Miller v. Go Hire Emp't Dev., Inc.

• Decision Date: 09 October 2015
• Docket Number: No. 2014–CA–000379–WC,2014–CA–000379–WC
• Parties: Shirley Miller, Appellant v. Go Hire Employment Development, Inc.; Hon. William Rudloff, Administrative Law Judge; and Workers' Compensaton Board, Appellees
• Court: Kentucky Court of Appeals

473 S.W.3d 621

Shirley Miller, Appellant

v.Go Hire Employment Development, Inc.; Hon. William Rudloff, Administrative Law Judge; and Workers' Compensaton Board, Appellees

No. 2014–CA–000379–WC

Court of Appeals of Kentucky.

Rendered: October 9, 2015; 10:00 A.M.

Brief for Appellant: McKinnley Morgan, London, Kentucky.

Brief for Appellee, Go Hire Employment Development, Inc.: W. Barry Lewis, Hazard, Kentucky.

BEFORE: KRAMER, J. LAMBERT, AND NICKELL, JUDGES.

OPINION

NICKELL, JUDGE:

The appellant, Shirley Miller (Miller), filed a Form 101 on March 28, 2013, alleging injuries to her chest, back, right arm and both legs as the result of a work-related motor vehicle accident (MVA) on July 3, 2012, sustained while in the course of delivering lunches in a company van. At the time of the accident, Miller was employed by appellee, Go Hire Employment Development, Inc. (Go Hire), as a cook at the Caney Creek Rehabilitation Center, where her duties included preparation and delivery of food.

On September 4, 2013, the administrative law judge (ALJ) entered an opinion and order finding all of Miller's alleged injuries to be causally related to the work-related accident. The ALJ awarded permanent partial disability (PPD) income benefits pursuant to KRS ¹ 342.730 based upon an 11% whole person impairment rating pursuant to the AMA Guides,² encompassing a 5% impairment rating attributable to an uncontested back condition and a 6% impairment rating attributable to a contested carpal tunnel syndrome (CTS). The ALJ also awarded past and future medical benefits incurred for the cure and relief from the effects of Miller's various injuries, including the contested CTS. On September 30, 2013, the ALJ overruled Go Hire's petition for reconsideration.

In its appeal to the Workers' Compensation Board (Board), Go Hire challenged the ALJ's award of income and medical benefits for Miller's CTS. Go Hire asserted no substantial evidence supported a finding of work-related causation regarding the CTS, and noted the ALJ had failed to provide any specific factual basis supporting the award as requested in its petition for reconsideration.

In an opinion entered on January 31, 2014, the Board reversed the ALJ's award of PPD income benefits to the extent it encompassed the 6% impairment rating attributable to Miller's contested CTS, and remanded for the ALJ to recalculate Miller's award based solely upon the remaining 5% impairment rating assessed for her uncontested low back injury. In doing so, the Board held the 6% impairment rating assessed by Dr. Arthur Hughes in relation to his examination of Miller on April 23, 2013, could not be considered substantial evidence to support an award of PPD income benefits. The Board reasoned the ALJ had held Miller had not reached maximum medical improvement (MMI) until July 31, 2013, when examined by Dr. David Jenkinson, and an impairment rating is improper under the AMA Guides until the clinical findings indicate the medical condition is static and well-stabilized with no further improvement or deterioration anticipated, thereby having reached MMI.³ In addition, the Board vacated the ALJ's award of medical benefits relating to Miller's CTS. The Board remanded the matter for further findings by the ALJ—with specific citation to supporting evidence—regarding whether the contested CTS condition is work-related; permanent or temporary; and entitled Miller to an award of any medical benefits.⁴

Miller now appeals. Upon careful review of the record and arguments, the Board's opinion of January 31, 2014, is affirmed in part and reversed in part, and the matter is remanded to the ALJ for further specific findings consistent with this Opinion.

FACTUAL AND PROCEDURAL HISTORY

The relevant facts and posture of this case were summarized by the Board as follows:

In the course of delivering lunches in a company van on July 3, 2012, Miller was involved in a motor vehicle accident ("MVA") which she alleged resulted in injuries to her chest, back, right arm, and both legs. As previously noted, there is no dispute the MVA caused a low back injury resulting in a compensable 5% impairment. At the time of the injury, Miller was working as a cook at Caney Creek Rehabilitation Center which entailed preparing and delivering the food.

Miller testified she was driving to Go Hire's Breathitt County [C]enter when a vehicle pulled onto the highway and struck the right side of the van. Upon impact, she swerved hitting a building and a pole located beside the building. Miller testified the right fender and the driver's door had extensive damage. The seatbelt cut into her shoulder and her glasses were knocked off. Miller was taken by ambulance to the hospital in Breathitt County. [FN] She testified her back, neck, leg, and chest hurt and her right arm was numb.

[FN] The Kentucky River Medical Center.

During her June 24, 2013, deposition, Miller testified she was still having pain and problems in her lower back and legs. As to whether she injured any other body parts, Miller provided the following testimony:

Q: Did you injure any other parts of your body such as your neck or your upper back?

A: No.

Q: Did you injure your arms or your wrist in any way?

A: No.

Q: Do you have any pain or symptoms in your neck or your arms?

A: No.

Q: Do you have any pain or symptoms in your elbows?

A: No.

Q: Do you have any pain or symptoms in your wrists?

A: No.

Q: Any numbness or tingling in your arms?

A: No.

Miller missed no work as a result of the accident. After the Caney Creek Rehabilitation Center closed on March 30, 2013, in April she began assisting clients at the Go Hire centers in Breathitt and Owsley Counties. The job to which she transferred is much lighter duty and does not involve any manual labor, bending, lifting, or carrying. Miller testified she is working full-time without any restrictions on her activities. Miller acknowledged she has diabetes and a thyroid disorder.

At the August 29, 2013, hearing, Miller testified she continues to experience back and leg pain. On direct, Miller provided the following testimony relative to her right wrist problems:

Q: Are you experiencing problems with your right wrist?

A: In my hand here and then there's—there's a knot right through there.

Q: And, did—is—is the car accident where it began? Had you noticed it before, Shirley?

A: No, I haven't noticed it before the accident—uh-uh.

On cross-examination, Miller testified as follows:

Q: Now, as to your wrist condition, you—you did not injure your right wrist in the accident did you?

A: This one—the ambulance driver asked me was I hurt and I told him both of my hands was [sic] hurting and numb and both of my legs were numb.

Q: Did you tell any doctor that you went to see after the accident that you had injured your right wrist?

A: I told him that both of my hands were numb, as far [sic] I could remember, and I told him both of my legs were numb.

Q: Okay—do you remember giving a discovery deposition in this case back at your attorney's office on June 24, 2013?

A: If I remember?

Q: Yes, ma'am.

A: It's been such—way back I can't—I do know my hand hurts.

Q: Okay.

A: And, as far as I can remember I know my hand was hurting. I also had a lot of numbness and tingling.

[text omitted]

Q: Ms. Miller, I asked you the following question, "Did you injure your arms or your wrists in any way?" Answer, "No." Do you remember giving that testimony?

A: Yes, I believe I do.

Q: Okay.

A: But I don't remember that far back about hurting. I do know I remember that I was numb and had tingling in my hands and arms and legs.

[text omitted]

A: My memory is not good.

Q: Okay.

A: Especially that morning. I was shaken up.

[text omitted]

Q: Ms. Miller if you could read along.

A: Uh-huh.

Q: I asked you the question, "Do you have any pain or symptoms in your wrists?" Answer, "No." Do you remember giving that testimony?

A: No, I don't.

Q: You don't recall it?

A: No.

Q: Question two forty-nine I asked you, "Any numbness or tingling in your arms?" Answer, "No."

A: Yes, I do have numbness and tingling in my feet, and hands, and legs.

Significantly, Miller testified her current average weekly wage ("AWW") is the same as it was on July 3, 2012, the date of injury.

Miller introduced the Form 107 completed by Dr. Arthur Hughes on April 23, 2013. He noted Miller stated she was transported by ambulance to the hospital and was experiencing low back pain, and numbness in her arms, hands, and leg. With respect to symptoms in her hands, Dr. Hughes noted as follows:

Her hands were numb at first but she no longer has much problem here. Though she does note some tingling in both hands and the right forearm and hands bother her when she drives but do not awaken her. Her hands were okay prior to the accident. She has tended to drop things with either hand.

After conducting a records review, performing a physical examination, and reviewing MRIs of the cervical and lumbar spine, Dr. Hughes diagnosed right carpal tunnel syndrome.[FN]

[FN] Dr. Hughes also diagnosed: 1) Lower back w/o radiculopathy status post motor vehicle accident; 2) Paresthesias of both legs, mechanism uncertain.

With respect to causation, he noted "the symptoms of right carpal tunnel syndrome accompanied by physical findings of such were not present prior to the MVA and had been present since." Pursuant to the 5th Edition of the American Medical Association, Guides to Evaluating Permanent Impairment ("AMA Guides "), Dr. Hughes assessed a 6% impairment for right carpal tunnel syndrome attributable to the MVA. He opined Miller had no active impairment prior to the injury. With respect to the date maximum medical improvement ("MMI") was reached, Dr. Hughes stated as follows:

She had not yet reached maximum medical improvement as she has had no treatment for the right carpal tunnel syndrome, though this is mild. If no further treatment for this is approved, then she is at maximum medical improvement as of this date.

Dr. Hughes believed Miller retained the capacity to perform the type of work she performed at the time of

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