Workers’
Compensation Board
OPINION
ENTERED: August 11, 2017
CLAIM NO. 201468458
SAMUEL D. WETHERBY PETITIONER
VS. APPEAL FROM HON. STEPHANIE KINNEY,
ADMINISTRATIVE LAW JUDGE
AMAZON.COM
and HON. STEPHANIE KINNEY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
VACATING
IN PART AND REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Samuel D. Wetherby (“Wetherby”) seeks review of the January 3, 2017, Opinion,
Award, and Order of Hon. Stephanie Kinney, Administrative Law Judge (“ALJ”)
finding he sustained a neck injury on October 3, 2012, and awarding permanent
partial disability (“PPD”) benefits, temporary total disability (“TTD”)
benefits, and medical benefits. Wetherby
also appeals from the May 1, 2017, Order denying in part his petition for
reconsideration.[1]
On appeal, Wetherby contends the ALJ erroneously determined
he had a pre-existing active condition meriting a 25% impairment rating
pursuant to the 5th Edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (“AMA Guides”).
Wetherby’s Form 101 alleges on October 3, 2012, he injured
his neck, right hand, and right arm in the following manner: “While operating a
walkie forklift for 5-8 hours, my neck and arms were hurting. The last 2 hours
of shift I moved 50-60 lb boxes of books from pallet to conveyer.”
In its Form 111, Amazon.com (“Amazon”) accepted the injury
as compensable but stated there was a dispute regarding the amount of
compensation owed to Wetherby.
In the May 10, 2016, Benefit Review Conference Order &
Memorandum (“BRC”), relevant to this appeal, the parties stipulated one of the
contested issues was an exclusion for pre-existing disability or impairment.
The lay and medical evidence establish Wetherby had
undergone fusion surgery in the cervical region of the spine in 1980 and 1985
as a result of a work-related injury.
However, no medical records were introduced regarding the injury and
subsequent fusion surgeries. Further, no
medical records were introduced regarding any medical treatment Wetherby may
have received prior to the October 3, 2012, injury.
At his March 28, 2016, deposition, Wetherby testified he
was hired by Amazon on June 5, 2012, as a warehouse associate which entailed
operating a forklift. Before that, he
worked for Integrity Staffing for nine months where he worked in Amazon’s
warehouse. Prior to the injury, he
experienced no problems with his back or shoulders working for Amazon and
Integrity.
Between 2006 and 2011, Wetherby
returned to school and obtained an Associate’s Degree. He sustained no injury during this time. From 2000 to 2006, he worked at Winchester
Farms Dairy. He did not sustain an
injury during this time. There was no
heavy lifting involved performing this work.
From 1999 to 2000, Wetherby put together metal storage buildings. He sustained no injury performing this
work. From 1990 to 1998, he owned a
grocery store in Georgia, and was required to stock shelves and perform other
tasks. He sustained no injury during this
time.
Wetherby described his symptoms
resulting from the October 3, 2012, injury as follows:
Q: Okay. And so, you were moving these
boxes. When did the injury occur?
A: Near the end of the day, I was
throwing a box up on the conveyor and felt a sharp electric shock run down my
right arm, from my neck to my right arm. It’s almost like somebody stuck three
or four cattle probes in my back.
Q: Okay. And did it keep on, that
feeling, did it keep on, or was it just kind of like a –
A: It shot –
Q: Literally –
A: Just shot, and then – then it
stopped and then my hand went numb. And I was in a lot of pain. I went and
reported it to my immediate AM, area manager, Mark, and he took me to AmCare,
which is our local on-site medical facility.
The symptoms Wetherby experienced in
his right arm were similar to the symptoms he experienced in his left arm which
resulted in the surgeries of 1980 and 1985.
Wetherby underwent surgery on June 9, 2014. Following the surgery, he still experienced
numbness and pain from the tips of his right middle, ring, and little fingers to
the elbow. Also, when he tried to lift
his right arm, he felt a stinging sensation at the top of his shoulder and the
back of his neck. When last checked, his hand strength was approximately
48%. He still has problems holding items
with his right hand. Wetherby operates
the forklift at work with his left hand.
He takes medication for his pain, and because of the pain and muscle
spasms in his right arm he is only able to sleep two to three hours a night.
Wetherby testified that in 1980 and
1985 he ruptured a disk and underwent cervical fusion. Wetherby believed the 1980 injury necessitated
the 1980 and 1985 surgeries. He
explained as follows:
Q: Okay. What caused the second one?
A: The second one was stemming from the
first one.
Q: Right. Was there a second injury to
it or was it just still hurting?
A: It was aggravated and over the –
those five years it got where I couldn’t stand the pain.
Q: So it just kind of got worse and
worse?
A: It was another shock came down and
it felt like there was a needle stuck in my left shoulder, (Indicating) until I
had surgery.
Even though the 1980 injury occurred
at work, he never filed a workers’ compensation claim. The employer paid for both surgeries. Wetherby testified he did not experience any
problems in his left arm and neck following the 1985 surgery. Further, he received no treatment of his left
arm and neck from 1985 through the October 2012 injury. He does not recall ever receiving an
impairment rating following either of the previous surgeries. Wetherby testified he had no issues with his
left side other than loss of muscle strength in the left shoulder. He denied experiencing any neck symptoms
between 1985 and 2012 other than an occasional muscle spasm in his left tricep. There has been no change in his left shoulder
since the 2012 injury.
After undergoing surgery in June 2014,
Wetherby returned to work on September 10, 2014, performing the same job. He
does not engage in as much lifting as before.
The forklift he operates now has power steering and power lifts.
At the November 1, 2016, hearing, Wetherby again testified he
sustained a work-related injury in 1980 necessitating fusion surgery. After that surgery, he was able to lift his
left arm which he had been unable to do following the injury. Before the 1985 surgery, Wetherby experienced
symptoms which he described as feeling like needles were being stuck in his
left shoulder. After the 1985 surgery,
he had no pain and he “was back to normal.”
Following the 1985 surgery, he worked three to four years operating
heavy equipment and also lifting sand bags and wooden boards. He later worked in a fertilizer plant and for
Anderson Construction. While working for
Anderson Construction, he engaged in beach maintenance which required him to
lift bags of fertilizer, seed, and debris on the beach. He estimated the heaviest item he lifted was
between 70 and 80 pounds. In
approximately 1990, he purchased a convenience store in Georgia. As the owner, he regularly lifted items, carried
food, and stocked shelves. Wetherby also
loaded and unloaded trucks. He estimated
he repetitively lifted between 50 and 70 pounds. He again testified that following the 1985
surgery he received no medical treatment on his neck and took no pain
medication.
Wetherby has numbness from the middle
of his right forearm into half of his right hand. As a result, he drops things
constantly. He also experiences muscle
spasms in his right arm. Dr. Robert Owen
performed surgery on June 9, 2014.[2]
Wetherby relied upon the opinions and impairment ratings of
Dr. Frank Burke.[3] Amazon relied upon the July 11, 2013, report
and the May 4, 2016, deposition of Dr. G. Christopher Stephens. Amazon also submitted the June 8, 2016,
report of Dr. Timothy Kriss.
Dr. Stephens’ report reveals he assessed a 25% impairment
rating pursuant to the AMA Guides for Wetherby’s cervical condition prior
to the subject injury. Dr. Stephens
concluded Wetherby had “a right-sided soft disk protrusion that is eccentric to
the right side” at the C7-T1 level. Dr.
Stephens’ impression was right C8 radiculopathy secondary to C7-T1 disk
protrusion on the right side.
With respect to causation, Dr.
Stephens believed the issue was not straightforward, as Wetherby had severe
pre-existing disease of the cervical spine due to the previous fusion. However, Wetherby informed Dr. Stephens that
he was completely asymptomatic prior to the subject injury. Dr. Stephens concluded half of the current
symptoms and treatment are due to the work injury of October 2012 and half due
to transitional level cervical spondylosis after the previous fusion. He recommended Dr. Ralph Alvarado’s records
be obtained to confirm Wetherby was not actively treating for this condition in
the three years prior to the work accident.[4]
When Dr. Stephens saw him, Wetherby
did not desire to undergo surgery unless his symptoms worsened. He believed Wetherby could continue to work
indefinitely with restrictions and no repetitive lifting greater than 25 pounds
without assistance. He also noted
Wetherby had tolerated his work for eight months. If the symptoms worsened, Wetherby would be a
candidate for decompressive surgery at C7-T1.
Dr. Stephens believed the foraminotomy proposed by Dr. Owen was
reasonable. Although the C7 level needs
to be addressed, Dr. Stephens did not believe the C6-C7 level needed to be
addressed as it was not producing radicular symptoms. He opined Wetherby’s impairment rating would
be 28%, explaining as follows:
This is DRE Cervical Category IV in the
5th Edition of the AMA Guidelines. He has had a previous fusion so he
has loss of motion segment integrity. If I had rated this gentleman in
September of 2012, just before his current injury, he would have still fall
into DRE Cervical Category IV. At that point though, based on his history, he
had little to no symptoms and his rating would have been 25%. So, I do believe
that his impairment rating has increased since the time of this injury.
During his July 11, 2013, deposition,
Dr. Stephens acknowledged his impairment rating was assessed prior to the June
9, 2014, surgery, and he offered no opinion as to Wetherby’s current impairment
rating pursuant to the AMA Guides.
Dr. Stephens testified the previous fusion surgery involved the C4-5 and
C5-6 levels which is the mid-portion of the cervical spine. Based on the record he reviewed, Wetherby did
not experience radiculopathy after his previous surgery.
Since Wetherby has undergone surgery
at additional levels within the same spinal region, Dr. Stephens believed the
AMA Guides require the impairment rating be assessed pursuant to the range
of motion (“ROM”) model. Therefore,
Wetherby “should go through a complete analysis of his range of motion and
diagnostic- based rating” in assessing a current impairment rating. He also
believed Wetherby had a 25% impairment rating prior to the October 2012 injury. The difference in the two impairment ratings
would be the impairment rating attributable to the October 3, 2012, injury and
the subsequent surgery.
Dr. Stephens assessed the 25%
impairment rating using the DRE method because Wetherby had not undergone a subsequent
surgery at another level. He disagreed
with Dr. Burke’s statement the DRE method would be the appropriate method of calculating
Wetherby’s impairment following the June 9, 2014, surgery in the cervical
region. Dr. Stephens testified Dr. Owen
performed a foraminotomy at C6-7 and C7-T1 on the symptomatic side and the
previous surgeries were performed at two levels directly above that site at
C5-6 and C4-5. Dr. Stephens had no “records
of treatment for [Wetherby’s] neck or for cervical radiculopathy” in the year
or two prior to the October 2012 work accident.
To the best of Dr. Stephens’ knowledge, Wetherby was symptom-free prior
to the October 3, 2012, injury.
In his June 8, 2016, report, Dr. Kriss provided the
following diagnoses:
1) Mister Wetherby is status post
anterior cervical discectomy and fusion at the C4/C5 level for presumptive left
C5 cervical radiculopathy in 1980. That radiculopathy completely resolved with
this surgery.
2) Mister Wetherby is status post
anterior cervical discectomy and fusion at the C5/C6 level for presumptive left
C6 cervical radiculopathy in 1985. That radiculopathy completely resolved with
this surgery.
3) Mister Wetherby is status post right
C6/C7 and right C7/T1 posterior foraminotomies on June 9, 2014 for treatment of
right C8 cervical radiculopathy. The arm pain from this C8 radiculopathy has
completely resolved, however, Mister Wetherby is left with permanent residual
C8 distribution numbness and weakness, and purely positional occasional neck
pain.
Dr. Kriss stated it was obvious
Wetherby had “loads of degenerative change at every cervical spinal level” which
was confirmed by three cervical spinal surgeries since 1980 and cervical MRI
scans. He found “impressive degenerative
changes of osteoarthritis, degenerative disk disease, spondylosis, and discontinuous
ossification of the posterior longitudinal ligament, to varying but significant
degrees at every cervical level from C2 down to T1.” Wetherby also had mild degenerative
spondylolisthesis at C7-T1. Dr. Kriss
believed the multi-level fusions at C4-5 and C5-6, the chronic kyphosis, and
chronic reversal of lordosis “have significant biomechanical implications for
any range of motion testing as well as future positional neck pain.”
Dr. Kriss explained why the ROM methodology
must be used in assessing an impairment rating.
Dr. Kriss believed it was clear the June 9, 2014, cervical foraminotomy
surgery at two levels, C6-C7 and C7-T1, was performed specifically to treat the
medical sequela of the October 3, 2012, work injury. He further explained: “In other words, it
seems rather obvious that Mister Wetherby has multiple injuries to the ‘same
spinal region’ (cervical).” He believed
it was even more obvious that Wetherby had multiple surgeries to the same
cervical spinal region. Furthermore, the
three surgeries occurred at “multiple different cervical levels within the same
cervical spinal region.” Dr. Kriss believed
there was not a better example of a patient with multiple injuries, multiple
surgeries, and multiple vertebral levels all within the same cervical spinal
region than Wetherby. He stated that in
strict accordance with the AMA Guides the ROM methodology should be used
in calculating Wetherby’s spinal impairment.
He noted that within the AMA Guides there are multiple tables and
figures dealing exclusively with the cervical spine. Dr. Kriss also noted there are no tables for
the upper cervical spine or the lower cervical spine as suggested by Dr.
Burke. Since Wetherby had undergone
multiple episodes producing alteration of motion segment integrity,
specifically fusion at C4-5 in 1980, fusion at C5-6 in 1985, and cervical
laminectomy/foraminotomy at C6/C7/T1 in 2014, he met the criteria for use of
the ROM methodology many times over.
Dr. Kriss assessed a 25% impairment
rating pursuant to the AMA Guides following the 1980 cervical
fusion. Since Wetherby had no
radiculopathy, no residual symptoms, and no residual findings, he opined the
lowest impairment rating of 25% within the DRE Category IV range (25%-28%) is
most appropriate. In the absence of any
reliable cervical mobility ROM measurements, reliable complete neurological
sensory and motor deficit measurements prior to October 3, 2012, Dr. Kriss
believed it impossible to determine Wetherby’s cervical spine impairment after
the 1985 surgery utilizing the ROM method.
As a result of the 1985 cervical fusion, Dr. Kriss concurred with Dr. Stephens
that the 25% impairment rating assessed for the 1980 surgery should be
increased to 28% due to the second surgery.
Due to the October 3, 2012, work
injury, Dr. Kriss assessed a current whole person cervical spinal impairment of
31%. The whole person cervical spinal
impairment prior to October 3, 2012 was 28%.
Therefore, Wetherby’s whole person cervical spinal impairment solely and
exclusively attributable to the October 3, 2012 work injury is 3%.
In the Opinion, Award, and Order,
regarding the presence of a pre-existing active disability, the ALJ provided
the following findings of fact and conclusions of law:
The primary
dispute in this claim is what permanent partial disability rating is
appropriate. This claim is complicated by Plaintiff’s prior cervical fusion
surgeries and whether Plaintiff’s permanent impairment rating should be
calculated using the range of motion model versus the DRE method. This was a
point of contention, but all of the experts appear to now agree that the range
of motion model is most appropriate because Plaintiff underwent surgery for the
work injury at multiple levels. The ALJ must now determine Plaintiff’s overall
permanent impairment rating for his cervical spine. Dr. Burke has assessed 37%
permanent impairment using the range of motion model and Dr. Kriss has assessed
31% permanent impairment. After a careful consideration, this ALJ finds
Plaintiff retains a 31% permanent impairment rating, relying on Dr. Kriss. This
ALJ notes Dr. Kriss is a neurosurgeon rather than an orthopedic surgeon, which
places Dr. Kriss in an excellent position to assess permanent impairment in
this complicated case. This ALJ also notes Dr. Owen released Plaintiff to
return to work without any restrictions, which is another factor that favors
Dr. Kriss’ lower permanent impairment rating. Thus, this ALJ finds Plaintiff’s
overall impairment rating as a result of the October 3, 2012 work injury is 6%,
relying on Drs. Kriss and Stephens.
The ALJ must now
determine Plaintiff’s permanent impairment rating for his cervical spine prior
to the October 3, 2012 work injury. Dr. Stephens evaluated Plaintiff on July
11, 2013 and indicated Plaintiff’s pre-existing cervical impairment rating was
within the parameters of the Cervical DRE IV category. Dr. Stephens assessed a
pre-existing cervical impairment rating of 25%. However, Dr. Kriss assessed a
pre-existing cervical permanent impairment rating using the highest range of
the DRE IV Category, and assessed 28%. Following Plaintiff’s cervical surgeries
in 1980 and 1985, he returned to full duty work. At the time of the October 3,
2012 work injury, Plaintiff was not working under any permanent work
restrictions. Thus, this ALJ finds Dr. Stephens’ rating at the lower end of the
DRE IV Category to be more appropriate. This ALJ finds Plaintiff retained a 25%
pre-existing cervical permanent impairment rating, relying on Dr. Stephens.
In Derr
Construction, the Kentucky Supreme Court explained:
KRS 342.120(4)
[now KRS 342.120(6)] specifically exempts the employer from paying income
benefits for prior, active disability or for disability resulting from the
arousal of a previously dormant condition. However, KRS 342.020 contains no
such exemption regarding medical benefits. Liability for medical expenses
requires only that an injury was caused by work and that medical treatment was
necessitated by the injury.
An arousal of a
previously dormant condition is compensable and is not to be considered
“natural aging” to be excluded from compensability. McNutt Construction/First
General Services v. Scott, 40 S.W.3d 854 (Ky. 2001). It is the Defendant’s
burden to prove the existence of pre-existing, active disability. In order for
a condition to be deemed pre-existing and active, it must be symptomatic, and
impairment ratable immediately prior to the occurrence of the work event. Finley
v. DBM Technologies, 217 S.W.3d 261 (Ky. 2007).
After a review
of the evidence, this ALJ is not convinced Plaintiff’s October 3, 2012 work
injury aroused his prior cervical condition at a different level in his spine
into a symptomatic and disabling reality. Plaintiff underwent cervical fusions
in 1980 and again in 1986 at C4 through C6. The ALJ is not convinced the
October 3, 2012 work accident resulted in any trauma to those levels of Plaintiff’s
spine which aroused a pre-existing dormant condition into a symptomatic
disabling reality. The October 3, 2012 caused a disc herniation at C7-8 which
necessitated a laminoforaminotomy at C7-T1. Thus, the trauma associated with
the October 3, 2012 work injury was to a different level of Plaintiff’s
cervical spine and did arouse a condition associated with the C4 through C6
level of Plaintiff’s spine.
Plaintiff’s
permanent partial disability benefits are calculated as follows:
$467.02 x
66&2/3 x 6% (PIR) x .85(grid factor) x 1 (multiplier) = $13.81/week
Plaintiff is
awarded permanent partial disability benefits based on a 6% permanent
impairment rating at the rate of $13.81/week for 425 weeks or until he
qualifies for normal old-age Social Security retirement benefits, whichever occurs
first.
The
award was based on a 6% permanent impairment rating.
This
prompted Wetherby to file a petition for reconsideration requesting additional
findings of fact as to whether he suffered from a prior active condition. Citing to Finley v. DBM Technologies,
217 S.W.3d 261, 265 (Ky. App. 2007), Wetherby noted in order to find a
pre-existing active condition the employer has the burden of proving the
condition is both symptomatic and impairment ratable prior to the work-related
injury. Wetherby asserted his testimony
and the medical evidence do not establish he received any medical treatment for
his cervical problems since 1985. Wetherby
cited to his testimony that he experienced no symptoms arising from his
cervical condition prior to the injury. Wetherby
asserted the ALJ must address the issue of the existence of a pre-existing
active condition as she failed to address whether his condition was symptomatic
prior to the injury.[5]
The ALJ’s May 1, 2017, Order ruling on the
petition for reconsideration reads as follows:
Plaintiff has
requested additional findings of fact concerning whether Plaintiff suffered for
a pre-existing, active condition. Plaintiff has also requested an additional
finding of whether (or not) the Defendant met its burden of proving a
pre-existing, active condition.
This ALJ
previously found Plaintiff retains a 31% whole person impairment rating for his
cervical condition in reliance on Dr. Kriss. This ALJ found Plaintiff retained
a pre-existing 25% permanent impairment rating for his neck. The ALJ went on to
determine Plaintiff’s cervical impairment, as a result of the October 3, 2012
work injury was 6%.
Plaintiff’s
prior cervical fusions were at the C4 through C6 levels. The October 3, 2012
work injury caused a disc herniation at C7-8, which required foraminotomies at
C7 through T1. In other words, the work accident resulted in trauma or an
injury to an entirely different level of Plaintiff’s cervical spine. Plaintiff
has argued the October 3, 2012 work injury aggravated Plaintiff’s preexisting cervical
condition, but ultimately this ALJ was not convinced by that argument because
the herniation associated with the October 3, 2012 work injury was at a
different level. In other words, this ALJ was not convinced by the totality of
the evidence that the October 3, 2012 work injury resulted in an arousal of
Plaintiff’s prior cervical condition at C4 through 6.
It is the
Defendant’s burden to prove a pre-existing, active condition, but the Plaintiff
carries the burden of proving an aggravation. In this claim, the ALJ was not
convinced there was an aggravation because the October 3, 2012 work injury was
to an entirely different level of Plaintiff’s cervical spine. Furthermore, the
evidence indicates Plaintiff’s prior cervical fusion at C4 through 6 is stable,
which is not indicative of an arousal of Plaintiff’s prior cervical condition
at C4 through 6. This ALJ awarded permanent partial disability benefits based
upon the October 3, 2012 injury to Plaintiff’s cervical spine at the C7 through
T1 levels.
Both parties
agree the ALJ’s Opinion, Award, and Order of January 3, 2017 contains a
typographical error in paragraph 1 on page 20. As such paragraph 1 on page 20
is corrected/amended as follows:
“After a review
of the evidence, this ALJ is not convinced Plaintiff’s October 3, 2012 work
injury aroused his prior cervical condition at a different level in his spine
into a symptomatic and disabling reality. Plaintiff underwent cervical fusions
in 1980 and again in 1986 at C4 through C6. The ALJ is not convinced the
October 3, 2012 work accident resulted in any trauma to those levels of
Plaintiff’s spine which aroused a pre-existing dormant condition into a
symptomatic disabling reality. The October 3, 2012 caused a disc herniation at C7-8
which necessitated a laminoforaminotomy at C7-T1. Thus, the trauma associated
with the October 3, 2012 work injury was to a different level of Plaintiff’s
cervical spine and did not arouse a condition associated with the C4
through C6 level of Plaintiff’s spine.”
(emphasis added.)
On
appeal, Wetherby asserts the burden of proving a pre-existing active impairment
falls upon the employer. In accordance
with Finley v. DBM Technologies, supra, Wetherby observes the
employer must establish the prior condition was both symptomatic and impairment
ratable prior to the work-related injury.
Citing to his testimony and the medical evidence, Wetherby argues the
ALJ erred by excluding a 25% impairment rating for a pre-existing condition
from the award. He contends the ALJ
failed to make a finding of fact which supports the exclusion for a
pre-existing active impairment. Wetherby
also contends the ALJ could not find he had a pre-existing active impairment
since there was no evidence supporting a finding his cervical spine was
symptomatic prior to the October 2012 injury.
Therefore, the carve out of a 25% impairment rating from the award is
erroneous.
We vacate the ALJ’s finding Wetherby has a
6% impairment rating attributable to the October 3, 2012, injury and the award
of PPD benefits and remand the claim for additional findings.
In the January 3, 2017, Opinion, Award,
and Order, the ALJ determined, based upon the impairment rating assessed by Dr.
Stephens, Wetherby had “a 25% pre-existing cervical permanent impairment rating”
at the time of the October 3, 2012, work injury. She noted the arousal of a pre-existing
dormant condition is compensable. She
also noted the defendant had the burden of proving the existence of a
pre-existing active disability and briefly discussed the elements to be proven
in accordance with Finley v. DBM Technologies, supra. The ALJ concluded the evidence did not
establish the October 3, 2012, work injury caused Wetherby’s cervical condition
at the C4 through C6 level, the sites of previous surgeries, to be symptomatic
and disabling. She also found the
subject work injury, at a different cervical level, did not result in any
trauma to those levels above the injury site, thereby arousing a pre-existing
dormant condition into symptomatic disabling reality. Consequently, the ALJ concluded the October
3, 2012, injury only caused a disk herniation at the C7-8 necessitating a
laminoforaminotomy at C7-T1 with no adverse effect upon any other cervical
level. Therefore, Wetherby was entitled
to an award based on the difference between the 31% impairment rating assessed
by Dr. Kriss and the 25% impairment rating assessed by Dr. Stephens.
Even though at the BRC, the parties stipulated one of the contested
issues was “exclusion for pre-existing disability/impairment,” the ALJ did not
address whether Finley v. DBM Technologies, supra, was applicable
to the case sub judice. Although she concluded Wetherby had a pre-existing
25% cervical impairment rating at the C4 through C6 level, the ALJ did not
discuss whether these cervical areas were in any fashion symptomatic
immediately before the injury. Wetherby
raised this issue in the petition for reconsideration.
In her May 1, 2017, Order ruling on
Wetherby’s petition for reconsideration, the ALJ noted she found Wetherby had a
pre-existing 25% impairment rating prior to the October 2012 injury and now
retained a 31% impairment rating for his cervical condition resulting in a 6%
impairment rating for the October 3, 2012, injury. Again, the ALJ noted Wetherby’s prior
cervical fusions were at the C4 through C6 levels, and the October 2012 work
injury resulted in a disk herniation at C7-8 requiring foraminotomies at C7
through T1. The ALJ stated the October
3, 2012, work accident resulted in trauma or injury to an entirely different
level within Wetherby’s cervical spine, and she was not convinced the
herniation resulting from the October 3, 2012, work accident aroused the
pre-existing condition at the C4 through C6 region of Wetherby’s spine. The ALJ stated the work injury did not result
in “arousal of [Wetherby’s] prior cervical condition at C4 through C6.”
After noting it is the Defendant’s burden to prove a pre-existing active
condition and the Plaintiff has the burden of proving an aggravation of a
pre-existing condition, the ALJ stated she was not convinced “there was an
aggravation” because the injury occurred at an entirely different level of the
cervical spine. She concluded the
evidence indicates Wetherby’s prior cervical fusion at C4 through C6 is stable
which is not indicative of an arousal of the prior condition at the C4 through
C6 levels. Thus, the award only
pertained to the injury Wetherby sustained at the C7 through T1 levels of the
cervical spine.
The ALJ did not, however, address whether Wetherby had a pre-existing
active condition prior to the injury meriting a carve out of the award, nor did
she state that Finley v. DBM Technologies, supra, is inapplicable
in the case sub judice. Therefore, we believe remand is necessary for
the ALJ to address whether she believed Finley v. DBM Technologies, supra,
is applicable. Although the ALJ may
reach the same conclusion and find Wetherby has a 6% impairment rating due to
the October 3, 2012, injury, the ALJ must address whether she believes Finley
v. DBM Technologies, supra, is applicable in the case sub judice as exclusion for a
pre-existing disability/impairment was identified by the parties as a contested
issue and was raised by Wetherby in his petition for reconsideration.
Accordingly, the January 3, 2017, Opinion, Award, and Order finding
Wetherby has a 6% impairment rating as a result of the October 3, 2012, injury
and the award of income benefits are VACATED. This claim is REMANDED to the ALJ for entry of an amended opinion and award
determining whether Finley v. DBM Technologies, supra, is
applicable in the case sub judice and
entry of the appropriate award of PPD benefits.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON PETER J NAAKE
2303 RIVER RD STE 300
LOUISVILLE KY 40206
COUNSEL
FOR RESPONDENT:
HON JO ALICE VAN NAGELL
300 E MAIN ST STE 400
LEXINGTON KY 40507
ADMINISTRATIVE
LAW JUDGE:
HON STEPHANIE KINNEY
657 CHAMBERLIN AVE
FRANKFORT KY 40601
[1] The ALJ sustained Wetherby’s petition for
reconsideration to the extent she corrected a typographical error contained
within the January 3, 2017, decision.
[2] The June 9, 2014, operative report of Dr.
Owen reflects a pre-operative diagnosis of right C6-7, C7-T1 foraminal
stenosis. The post-operative diagnosis
was the same. The procedure performed
was C6-7, C7-T1 posterior cervical laminoforaminotomy.
[3] In his March 25, 2015, report, Dr. Burke
assessed a 17% impairment rating pursuant to the DRE method as set forth in the
AMA Guides. During his April 20, 2016, deposition, Dr. Burke testified
he utilized the DRE method because the October 3, 2012, injury was at a
different level of the cervical spine. However, in his June 13, 2016, report he
assessed a 37% impairment rating utilizing the ROM method set forth in the AMA Guides.
[4] Apparently, Dr. Alvarado is Wetherby’s
regular physician.
[5] Wetherby also noted there was a patent error
in the ALJ’s decision in the following sentence: “Thus, the trauma associated
with the October 3, 2012 work injury was to a different level of Plaintiff’s
cervical spine and did arouse a condition associated with the C4 through C6
level of Plaintiff’s spine.” Wetherby states in the same paragraph the ALJ stated
the injury Wetherby suffered did not arouse a pre-existing dormant condition
into disabling reality. Therefore, the ALJ needed to clarify or correct this
finding.