*/
Workers’
Compensation Board
OPINION
ENTERED: May 6, 2016
CLAIM NO. 201402225 & 201378138
CONSOLIDATED HEALTH SYSTEMS/
HIGHLANDS HEALTH SYSTEMS/
HIGHLANDS REGIONAL MEDICAL CENTER PETITIONER
VS. APPEAL FROM HON. UDELL
B. LEVY,
ADMINISTRATIVE LAW JUDGE
LEMA D. SPARKMAN
and HON. UDELL B. LEVY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART, VACATING IN PART,
AND
REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Consolidated Health Systems/Highlands Health Systems/Highlands Regional Medical
Center (“HRMC”) seeks review of the November 4, 2015, Opinion, Award, and Order
of Hon. Udell Levy, Administrative Law Judge (“ALJ”) finding Lema D. Sparkman
(“Sparkman”) sustained work-related injuries to both knees and her low back and
awarding permanent partial disability (“PPD”) benefits and medical benefits.
Sparkman’s Form 101 in Claim No. 201402225 alleged on
December 29, 2012, she injured both knees and her right wrist when she fell at
work while entering the hospital.
Sparkman’s Form 101 in Claim No. 201378138 alleged on March 13, 2013,
she was injured at work when she fell backward out of a chair. In this claim, Sparkman also alleged the
injury occurred: “due to heavy lifting, standing, walking, reaching, pushing,
pulling, bending, twisting and turning on a cumulative, repetitive and
continuous basis for up to 10 to 12 hours during shifts over a thirty-eight
year period.” Sparkman alleged her hip,
lower back, left buttock, left leg, and both knees were injured as a result of
the March 2013 fall. The claims were
subsequently ordered consolidated.
On appeal, HRMC challenges the ALJ’s reliance upon the
opinions of Dr. James Owen in finding Sparkman sustained work-related injuries
to her knees. In the alternative, HRMC
asserts the ALJ erroneously commenced the award of PPD benefits for the
cumulative trauma injuries on December 29, 2012, as opposed to February 26,
2015, when Dr. Owen apprised Sparkman she had suffered work-related cumulative
trauma injuries to her knees. HRMC asserts
a second alternative argument that substantial evidence supports a finding of
an acute trauma to the left knee on December 29, 2012, and a repetitive trauma
to the right knee manifesting on February 26, 2015.
Sparkman testified at a May 11, 2015, deposition and the
September 2, 2015, hearing. Sparkman,
who was sixty years old at the time of her deposition, testified she had worked
over thirty-six years as a Licensed Practical Nurse (“LPN”) for HRMC.[1] Sparkman testified she is 5’4” and weighs 244
pounds. As an LPN she worked three
twelve hour shifts. She attended three
patients daily and was required to turn each patient six times during her
shift.
Sparkman testified she injured her
knees on December 29, 2012, while walking into work when she tripped over a
stake in the landscaping and fell.
Sparkman explained the nature of the fall:
Q: Did you land on your knees or did
you land on your hands and your knees? How exactly did you, did you wind up on
the ground, if you recall?
A: I landed on my knees and, you know,
you know how you fall, you put your hands out to brace.
Q: And did you land pretty much equally
on the left, the left and the right, or did you fall …
A: It was more on the left.
Q: It was more on the left than the
right?
A: Uh huh (affirmative).
Q: Do you favor your right knee or did
you favor your right knee pretty much just because you’d had prior problems
with it?
A: Uh huh (affirmative).
Q: Is it still the worst of your, of
your knees …
A: Yes.
Q: … the right? And what, what kind of
treatment did you seek for that, if you recall?
A: I went into the emergency room. And
then they just x-rayed it and sent me home. And then later it started
collecting fluid, and that’s when I went to Royalty, and he drew the fluid off.
Sparkman denied having any previous acute
injuries to either of her knees. Sparkman
had been previously treated by Dr. David Jenkinson for knee problems. She was undergoing treatment of her right
knee prior to the injury. Her primary
treating physician is Dr. Jack Kendrick who she has been seeing for
approximately two years. Prior to that
her primary physician was Dr. Sujatha Reddy.
Sparkman began seeing Dr. Chip Salyers, a chiropractor, after the
injuries because HRMC designated him as the gatekeeper. Sparkman went to Dr. Robert Royalty, an
orthopedic surgeon, who drew fluid from her left knee. She acknowledged experiencing daily right
knee problems prior to the December 2012 fall, for which she had been taking
Lorcet and Cymbalta. Sparkman estimated
she missed approximately two days of work, including the day she fell, as a result
of the December 2012 fall.
Sparkman testified she injured her back at work on March
13, 2013, when she fell out of a new chair which had rollers. She denied experiencing back symptoms
immediately before her March 2013 fall.
However, she acknowledged experiencing prior back problems which she
characterized as “muscle strains and stuff.”
She believes the injuries to her knees and low back are due to
repetitive trauma, which she attributed to constantly walking and lifting on
the job. She estimated she lifted
patients weighing between 100 and 200 pounds.
Another nurse helped her turn and lift the patients.
Sparkman testified her doctors had
never told her that her right knee complaints were work-related. Her doctors had previously told her the right
knee was worn out. Dr. Owen was the
first doctor to mention her injuries were related to cumulative trauma due to
being on her feet twelve hours a day as an LPN.
She rates her pain when she arises from sitting at eight or nine on a scale
of ten. Sparkman estimated she has taken
narcotic medication for her right knee symptoms approximately eight or ten
years. She currently sees Dr. Royalty
for her knees and back. She has not
undergone surgery and is not scheduled for any procedures.
At the hearing, Sparkman testified that as an LPN, she
provides total basic care for her patients.
This includes administering medications, bathing, and assisting the
patients while in or out of bed. She
estimated that out of her twelve hour shift she stood and walked on either tile
or concrete, eight to ten hours.
Sparkman agreed with the job description filed in the record by HRMC,
except she believed she lifted greater weights and exerted more force than
indicated.[2]
Sparkman currently has right knee
pain whenever she walks. Dr. Royalty
continues to treat both knees. Sparkman
denied having any left knee problems prior to December 29, 2012. Before the December 2012 fall, Sparkman had
never been placed on any work restrictions because of right knee symptoms. She continued to perform her regular job in
spite of right knee pain. After she fell
in December 2012, there were no changes in her job duties.
Sparkman attributed her low back and
knee problems to walking and lifting on the job. She agreed her left knee is less symptomatic
than the right. Her primary problem with
the left knee is numbness. Walking and
standing for any length of time and bending at the waist adversely affect her low
back and right knee. Her back symptoms
have remained constant since she fell out of the chair in March 2013. She acknowledged having some of the same
symptoms in her right knee and back prior to the events of December 2012 and
March 2013. She had not received any
unfavorable comments about her job performance from HRMC.
The August 14, 2015, Benefit Review Conference Order
reflects the parties stipulated Sparkman sustained a work-related knee injury
on December 29, 2012, and a work-related back injury on March 13, 2013. However, HRMC disputed Sparkman’s allegation
she sustained injuries due to cumulative trauma.
The parties introduced the records of Drs. Salyers, Reddy,
and Royalty. Sparkman introduced the
Form 107 prepared by Dr. Owen after conducting an independent medical
evaluation (“IME”) on February 26, 2015. HRMC introduced the May 4, 2015, IME
report of Dr. Gregory Snider. HRMC also
introduced the report of Dr. Christopher Brigham, who conducted a records
review and evaluated the impairment ratings assessed by Dr. Owen pursuant to
the 5th
Edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (“AMA Guides”).
In his November 4, 2015, decision, the
ALJ provided, in relevant part, the following findings of fact and conclusions
of law:
Plaintiff, Lema Sparkman,
has three claims for injuries allegedly sustained in the scope of her
employment with Highlands Regional Medical Center. First, she alleges she
injured both knees and her right wrist when she tripped and fell on December
29, 2012. Ms. Sparkman alleges she fell out of her chair on March 13, 2013,
injuring her back. Finally, she alleges she accumulated injuries to her hip, lower back, left
buttock, left leg and both knees during
her nearly 40 year tenure with the Defendant due to repetitive heavy
lifting, standing, walking, reaching, pushing, pulling, bending, twisting and
turning.
The Defendant has stipulated that the
12/29/12 and 3/13/13 injuries occurred. Therefore, the first issue to determine
is whether Plaintiff sustained an injury due to cumulative trauma as defined by
the Act. KRS 342.0011(1) defines “injury” as “any work-related traumatic
event or series of traumatic events, including cumulative trauma, arising out
of and in the course of employment which is the proximate cause producing a
harmful change in the human organism evidenced by objective medical findings.”
The current version of KRS 342.0011(1) defines an "injury" in terms
of a work-related event that proximately causes a harmful change in the human
organism, rather than in terms of the harmful change, itself. Staples,
Inc. v. Konvelski, 56 S.W.3d
412 (Ky. 2001) Kentucky law recognizes that a work injury includes
instances where the nature and duration of the work probably aggravated a
degenerative disc condition to the degree that it culminated in an active
physical impairment sooner than would have been the case had the work been less
strenuous. Haycraft v. Corhart
Refractories Co., 544 S.W.2d 222 (Ky. 1976).
. . .
Plaintiff alleges she injured her low back from
lifting and turning patients on a daily basis. She further believes constant
walking on tile and concrete floors contributed to symptoms in both her low
back and her knees. However, medical
causation is to "be proved to a reasonable medical
probability with expert medical testimony…" Brown-Forman Corp. v.
Upchurch, 127 S.W.3d 615 (Ky. 2004); Hill v. Sextet Mining Corp., 65 S.W.3d 503 (Ky. 2001). When a
causal relationship between trauma and injury is not readily apparent to
laymen, the question is one properly within the province of medical experts. Mengel
v. Hawaiian-Tropic Northwest & Central Distributors, Inc., 618 S.W.2d 184
(Ky. App. 1981).
Plaintiff reported to Dr. Royalty that she had right
medial knee pain for several years before the 12/29/12 work injury. Dr. Reddy’s
records confirm that Ms. Sparkman sought treatment from that office several
times beginning in 2008. X-rays of Ms. Sparkman’s knees confirm she has
advanced arthritis in both knees. Dr. Owen measured cartilage interval per AMA Guides criteria to determine her
right knee was 2 mm in the medial compartment and 5 mm lateral while the left
knee was 3 mm and 5 mm respectively. Plaintiff sustained no significant trauma
to her knees, other than with the fall on 12/29/12. Therefore, I agree with Dr. Owen that
accumulating so many hours on her feet over the course of her employment as an
LPN for 38 years caused wear and tear on Plaintiff’s knees.
Dr. Brigham and Dr.
Snider both state the symptoms in Plaintiff’s knees are attributed to her
morbid obesity. While that may certainly
be the case at this time, there is no evidence regarding Plaintiff’s weight
prior to 2008. Notwithstanding
Plaintiff’s physical condition over the course of her tenure as an LPN with the
Defendant, obesity is not considered either an active or dormant disease/condition
that can be “aroused” or “brought into disabling reality” by injury or accident
for purposes of determining liability under the Workers Compensation Act. Kentucky Convalescent Home v. Henry,
463 S.W.2d 328 (Ky. 1971) I believe the coexistent concerns regarding
Plaintiff’s weight are genuine. However, the evidence shows Plaintiff’s weight
enhanced, but was not the proximate cause of, his [sic] low back symptoms. As
the Court observed in Kentucky
Convalescent Home v. Henry, supra:
We recognize that the consequences of injury
to a fat employee may well produce more disability than the same injury would
cause in a thin employee. We are unwilling to say, however, that the fatness
present in and of itself is a 'dormant, non-disabling disease aroused or
brought into disabling reality' as those words are used in the context of the
statute which provides when an employer may shift to the Fund part of the
liability for the payment of compensation benefits for a compensable injury.
While the evidence
shows Plaintiff endured cumulative trauma to her knees due to her work, Dr.
Owen never provided an explanation as to how Plaintiff’s low back was gradually
injured due to wear and tear from her occupation as an LPN. CT evidence suggests Plaintiff has degenerative
disc disease in her lumbar spine with disc protrusions at multiple levels. However, she had a prior injury to her low
back in the 90’s trying to lift a patient who had coded. Ms. Sparkman reported to Dr. Owen that she
continued to have symptoms until she subsequently fell out of the rolling chair
on 3/13/13. The prior injury contributed to the debilitating condition in
Plaintiff’s low back; it has not been shown she sustained a low back injury due
to cumulative trauma.
In summary,
Plaintiff sustained an injury to her back when she fell out of the rolling
chair on 3/13/13. However, she had an active impairment to her back due to the
injury that occurred several years earlier. On the other hand, Plaintiff
sustained an injury to her knees due to work-related cumulative trauma from
being on her feet so many hours during her tenure as an LPN with the Defendant.
These problems were enhanced by her fall on 12/29/12.
I believe Dr. Owen provides the most
credible analysis regarding the extent of impairment for Plaintiff’s knees
based on measured cartilage interval.
This is also consistent with the method outlined on page 10 of Dr.
Brigham’s report. Therefore, Ms. Sparkman’s whole person impairment is 8% for her
right knee and 3% for her left knee, for a combined impairment of 11%. Dr. Owen and Dr. Brigham agree Plaintiff has
7% whole person impairment to her low back. As Dr. Brigham points out, however,
the minimum that can be subtracted for a pre-existing active DRE Lumbar
Category II is 5%. I therefore conclude Plaintiff has 2% whole person
impairment to her low back.
The ALJ concluded
Sparkman did not retain the physical capacity to return to the type of work she
performed at the time of the injury and was entitled to enhanced PPD benefits pursuant
to KRS 342.730(1)(c)1. Accordingly, he calculated
the award for each injury as follows:
$552.13
(Max for 2012) x 11% x 1.0 = $60.73 x 3.4 = $206.48 per week
$564.52
(Max for 2013) x 2% x .65 = $7.34 x 3.4 = $24.96 per week
Significantly, the
award of income benefits reads as follows:
2. Plaintiff shall recover permanent partial disability income
benefits from the defendant and/or their carrier at the rate of $206.48 per
week beginning December 29, 2012, with said total increasing to $231.44 per
week on March 13, 2013 and continuing for 425 weeks thereafter unless
terminated pursuant to KRS 342.730(4), except that such weekly benefits shall
be suspended during the intervening period TTD was paid, together with interest
at 12% per annum on all past due amounts.
HRMC filed a petition for
reconsideration asserting the ALJ should have commenced the award of PPD
benefits for the cumulative trauma injuries to the knees on February 26, 2015,
not December 29, 2012. HRMC also argued
the ALJ provided insufficient findings of fact regarding the conflicting
opinions of Drs. Brigham and Owen. It
argued the ALJ failed to explain why Dr. Owen’s opinion concerning causation
was more credible than Dr. Brigham’s scientifically based opinions. Finally, HRMC asserted the ALJ had made
inconsistent findings of fact regarding Sparkman’s claim of cumulative
trauma. It noted the ALJ relied upon Dr.
Owen’s opinion in finding Sparkman sustained cumulative trauma to both knees
but did not rely upon his opinion Sparkman sustained a cumulative trauma back
injury. Since Dr. Owen’s opinion
Sparkman sustained a cumulative trauma back injury did not constitute
substantial evidence, HRMC argued his opinion she sustained work-related cumulative
trauma to her knees could not constitute substantial evidence. Consequently, HRMC requested the opinion be
reconsidered. It did not request
additional findings of fact.
In the January 19, 2016, Order overruling the petition for
reconsideration, the ALJ stated the parties were sufficiently apprised of the
basis for his acceptance of Dr. Owen’s opinion over Dr. Brigham’s. In addition, the opinion provided the “factual
basis drawn from the evidence for concluding Sparkman sustained an injury to
her knees due to cumulative trauma and rejecting a similar claim related to her
low back condition.” However, with
regard to the commencement date for the award for the injuries to the knees,
the ALJ stated as follows:
On the other hand, Defendant’s request for reconsideration and/or
clarification of the basis for beginning Plaintiff’s award for partial
disability to her knees appears appropriate.
The evidence indeed shows that everyday wear and tear from her work had
a cumulative effect over the years causing symptoms in Plaintiff’s knees. As Defendant points out, Plaintiff did not
know this until she was advised by Dr. Owen in February 2015. I would agree with Defendant that awards for
impairment due to cumulative trauma would normally begin when the injury
manifests itself, as that term is defined in Hill v. Sextet Mining Corp., 65 S.W.3d 503 (Ky. 2001).
On appeal, HRMC argues
substantial evidence does not support a finding of cumulative trauma as the
ALJ’s finding of a cumulative trauma is based solely on the conclusory opinion of
Dr. Owen. It contends Dr. Owen’s opinion
Sparkman’s sustained work-related cumulative trauma to her knees is void of any
analysis explaining how the alleged cumulative trauma caused the injuries to
Sparkman’s knees. Simply attributing a
cumulative trauma to standing ten to twelve hours a day does not constitute
substantial evidence. It notes Sparkman
testified she stood or walked eight to ten hours in a twelve hour day further
calling into question Dr. Owen’s opinion since it was based on an inaccurate
history.
HRMC observes the ALJ
did not rely upon Dr. Owen’s opinion Sparkman sustained a cumulative trauma low
back injury. In doing so, the ALJ
concluded Dr. Owen did not provide a sufficient explanation to support a
finding of a cumulative trauma back injury.
HRMC contends the findings regarding the knees and the back are wholly
inconsistent. In that context, HRMC
asserts Dr. Owen’s opinions regarding cumulative trauma to the knees and low
back are vague. Further, Dr. Owen
provided no clear discussion regarding proximate cause and was unable to cite
objective medical findings supporting his opinions that daily standing and
walking were the cause of Sparkman’s complaints. Similarly, Dr. Owen did not cite to objective
medical evidence supporting his opinion the intense lifting on the job caused
cumulative trauma to Sparkman’s low back.
HRMC relies upon the opinions of Dr. Brigham that it is more probable
Sparkman’s knee difficulties are due to her age and morbid obesity rather than
her fall or work activities. Dr. Brigham
opined that constantly being on her feet is insufficient evidence to support a
finding Sparkman sustained cumulative trauma.
Therefore, the ALJ’s finding of a work-related cumulative trauma should
be reversed as not being based on substantial evidence.
Alternatively, HRMC asserts the ALJ erred
in commencing PPD benefits for the injuries to the knees on December 29, 2012. Rather, the commencement date for this award
should have been February 26, 2015, the date Dr. Owen diagnosed cumulative
trauma to the knees. HRMC notes Sparkman
testified she was never apprised she suffered from work-related cumulative
trauma to both knees until Dr. Owen did so on February 26, 2015. It contends the date of the cumulative trauma
injury is when the disabling reality of the injuries manifests which is the
date Sparkman saw Dr. Owen. HRMC
observes that after her December 29, 2012, fall, Sparkman continued work and
missed no appreciable work until the low back injury in 2013. It contends that in denying the petition for
reconsideration the ALJ erroneously stated the date of injury for the
cumulative trauma was the date Sparkman fell.
HRMC notes the ALJ awarded no benefits as a result of the December 29,
2012, acute injury. HRMC contends since
the ALJ found Sparkman sustained cumulative trauma to her knees any alleged
pre-existing impairment was a component of the cumulative trauma that had yet
to manifest.
HRMC argues impairment
can never arise before an injury. It
posits that had the ALJ found there was an injury resulting in impairment
directly stemming from the December 29, 2012, incident, that date would be the appropriate
date to commence payment of PPD benefits.
Instead, the ALJ very clearly stated, based on Dr. Owen’s opinions,
Sparkman sustained a cumulative trauma to her knees over the thirty-eight years
she worked as an LPN for HRMC. Thus, the
ALJ’s finding was equivalent to a finding that the December 29, 2012, incident
caused no permanent impairment, only a temporary exacerbation.
HRMC argues that commencing
the award of PPD benefits prior to the date of manifestation is contrary to
prevailing law and therefore arbitrary and capricious. Because the ALJ found the impairment stemmed
from cumulative trauma, HRMC contends the compensable period begins on February
26, 2015.
As a second alternative
argument, HRMC argues as follows:
It can also be argued that substantial evidence supports a determination
that the award of benefits for the right knee should commence as of the date of
Dr. Owen’s report, but the award for the left knee should commence as of
December 29, 2012, the date of the acute injury, since there was no evidence of
prior problems with Sparkman’s left knee.
HRMC observes Sparkman testified she
had no prior problems with her left knee before that date and all symptoms
began on that date. Sparkman also
testified there is no real injury to her right knee in December 2012 as the
left knee took the brunt of the fall.
HRMC concedes the condition of her right knee is completely different
than the left, as the medical records thoroughly document right knee problems
dating back to 2008. Assuming
substantial evidence supports a finding of right knee cumulative trauma, HRMC
contends the medical evidence in conjunction with Sparkman’s testimony only
supports a determination the left knee injury was a product of the December
2012 fall. As such, substantial evidence
would only support the conclusion the right knee impairment was the product of
cumulative trauma and did not manifest until the date of Dr. Owen’s diagnosis
on February 26, 2015. Therefore, PPD
benefits for the left knee would commence on December 29, 2012, and benefits
for the right knee would commence on February 26, 2015.
Sparkman,
as the claimant in a workers’ compensation proceeding, had the burden of
proving each of the essential elements of her cause of action. See KRS 342.0011(1); Snawder v. Stice,
576 S.W.2d 276 (
In rendering a decision, KRS 342.285
grants an ALJ as fact-finder the sole discretion to determine the quality,
character, and substance of evidence. Square D Co. v.
Tipton, 862 S.W.2d 308 (
The
function of the Board in reviewing an ALJ’s decision is limited to a
determination of whether the findings made are so unreasonable under the
evidence that they must be reversed as a matter of law. Ira A. Watson Department Store v.
In his Form 107, Dr. Owen set forth the
history of Sparkman’s injuries and outlined the treatment she had undergone prior
to seeing him. Dr. Owen specifically
noted Dr. Royalty’s note of November 22, 2013, indicates Sparkman had
long-standing right knee pain and left knee swelling for several months without
antecedent trauma. Sparkman had sustained
an injury seven months ago and developed significant subcutaneous swelling. She was diagnosed with left knee prepatellar
bursitis. Sparkman underwent several
prepatellar bursal aspirations. Sparkman
informed Dr. Owen the swelling in her left knee had improved, but she still
complains of “slight achy pain.” Dr.
Owen also reviewed multiple notes from Dr. Salyers. After performing an examination, Dr. Owen
provided the following diagnosis:
1. Persistent low back pain with no
obvious radicular component associated with dysmetria and muscle spasm in the
low back.
2. Persistent pain in the left knee
associated with prior injury and multiple effusions and aspirations there with
ongoing mild limp and slight atrophy of the left thigh.
Dr. Owen believed
Sparkman’s injuries were the cause of her complaints explaining as follows:
Within reasonable medical probability,
the patient’s injury was the cause of his/her complaint. Yes. Any part due to
natural aging? No. Any part pre-existing, dormant, non-disabling? Yes. She had
clear-cut prior low back problems before the 12/13 injury that was being
treated by both narcotic medication through family practice, Kendrick, as well
as chiropractic manipulation. She also had prior problems with her knees with
prior effusions before the advent of the fall 12/29/12. Both situation [sic]
are felt to be due to accumulative trauma.
With respect to the
causal relationship, Dr. Owen stated:
Excessive torsion and torque of the knee
on the earlier fall. Excessive torsion and torque of the low back on the
one-year fall.
This was also within reasonable medical
opinion related to her cumulative trauma of being on her feet 10 to 12 hours
per day for 38 years as an LPN.
Pursuant to the AMA Guides,
Table 17-5, Sparkman’s impairment rating for the knees would be 7%. However, utilizing another method of rating
based on cartilage interval and relying upon Table 17-31, he assessed an 8%
impairment rating for the right knee and a 3% impairment rating for the left
knee. Dr. Owen also concluded Sparkman
did not retain the physical capacity to return to the type of work performed at
the time of the injury.
Dr. Owen’s opinion
Sparkman sustained work-related cumulative trauma injuries to both knees qualifies
as substantial evidence sufficient to support the ALJ’s finding of work-related
cumulative trauma injuries to both knees.
While the contrary opinions expressed by Dr. Snider and Dr. Brigham may
have been articulated in great detail, such testimony represented nothing more
than conflicting evidence compelling no particular outcome. Copar, Inc. v. Rogers, 127 S.W. 3d 554
(Ky. 2003). The alleged lack of
explanation by Dr. Owen in support of his opinion Sparkman sustained cumulative
trauma injuries to her knees merely goes to the weight and credibility to be
afforded Dr. Owen’s opinion which was a matter to be decided exclusively within
the ALJ’s province as fact-finder. Paramount
Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). This Board has no authority to invade the ALJ’s
discretion in determining the medical evidence upon which he will rely.
The opinions of Dr. Owen
that Sparkman sustained cumulative trauma injuries to her knees is amply
buttressed by Sparkman’s testimony that she worked thirty-eight years as an LPN
for HRMC standing and walking eight to ten hours a day on concrete or tile, and
she performed her job without any medical restrictions or complaints from
HRMC. The record is clear that Sparkman
had, over time, developed extensive right knee problems prior to December 29,
2012. Based on that fact and Dr. Owen’s
opinion, the ALJ could reasonably infer Sparkman’s right knee problems stemmed
from her thirty-eight years of work at HRMC.
Similarly, on January 9, 2013, Dr. Royalty noted Sparkman reported
minimal pain with the left knee range of motion but there was some superficial
swelling to the patellar. In his note of
January 23, 2013, Dr. Royalty diagnosed left knee prepatellar bursitis. Obvious from his report is the fact Dr. Owen
relied, in part, upon the notes of Dr. Royalty in forming his opinion as to the
cause of Sparkman’s left knee symptoms.
As revealed in his Form 107, Dr. Owen reviewed multiple records from Dr.
Royalty. Thus, the finding Sparkman “sustained
an injury to her knees due to work-related cumulative trauma from being on her
feet so many hours during her tenure as an LPN” and “these problems were
enhanced by her fall on December 29, 2012,” are supported by Sparkman’s
testimony and the opinions of Dr. Owen.
We find no merit in HRMC’s
argument the ALJ erred in relying upon Dr. Owen in finding cumulative trauma
injuries to the knees since he rejected his opinion Sparkman also sustained
cumulative trauma injury to her low back.
As previously pointed out, the ALJ is free to accept the opinion of Dr.
Owen in finding Sparkman sustained cumulative trauma work-related injuries to
her knees, but reject his opinion Sparkman sustained a cumulative trauma low
back injury. Sparkman’s testimony in
conjunction with Dr. Owen’s opinions constitute substantial evidence supporting
the ALJ’s finding Sparkman sustained work-related cumulative trauma injuries to
her knees. Hence, we find no error.
Similarly, we find no
merit in HRMC’s alternative argument the award of PPD benefits should commence
on February 26, 2015, rather than December 29, 2012. Important in resolving this issue is the
ALJ’s findings that Sparkman’s knee problems were enhanced by her December 29,
2012, fall. The Kentucky Supreme Court
addressed when liability for income benefits begins in a cumulative trauma
injury in American Printing House for the Blind ex rel. Mutual Ins. Corp. of
America v. Brown, 142 S.W.3d 145 (Ky. 2004). There, the ALJ determined the claimant’s
gradual injury and disability became manifest on June 5, 2000. Mutual Insurance Corporation of America, the
carrier at risk on June 5, 2000, asserted the injury did not become manifest
until January 11, 2001, when a physician informed the claimant of her work-related
gradual injury, a date another insurance carrier provided workers’ compensation
coverage. The Court explained the
significance of the date of manifestation as follows:
Nonetheless, because gradual injuries often occur imperceptibly,
we reaffirmed the principle that a rule of discovery governs the notice and
limitations requirements for such injuries. We determined that the obligation
to give notice and the period of limitations for a gradual injury are triggered
by a worker's knowledge of the harmful change and its cause rather than by the
specific incidents of trauma that caused it. Nothing in Alcan
indicated that liability for an injury begins when the notice and limitations
requirements are triggered.
In Alcan,
the workers knew of their hearing loss and knew it was work-related more than
two years before they filed their claims. Although they continued to work and
to be exposed to harmful noise thereafter, there was no evidence that part of
their disability was attributable to trauma incurred within two years before
their claims were filed.
We concluded, therefore, that the claims were entirely barred by limitations.
The principles that Alcan
addressed were refined in a number of subsequent cases, including Hill v.
Sextet Mining Corp., supra, in which we determined that a worker
is not required to self-diagnose the cause of a harmful change as being a
work-related gradual injury for the purpose of giving notice.
Id.
at 148.
The Court further determined the ALJ
did not err in beginning the award of PPD benefits prior to the date of
manifestation, opining as follows:
It is undisputed that
the claimant sustained work-related trauma and that harmful changes from the
trauma were symptomatic on June 5, 2000. Therefore, she sustained an injury as
defined by KRS 342.0011(1)
although Chapter 342's notice and limitations provisions were not triggered
until she received a medical diagnosis in January, 2001. See Hill v.
Sextet Mining Corp., supra. As the Court of Appeals noted,
nothing prohibits a worker who thinks she has sustained a work-related gradual
injury from reporting it to her employer before the law requires her to do so,
and nothing prevents her from reporting an injury that she thinks is
work-related before a physician confirms her suspicion.
Id.
at 148-149.
Here, we find the ALJ’s explanation
for commencing the award of PPD benefits for the cumulative trauma injuries to
the knees on December 29, 2012, to be in conformity with the logic expressed by
the Kentucky Supreme Court in American Printing House for the Blind, supra. In his January 19, 2016, Order, the ALJ noted
the evidence established every day wear and tear on Sparkman’s knees had a
cumulative effect over the thirty-eight years she worked for HRMC resulting in
the symptoms in her knees. The ALJ
acknowledged he would agree the award should commence on the date of Dr. Owen’s
examination, but for the fact Sparkman had problems with both knees immediately
after she fell on December 29, 2012. He
noted she was taken into the emergency room immediately after her fall
complaining of pain and swelling in both knees which was documented by the
examining physician. In addition, on
January 9, 2013, Dr. Royalty documented Sparkman had new symptoms to her left
knee while the symptoms in her right knee, for which he had seen Sparkman over
several years, had worsened. The ALJ
noted that even though Sparkman may have learned in 2015 her impairment was due
to cumulative trauma, her disability began over two years earlier when she fell
on her knees at work. Based on the above,
we find no error in the ALJ commencing the award of PPD benefits for the injuries
to Sparkman’s knees on December 29, 2012.
Finally, we find no merit in HRMC’s second alternative argument asserting
there is no error in commencing the award for the injury to the left knee on
December 29, 2012, but the ALJ erroneously awarded PPD benefits for the right
knee to commence on December 29, 2012.
As set forth in American Printing House for the Blind, supra,
nothing prohibited the ALJ from determining the harmful changes from the trauma
to Sparkman’s knees became either symptomatic or more symptomatic on December
29, 2012, some twenty-six months before she was seen and diagnosed by Dr.
Owen. Since the ALJ’s findings are
supported by the medical records, he was not required to commence the award of
PPD benefits for the right knee injury on February 26, 2015, the date of Dr.
Owen’s examination and diagnosis. The
ALJ’s finding of work-related injuries to Sparkman’s knees and low back and the
amount of PPD benefits awarded for each shall be affirmed.
That
said, because KRS 342.285 charges this Board with ensuring the award is in
conformity with the law, we vacate paragraph two of the award. In that paragraph, the ALJ began the award of
income benefits for the knees on December 29, 2012. However, beginning on March 13, 2013, he added
the award for the back injury to the award for the injuries to the knees and
directed $231.44 per week shall be paid for 425 weeks. That award is erroneous since HRMC is not
required to pay $231.44 per week from March 13, 2013, for 425 weeks. The ALJ should have entered an award of
$206.48 per week for 425 weeks for the injuries to the knees and a separate
award for the low back injury of $24.96 per week for 425 weeks commencing on
March 13, 2013.
Accordingly, those portions of the November
4, 2015, Opinion, Award, and Order and the January 19, 2016, Order ruling on
the petition for reconsideration finding Sparkman sustained cumulative trauma
injury to both knees and the award of income benefits for the knees beginning
on December 29, 2012, are AFFIRMED. Since HRMC does not contest the finding of a work-related
back injury, the finding of a low back injury occurring on March 13, 2013, and
the award of income benefits is AFFIRMED. However, the ALJ’s award of income benefits
for the respective injuries as set out in paragraph two is VACATED. This claim is REMANDED to an Administrative Law
Judge, as designated by the Chief Administrative Law Judge, for entry of an
amended award containing separate awards for each injury in conformity with the
views expressed herein.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON MARCUS ROLAND
P O BOX 910454
LEXINGTON KY 40591
COUNSEL
FOR RESPONDENT:
HON RONNIE M SLONE
P O BOX 909
PRESTONSBURG KY 41653
CHIEF
ADMINISTRATIVE LAW JUDGE:
HON ROBERT L SWISHER
657 CHAMBERLIN AVE
FRANKFORT KY 40601
[1] The Form 104 attached to the Form 101
reveals Sparkman worked for HRMC from July 14, 1975, to March 13, 2013.
[2] Sparkman’s job description filed by HRMC
reflects she would stand and walk six to eight hours and sit for two to four
hours each shift. Sparkman would bend, squat, reach, lift, carry, push, and
pull 1/3 or more of her shift. With her left and right hand she would perform
gross motor functions and precise motor functions. She performed gross motor
functions with her feet. Under the heading weight lifted/force exerted,
Sparkman lifted up to 50 pounds 1/3 or more of her shift.
