RENDERED: DECEMBER 3, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1043-WC
ELLIS POPCORN CO. C/O MATRIX
COMPANIES, TPA APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-91-04106
ROBERT STOGNER; HONORABLE
JOHN MCCRACKEN,
ADMINISTRATIVE LAW JUDGE;
DR. JOHN RUXER/ORTHOPAEDIC
INSTITUTE OF W. KY; DR. ROBERT
HAYDEN; DR. STEPHEN COMPTON;
AND WORKERS’ COMPENSATION
BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, DIXON, AND MAZE, JUDGES.
COMBS, JUDGE: The Appellant, Ellis Popcorn Co. (Ellis), appeals from an
opinion of the Workers’ Compensation Board (Board) that affirmed the decision of
the Administrative Law Judge (ALJ) in this post-award medical fee dispute
(MFD). Finding no error after our review, we affirm.
The Appellee, Robert Stogner, was employed by Ellis as a plant
engineer. He was severely injured on December 26, 1990, when he fell from a
ladder and struck his head on the floor. The underlying claim was litigated.
Stogner presented testimony from Dr. Mary Ellen Clinton, a neurologist, as
summarized in ALJ Kerr’s June 30, 1993, opinion, award, and order, in relevant
part:
Plaintiff’s gait and station were significant for truncal
ataxia and plaintiff had left foot drop. [Dr. Clinton]
diagnosed post head trauma syndrome . . . . [Stogner] has
. . . ataxia and unsteady gait such that he cannot walk
without a cane. . . . [Dr. Clinton] related plaintiff’s
condition to his injury . . . . She also stated plaintiff will
show no significant improvement[.]
ALJ Kerr determined that Stogner had sustained a 100% occupational disability
and awarded medical benefits as might reasonably be required for the cure and
relief from the effects of the injury.
Over the years, Ellis has filed various medical fee disputes, including
a 2017 MFD contesting a proposed L4-5 microdiskectomy which ALJ Miller
determined was compensable. In that proceeding, Ellis filed Dr. Joseph Zerga’s
August 31, 2017, report, which provides in relevant part:
This is a 73 year old male from Murray, Kentucky. He is
referred for the question of surgery approval. The history
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is gathered from him and also from a review of current
records. There are several issues in this gentleman. He
had a fall of a ladder in 1990 and apparently had
significant brain trauma, I presume predominantly to the
right side of his brain. He was in the hospital for three
months. He was discharged initially with a plastic brace
because he had a foot drop which occurred maybe at
discharge or shortly thereafter. He now has a mechanical
moveable brace on his left leg and has spasticity in both
limbs. He is able to ambulate with this. However, he has
had several falls. He tells me he has had 400 to 500 falls.
He blames it on his brace. He says sometimes his brace
will malfunction and it will cause him to fall. He also
has seizures. By his wife’s description they are complex
partial seizures sometimes with secondary generalization.
His wife thinks he may have had a seizure today.
Dr. Zerga attributed the diagnosis of a disc protrusion to the original
work injury, noting that Stogner “has had frequent falls since then. The fall that
occurred on March 7, 2017, was the result of his clumsiness from the initial
injury.” Dr. Zerga explained that “[o]bviously he is paraparetic with increased
spasticity in his legs, maximal in the left leg with need for a leg brace.” Dr. Zerga
believed that Stogner’s “neurological deficits have caused the frequent falls . . .
[and that] the current herniated disc is related to a fall which was caused by his gait
ataxia from the 1990 injury.”
On September 20, 2020, Ellis filed the amended MFD which is the
subject of this appeal. Ellis contested the compensability of medical expenses for
Stogner’s left knee, left hip, left ankle, and right shoulder after he fell on June 16,
2020. Ellis explained that “[a]t the time of the June 16, 2020 fall, the claimant
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reported that his left knee buckled in a parking lot resulting in the fall and
subsequent complaints of left knee pain, left hip pain, left ankle pain, and right
shoulder pain.” Ellis asserted that “the fall was causally related to the claimant’s
development of knee osteoarthritis some 30 years following his 1990 work injury.”
Ellis relied upon the August 5, 2020, peer review report of Dr. Avrom
Gart, who opined that the 1990 work injury was not the cause of Stogner’s left
knee, left hip, left ankle, and right shoulder complaints, but that Stogner had
sustained a fall just prior to an office visit with a Dr. Stephen Compton. In Dr.
Gart’s opinion, the fall was attributable to Stogner’s development of knee arthritis
over 30 years following the work injury. Dr. Gart’s peer review report reflects that
he “reviewed the following medical records in their entirety: 6/17/20 Report Dr.
Compton.” Dr. Gart also noted that a peer discussion was had with Dr. Compton,
who has been following Stogner for bilateral knee and right shoulder pain
secondary to osteoarthritis, and that “[t]he most recent fall occurring on 6/16/20,
was allegedly secondary to one of his knees buckling resulting in a fall onto the left
side.”
Stogner, pro se, submitted several statements in response to the MFD.
His September 7, 2020, statement provides as follows in relevant part:
I went to see Dr. Stephen Compton because of a fall I
had on June 16, 2020. The fall was caused by my left
knee failing to “lock” on the forward motion of my left
leg and buckling, causing me to fall hard on my left side.
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Dr. Avrom Gart’s peer review of this case refuses to
consider that my former employer has had to pay for
several injuries caused by falls. My medical history will
suffice to prove that I was adjudged a “High Fall Risk”
because the functioning of my left leg/knee were [sic]
compromised by injuries sustained in my fall. The
original injury left me with nerve damage in my left leg
and knee and impaired balance due to Ataxia related to
the brain injury.
(Emphasis original.) Stogner also filed a statement dated September 25, 2020, in
which he explained that:
The dispute concerning the medical bills from Dr.
Compton are for a fall that caused a sprained left ankle,
damage to the left leg joint with considerable swelling
and pain and a large bruise on my left lower hip that was
the size of a cup saucer. A review of all my medical
records will convince you that I have been deemed a
“High Fall Risk” because the near fatal head injury I
suffered on December 26, 1990 left me with a condition
called “Ataxia,” an unsteady gait, a spastic left leg and
left knee that will suddenly buckle causing me to fall. I
also suffer with migraines and seizures.
By opinion and order rendered December 22, 2020, ALJ McCracken
ruled against Ellis on the amended medical dispute and found the contested
treatment compensable, citing Addington Resources, Inc. v. Perkins, 947 S.W.2d
421 (Ky. App. 1997). The ALJ explained in relevant part as follows:
Stogner states that he has had hundreds of falls
since his 1990 work injury. He states that he is at high
risk of falls. The ALJ notes that in a prior medical
dispute, Defendant filed the report of Dr. Joseph Zerga in
regards [sic] to a lumbar surgery that was caused by a
2017 fall. Dr. Zerga stated that the fall was caused by
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conditions from his original injury. He also stated that in
his opinion Stogner’s neurological deficits cause him to
frequently fall. . . .
For the fall in question for the subject medical
dispute, Stogner stated in his statements to the ALJ that
the fall occurred due to his left knee failing to “lock” on
the forward motion of his left leg and buckling, causing
him to fall hard on his left side.
The ALJ relies on Stogner[’s] statements and Dr.
Zerga’s 2017 report to find that the June 16, 2020 fall
was a natural consequence of the severe head and
neurological injury he sustained on December 16, 1990.
The ALJ relies on Stogner’s statement and Dr. Zerga to
find that the injuries to his right shoulder, left knee, left
hip and left ankle, and the treatment to those body parts,
were a natural consequence of his fall on June 16, 2020.
On January 5, 2021, Ellis filed a petition for reconsideration and
argued that it was patent error for the ALJ to rely upon Dr. Zerga’s independent
medical examination (IME) report because it had not been designated as evidence
in the MFD and also argued that Dr. Zerga’s report lacked probative value. By
order rendered on January 26, 2021, the ALJ denied the petition, explaining that he
“was not persuaded by Dr. Avrom Gart’s opinions. Dr. Gart never examined
Plaintiff.”
Ellis appealed to the Board and contended that the ALJ erred in
considering Dr. Zerga’s 2017 report because: (1) neither party designated it as
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evidence in the subject MFD;1 and (2) it does not constitute substantial evidence
that the 2020 fall was causally related to the underlying work event.
By opinion entered on August 13, 2021, the Board affirmed. The
Board discussed “the direct and natural consequence rule” explained in Addington
Resources, supra, that a subsequent injury -- whether it be an aggravation of the
original injury or a new and distinct injury -- is compensable if it is the direct and
natural result of a compensable injury. The Board concluded as follows:
The evidence establishes that Stogner has ongoing,
long-standing neurological problems with his left leg,
including foot drop and failure of the knee to lock. Dr.
Zerga, 27 years after the work injury, attributed Stogner’s
numerous falls to conditions that resulted from the work
injury. He also cited seizures related to the work injury
as a possible cause of the falls. Dr. Zerga’s opinions
certainly constitute substantial evidence of the
permanency of the work-related effects that caused
numerous falls. Stogner indicated the mechanism of the
fall in 2020 was consistent with his past falls. The failure
of the knee to lock caused the 2017 fall that was
determined to be a result of the 1990 injury. In the
earlier 2020 medical fee dispute decision,[2] ALJ Harvey
noted, “Stogner suffered a closed head injury with
significant loss of function, including vision and hearing
problems, as well as injuries to his low back. The head
injury compromised Stogner’s balance and has resulted
in numerous falls, one of which ruptured his L4-5 disc
and required a laminectomy.” Clearly, the prior record
1
It appears that Ellis has abandoned the first issue on appeal to this Court. We limit our
discussion of the Board’s opinion accordingly.
2
In that earlier MFD, ALJ Harvey rendered an opinion and order on July 23, 2020, and held that
proposed transforaminal injections were compensable.
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established the effects of the 1990 injury that persisted
resulted in numerous falls. The medical evidence
introduced prior to this dispute, along with Stogner’s
testimony, and reasonable inferences drawn therefrom
support the ALJ’s determination that the 2020 fall was a
direct and natural consequence of the 1990 injury.
The ALJ found Dr. Gart was not persuasive, noting
he never examined Stogner. It is not clear from Dr.
Gart’s report that he had an accurate history regarding the
number of falls caused by conditions related to the
original work injury. Dr. Gart only lists Dr. Compton’s
medical records from June 17, 2020 as records he
reviewed. He indicated he had a peer discussion with Dr.
Compton. Dr. Gart did not discuss the cause of the
osteoarthritis, other than stating the 1990 incident was
not the cause. He did not discuss whether hundreds of
falls caused by the effects of the work-related injury
would have caused or contributed to the osteoarthritis.
He did not address how the buckling of the knee in 2020
would have a different cause than the buckling of the
knee in 2017 that was determined to be the result of the
1990 injury. The ALJ was well within his role as fact-
finder in determining Dr. Gart’s opinions were not
persuasive.
On appeal to this Court,3 Ellis argues -- as it did before the Board --
that Dr. Zerga’s report has no probative value regarding causation of the claimant’s
2020 fall and thus does not constitute substantial evidence. The standard of our
review on appeal is well established. “The function of further review of the
3
No response has been filed as permitted by Kentucky Rule of Civil Procedure 76.25(6), which
provides that “[e]ach appellee may file . . . a response to the petition within 20 days of the date
on which the petition was filed with the Court of Appeals.”
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[Board] in the Court of Appeals is to correct the Board only where the Court
perceives the Board has overlooked or misconstrued controlling statutes or
precedent, or committed an error in assessing the evidence so flagrant as to cause
gross injustice.” Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky.
1992).
We perceive no such error in the case before us. Indeed, we agree
with the Board’s analysis. See Diop v. Zenith Logistics, 486 S.W.3d 302 (Ky. App.
2015), in which we held that substantial evidence supported ALJ’s decision to
apply the direct and natural consequence rule. In Diop, the claimant suffered a fall
in a bathtub and contended that a previous work injury had so compromised her
mobility that she fell on this particular occasion. We concluded that the ALJ had
the discretion to believe her versions of the event and to rely on the nexus between
medical records from the clinic that had documented the work injury and the
hospital records that documented the fall in the bathtub. Id. at 309.
We affirm.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
Matthew J. Zanetti
Louisville, Kentucky
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