Preview:

RENDERED:

JANUARY 16, 2004; 2:00 p.m. NOT TO BE PUBLISHED

Commonwealth Of Kentucky Court of Appeals
NO. 2003-CA-000676-WC

DEBRA JONES

APPELLANT

v.

PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-00-95837

BAPTIST HOSPITAL EAST; HON. RONALD E. JOHNSON, Administrative Law Judge; and WORKERS' COMPENSATION BOARD

APPELLEES

OPINION VACATING AND REMANDING WITH DIRECTIONS ** ** ** ** **

BEFORE:

COMBS, JOHNSON, and MINTON, Judges. Debra Jones appeals from a decision of the

COMBS, JUDGE.

Workers' Compensation Board which reversed a decision of the Administrative Law Judge (ALJ) awarding her permanent partial disability benefits of $12.23 per week for 425 weeks. The ALJ

found that while working for the appellee, Baptist Hospital East (the Hospital), Jones sustained a 5% impairment. It attributed

her impairment rating to the cumulative effect of two workrelated injures to her back: other in 2000. one occurring in 1999 and the

The Board concluded that the ALJ abused his

discretion in making an award "for a 1999 injury that was never pled as compensable or prosecuted." March 5, 2003, p.21). (Opinion of the Board,

It also determined that there was no

evidence that Jones had suffered an impairment as a result of her 2000 injury to substantiate the ALJ's award. After a review

of the record, we conclude that the Board has erred both in its application of the law and in its assessment of the evidence so as "to cause gross injustice." See Western Baptist Hospital v. Thus, we vacate and

Kelly, Ky., 827 S.W.2d 685, 687-88 (1992). remand.

Jones, a certified nurses' aide, began working for the Hospital in March 1999. While assisting another nurse lift a

heavy patient into bed, she sustained an injury to her lower back on September 16, 1999. There is no dispute that she

immediately reported the injury to her supervisor and that she sought medical attention. Dr. Thomas R. Lehmann, who diagnosed

her condition as being primarily muscular in origin, treated her conservatively. Jones's condition had resolved itself for the most part when four months later, on January 16, 2000, she again injured her back in a similar incident while attempting to pull a 500-pound patient back up in his bed. She sought emergency When her pain

treatment and was referred to physical therapy.

did not subside, Jones was referred to Dr. Warren Bilkey, who in

-2-

conjunction with Dr. Lehmann, treated her conservatively for many months. Her condition did not improve significantly

despite her compliance with the doctors' treatment regimen, which included home exercises, cortisone injections, epidural blocks, a back brace, a TENS unit, and pain medication. She was

ultimately referred to Dr. Steven Glassman, a surgeon, who recommended continued conservative treatment for as long as possible before resorting to surgery. Several months after the

second injury, Dr. Lehmann placed permanent restrictions on Jones's physical activities, which included limited sitting, no repetitive bending or lifting, and no lifting of any weight in excess of twenty pounds. Jones had continued to work as a nurses' aide after the first injury of September 1999. However, because of her

persistent back pain and the restrictions placed on her activities, Jones could not perform the strenuous work required of a nurses' aide after the second injury. Even though she was

given light clerical duties by the Hospital, she frequently missed work due to her medical condition. She was paid some

temporary total disability (TTD) benefits by the Hospital. However, she was also required to use sick leave and personal vacation days when unable to work because of her back impairment. Due to her frequent absence from work resulting

from her back injuries, the Hospital terminated her employment

-3-

on January 15, 2002 -- coincidentally, the same date on which Jones filed her Form 101 seeking permanent disability benefits. Because she had been able to continue to work as a nurses' aide after the 1999 injury, Jones's application for benefits was based only on the January 2000 injury. However,

the accompanying Form 105 listed Drs. Lehmann and Bilkey as having treated her for lower back problems since 1999. Additionally, the attached medical reports from Dr. Bilkey contained his opinion that although Jones's medical condition had been caused by the January 2000 incident, it was complicated by the September 1999 injury. Before the ALJ, the Hospital stipulated that Jones had injured herself in 2000 while lifting one of its patients. Nevertheless, it contended (as it has throughout this litigation) that her impairment had been caused by the 1999 work-related incident

Download 2003-ca-000676.pdf

Kentucky Law