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Robinson v. Kroger

Court of Appeals of Kentucky

April 12, 2019



          BRIEF FOR APPELLANT: Udell B. Levy Louisville, Kentucky

          BRIEF FOR APPELLEE: James B. Cooper Lexington, Kentucky



          LAMBERT, JUDGE.

         Betty Jo Robinson has petitioned this Court for review of the opinion of the Workers' Compensation Board (the Board) affirming the decisions of the Administrative Law Judge (ALJ) dismissing her claim against Kroger. We vacate and remand.

         Robinson filed an application for resolution of an injury claim on December 10, 2016, related to an alleged injury to her right wrist and hand. Robinson, born in 1970, had been working as a delicatessen clerk for Kroger in Louisville, Kentucky, since September 2013. She alleged that on October 1, 2016, "she had been frying chicken in the deli when she noticed her right wrist was painful and swollen and her fingers were numb." Robinson sought treatment from Dr. David T. Schulz at Norton Occupational Medicine, and she provided the history of her condition as set forth in the October 14, 2016, office visit report as follows:

This is a 46 yo female who presents to the clinic with right wrist pain and tingling in the fingers. This person works in the deli at Krogers. She has been working there for 3 years and works 6 days a week for 8 hours. She is right hand dominant. She was a stay at home mother prior to this job. On the date of injury she was moving racks of chickens to be roasted. Each pan can have 6 chickens on them at a time. While performing this task she suddenly developed right wrist pain. She denies hitting the wrist no slip fall or trauma [sic]. She [was] taking pans in and out of multiple ovens when this occurred. She had swelling and pain on the outside of the wrist. With the swelling she started to develop tingling in the fingers and up the arm. She has had no hand or wrist issues prior to this. She denies any history of injury to the elbow, shoulder or neck. She was seen in a clinic and evaluated. She was referred to hand surgery. She was evaluated there and had blood work drawn. She saw her PCP [primary care physician] who recommended FMLA [Family Medical Leave Act]. She presents her[self] to this clinic after going to another who contacted me about this person. She now presents with severe wrist pain. She had numbness in the fingers. She states the pain was sudden onset as was the tingling along with the swelling. She denies any crush type injury to the wrist. PMH [past medical history] HTN [hypertension] obesity asn [asparagine] asthma, neg for diabetes, thyroid [disease], or peripheral neuropathy. PSH [past surgical history] Non contributory.

         Based upon his examination, Dr. Schulz diagnosed her with right wrist tendonitis and overuse syndrome, recommended the use of a sling and no use of her right upper extremity, and prescribed pain medication. Robinson had been seen that morning in the Immediate Care Center by Dr. Jeri R. Reid, who thought she had carpal tunnel syndrome.

         In her deposition, Robinson described her work in the deli at Kroger, where she began working in September 2013. Prior to that, she had not worked outside of the home. At Kroger, her job duties went from slicing meat, to working in the bakery, to cooking and frying. After a year and a half, she began working on a full-time basis and performed all three duties. Robinson also described the onset of problems with her wrist and hand. She said that her problems "really got bad when I was frying chicken" on October 1, 2016, although the injury report stated that the problems began while she was slicing meat. She was experiencing tingling, numbness, and sharp pain on the outside of her wrist that went up her arm to her elbow. She noticed the symptoms a few days before October 1st. Robinson went on to describe the medical treatment she had sought for her wrist and hand problems, including a visit to the Immediate Care Center on October 1st, when she was told she had carpal tunnel syndrome and was taken off work for one day. Robinson returned to Kroger on October 3rd wearing a splint, but her problems stayed the same. She testified that her last day of work at Kroger was October 12, 2016, and that she had not received any benefits since she had left. Robinson wore a splint every day and underwent surgery to repair a torn ligament in January 2017. She did not believe any of the surgeries helped her, stating that she still experienced pain in her right hand and arm and tingling outside of her right wrist.

         Robinson filed the April 5, 2017, report of Dr. Jules J. Barefoot's independent medical evaluation. Robinson reported that her typical work activities in mid-September 2016 included repetitive lifting, grasping, and carrying, with an extensive use of her upper extremities. In late September, she began developing wrist pain that was increasingly severe. She believed that having to lift baskets of six chicken breasts repetitively was the cause of her wrist pain. Dr. Barefoot described the medical treatment Robinson sought, including physical therapy, a short-arm cast, an MRI arthrogram, and surgery, and he reviewed Robinson's medical records. The MRI arthrogram of Robinson's right wrist performed on December 20, 2016, showed degenerative changes and fraying. Dr. Barefoot did not believe Robinson had reached maximum medical improvement because she was still in treatment and therefore did not include an impairment rating. He concluded that it was "more likely than not these work activities accelerated or hastened her underlying dormant asymptomatic condition into its symptomatic painful disabling reality." Her work activities required "repetitive flexion and extension as well as supination and pronation of her forearm" and were the type "that would be expected to, over time, cause injury to her TFCC [Triangular Fibrocartilage Complex], as noted on her MRI report[.]" Robinson's history and medical records established that "her workplace activities were the cause of her initial wrist pain for which she sought medical treatment."

         Robinson filed the medical records of Baptist Health Medical Group Family Medicine which was the report of an office visit dated October 12, 2016, as well as physical therapy records. She also filed the medical records of Dr. Antony Hazel at Louisville Arm & Hand, who performed a right wrist arthroscopy and TFCC debridement. Robinson later filed an August 29, 2017, letter from Dr. Hazel, in which he indicated she had been under his care since the previous November. He stated "[g]iven that she did not have previous wrist pain, her symptoms may have been related to her activity at work. While exact causality can be difficult to assign, central TFCC tears can be associated with repetitive action and this work can aggravate this condition."

         Kroger denied Robinson's claim, alleging disputes existed as to the amount of compensation owed to her, causation, notice, and the statute of limitations. In support of its defense, Kroger filed the April 4, 2017, report and the June 6, 2017, follow-up report of Dr. Richard DuBou's independent medical examination. Dr. DuBou did not believe Robinson's TFCC tear was related to her work at Kroger and that she should reach MMI by mid-April, after she had three months of therapy and recovery. He recommended Robinson undergo a functional capacity evaluation after she had finished physical therapy to know what her abilities were. In his June follow-up report, Dr. DuBou indicated that he did not know how Dr. Barefoot determined that Robinson's TFCC injury was related to her work. Dr. DuBou believed the evidence pointed to a degenerative tear of the TFCC because it would be unlikely for it to have occurred in two years. "With her doing mostly nonforceful movements in her two years of working at Kroger, I believe these are degenerative, but not related to her work at Kroger. Pushing a rack [of six chickens] again is not very hard work."

         The ALJ scheduled a benefit review conference (BRC) in August. After the BRC, the contested issues remained benefits, causation, average weekly wage, medical expenses, whether Robinson had sustained an injury as defined by the Act, and temporary total disability benefits. A final hearing was scheduled. Prior to the final hearing, the parties agreed to bifurcate Robinson's claim. The ALJ discussed this at the final hearing, where the parties agreed the contested issues would be causation, ...

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