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March 10, 2017 201497379

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  March 10, 2017

 

 

CLAIM NO. 201497379

 

 

NESCO INC.                                     PETITIONER

 

 

 

VS.           APPEAL FROM HON. DOUGLAS GOTT,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

LOUISE PERKINS

and HON. DOUGLAS GOTT,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

                       * * * * * *

 

 

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

 

STIVERS, Member. Nesco Inc. (“Nesco”) Nesco seeks review of the December 1, 2016, Opinion, Award, and Order of Hon. Douglas Gott, Administrative Law Judge (“ALJ”) finding Louise Perkins (“Perkins”) sustained a work-related left knee injury which necessitated left knee replacement surgery.  The ALJ awarded temporary total disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits enhanced by the multipliers contained in KRS 342.730(1)(c)1, and medical benefits.  Nesco also appeals from the December 13, 2016, and January 3, 2017, Orders ruling on the petitions for reconsideration. 

          On appeal, Nesco challenges the ALJ’s finding Perkins’ total left knee replacement surgery is work-related. 

          Perkins, born July 7, 1958, had been employed by Nesco since August 2012.  In the Form 101, Perkins alleged a January 8, 2014, injury to her left kneecap which occurred as follows: “walking down the walkway and tripped and fell over a box that was blocking the walkway.” 

          Nesco introduced Perkins’ April 2, 2015, deposition. Perkins testified Nesco placed her at YH America (“YH”) where she sustained the left knee injury.  She testified she had injured her left knee in the 1960s which required surgery. She also testified she had received no treatment of her left knee in the ten years prior to the subject injury. She denied experiencing any other injuries over the years. Perkins had no family physician at the time of the injury. 

          Perkins was employed as an auditor at YH which entailed inspecting parts used in air conditioning units.  Perkins described the January 8, 2014, incident as follows:

Q: Okay. All right. Why don’t you tell me what happened on January 8, 2014.

A: After lunch, like at 12:00, I came back from lunch, and I were [sic] walking and I weren’t [sic] looking down at my feet. I’m just looking straight ahead, you know, with the others, and there was a broken down box and it was sticking out like an aisle and – at the feet, so I tripped over it and fell on my stomach and my knees.

Q: Okay. When you say broken down box, you’re talking about one that’s [sic] been collapsed?

A: Yes.

Q: And –

A: Yes. Just flat down on the floor.

Q: Okay.

A: And my shoe got caught under it and I fell on my stomach.

Q: Okay. And the – where you were walking, is that a designated walk area where you were walking back to your work area?

A: Yeah. It was in the walking area, designated area, but there’s a – my work bin was right here (indicating) and there was the aisle where I walk, and my supervisors, the floor supervisors for YH were standing there, but I didn’t know it, and I fell. As I was coming around through there, I tripped right over the box and fell right on my stomach, and they were standing – and it was right at their feet.

          Only Perkins’ knees and stomach hit the concrete surface.  YH personnel called for a nurse to check her out.  Perkins finished her shift and went to the emergency room at Bluegrass Community Hospital. She was ultimately referred to Dr. John Sanchez, an orthopedic surgeon who performed left knee surgery on May 13, 2014. This was followed by twelve physical therapy sessions. Following the surgery, Perkins still experienced pain. As a result, she was referred to Dr. Stephen Duncan at the University of Kentucky Medical Center (“UK”) who scheduled her for surgery on April 28, 2015.[1]  Perkins described her symptoms as stabbing pain with burning and cramping in the left leg. She also experienced numbness in the left leg and hip and pain when she walks or sits. She is able to stand for approximately five minutes. 

          Nesco introduced the September 17, 2014, medical record of Dr. Sanchez. Dr. Sanchez noted Perkins was four months post left knee arthroscopy. A Functional Capacity Examination (“FCE”) demonstrated Perkins could tolerate work in the “light” category. Perkins continued to have pain particularly with weight bearing which affected her ability to stand and walk. Perkins did not believe she could return to her normal activities.  Dr. Sanchez allowed Perkins to return to work as long as she adhered to the light duty category outlined in the FCE. Dr. Sanchez alluded to “a rather long discussion” he had with Perkins regarding the need for total knee replacement (“TKR”). He believed knee replacement would be the only way Perkins would be able to return to her regular activities or as close as possible to the activities. Dr. Sanchez opined TKR would be for pre-existing osteoarthritis. 

          Among the UK records introduced in the record is a June 12, 2015, letter of Dr. Stephen Duncan in which he states:

Ms. Louis [sic] Perkins is under my care. She has known left knee end-stage arthritis. Ms. Perkins has now failed previous non-operative treatment. She is scheduled for a left TKA for end-stage arthritis.

          The June 17, 2015, operative report of Dr. Duncan reveals he performed left complex total knee arthroplasty.   The pre-operative and post-operative diagnoses were as follows:

PREOPERATIVE DIAGNOSES:

1. Advanced degenerative joint disease secondary to osteoarthritis of the left knee.

2. Left complex valgus deformity.

POSTOPERATIVE DIAGNOSES:

1. Advanced degenerative joint disease secondary to osteoarthritis of the left knee.

2. Left complex valgus deformity.

          At her April 26, 2016, deposition, Perkins testified that after Dr. Duncan performed left knee replacement surgery, she underwent twenty sessions of physical therapy, three injections, and was prescribed various medications. At the time of her deposition, she was working part-time. Perkins was being treated by Dr. Lou Bennett, at a pain clinic, who estimated she would need another fourteen months to heal. She still experienced stabbing pain when she bends her knee, and her pain increases when she walks or squats. 

          At the August 25, 2016, hearing, Perkins testified she underwent surgery to remove a cyst on her left knee at UK when she was nine years old.  She provided the following testimony regarding her physical capabilities following this surgery up to the date of her work injury:

Q: Okay. And, as an adult, did your left knee – prior to this injury that we’re here – that we’re here on, did your left knee give you any problems, as far as the type of work that you did? I mean, were you able to do work that you wanted to do without limits from your left knee?

A: Prior to the injury:

Mr. Rich: Yes.

A: No, sir. I did anything I wanted. All kinds [sic] different jobs.

Q: Okay. And, again, before this January 8, 2014 injury, when do you think you last saw a doctor for that cyst on your left knee?

A: Not since UK with Doctor Wolff, when he done the cartilage.

          The UK medical records dated August 22, 1967, indicates Perkins was admitted for treatment of a left knee lesion and provides the following history and course of treatment:

     This is the first UKMC admission for this 9-year-old white girl who was admitted for treatment of her left knee lesion. The patient was well until four years prior to admission when she fell at play while attending school. She sustained injury to her left knee which over the next few months intermittently swelled and gave her some pain. This gradually subsided only to return five months prior to admission at which time the pain gradually returned and increased in intensity. This is particularly true when she is walking.

. . .

Her rash had also disappeared and since no definite diagnosis could be made, the patient was taken to the Operating Room on August 24 and under general anesthesia had exploration of the left knee with the removal of a cyst degenerative lateral meniscus. No splint or cast was applied postoperatively but a bulky dressing was applied. After two days on the ward this was removed and the patient was taught to ambulate on crutches. She was discharged to be followed in the Outpatient Orthopedic Clinic.

          The discharge diagnosis was “left discoid meniscus.” The records indicate the surgery performed on August 24, 1967, was “excision of meniscus, left knee with cyst.” 

          Nesco introduced the August 26, 2014, FCE report of Dr. Michael Best generated as a result of an evaluation on that same date. Dr. Best concluded the injury did not result in a lateral meniscal tear. Further, the injury did not result from the end-stage arthritis of the left knee.  He believed the only condition causally related to the January 8, 2014, slip and fall was the production of pain and swelling that required knee debridement and partial lateral menisectomy. Regarding the cause of the knee replacement surgery, Dr. Best stated:

The prognosis is that of additional surgery. She is 56 years old and has significant degenerative arthritis of the left knee that dates back to and is a permanent sequelae from her injury to the knee in 1960. Clearly, the degenerative change that she has now is secondary to the injury in 1960 and the surgery thereafter. This is the expected result from the 1960 injury.

          Dr. Best concluded Perkins had an active impairment prior to the subject work injury and assessed a 1% whole person impairment rating pursuant to the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”). He opined Perkins’ condition was not due in part to the arousal of a pre-existing dormant non-disabling congenital abnormality. 

          Nesco introduced various reports from Dr. Thomas Loeb the first of which is dated July 21, 2015. In that report, Dr. Loeb’s diagnosis was:

Longstanding progressive tricompart-mental osteoarthritis of the left knee, worse in the lateral compartment, and work injury of a lateral meniscus tear of the left knee with no aggravation or causation of the longstanding preexisting osteoarthritis. 

          Dr. Loeb concluded only the lateral meniscus tear can be considered work-related, and the osteoarthritis in the left knee was a longstanding pre-existing active condition. He also concluded Perkins had not reached maximum medical improvement (“MMI”) following the TKR surgery. He believed MMI would occur within three to four months. Thus, Dr. Loeb could not assess an impairment rating for the TKR which he stated would be unrelated to the work injury.  Consequently, any impairment rating from a work-related standpoint would be zero. Pursuant to the AMA Guides, Dr. Loeb assessed a 1% impairment rating for the partial menisectomy. 

          In an August 5, 2015, letter, Dr. Loeb stated he had reviewed the report of Dr. Duncan indicating he planned to perform a TKR.  Dr. Loeb noted when he saw Perkins, she was one month post-operative. This record did not change his original opinion.

          In his April 26, 2016, report, Dr. Loeb reaffirmed his opinion the TKR surgery was unrelated to the subject work injury, and the lateral meniscus tear was work-related which resulted in a 1% impairment rating pursuant to the AMA Guides. Perkins had attained MMI from the TKR surgery no later than January 2016.  Even though he did not believe the knee replacement was work-related, Dr. Loeb assessed a 15% impairment rating as a result of the TKR surgery. 

          In his July 12, 2016, letter, Dr. Loeb expressed disagreement with Dr. James Owen’s statement the long-standing pre-existing osteoarthritis of the left knee was caused by the January 8, 2014, work injury. Dr. Loeb concluded the work injury caused a lateral meniscus tear, but there was no objective evidence in the record establishing the work injury caused or aggravated Perkins’ left knee osteoarthritis. Giving Perkins the benefit of the doubt, he attributed the sudden onset of pain to the torn lateral meniscus even though this lesion could have been dormant and asymptomatic at the time of the January 2014 work injury. Dr. Loeb again expressed the opinion Perkins had an active pre-existing osteoarthritic process to which the January 2014 injury added nothing “to this condition that would have led to any more surgery other than a partial lateral menisectomy performed by Dr. Sanchez on May 13, 2014.” 

          In an August 7, 2016, letter, Dr. Loeb indicated he reviewed the records of Dr. James Jagger and UK Healthcare and stated there was no objective data in the records which changed his previous opinions of July 21, 2015, and April 26, 2016. 

          In an August 8, 2016, note, Dr. Loeb indicated he reviewed the 1967 medical records which noted the operative procedure describes complete removal of the lateral meniscus. He stated all known science regarding degenerative pathology of the knee points to this total lateral menisectomy as the absolute genesis of Perkins’ progressive osteoarthritis.  This reinforced the fact that the later work injury had no bearing on the ultimate outcome of her condition which predictably led to a TKR.

          In a September 6, 2016, letter, Dr. Loeb again stated he reviewed the records of UK Interventional Pain Associates, and those records did not cause him to change his opinion that the total left knee replacement was totally unrelated to the work injury.

          Perkins introduced the UK medical records concerning her recent treatment and the June 14, 2016, Independent Medical Evaluation (“IME”) report of Dr. James Owen generated as a result of an examination performed on June 7, 2016.  In his report, Dr. Owen provided a history of Perkins’ medical treatment. He also alluded to his prior IME of October 22, 2014.[2]  On that occasion, Perkins had a severe antalgic limp with advanced arthritic changes and tricompartmental surgery with partial menisectomy which failed. Because of the severity of the problem, he assessed a 7% impairment rating pursuant to the AMA Guides.

          Regarding Dr. Loeb’s opinions, Dr. Owen stated as follows:

I see an IME from Dr. Loeb who does admit that Ms. Perkins was doing well and had no problems immediately prior to his injury. He thinks the degenerative joint disease was in its totality not work related. Only brought to disabling reality by the injury, which is more than one way to look at that without any prior x-rays. Before this injury or immediately before this injury, it would be very difficult to assert the degree of problems associated with degenerative changes versus acute injury and advanced arthritic changes as a result of that. Certainly it would appear on the record that she came to disabling reality because of this injury which is the causation I gave her at the time and I gave her 7%.

          Dr. Owen also discussed Dr. Duncan’s findings, stating as follows:

Dr. Duncan in his discussion and summary date of service 4/28/2015 indicates she does indeed have end-stage arthritis of the left knee and has now failed previous non-operative treatment. She is an appropriate candidate for total knee arthroplasty. I do not see where he makes a statement one way or the other about the causation. She subsequently underwent the knee replacement and as discussed previously she has not done well after that procedure.

The op report dated 6/17/2015. Indicates the procedure was left complex total knee arthroplasty by Dr. Duncan. She was followed up and continued on physical therapy for a prolonged period.

          Under the heading “Causation,” Dr. Owen stated as follows:

Within reasonable medical probability, the patient’s injury was the cause of his/her complaint. Yes. I see no medical record in this situation that would indicate prior complaints of knee pain or visits to the doctor because of knee pain or prior injury. I am not sure where the idea that she had a surgery as a 9-year-old came from, but as far as I can tell it was not from my record. Undoubtedly from the initial x-ray she did have advanced arthritic problems at the beginning but it was completely brought to disabling reality by the injury 1/8/2014 as I read the record.

          Dr. Owen assessed a 20% impairment rating pursuant to the AMA Guides all of which is attributable to the work injury. He concluded Perkins had no active impairment prior to the work injury and she was unable to return to the type of work she performed at the time of the injury.

          In his December 1, 2016, Opinion, Award, and Order, in determining Perkins’ knee replacement surgery is work-related and the appropriate impairment rating, the ALJ entered the following findings of fact and conclusions of law:

     9. The ALJ relies on Dr. Owen to find Perkins’ knee replacement surgery is work related. The opinions of Dr. Best and Dr. Loeb that the work injury did not cause the need for the knee replacement are untenable. (They are also inconsistent in that Dr. Loeb said the meniscal tear was work related and Dr. Best said it was not.)

     Clearly, Perkins had surgery in 1967 that, when compounded by her advancing age, produced osteoarthritis that preexisted the work injury. But it is undisputed she resumed normal activities after that childhood surgery and entered the adult workforce without restrictions. There is not a single medical record documenting a knee complaint for the 47 years leading up to the work injury, yet Dr. Best attempts to characterize Perkins’ condition as “active” for that entire time period? To the contrary, it is undisputed Perkins’ osteoarthritis was asymptomatic at the time of the work injury; she was working full-time without any knee complaints or restrictions. Dr. Loeb concedes the torn meniscus was at least aroused into symptomatic reality by the fall at work (7/12/15 report); it stands to reason that it aroused her preexisting arthritic condition too.

     To accept the Defendant’s position is to believe the osteoarthritis in Perkins’ knee spontaneously and coincidentally became symptomatic at the same time her knee struck the concrete floor. The documented pain and swelling of the knee immediately after the fall are contrary to such a remote possibility, but are entirely consistent with arousal of the osteoarthritic condition that prompted the need for the knee replacement.

     10. The ALJ relies on Dr. Loeb to find Perkins has 15% impairment from the knee replacement.

     11. The ALJ relies on Dr. Owen and Perkins’ testimony to find she lacks the physical capacity to return to her pre-injury work and therefore qualifies for the three-multiplier of KRS 342.730(1)(c)1. She also is entitled to a .4 multiplier of KRS 342.730(1)(c)3., for being 55 years old at the time of the injury. Perkins offered no evidence nor argument against the Defendant’s proposed average weekly wage of $377.14. Her permanent partial disability benefits are calculated as follows: AWW of $377.14 x 2/3 = $251.43 x 15% x 3.4 = $128.23 per week for 425 weeks.

          Perkins filed a petition for reconsideration concerning the award of TTD benefits. 

     Nesco filed a petition for reconsideration raising many of the same arguments it now raises on appeal. Nesco requested additional findings of fact, if necessary, regarding the ALJ’s reliance on Dr. Owen’s report. It did not request any other findings of fact. It also requested credit for TTD benefits paid.

          In the December 13, 2016, Order, the ALJ amended the award of TTD benefits to include an award of TTD benefits from September 16, 2014, the day after TTD benefits were terminated based on Dr. Best’s non-work-relatedness opinion, through June 14, 2016. 

          This prompted Nesco to file a supplemental petition for reconsideration concerning the award of TTD benefits. 

          On January 3, 2017, the ALJ overruled Nesco’s initial petition for reconsideration filed December 1, 2016, stating Dr. Owen’s opinions are substantial evidence supporting the award.  The ALJ also ruled on Nesco’s second petition for reconsideration regarding the award of TTD benefits. 

          On appeal, Nesco does not dispute Perkins’ left meniscus tear is compensable. Rather, the issue is the work-relatedness of Perkins’ total left knee replacement surgery.  It contends there is no dispute Perkins underwent left knee surgery to remove a discoid meniscus on August 24, 1967.  Nesco notes that at the time of this surgery, a large cystic structure was found on Perkins’ lateral meniscus.  As a result, Dr. Best concluded Perkins’ osteoarthritis was pre-existing and the expected result from the 1960 injury.  Similarly, Dr. Loeb’s addendum report summarized the relationship of the 1967 procedure to the Perkins’ subsequent medical treatment. It notes Dr. Loeb also addressed the relationship between the aggravation of the osteoarthritis and the knee injury. 

           Nesco argues Dr. Owen’s report regarding the cause of the TKR surgery is not persuasive, as he did not review Perkins’ pre-injury treatment records. Thus, it argues Dr. Owen had no understanding of the extent of Perkins’ prior left knee meniscus excision before forming his causation opinion.  It contends this fact is problematic as Dr. Owen was asked to determine whether the TKR is related to the work injury or to the effects of the remote injury. 

          Nesco stresses Dr. Loeb explained a procedure of this nature can create a progressive osteoarthritis condition over the course of the following years and the knee continues to degenerate after invasive surgery removing the meniscus.  Nesco also notes Dr. Sanchez concluded the left TKR was related to the pre-existing osteoarthritis.  Citing Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004), it insists Dr. Owen’s causation opinion cannot be substantial evidence as it was formed on the basis of inaccurate or incomplete medical information.  Thus, Dr. Loeb’s opinion as to the cause of the TKR surgery is more persuasive because it contemplates all prior and post-injury medical treatment.  Nesco seeks remand with instructions to find the TKR surgery non-compensable and enter an award based on a 1% impairment rating. It does not seek remand for additional findings of fact. Finding the ALJ’s award is supported by substantial evidence, we affirm.

          Perkins, as the claimant in a workers’ compensation proceeding, had the burden of proving each of the essential elements of her cause of action, including causation. See KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Since Perkins was successful in that burden, the question on appeal is whether there was substantial evidence of record to support the ALJ’s decision.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Substantial evidence” is defined as evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable persons.  Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).  

          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 (Ky. 1993). An ALJ may draw reasonable inferences from the evidence, reject any testimony, and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof.  Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). In that regard, an ALJ is vested with broad authority to decide questions involving causation.  Dravo Lime Co. v. Eakins, 156 S.W. 3d 283 (Ky. 2003).  Although a party may note evidence that would have supported a different outcome than that reached by an ALJ, such proof is not an adequate basis to reverse on appeal.  McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).  Rather, it must be shown there was no evidence of substantial probative value to support the decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). 

          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. Hamilton, 34 S.W.3d 48 (Ky. 2000). The Board, as an appellate tribunal, may not usurp the ALJ's role as fact-finder by superimposing its own appraisals as to weight and credibility or by noting other conclusions or reasonable inferences that otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).

          The unrebutted testimony of Perkins establishes that prior to January 2014 she had no left knee symptoms, and following the 1967 surgery her left knee did not in any manner impede her physical activities.  According to Perkins, between August 22, 1967, and January 8, 2014, in excess of 46 years, her left knee was completely asymptomatic and did not alter her physical capabilities. Relying upon that history, Dr. Owen concluded the advanced arthritic problems were completely asymptomatic and brought into disabling reality by the injury of January 8, 2014.  As noted by the ALJ, Perkins’ resumption of her normal activities after the childhood surgery and entry into the work force without restrictions is undisputed.  That being the case, Dr. Owen’s opinions that Perkins’ pre-existing arthritic problems were brought into disabling reality by the January 8, 2014, injury and the TKR surgery was necessitated by the work injury constitute substantial evidence supporting the ALJ’s finding regarding the cause for the TKR surgery. 

          We note Perkins continued to experience significant left knee symptoms following the surgery performed by Dr. Sanchez.  In his report of September 17, 2014, Dr. Sanchez acknowledges TKR surgery is the only option available for Perkins to be able to return, as close as possible, to her regular activities.  Although he noted the TKR surgery was due to pre-existing arthritis, Dr. Sanchez offered no opinion as to whether that condition was dormant or active prior to January 8, 2014.  Likewise, Dr. Duncan offered no opinion as to whether the “left knee end-stage arthritis” necessitating TKR surgery was dormant or active prior to the work injury.  Without question, the work-related injury of January 8, 2014, resulted in the surgery performed by Dr. Sanchez. Further, there is no dispute TKR surgery was necessary. Thus, the ALJ could only rely upon the opinions of Drs. Best and Loeb or Dr. Owen in resolving the cause of the TKR surgery.        

          In Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. 2007), the Court of Appeals reaffirmed the work-related arousal of a pre-existing dormant condition into disabling reality is compensable stating as follows:

It is well-established that the work-related arousal of a pre-existing dormant condition into disabling reality is compensable. McNutt Constr./ First Gen. Servs. v. Scott, 40 S.W.3d 854 (Ky. 2001). In its opinion, the Board correctly and succinctly set forth the law upon compensability of a pre-existing dormant condition:

What then is necessary to sustain a determination that a pre-existing condition is dormant or active, or that the arousal of an underlying pre-existing disease or condition is temporary or permanent? To be characterized as active, an underlying pre-existing condition must be symptomatic and impairment ratable pursuant to the AMA Guidelines immediately prior to the occurrence of the work-related injury. Moreover, the burden of proving the existence of a pre-existing condition falls upon the employer. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984).

Alternatively, where the underlying pre-existing disease or condition is shown to have been asymptomatic immediately prior to the work-related traumatic event and all of the employee's permanent impairment is medically determined to have arisen after that event—due either to the effects of the trauma directly or secondary to medical treatment necessary to address previously nonexistent symptoms attributable to an underlying condition exacerbated by the event—then as a matter of law the underlying condition must be viewed as previously dormant and aroused into disabling reality by the injury. Under such circumstances, the injured employee must be compensated not just for the immediate physical harm acutely produced by the work-related trauma, but also for all proximate chronic effects corresponding to any contributing pre-existing condition, including any previously dormant problem strictly attributable solely to congenital or natural aging processes, as it relates to the whole of her functional impairment and subsequent disability rating, including medical care that is reasonable and necessary pursuant to KRS 342.020.

The arousal of a pre-existing dormant condition into disabling reality may be considered temporary when, upon attaining maximum medical improvement, the employee post injury fully recovers and reverts to her pre-injury state of health. However, where the trauma or the underlying pre-existing defect exacerbated by the trauma results in a permanent impairment rating post injury, even though secondary to surgery or other medical treatment, the totality of the effects of the employee's condition must be judged compensable as a matter of law.

To summarize, a pre-existing condition that is both asymptomatic and produces no impairment prior to the work-related injury constitutes a pre-existing dormant condition. When a pre-existing dormant condition is aroused into disabling reality by a work-related injury, any impairment or medical expense related solely to the pre-existing condition is compensable. A pre-existing condition may be either temporarily or permanently aroused. If the pre-existing condition completely reverts to its pre-injury dormant state, the arousal is considered temporary. If the pre-existing condition does not completely revert to its pre-injury dormant state, the arousal is considered permanent, rather than temporary.

Id. at 265.

          Perkins’ testimony concerning her pre-injury capabilities and Dr. Owen’s opinions demonstrate the osteoarthritis was a pre-existing dormant condition aroused into disabling reality as explained in Finley, supra.  Thus, it follows that the impairment rating attributable to the arousal of this dormant condition and any necessary treatment of the aroused condition including TKR surgery are compensable. 

          The opinions of Dr. Owen though succinct and not nearly as elaborative as those of Dr. Loeb qualify as substantial evidence supporting the ALJ’s finding the left knee replacement surgery is work-related. While the contrary opinions pertaining to causation expressed by Drs. Best and Loeb may have been articulated in greater detail, such testimony represented nothing more than conflicting evidence compelling no particular outcome. Copar, Inc. v. Rogers, 127 S.W.3d 554 (Ky. 2003). Likewise, the fact Dr. Owen had not reviewed the 1967 UK records merely went to the weight and credibility to be afforded his opinions, 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). Hence, we find no error into the ALJ’s reliance upon Dr. Owen’s opinions.

          After an examination of the record, this Board believes Cepero, supra, is inapplicable in the case sub judiceCepero, supra, was an unusual case involving not only a complete failure to disclose, but affirmative efforts by the employee to cover up a significant injury to the left knee only two and a half years prior to the alleged work-related injury to the same knee.  The prior, non-work-related injury had left Cepero confined to a wheelchair for more than a month.  The physician upon whom the ALJ relied in awarding benefits was not informed of this prior history by the employee and had no other apparent means of becoming so informed.  Every physician who was adequately informed of this prior history opined Cepero’s left knee impairment was not work-related but, instead, was attributable to the non-work-related injury two and a half years previous. We find nothing akin to Cepero in the case sub judice. 

          As previously stated, where the evidence with regard to an issue preserved for determination is conflicting, the ALJ, as fact-finder, is vested with the discretion to pick and choose whom and what to believe. Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). Consequently, we find no error in the ALJ’s reliance upon Dr. Owen’s opinions.  Because the outcome selected by the ALJ is supported by substantial evidence in the form of Dr. Owen’s opinions and Perkins’ testimony, we are without authority to disturb his decision on appeal.  Special Fund v. Francis, supra.

          Accordingly, the December 1, 2016, Opinion, Award, and Order, the December 13, 2016, and January 3, 2017, Orders ruling on the petitions for reconsideration are AFFIRMED.

          ALVEY, CHAIRMAN, CONCURS.

          RECHTER, MEMBER, DISSENTS AND FILES A SEPARATE OPINION.

RECHTER, MEMBER. I believe this claim should be remanded to the ALJ for further findings of fact.  Dr. Owen was not aware Perkins’ underwent a complete removal of the lateral meniscus of her left knee during childhood.  This history was significant to the medical opinion provided by both Dr. Loeb and Dr. Best.  The defendant requested further findings of fact in its petition for reconsideration, which was denied.  The ALJ ultimately relied upon Dr. Owen’s opinion and, therefore, I believe it was necessary for him to acknowledge the gap in the medical history provided to Dr. Owen and explain why it did not render Dr. Owen’s medical opinion unreliable. 

 

 

 

 

 

 

 

COUNSEL FOR PETITIONER:

HON GEORGE T T KITCHEN III

600 E MAIN ST STE 100

LOUISVILLE KY 40202

COUNSEL FOR RESPONDENT:

HON PHILLIPE W RICH

1001 TREVILIAN WAY

LOUISVILLE KY 40213

ADMINISTRATIVE LAW JUDGE:

HON DOUGLAS GOTT

657 CHAMBERLIN AVE

FRANKFORT KY 40601

   

 

 



[1] UK’s records reveal left knee replacement surgery was performed on June 17, 2015.

[2] The October 22, 2014, IME is not filed in the record.