E. KY Haulers, LLC v. Mounts

• Decision Date: 13 May 2022
• Docket Number: 2022-CA-0041-WC
• Parties: EASTERN KY HAULERS, LLC APPELLANT v. CHARLES MOUNTS; HONORABLE JONATHAN ROBERT WEATHERBY (ADMINISTRATIVE LAW JUDGE); THE DEPARTMENT OF WORKERS CLAIMS; AND WORKERS' COMPENSATION BOARD APPELLEES
• Court: Kentucky Court of Appeals

EASTERN KY HAULERS, LLC APPELLANT
v.
CHARLES MOUNTS; HONORABLE JONATHAN ROBERT WEATHERBY (ADMINISTRATIVE LAW JUDGE); THE DEPARTMENT OF WORKERS CLAIMS; AND WORKERS' COMPENSATION BOARD APPELLEES

No. 2022-CA-0041-WC

Court of Appeals of Kentucky

May 13, 2022

NOT TO BE PUBLISHED

PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-18-54033

BRIEF FOR APPELLANT: Sara V. A. May Pikeville, Kentucky

NO BRIEF FOR APPELLEES.

BEFORE: CETRULO, DIXON, AND LAMBERT, JUDGES.

OPINION

DIXON, JUDGE

Eastern KY Haulers, LLC ("Eastern") petitions for review of a Workers' Compensation Board (Board) opinion vacating and remanding the opinion and order entered July 26, 2021, by the Administrative Law Judge (ALJ) Jonathan R. Weatherby. After careful review, we reverse the Board's opinion.

1

FACTS AND PROCEDURAL BACKGROUND

Appellee, Charles Mounts, was hired by Eastern in August 2018 as a coal truck mechanic. On November 17, 2018, Mounts was unloading industrial truck tires when one exploded, knocking him from the trailer on which he was standing. Mounts was unsure if the sidewall of the tire hit his left leg or whether it was merely the percussive force of the air; nonetheless, he experienced pain in his left leg from his knee to his ankle. He was taken directly to the Pikeville Medical Center's emergency department, where a CT scan was performed, and was kept overnight for observation. Beginning the week of November 18, 2018, Mounts received temporary total disability (TTD) benefits at a rate of $621.30 per week.

On November 27, 2018, Dr. Matthew McCammon assessed Mounts for a "sprain of other ligament of the left ankle" and loose bodies. Dr. McCammon recommended a left ankle arthroscopy with synovectomy and excision of loose bodies, which was performed on December 20, 2018. At that time, Mounts was diagnosed with osteoarthritis, loose bodies, and synovitis. After the procedure, Mounts was discharged with a fracture boot and instructed to bear weight as tolerated. In follow-up visits, starting in February 2019, Mounts made varied complaints of pain and stiffness despite Dr. McCammon generally noting normal gait and range of motion. In May 2019, Mounts and Dr. McCammon discussed an

2

additional surgery to fuse the ankle; however, on June 25, 2019, Dr. McCammon noted that Mounts was improving and that the pain was now only occasional.

On July 23, 2019, Dr. David Jenkinson, an orthopedic surgeon, conducted an independent medical examination (IME). In his report, Dr. Jenkinson opined that Mounts was displaying symptoms "out of proportion to objective abnormality[, ]and the physical examination was characterized by inappropriate pain behaviors." Ultimately, Dr. Jenkinson concluded that: Mounts had a possible sprain/strain as a result of the work event, noting that this diagnosis was based solely on the history and initial examination as there were presently no objective findings in support; the remaining abnormalities were consistent with preexisting osteoarthritis; there was no evidence Mounts suffered any change in condition due to the work event; Mounts reached maximum medical improvement (MMI) for the sprain/strain as of the examination date; no further medical treatment was required relative to the November 17, 2018, work event; and Mounts was capable of returning to work in his former occupation or any comparable employment without restrictions. Additionally, Dr. Jenkinson assessed a 0% permanent impairment of function pursuant to 5th Edition American Medical Association's Guides to the Evaluation of Permanent Impairment (Guides).

Mounts' TTD benefits were terminated as of August 1, 2019, and on August 9, 2019, Eastern, through its insurer, notified Mounts that it had determined

3

his osteoarthritis was unrelated to his work injury and, consequently, the cost of his treatment would not be paid. Subsequently, Mounts underwent ankle fusion surgery in August 2019 and filed a Form 101, Application for Resolution of Claim-Injury, asserting his entitlement to continued income and medical benefits.

A second IME was conducted by Dr. James Owen on January 9, 2020. Dr. Owen diagnosed Mounts as "status post fusion of the left ankle with persistent ranges of motion deficit[, ]" which he attributed wholly to the work event, and opined that Mounts was incapable of returning to his customary employment. Pursuant to the Guides, Dr. Owen assessed a 14% total impairment rating which comprised an 11% whole-person impairment, due to ranges of motion deficits, and a 3% impairment for pain.

On November 17, 2020, a third IME was conducted by Dr. Daniel Primm, an orthopedic surgeon, who diagnosed Mounts with "preexisting degenerative arthritis, left ankle; left-ankle sprain superimposed on preexisting degenerative changes; and status post left ankle fusion with a clinically good result." Dr. Primm disputed Dr. Owen's impairment rating, arguing he failed to apply the proper Guides table concerning ankylosis of the ankle in a neutral position, and asserted a 4% whole-person impairment rating. Dr. Primm opined that the arthroscopy was reasonable given the sprain superimposed on the

4

preexisting degenerative changes. However, he judged that 50% of the ankle fusion, and necessarily the impairment rating, was related to preexisting arthritis.

A formal hearing...