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August 11, 2017 201468458

Commonwealth of Kentucky 

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.