Johnson v. Cherne Contracting Company, No. 2006-SC-000576-WC (Ky. 5/24/2007)
| Decision Date | 24 May 2007 |
| Docket Number | No. 2006-SC-000576-WC.,2006-SC-000576-WC. |
| Parties | Ronnie JOHNSON Appellant, v. CHERNE CONTRACTING COMPANY, Workers' Compensation Board and Hon. Lawrence F. Smith, Administrative Law Judge, Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Appeal from Court of Appeals, 2005-CA-001958-WC, Workers' Compensation No. 03-02514.
Affirming.
David B. Allen, Versailles, KY, Counsel for Appellant, Ronnie Johnson.
Steven D. Goodrum, Clark, Ward & Cave, Victorian Square, Lexington, KY, Counsel for Appellee, Cherne Contracting Company.
An Administrative Law Judge (ALJ) awarded temporary total disability (TTD) benefits and a period of medical benefits after finding that the claimant's work-related injury caused a blister on his foot, but his unreasonable failure to follow the podiatrist's treatment plan caused the subsequent infection, partial amputation of the foot, and permanent impairment rating. The Workers' Compensation Board (Board) and the Court of Appeals affirmed, and the claimant appeals. Having concluded that the findings of fact were both adequate and reasonable and that the legal conclusions under KRS 342.035(3) were correct, we affirm.
The claimant was born in 1954 and completed the fifth grade. He had a history of insulin-dependent diabetes since childhood. Records from the Powell County Clinic indicated that he sought treatment in April, 2003, for numbness and tingling in his feet. They also indicated that he had a peeling fungal callus on the ball of his left foot; that his foot care was poor; and that a podiatry referral was scheduled for June 5, 2003.
The claimant testified that he began working for the defendant-employer in June, 2003, as a construction laborer, and that he informed the company of his diabetic condition. On July 10, 2003, he sprained his left ankle while working. He reported the injury to the safety manager, Tammy Look, who examined his ankle and applied ice packs. He testified that the injury caused him to limp badly and shift his weight to the ball of his foot when he walked. On the third day after the injury, he noticed that a blister had developed at the base of his left big toe and showed it to Ms. Look. Although he obtained medical treatment, the blister became infected and resulted eventually in the amputation of the toe and a portion of his foot.
Ms. Look testified that the claimant limped severely when he came into the office for some equipment on July 10, 2003. Asked what had happened, he reported that he had sprained his ankle. She took off his boots and examined his ankles. Although she noticed no swelling, she put an ice pack on the left ankle and prepared an incident report. Three days later, he asked her to look at a blister on his left foot. Although she thought that it looked like an old wound that had been reopened, she acknowledged that she had not noticed it previously and testified that she drove him to see Dr. Gallenstein.
Notes from the Powell County Clinic, dated July 14, 2003, indicated that the claimant sought treatment for a blister that developed after he injured his ankle. Treatment notes from July 28, 2003, indicated that he had not seen the endocrinologist. He stated on August 6, 2003, that he was not taking his diabetes medication because he could not afford it and was informed that failing to do so affected his ability to heal.
Dr. Gallenstein also saw the claimant on July 14, 2003. He diagnosed cellulitis of the left foot, an ankle sprain, and poorly-controlled diabetes. He noted that the claimant had not begun taking the antibiotics that were prescribed for the infected blister, urged him to do so immediately, and advised him of the significant danger that the wound posed. After treating the claimant for several days, Dr. Gallenstein referred him to Dr. Pawsat, a board-certified specialist in podiatry.
Dr. Pawsat testified subsequently that the claimant's diabetic condition affected the development of the wound and made it more difficult to heal. He first saw the claimant on July 18, 2003, at which time he diagnosed cellulitis and an abscess on the left foot. He hospitalized the claimant in order to administer intravenous antibiotics and debride the wound. On July 21, 2003, he released the claimant with instructions to stay off his foot completely and to stop smoking in order to help the wound to heal. Yet, when the claimant presented for a follow-up appointment on August 5, 2003, he was walking on his left foot and had not reduced the amount that he smoked. Dr. Pawsat stated that he emphasized the importance of putting absolutely no pressure on the foot. He explained to the claimant that it would be virtually impossible for the wound to heal if he continued to walk on the foot and that it would increase the likelihood of surgery and possibly amputation. Nonetheless, on August 26, 2003, the claimant walked on the foot and wore a closed-toe shoe to his appointment. Again, Dr. Pawsat instructed him not to put weight on the foot.
The wound continued to deteriorate, and on September 12, 2003, Dr. Pawsat amputated the left big toe and a portion of the first metatarsal. At a visit 2 Y2 weeks after the surgery, Dr. Pawsat noted that the claimant had been "very noncompliant" and continued to walk on the foot and to smoke. He emphasized the importance of staying off the foot yet again; however, the claimant presented for treatment on November 10, 2003, bearing his full weight on the foot. Again, Dr. Pawsat stressed the importance of placing no weight on the foot until it healed completely.
Dr. Pawsat assigned permanent impairment ratings of 8% for the amputation and 20% for a secondary gait derangement due to the amputation and diabetic neuropathy: In his opinion, the claimant no longer retained the physical capacity to perform construction work. He should not spend more than two hours per day on his feet in order to avoid the risk of additional complications.
The claimant submitted a report from Dr. Lause", another podiatrist who treated him after the surgery. Dr. Lause" stated that the ankle sprain probably caused an alteration in the claimant's gait, resulting in the blister. Since the amputation, he had also developed Charcot's fracture/dislocation of the mid-foot and should not perform work that required him to stand or walk due to the high risk of further complications.
Dr. Pursley, a board-certified neurologist, performed an independent medical evaluation for the employer in April, 2004. He examined the claimant and reviewed medical records from the Powell County Clinic, Dr. Gallenstein, Dr. Pawsat, and the Meadowview Regional Medical Center, where Dr. Pawsat performed the two surgical procedures. Dr. Pursley noted that limping after the ankle sprain was one of several plausible ways in which the blister could have developed, but he did not consider it probable that the ankle injury caused the blister or subsequent infection. He explained that diabetes increases the likelihood of developing blisters and foot infections; that medical records documented such conditions before the injury; and that the claimant did not see the podiatrist to whom he was referred on June 5, 2003. In Dr. Pursley's opinion, the claimant's failure to follow medical advice was "the major contributing factor" that caused his foot infection not to heal and to progress to the point of requiring amputation. He thought that it probably would have healed had the claimant followed Dr. Powsat's treatment plan, controlled his diabetes as instructed, and refrained from wearing regular shoes, walking on the infected foot, and smoking. Dr. Pursley attributed all of the claimant's present complaints to the amputation and stated that it warranted an 8% permanent impairment rating.
Dr. Amis, an orthopedic surgeon; performed another independent medical evaluation for the employer in June, 2004. He noted that a callus was observed on the ball of the left foot on April 17, 2003, and that the claimant's symptoms were classic for diabetes and of the sort that precede ulceration. On that basis, he attributed the infection and amputation to the claimant's failure to see the podiatrist in June, 2003, rather than to the subsequent, work-related injury. He thought that smoking probably had a minimal impact on the need for amputation but that the claimant's failure to follow the treatment protocol for diabetes had a definite impact on the ulceration, the need for amputation, and the resulting Charcot changes in his foot.
The claimant testified that the employer refused to pay any of his medical expenses after the injury. He acknowledged that he had smoked up to two packs of cigarettes per day in July, 2003, and that he was advised to stay off his foot as much as possible and to stop smoking. Asked if he was able to stop or to cut back, he stated that he did not think smoking had anything to do with his foot problems.
The claimant's wife testified that she helped to manage his diabetic condition by preparing his meals and being certain that he had the necessary medications. She took off work to accompany him to medical appointments and helped him to care for his foot. Although they were advised to have home health care, they cared for the foot the best that they could because they had no insurance. They thought that it was healing. However, her husband came in from the back field one day and complained that his foot was so painful that he could not stand it. She called Dr. Pawsat, who advised him to come in immediately, then hospitalized him and performed the amputation.
Among the contested issues before the AU were: causation/work-relatedness; medical expenses; TTD; and failure to follow reasonable medical advice. The AU determined that the sprained ankle caused only the blister. Citing KRS 342.035(3) and the numerous instances in which the claimant failed to comply with Dr. Powsat's instructions, the AU found that the need for further medical treatment and the...
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