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200-CA-00(NP)

RENDERED:  MARCH 20, 2015; 10:00 A.M.

NOT TO BE PUBLISHED

 

Commonwealth of Kentucky

Court of Appeals

 

NO. 2014-CA-000230-WC


 

 

CITY OF INDEPENDENCE                                                       APPELLANT

 

 

 

                           PETITION FOR REVIEW OF A DECISION

v.                   OF THE WORKERS’ COMPENSATION BOARD

                                        ACTION NO. WC-12-00124

 

 

 

PHILLIP DUNFORD; HON. WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD                                   APPELLEES 

 

 

 

OPINION

AFFIRMING

 

** ** ** ** **

 

BEFORE:  DIXON, JONES AND STUMBO, JUDGES.

STUMBO, JUDGE:  The City of Independence appeals from an opinion and order of the Workers’ Compensation Board (“Board”) which vacated an award of workers’ compensation benefits.  Independence appeals two findings of the Board concerning a pre-existing medical condition and the award of future medical benefits.  We find no error and affirm.

                   This case has been before the Administrative Law Judge (“ALJ”) and Board on two occasions and each has issued two opinions.  The ALJ held a hearing on this case on December 14, 2012.  Phillip Dunford, the injured party, testified by deposition and at the hearing.  Dr. Justin Kruer’s testimony was taken by deposition.  Also, the medical records of Independence Chiropractic and a medical report from Dr. Thomas Bender were filed into evidence. 

                   The Board’s second order and opinion, which is being appealed, contains a useful recitation of the relevant facts; therefore, we will adopt it. 

     Dunford was employed by Independence as a police officer on February 8, 2010, when he slipped and fell in the police station parking lot.  Prior to the work injury, Dunford had a twenty year history of lower back problems for which he was treated by chiropractors on numerous occasions.  Dunford testified his lower back problems were different and more severe after the fall.  Dunford was treated by Independence Chiropractic before and after the injury.  After the injury, he was referred to Dr. Michael T. Rohmiller by his family physician, Dr. Craig Sanders.  Dr. Sanders also ordered an MRI which was performed on June 10, 2010.  Dunford subsequently came under the care of Dr. Justin Kruer, a pain specialist.

     Independence obtained an independent medical evaluation (“IME”) from Dr. Thomas Bender, an orthopedic surgeon, and his August 15, 2012, report was introduced.

     In a December 17, 2012, opinion and order, the ALJ determined Dunford sustained a work-related low back injury on February 8, 2010, and had an 8% impairment none of which was due to a prior active condition.  The ALJ purported to conduct an analysis pursuant to Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003) and determined enhancement of Dunford’s income benefits by the three multiplier was more appropriate.

 

Concerning the pre-existing condition, the ALJ stated that “[b]ased upon the totality of the evidence in the record, including the plaintiff’s sworn testimony and the persuasive medical report of Dr. Kruer, the treating physician, I make the factual determination that Mr. Dunford did not have a pre-existing active condition at the time of his work injuries[.]”

                   Independence then appealed to the Board.  On appeal, the Board concluded Dunford’s testimony; the June 10, 2010, MRI; and the treatment records of Drs. Rohmiller and Kruer constituted substantial evidence supporting the ALJ’s determination Dunford sustained a work-related injury on February 8, 2010.  However, the Board held that the ALJ’s decision contained no evidence or discussion concerning the pre-existing condition.  The Board vacated the ALJ’s determination Dunford did not have a pre-existing active condition which merited an impairment rating and the award of PPD and medical benefits.  Specifically, the Board stated:

We find it puzzling the ALJ notes his reliance upon the medical report of Dr. Kruer, which contains no discussion of whether Dunford’s alleged pre-existing condition was symptomatic and impairment ratable pursuant to the AMA Guides immediately prior to February 8, 2010.  Likewise, Dr. Kruer testified by deposition he did not have an opinion as to whether Dunford qualified for an impairment rating prior to his fall since he was not privy to any of the records before he saw him.

     On remand, the ALJ must consider Dr. Kruer’s October 17, 2012 deposition testimony, as well as the records from [Independence Chiropractic], in his determination of whether Dunford had a symptomatic and impairment ratable pre-existing condition on February 8, 2010.  The only medical opinion touching on this issue appears to be rendered by Dr. Bender in his August 15, 2012 and October 29, 2012 reports, who ultimately stated Dunford had an 8% active pre-existing impairment.  On remand the ALJ must provide with more specificity, the rationale supporting his determination regarding whether Dunford’s condition was pre-existing active.

 

The Board specifically declined to direct a particular result concerning the pre-existing condition because it is not permitted to engage in fact-finding.  The Board also held that the ALJ erred in enhancing Dunford’s award by the three multiplier; however, that issue is not before this Court. 

                   We must also note that the ALJ found Dunford sustained a work-related injury.  That issue was appealed to the Board, which affirmed.  Independence did not appeal that issue to this Court; therefore, it is the law of the case that Dunford sustained a work-related injury. 

                   On remand, the ALJ issued a new opinion.  That new opinion contained no new evidence or discussion concerning the pre-existing condition issue.  That issue was again appealed to the Board.  In the Board’s second opinion, it discussed how the ALJ failed to follow its instructions on remand concerning the pre-existing condition issue.  The Board again vacated the ALJ’s determination that Dunford did not have a pre-existing condition and vacated the award of benefits.  This appeal followed.

                   This appeal is odd in that Independence is appealing an opinion and order that is ultimately in its favor.  Independence does not argue against the outcome of the opinion, but as to certain factual determinations made by the Board.  It is those determinations that are being appealed.

                   Independence’s first argument on appeal is that the Board erred in finding that the ALJ could rely on the opinion of Dr. Kruer to find that Dunford had a prior impairment rating of less than 8%.  Further facts are necessary to fully understand this argument.  In the Board’s second opinion, it stated:

Clearly, the ALJ erred in not complying with the Board’s directive he consider Dr. Kruer’s deposition testimony and the records of Independence Chiropractic. . . .  On remand, the ALJ’s [sic] shall consider Dr. Kruer’s deposition testimony and the records of Independence Chiropractic in determining whether Dunford had an impairment ratable pre-existing active condition at the time of the work injury and, if necessary, the applicable impairment rating.

 

                   The Board again declined to direct a particular result concerning the pre-existing condition.  It stated:

     We decline Independence’s invitation to declare there is not substantial evidence which would support a determination Dunford did not have a prior active condition meriting an impairment rating.  Dunford’s testimony that he merely had intermittent problems off and on over twenty years which chiropractic care substantially alleviated and the pain he experienced after the injury is completely different, along with Dr. Kruer’s August 17, 2012, letter and portions of his deposition testimony would constitute substantial evidence in support of a determination Dunford sustained a work-related injury which merited an impairment rating.  (Emphasis added).

 

                   Dr. Kruer’s August letter stated that based on the MRI and his physical examination, Dunford had an 8% impairment rating.  In his deposition, Dr. Kruer testified that he never had access to medical records which were dated prior to the work injury.  During the deposition, he was given these records and allowed to review them.  He was then asked that, assuming the medical records were accurate, and that Dunford had been receiving chiropractic care for over ten years, would Dunford be likely to have an 8% impairment rating for a pre-existing condition.  Dr. Kruer stated that the records would indicate a 5% to 8% impairment rating.

                   Concerning Dr. Kruer, the Board stated:

     Portions of the above testimony constitute substantial evidence in support of a determination Dunford either did or did not have a prior active condition which merited an impairment rating.  We emphasize the fact Dr. Kruer did not have any of Dunford’s previous medical records merely goes to the weight to be afforded his August 17, 2012, report and testimony and not to its admissibility.  (Emphasis added).

                   The above emphasized portions of the Board’s second opinion concerning Dr. Kreuer’s letter and his deposition testimony are the portions of the opinion Independence claims are in error.  Independence claims these portions are irreconcilable with the Board’s first opinion.  More specifically, in the Board’s first opinion, it stated that the only evidence addressing a pre-existing condition was the report of Dr. Bender which stated Dunford had an 8% impairment rating related to a pre-existing condition.  Independence argues that the Board’s second opinion holds that Dr. Kruer’s letter and deposition may be utilized to find no pre-existing condition, or at least a pre-existing condition with an impairment rating of less than 8%.  Independence requests that this Court reverse and remand with instructions for the ALJ to find that Dr. Bender’s report is the only evidence regarding a pre-existing condition and direct the ALJ to hold that Dunford has an 8% impairment rating that was pre-existing and active at the time of the injury.

                   We find no error.  “KRS 342.285 designates the ALJ as the finder of fact.  Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985), explains that the fact-finder has the sole authority to judge the weight, credibility, substance, and inferences to be drawn from the evidence.”  Ak Steel Corp. v. Adkins, 253 S.W.3d 59, 64 (Ky. 2008).  “The function of further review of the [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, 687-688 (Ky. 1992).

                   We do not believe the Board was making a merit based factual finding or legal holding concerning the pre-existing condition issue.  The ALJ had failed to follow the Board’s instructions concerning the evidence presented by Dr. Kruer related to the pre-existing condition issue.  We believe the Board’s use of the above emphasized language was the Board’s attempt to highlight what evidence the ALJ was to consider.  Since the ALJ, as fact-finder, has not made a sufficient finding regarding a pre-existing condition, we do not believe it would be prudent for this Court to direct a specific outcome concerning the issue.  We believe, as did the Board, that the ALJ must first attempt to appropriately decide the issue.

                   Independence’s second issue on appeal is that the Board erred in declining to address the issue of future medical benefits.  On the second appeal to the Board, Independence argued that Dunford was not entitled to an award of future medical benefits because there is no evidence that proves a permanent impairment resulted from Dunford’s work injury.  As to this argument, the Board stated that “[w]e decline to address Independence’s argument Dunford is not entitled to an award of future medical benefits as that issue is now moot.”

                   We find no error as to this issue.  KRS 342.020(1) states in relevant part:

In addition to all other compensation provided in this chapter, the employer shall pay for the cure and relief from the effects of an injury or occupational disease the medical, surgical, and hospital treatment, including nursing, medical, and surgical supplies and appliances, as may reasonably be required at the time of the injury and thereafter during disability, or as may be required for the cure and treatment of an occupational disease.  The employer’s obligation to pay the benefits specified in this section shall continue for so long as the employee is disabled regardless of the duration of the employee’s income benefits.

 

The ALJ and Board found that Dunford sustained a work-related injury.  As mentioned previously, this became law of the case.  Because there is a work-related injury, Dunford is entitled to future medical benefits so long as the injury or disability persists.  The Board correctly noted that this issue was moot due to the question of a work-related injury being definitively answered. 

                   Furthermore, “disability exists for the purposes of KRS 342.020(1) for so long as a work-related injury causes impairment, regardless of whether the impairment rises to a level that it warrants a permanent impairment rating, permanent disability rating, or permanent income benefits.”  FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 318 -319 (Ky. 2007).  Even if, upon remand, Dunford is found to have a pre-existing condition, he would still be entitled to some future medical benefits. 

That does not mean that any particular medical expense would be compensable.  Under 803 KAR 25:012; Mitee Enterprises v. Yates, 865 S.W.2d 654 (Ky. 1993); and National Pizza Co. v. Curry, 802 S.W.2d 949 (Ky. App. 1991), an employer is free to move to reopen an award to contest the reasonableness or necessity of any medical treatment and also whether the need for treatment is due to the effects of the injury.

 

FEI at 319.

                   Based on the foregoing, we affirm the judgment of the Board.

                   ALL CONCUR.

 

BRIEF FOR APPELLANT:

 

Stephanie D. Ross

Florence, Kentucky

BRIEF FOR APPELLEE PHILLIP DUNFORD:

 

Larry S. Shelton

Independence, Kentucky