Bowerman v. Black Equipment Co., No. 2008-CA-000828-WC.

• Decision Date: 02 October 2009
• Docket Number: No. 2008-CA-000828-WC.
• Citation: 297 S.W.3d 858
• Parties: Randy BOWERMAN, Appellant, v. BLACK EQUIPMENT COMPANY; Acuity Insurance; Hon. Marcel Smith, Administrative Law Judge; and Workers' Compensation Board, Appellees.
• Court: Kentucky Court of Appeals

297 S.W.3d 858

Randy BOWERMAN, Appellant, v. BLACK EQUIPMENT COMPANY; Acuity Insurance; Hon. Marcel Smith, Administrative Law Judge; and Workers' Compensation Board, Appellees.

No. 2008-CA-000828-WC.

Court of Appeals of Kentucky.

October 2, 2009.

Rodger W. Lofton, Paducah, KY, for appellant.

K. Lance Lucas, Edgewood, KY, for appellee.

Before CAPERTON, KELLER, and NICKELL, Judges.

OPINION

NICKELL, Judge.

Randy Bowerman (Bowerman) appeals from the opinion of the Workers' Compensation Board (Board) affirming the opinion and award of Administrative Law Judge Marcel Smith (ALJ). Bowerman presents two arguments on appeal. First, he argues the ALJ improperly denied an award of temporary total disability (TTD) benefits when placing his claim in abeyance pending his reaching maximum medical improvement (MMI) in her November 14, 2005, interlocutory opinion, order, and award (interlocutory opinion). Second, he argues the ALJ, in her August 20, 2007, final opinion and award (final opinion), erroneously reversed her earlier interlocutory factual findings rendered when she placed his claim in abeyance. Conversely, Black Equipment Company (Black) argues the ALJ was not bound by her interlocutory findings and her final opinion was supported by substantial evidence. For the following reasons, we reverse.

I. PROCEDURAL HISTORY

This claim did not follow the typical procedural path; and thus we provide the following procedural summary. Bowerman timely filed his claim for workers' compensation benefits on April 22, 2005. Pursuant to the scheduling order issued by the Office of Workers' Claims, the parties presented proof and attended a benefit review conference on September 7, 2005.

Following a hearing held on September 21, 2005, the ALJ rendered an interlocutory opinion on November 14, 2005. After thoroughly summarizing the conflicting evidence, the ALJ found Bowerman had not reached MMI but had achieved a level of improvement permitting his return to some form of work, ordered payment of medical benefits, and placed the claim in abeyance pending MMI and the assignment of any permanent impairment rating in accordance with the appropriate edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA Guides). Inexplicably, copies of the ALJ's interlocutory opinion were not forwarded to counsel. On March 16, 2006, the ALJ reissued her interlocutory opinion and directed that copies be sent to counsel, granting either party leave to file an appeal.

Bowerman sought reconsideration on March 24, 2006, but the ALJ denied his petition. Bowerman filed an appeal with the Board, and on June 7, 2006, the Board dismissed that appeal because it was "taken from an interlocutory order and not a final and appealable order."

Bowerman subsequently filed a motion to remove his claim from abeyance. On November 1, 2006, the ALJ ordered the claim removed from abeyance and scheduled additional proof time. On June 21, 2007, a second benefit review conference was held, immediately followed by a second formal hearing.

The ALJ issued her final opinion on August 20, 2007. Without explanation, and based on the same evidence considered prior to entry of her interlocutory opinion, the ALJ reversed her previous factual determinations by finding Bowerman had reached MMI and could return to all former work activities as of September 6, 2005. Based on her new findings, in addition to permanent partial disability (PPD) benefits and medical benefits, the ALJ awarded TTD benefits from October 22, 2004, through October 24, 2004, and from April 27, 2005, through September 6, 2005.

On August 30, 2007, Bowerman filed a second petition for reconsideration, asserting the ALJ found Bowerman had not reached MMI and could engage in only some limited work activities at the time she entered her interlocutory opinion, and that the factual findings contained in her final opinion should be consistent with her previous determinations. The ALJ denied Bowerman's second petition for reconsideration on October 30, 2007, and Bowerman timely appealed to the Board. On March 28, 2008, the Board affirmed the ALJ's final opinion. This appeal followed.

II. SUMMARY OF FACTS

A. THE INTERLOCUTORY OPINION PHASE

Bowerman testified by deposition on June 21, 2005, and in person at the September 21, 2005, hearing. Prior to his employment as a mechanic for Black in 2004, Bowerman was employed in various laboring jobs, including work as a cook, a salesman and installer for a fence company, a welder and fabricator, a mechanic for Wal-Mart, and a mechanic for a heavy equipment company.

While working as a mechanic for Black on October 14, 2004, Bowerman suffered a work-related back injury as he repaired a forklift. Following the injury, Bowerman was able to return to some light work activities, and continued working at Black in this capacity until April 22, 2005, when he received medical advice to refrain from all work activities.

Bowerman was initially referred by Black to the physicians at Occunet, a local walk-in medical clinic. Black's workers' compensation carrier subsequently referred him to Dr. Richard A. Berkman (Dr. Berkman), a neurosurgeon. Bowerman filed copies of Dr. Berkman's medical records into evidence. Dr. Berkman first examined Bowerman on December 7, 2004. Based on an MRI scan, Dr. Berkman diagnosed a bulging disc at L5-S1, with moderate to severe degeneration, and a sizable disc rupture at L4-5, with moderate disc degeneration. Dr. Berkman prescribed physical therapy and an epidural steroid block, but ultimately recommended surgery. During the course of treatment, Dr. Berkman maintained Bowerman on restricted work duty.

On March 8, 2005, Dr. Berkman opined Bowerman had reached MMI from a nonsurgical standpoint, and imposed permanent physical restrictions of no bending or lifting over thirty pounds, occasional bending or lifting of up to thirty pounds, frequent lifting of up to fifteen pounds, and bending up to thirty degrees at the waist. Dr. Berkman acknowledged as reasonable Bowerman's plan to seek a second opinion regarding surgery from Dr. Theodore E.C. Davies (Dr. Davies), a neurosurgeon.

Dr. Davies testified by deposition on June 27, 2005, and Bowerman filed copies of his medical records into evidence. Dr. Davies first examined Bowerman on April 22, 2005. He reviewed Bowerman's MRI scan and concurred with Dr. Berkman's diagnosis. Dr. Davies noted the two-week course of physical therapy prescribed by Dr. Berkman had resulted in some improvement, but the epidural steroid injection had failed to provide any relief. Because Bowerman desired to avoid surgery, Dr. Davies recommended additional physical therapy in the hope Bowerman might obtain additional improvement. If such conservative measures failed, however surgical intervention at L4-5 would be considered.

Black's workers' compensation carrier subsequently paid for only part of the physical therapy prescribed by Dr. Davies. Even so, improvement was noted and Dr. Davies was hopeful Bowerman might return to work upon completion of the conservative medical treatment. Bowerman had remained on off-work status since his initial office visit with Dr. Davies on April 22, 2005, and was not expected to reach MMI until the full benefit of physical therapy was realized.

Once Bowerman reached MMI, Dr. Davies opined he would qualify, with or without surgery, for a permanent impairment rating of ten to thirteen percent under the AMA Guides. In the meantime, Dr. Davies was agreeable to Bowerman engaging in light work duty, such as answering a telephone, so long as he was allowed to rest and change positions at will, including, sitting, walking, standing and lying down.

Black referred Bowerman to Dr. Thomas J. O'Brien (Dr. O'Brien), an orthopaedic surgeon, for an independent medical evaluation to be performed on September 6, 2005. A copy of his report was filed into evidence. Based on his review of the MRI scan, which demonstrated a decreased disc signal at L4-5, and to a lesser degree at L5-S1, Dr. O'Brien diagnosed an L4-5 degenerative disc bulge, rather than a disc herniation, which he opined was aggravated and became symptomatic following the work-related back injury on October 14, 2004. Dr. O'Brien opined Bowerman required "no further formal treatment," including surgery, physical therapy, steroid injection therapy, or other conservative modalities. Instead, Dr. O'Brien recommended Bowerman simply perform a "selfdirected back exercise regimen."

Dr. O'Brien stated Bowerman "does not require any permanent lifting restrictions," and "it is safe for him to pursue all activities." Finally, Dr. O'Brien opined Bowerman's condition qualified for a five percent permanent impairment rating under the AMA Guides.

At the hearing on September 21, 2005, the ALJ identified three contested issues, including extent and duration of any disability, entitlement to any additional period of TTD benefits, and the necessity of further physical therapy. The ALJ noted Black had paid two days of TTD benefits.

Bowerman provided additional testimony indicating Black's workers' compensation carrier had recently authorized additional physical therapy, and that he had appointments scheduled with the physical therapist and Dr. Davies. Bowerman stated physical therapy had provided some improvement, but that Dr. Davies had not yet released him to return to work. He reported the light work activities he had engaged in for Black following his work-related injury had aggravated his back condition, and Dr. Davies had taken him off all work activities to expedite the healing process.

At the conclusion of the hearing, the ALJ allowed an additional period for submission of rebuttal evidence. On October 11, 2005, Bowerman filed a copy of an undated termination letter he had recently received from Black. The letter indicated his employment had been terminated because Black "had given you the opportunity to return back...