Greene v. Paschall Truck Lines

• Decision Date: 26 October 2007
• Docket Number: No. 2006-CA-001974-WC.,2006-CA-001974-WC.
• Citation: 239 S.W.3d 94
• Parties: Thomas GREENE, Appellant, v. PASCHALL TRUCK LINES; Hon. R. Scott Borders, Administrative Law Judge; and Workers' Compensation Board, Appellees.
• Court: Kentucky Court of Appeals

239 S.W.3d 94

Thomas GREENE, Appellant, v. PASCHALL TRUCK LINES; Hon. R. Scott Borders, Administrative Law Judge; and Workers' Compensation Board, Appellees.

No. 2006-CA-001974-WC.

Court of Appeals of Kentucky.

October 26, 2007.

Craig Housman, Housman & Associates, Paducah, KY, for appellant.

R. Chris Hutson, Whitlow, Roberts, Houston & Straub PLLC, Paducah, KY, for appellee.

Before NICKELL and TAYLOR, Judges; PAISLEY,¹ Senior Judge.

OPINION

NICKELL, Judge.

Thomas Greene (hereinafter "Greene") seeks review of an August 15, 2006, opinion of the Workers' Compensation Board (hereinafter "Board") affirming a February 10, 2006, opinion of Administrative Law Judge Hon. R. Scott Borders (hereinafter "the ALJ"). The ALJ's opinion dismissed Greene's claim for permanent disability income benefits and granted partial future medical benefits for injuries arising from a work-related collision. The ALJ also declined to review, citing a lack of jurisdiction, an agreement reached between Greene and his former employer, Paschall Truck Lines (hereinafter "PTL"), pertaining to payment of a subrogation lien. A petition for reconsideration filed by Greene was summarily dismissed by the ALJ on March 13, 2006. The Board then affirmed the ALJ's decision in all respects and this appeal ensued.

For the reasons explained herein, we affirm that portion of the Board's opinion dismissing Greene's claim for permanent disability income benefits. We further affirm the Board's opinion limiting PTL's responsibility for future medical expenses to the ongoing removal of glass as it works its way to the surface of Greene's skin. However, because we hold the ALJ had jurisdiction to review the settlement agreement reached between Greene and PTL, but declined to exercise it, we vacate that portion of the opinion and remand it to the Board for further proceedings.

Between 1996 and September 2005, Thomas Greene was a truck driver for PTL. He was hired at PTL's hub in Murray, Kentucky, and it is from that office that he was routinely dispatched to make deliveries along the eastern seaboard. Occasionally he took a leave of absence from PTL to spend time with his daughter. When not driving for PTL, he often worked as a certified union millwright through Fru-Con in his native Louisiana. Each time Greene resumed driving for PTL he completed employee orientation² in Murray and signed paperwork specifying any work-related injury would be resolved under Kentucky law regardless of where it occurred.

On May 20, 2003, while Greene was driving a PTL semi in North Carolina, he collided with an axle that had separated from a semi being driven by Cathy Maddox (hereinafter "Maddox") on behalf of U.S. Xpress. As a result, Greene's rig careened down an embankment and landed upside down in the grass. He remained pinned inside the crushed cab for about three hours until he was cut from the vehicle and transported to a North Carolina medical center. Greene suffered cuts and lacerations over much of his upper body and was diagnosed as having a fractured left scapula and a fractured left wrist. After an overnight hospital stay, Greene was transported to Louisiana to recover.

Greene was treated by two doctors in Louisiana. Dr. Harold Stokes (hereinafter "Dr. Stokes"), a hand surgeon, provided treatment for Greene's wrists, forearms, hands and elbows. At the first appointment in June 2003 Greene's chief complaints were a chip in his left wrist, a fracture of his left scapula, pain in his left wrist and arm, and numbness and tingling in the left long, ring and small fingers. Concern about the distal ulna and the distal radioulnar joint was also mentioned. Upon completing a physical therapy and strengthening regimen Greene enjoyed full range of motion in his forearms, elbows and wrists. In releasing Greene to return to work without restriction as of September 15, 2003, Dr. Stokes opined, "I will see him back as needed. I do not anticipate any permanent partial impairment related to his wrists or hands."

Dr. John Cazale (hereinafter "Dr. Cazale"), an orthopedic surgeon, treated Greene's complaints of bilateral shoulder pain. At Greene's first appointment in July 2003 he exhibited a full range of motion with his right shoulder and nearly a full range of motion with his left. By August 15, 2003, an MRI scan of his right shoulder revealed no significant abnormality and Dr. Cazale deemed it "completely normal." The MRI scan of Greene's left shoulder showed no rotator cuff tear and no anatomic lesions. Some arthritis was noted but not attributed to the collision. Dr. Cazale prescribed Vioxx as an anti-inflammatory and ordered supervised physical therapy to improve Greene's shoulder strength. By September 23, 2003, an MRI scan of the left shoulder showed only "some mild degenerative joint disease in his AC joint." On October 23, 2003, Dr. Cazale ordered more physical therapy believing Greene would reach maximum medical improvement (hereinafter "MMI") within four to six weeks and could return to work as a trucker.

A week later, Dr. Gordon Nutik (hereinafter "Dr. Nutik") performed an independent medical evaluation (hereinafter "IME") at the request of PTL's workers' compensation insurance carrier.³ Dr. Nutik's examination of Greene's neck revealed normal cervical lordosis. While there was pain about the muscles adjacent to the base of his neck on palpation, there was no pain about the cervical spine or the sternomastoid muscle. There was also no spasm of Greene's neck muscles. Indeed, Greene's neck motion was normal and his cervical compression tests were negative. Dr. Cazale concurred with Dr. Nutik's recommendation of a four-week conditioning program for Greene. Like Dr. Cazale, Dr. Nutik expected Greene to reach MMI upon completion of the physical therapy and conditioning program.

On November 11, 2003, Dr. Cazale wrote, "I don't anticipate any sequela secondary to his injury as far as his shoulders are concerned. Again, his physical examination reveals a normal neurological exam." When Dr. Cazale last saw Greene on December 16, 2003, his examination revealed "some crepitance with range of motion in shoulders" and "discomfort with cold with the extremes of weather." Dr. Cazale noted Greene's physical therapy and functional capacity evaluation indicated Greene could return to work as a trucker. Indeed, when Greene's physical therapy ceased in December 2003 his therapist opined, "All goals are achieved." Dr. Cazale discharged Greene to return to work with no restrictions as of January 5, 2004.

None of the doctors who treated or evaluated Greene in the six months following the collision saw him after he was released to return to work. Greene testified that in July 2004 he passed a physical exam needed to maintain his commercial driver's license (hereinafter "CDL"), but no records from that exam were introduced into the record. The only medical treatment Greene has received since being released to return to work occurred on November 11, 2004. On that date he went to a Louisiana emergency room to have glass removed from his hand. Glass from the shattered windshield of the cab continues to erupt from his skin and requires occasional removal. Greene is not taking prescription medication but he does take over-the-counter painkillers.

Greene did not see another doctor until August 2005 when Dr. Emily Rayes-Prince (hereinafter "Dr. Rayes-Prince") performed an IME at the request of Greene's workers' compensation attorney. After reviewing medical records and examining Greene, she diagnosed him as having "chronic neck pain with left arm radicular pain; post traumatic tension migraine headaches; S/P [sic] left ulnar styloid fracture; and s/p left scapula fracture with residual shoulder crepitus and scapula dyskinesis." Citing the American Medical Association Guides to Evaluation of Permanent Impairment (hereinafter "Guides"), she assessed Greene with a 7% Diagnosis-Related Estimate Cervical Category II (hereinafter "DRE") whole person impairment rating which she attributed to the collision. Despite the rating, Dr. Rayes-Prince believed Greene could return to work as a trucker. In explaining her assessment she opined in pertinent part, "Mr. Greene has neck pain and left arm radicular complaints without objective findings."

PTL voluntarily paid Greene $18,693.64 in temporary total disability (hereinafter "TTD") benefits for the period of May 21, 2003, through January 14, 2004. PTL also paid Greene's medical expenses in the amount of $24,444.80. Because Greene's workers' compensation file was already closed when Greene went to the emergency room for removal of glass from his hand in November 2004, PTL refused to pay the charges associated with that procedure.

Although Greene was released by Dr. Cazale to resume driving a truck as of January 5, 2004, he did not. He chose instead to remain in Louisiana and work as a millwright at the Folger's Coffee plant in New Orleans. In July 2004 he returned to PTL and resumed driving a truck but voluntarily left just three months later. While he considered himself physically capable of driving a semi, Greene feared driving on snow and ice during the approaching winter months.

Between January and August 2005 Greene worked steadily as a millwright, most recently as night foreman of an eleven-person mechanical maintenance crew. During his deposition, Greene acknowledged some work at the plant was "very heavy" but explained that as a supervisor he now engages in very little manual labor and uses a golf cart to traverse the facility which is about a dozen blocks long and three or four blocks wide. At the final hearing in December 2005 Greene testified he still had pain, "especially in cool, damp weather, through my shoulder, up through the back of my neck, and I still have pretty frequent headaches."

Greene retained Hon. Richard J. Smith (hereinafter "Smith"), an attorney practicing in Spartanburg, South Carolina, to pursue a third-party tort...