OPINION ENTERED:  March 16, 2012

 

 

CLAIM NO. 201098304

 

 

ST. ELIZABETH MEDICAL CENTER                   PETITIONER

 

 

 

VS.        APPEAL FROM HON. LAWRENCE F. SMITH,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

MARILYN VOWELS

and HON. LAWRENCE F. SMITH,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

VACATING AND REMANDING

                       * * * * * *

 

 

BEFORE:   ALVEY, Chairman, STIVERS and SMITH, Members.

 

STIVERS, Member. St. Elizabeth Medical Center ("St. Elizabeth") appeals the September 12, 2011, opinion, order, and award of Lawrence F. Smith, Administrative Law Judge ("ALJ") determining, in relevant part, Marilyn Sue Vowels ("Vowels") did not suffer from a pre-existing active lumbar spine condition at the time of her work-related injury.  St. Elizabeth filed a petition for reconsideration asserting, in relevant part, the ALJ applied the wrong legal standard when resolving the issue of pre-existing active impairment.  In the November 17, 2011, order ruling on St. Elizabeth\'s petition for reconsideration, the ALJ failed to address the St. Elizabeth\'s argument regarding the correct legal standard and denied that portion of its petition for reconsideration.  St. Elizabeth also appeals the November 17, 2011, order.

          The Form 101 alleges on January 12, 2010, Vowels injured her back and left upper extremity in the following manner:  "Fell out of chair as I went to sit and chair flew away."    

          The July 19, 2011, benefit review conference ("BRC") order lists "[p]re-existing active disability" as a contested issue.  Additionally, in its brief to the ALJ, St. Elizabeth set forth its argument and the supporting evidence on the issue of whether Vowels had a pre-existing active lumbar spine impairment.

          The record contains the independent medical examination ("IME") report of Dr. Steven S. Wunder, dated May 16, 2011, in which Dr. Wunder opined, in part, as follows:

1.  Using the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, she would have a DRE Category II impairment.  This is 5% to the whole person.  She has non-verifiable complaints. 

 

2.  Her lumbar degenerative disc disease and bulges were active before the January work injury.  This was confirmed by the MRI and x-rays in 2008.  Approximately 30% of her impairment would be a direct and proximate result of the work injury and 70% pre-existing.  Thus, only a 1.5% whole person impairment would be due to this claim.

 

          On the issue of a pre-existing active lumbar spine impairment, in the September 19, 2011, opinion, order, and award the ALJ stated as follows:

Did the plaintiff suffer from an active pre-existing lumbar spine condition at the time of the January 2010 work injury? The defendant argues that the 2008 MRI and the plaintiff\'s failure to remember the circumstances of it support Dr. Wunder\'s finding that she suffered from an active pre-existing condition.  The plaintiff argues that she never missed work or received restrictions for a prior lumbar injury.  She had been working without pain or restrictions prior to the January 2010 work accident.

 

Active disability is the degree of occupational disability that existed immediately before an injury without regard to the effects of that injury.  Griffin v. Booth Memorial Hospital, 467 S.W.2d 789 (Ky. 1971); Wells v. Bunch, 692 S.W.2d 806 (Ky. 1985).  In the present case the defendant has failed to prove any degree of occupational disability immediately before the work injury.  Although the plaintiff had undergone an MRI two years previous, she had no restrictions or limitations immediately prior to the work injury.  Accordingly, I find that the plaintiff [sic] prior lumbar condition, in whatever state it was, did not rise to the level of pre-existing active impairment.

 

          On appeal, St. Elizabeth asserts the ALJ applied the wrong legal standard in deciding the issue of whether Vowels had a pre-existing active lumbar spine impairment at the time of the work injury.  St. Elizabeth argues, in part, as follows:

The Opinion, Award and Order states that defendant had failed to prove any degree of occupational disability per Griffin v. Booth Memorial Hospital, 467 S.W.2d 789 (Ky. 1971), and Wells v. Bunch, 692 S.W.2d 806 (Ky. 1985).  However, the correct legal standard is substantial evidence that the plaintiff\'s pre-existing low-back condition was symptomatic and impairment-ratable immediately before a work injury.  Finley v. DBM Technologies, 217 S.W.3d 261 at 265 (Ky. App. 2007).

 

(emphasis in original).

 

St. Elizabeth also cites to numerous portions of the record which, it argues, provide substantial evidence in support of a finding Vowels\' lumbar spine was both symptomatic and impairment-ratable before the January 12, 2010, injury.

          A review of the language used by the ALJ in the September 12, 2011, opinion, order, and award indicates the ALJ applied the wrong legal standard in deciding whether Vowels had a pre-existing active lumbar spine impairment at the time of the work injury.  Therefore, his decision on this issue must be vacated.  While Kentucky law holds the arousal of a pre-existing dormant condition into disabling reality by a work injury is compensable, an employer is not responsible for a pre-existing active condition present at the time of the alleged work-related event.  McNutt Construction/First General Services v. Scott, 40 S.W.3d 854 (Ky. 2001).  The correct standard regarding a carve-out for a pre-existing active condition is set forth by the Court of Appeals in Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007).  In Finley, supra, the Court instructed in order for a pre-existing condition to be characterized as active, it must be both symptomatic and impairment ratable pursuant to the AMA Guides immediately prior to the occurrence of the work-related injury.  The burden of proving the existence of a pre-existing active condition is on the employer.  Finley v. DBM Technologies, supra. 

          On remand, the ALJ must revisit the evidence and resolve the issue of whether Vowels had a pre-existing active lumbar spine condition at the time of the alleged injury pursuant to the correct legal standard as articulated in Finley v. DBM Technologies, supra.

          Accordingly, that portion of the September 12, 2011, opinion, order, and award determining Vowels did not have a pre-existing active lumbar condition and the November 17, 2011, order ruling on St. Elizabeth\'s petition for reconsideration, as it pertains to the existence of a pre-existing active lumbar condition at the time of the work injury, are VACATED.  This claim is REMANDED to the ALJ as designated by the Chief Administrative Law Judge, for additional findings of fact and entry of an amended opinion, order, and award in conformity with the views expressed in this opinion.

          ALVEY, CHAIRMAN, CONCURS.

          SMITH, MEMBER, NOT SITTING.

COUNSEL FOR PETITIONER:

HON R STEPHEN BURKE

207 THOMAS MORE PKWY

CRESTVIEW HILLS KY 41017

 

COUNSEL FOR RESPONDENT:

HON DAVID M ANDREW

250 GRANDVIEW DR STE 550

FT MITCHELL KY 41017

 

CHIEF ADMINISTRATIVE LAW JUDGE:

HON J LANDON OVERFIELD

657 CHAMBERLIN AVE

FRANKFORT KY 40601