receiving, was loading a semi-truck trailer with packages from a conveyor belt when he was injured. Although McDowell consistently reported hitting his right elbow on the conveyor belt while trying to avoid falling boxes, his testimony was inconsistent regarding how his shoulder was injured.
In McDowell's deposition testimony, he reported two other people were helping him load the truck. The conveyor belt extended about halfway down the truck, roughly equal distance from the left and right side of the trailer. McDowell was standing at the end of the conveyor belt, to its right. They were stacking boxes that typically weighed between twenty to twenty-five pounds but could weigh up to sixty pounds. McDowell hit his right elbow on the right side of the conveyor belt while facing the back of the truck and trying to avoid a stack of falling boxes.
However, McDowell alternatively testified that he only hit his right shoulder, hit his right shoulder and head, or hit his whole right side, on the right side of the truck. He fell against the truck's wall or to the truck's floor, fell against the side of the wall near the floor, or hit the wall and dragged down it and ended upon the floor. He either only hit his shoulder on the wall, or also hit it and his elbow on the floor.
The other two men who were on the truck saw what happened. McDowell then got up and resumed working.
McDowell testified in his deposition that he told his supervisor Gene Lilly about his injury that day and was directed to report it to Laura Whitlock. Whitlock offered to send McDowell to a doctor, but he declined treatment and elected to continue working.
The next day McDowell's pain was all the way up to his shoulder. On Monday, McDowell's elbow swelled while he was working and he taped ice bags to his elbow and continued to work. Later that day, Whitlock sent him to BaptistWorx.1
McDowell testified that at that appointment he reported pain in his right elbow going to his shoulder but did not remember reporting any specific pain in his shoulder, that he struck his shoulder on anything or that he fell to the floor of the truck. At the evaluation, he recalled the medical professionals checked his shoulder when they moved his arm and he told them it was a little stiff.
McDowell testified he was present when Whitlock filled out the incident report on October 6, 2014, but did not remember seeing it or signing it. He remembered telling her he hurt his elbow but had pain extending to his shoulder.
McDowell testified that when he saw Dr. Bonnarens, he told him his arm was stiff from his elbow to his shoulder but did not tell him about any right shoulder pain. McDowell testified that he started to experience right shoulder pain the first week of physical therapy. The pain in his shoulder did not bother him until his elbow pain lessened. After he continued to have problems with his right shoulder during physical therapy, the therapist expressed concerns with his shoulder because he was having trouble lifting it and told him to tell his doctor. He attributed the pain in his shoulder to his fall.
McDowell first told Whitlock about his right shoulder hurting when he turned in paperwork about his physical therapy. He was told to have it examined, but no paperwork was completed.
McDowell told Dr. Bonnarens about his problems with his shoulder when he returned to him after four weeks of physical therapy. He was later diagnosed with a torn rotator cuff and had surgery.
At the hearing, McDowell testified he hit his elbow on the conveyor belt, fell back and hit his shoulder against the side of the truck. By lunchtime, hehad pain from his wrist through his elbow but not all the way to his shoulder. He told his supervisor Lilly about his injury that day and was directed to report it to Whitlock. He told Whitlock "I fell and hit my elbow and stuff, just like that."
McDowell was receiving overtime and did not want to lose it. He applied ice after work. He worked full days on Thursday, October 2, 2014, Friday, October 3, 2014, Saturday, October 4, 2014. He was off Sunday but returned to work on Monday, October 6, 2014.
McDowell testified that the information he wrote down about his accident on BaptistWorx's new injury patient information form "[l]oading boxes in trailer, hit elbow on conveyor" was an accurate description but he also fell backwards and hit his shoulder on the truck. He said he did not write down this additional information because it was mainly his elbow bothering him and he was worried about losing overtime work. McDowell admitted he did not tell Dr. Bonnarens he had fallen and did not report shoulder pain.
McDowell testified that at his March 19, 2015 appointment, he told Dr. Bonnarens about hitting his shoulder and falling. He testified that Dr. Bonnarens's description of what happened on his medical report for that visit was correct but incomplete.
The first report of injury indicated shipping supervisor Whitlock was notified on October 6, 2014, and filed the report that day. It stated McDowell was loading a trailer when he hit his elbow on the conveyor.
BaptistWorx's records indicate McDowell was seen on October 6, 2014, for right elbow pain from a work injury that occurred on October 2, 2014. According to the new injury patient information form McDowell filled out and signed, he was loading boxes in a trailer when he hit his elbow on the conveyor. McDowell was examined, sent to have his elbow x-rayed and then diagnosed with a right olecranon process fracture with a chip to the bone.
Records from McDowell's treating orthopedic physician, Dr. Frank Bonnarens, indicated his first visit was on October 9, 2014. McDowell presented with pain in the right elbow. The physical examination showed McDowell "demonstrates good range of motion of his upper extremities." Dr. Bonnarens's overall impression was that it was an olecranon bursitis, early and X-rays of the elbow showed that McDowell had an osteolyte, possible small chip off. He referred McDowell for physical therapy.
According to Dr. Bonnarens's records, on November 6, 2014, McDowell complained of pain in his right elbow and shoulder and, after anexamination, Dr. Bonnarens suspected a torn rotator cuff and referred McDowell for an arthrogram MRI of his right shoulder.
The MRI took place on December 16, 2014. On December 18, 2014, Dr. Bonnarens noted
On March 6, 2015, when Dr. Bonnarens responded to questions on a form from Ann Taylor's insurance company he indicated that the recommended rotator cuff surgery was not causally related to McDowell's work injury and McDowell was asymptomatic prior to his work injury.
According to Dr. Bonnarens's records, during McDowell's March 19, 2015 appointment, he provided a clarified patient history as to how he was injured. McDowell reported that falling boxes pushed him backwards making him fall into the conveyor belt, striking his elbow. He did not notice his shoulder injury until the pain left his elbow and he realized there was pain in his shoulder. Dr. Bonnarens then stated "[b]ased on the information and the history provided by the patient, it does look like that the rotator cuff tear was reasonably related to his fall[.]"
On September 11, 2015, Dr. Bonnarens filled out a medical questionnaire for Ann Taylor's insurance company and responded to the pertinentquestions. Dr. Bonnarens stated that the mechanism of McDowell's injury was inconsistent with what he described during his deposition, because his injury would have required a 180-degree spin. However, Dr. Bonnarens also reported that the mechanism of his injury was consistent with McDowell hitting his shoulder on the wall. Dr. Bonnarens opined that McDowell's right shoulder surgery was related to his work injury based on his history, but was not consistent with a reconstruction of the accident.
Dr. Craig Roberts performed an independent medical evaluation (IME) of McDowell on August 20, 2015. He reported McDowell had "a work-related injury on October 2, 2014, while loading a truck when some boxes began to fall and he fell backwards striking his right elbow on a conveyor belt and then striking his right shoulder onto the ground." His diagnostic impression was that McDowell's right shoulder rotator cuff tear was "[t]o a reasonable degree of medical probability, . . . the result of the work-related injury of October 2, 2014."
The ALJ thoroughly summarized McDowell's pertinent testimony in his opinion. He noted that McDowell changed his story several times during his deposition and at the final hearing. The mechanism for how McDowell's shoulder could have been injured involved him hitting his right elbow on the conveyor in the middle of...
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