RENDERED:  APRIL 6, 2018; 10:00 A.M.

NOT TO BE PUBLISHED

 

Commonwealth of Kentucky

Court of Appeals

 

NO. 2015-CA-000555-WC

 

 

ATLANTIC AVIATION[1] as self-insured                                      APPELLANT

 

 

                           PETITION FOR REVIEW OF A DECISION

v.                   OF THE WORKERS’ COMPENSATION BOARD

                     ACTION NOS. WC-13-00840 AND WC-05-84170[2]

 

 

JOHN COYLE;
ATLANTIC AVIATION as insured by AIG;
ATLANTIC AVIATION as insured by LIBERTY MUTUAL;
HON. WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD                                   APPELLEES

 

 

OPINION

AFFIRMING

 

** ** ** ** **

 

BEFORE:  DIXON, JONES, AND NICKELL, JUDGES.

NICKELL, JUDGE:  Atlantic Aviation, as self-insured, petitions for review of a Workers’ Compensation Board (Board) decision affirming in part, vacating in part, and remanding an award of permanent total disability (PTD) benefits and medical benefits rendered by the ALJ to its employee, John Coyle.  Following a careful review, we affirm the Board’s decision.

FACTUAL AND PROCEDURAL HISTORY

                   Coyle, the claimant-appellee in this case, is approximately sixty-two years old and has a high school equivalency degree.  He worked for Atlantic Aviation from 1991 until December 10, 2012.  The facts and procedural history giving rise to our review were set forth in the Board’s opinion, in relevant part, as follows:

[The ALJ] rendered an Opinion and Order on July 21, 2014 in the above-styled action, awarding [Coyle] permanent total disability benefits and medical benefits for a cumulative trauma injury, but dismissing a motion to reopen.  At the time of the cumulative trauma injury, Coyle worked for Atlantic Aviation.  He was also working for Atlantic Aviation in 2005, when he suffered the injury which is the subject of the motion to reopen.  Coyle’s cumulative trauma claim [WC-13-00840] and motion to reopen [WC-05-84170] were consolidated.  The primary issue before the ALJ was whether Coyle’s current condition is the result of a new cumulative trauma injury, a worsening of the 2005 injury, or a combination of both.

 

The litigation is complicated by the fact that, between 2005 and 2013, Atlantic Aviation was insured by various companies.  At the time of the 2005 injury, it was insured by AIG.  From July 3, 2011 through July 3, 2012, Liberty Mutual Insurance Company (“Liberty Mutual”) insured Atlantic Aviation.  Beginning on July 4, 2012, Atlantic Aviation maintained workers’ compensation self-insurance through a third-party administrator.  Thus, entries of appearance were made on behalf of AIG and Liberty Mutual, as well as Atlantic Aviation as self-insured (hereinafter referred to as “Atlantic (as self-insured)”).  Coyle, Liberty Mutual and Atlantic (as self-insured) have appealed the ALJ’s July 21, 2014 Opinion and Order and the August 25, 2014 Order on Reconsideration.

 

                   . . . .

 

Atlantic Aviation is a fixed based operator servicing general aviation aircraft.  In 2005, Coyle was employed as an operations supervisor when he injured his left leg and low back.  The injury occurred when a tug truck struck him and momentarily pinned him against a ramp being used to load horses into the aircraft.  He filed a workers’ compensation claim which was settled and approved in 2007 based on an 8.5% impairment rating.  The settlement agreement listed Coyle’s injury as a “left knee tear with post-traumatic arthritis and pre-existing grade 1 [spondylolisthesis] L5-S1 that was aggravated by the work injury.”  Coyle did not waive his right to reopen or his right to future medical benefits.

 

Coyle returned to work until 2009, when a spinal fusion at L4-5 and L5-S1 was performed by Dr. John Johnson and Dr. Christopher Shields.  Following the fusion surgery he returned to full duty work in December, 2009.  He did not experience any additional pain or problems with his low back or knees until 2011.  At routine office visits with Dr. Johnson throughout 2010, Coyle reported he was doing well and experiencing no pain.

 

In November 2011, Coyle’s position at Atlantic Aviation changed.  His prior position as an operations supervisor involved mostly sedentary work.  His new position involved more manual labor.  He was required to unload luggage weighing 60-80 pounds.  He also refueled aircraft, which involved driving a tanker truck and pulling a heavy fuel hose.  Additionally, Coyle’s new position required frequent walking and prolonged standing.

 

Following his job change, Coyle gradually began to experience low back and leg pain.  He testified the back pain was similar to the pain he experienced following the 2005 injury.  Coyle returned to Dr. Johnson on May 29, 2012, reporting increased back pain as a result of work duties.  He received injections and an abdominal binder to wear at work.  Dr. Johnson ordered a CT scan on December 27, 2012, which revealed a disc bulge at L3-L4.  In a January 31, 2013 note, Dr. Johnson stated Coyle’s current problems, including the disc bulge, are the result of “effusion which occurs [as a] result of the original injury in 2005.”

 

Coyle last worked at Atlantic on December 10, 2012, when Dr. Johnson removed him from work.  He continues to treat with Dr. Johnson and Dr. Dean Colis [sic] for pain management.  At the final hearing, Coyle explained he can no longer comfortably lift over fifteen to twenty pounds and is unable to bowl, ski or golf, which he previously enjoyed.  He takes pain medication on a daily basis.  Coyle stated he would like to return to work, but has been unable to find a position within his physical limitations.

 

(Footnote omitted.)

 

                   Coyle moved to reopen his 2005 claim on February 8, 2013, alleging improper termination of his temporary total disability (TTD) benefits.  In the subsequent proceedings, the ALJ received several differing medical evaluations regarding the cause and extent of Coyle’s current disability.  Of particular importance to this appeal, the physicians disagreed as to whether Coyle suffered an aggravation of his 2005 injury or sustained a new injury, brought about by repetitive heavy lifting in his newly-assigned physical job duties in 2011 and 2012.  “It is well-established that the work-related arousal of a pre-existing dormant condition into disabling reality is compensable.”  Finley v. DBM Technologies, 217 S.W.3d 261, 265 (Ky. App. 2007).  However, pre-existing active conditions, those that are “symptomatic and impairment ratable” pursuant to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”) “immediately prior to the occurrence of the work-related injury,” are not compensable.  Id.; Comair, Inc. v. Helton, 270 S.W.3d 909, 913 (Ky. App. 2008). 

                   Medical evidence on the timing of Coyle’s work-related injury would be critical, because different insurers covered Atlantic Aviation during the relevant time periods.  The medical testimony, as summarized in the Board’s opinion, is as follows:

Dr. Warren Bilkey performed an independent medical evaluation (“IME”) on July 8, 2013.  In his report, he noted Coyle’s fusion surgery in 2009, and that he worked at full duty and without medication from late 2009 through late 2011, when his job duties changed.  Upon physical evaluation and a review of medical records, Dr. Bilkey diagnosed a lumbar strain in 2012 and chronic low back pain.  He concluded “the above diagnoses are due to the December 10, 2012 work injury.”

 

Referencing the [AMA Guides], he assigned a 26% whole person impairment.  However, he qualified that he is “not sure what the pre-existing active impairment would [] be.”  Using the 8.5% rating used in the settlement agreement, Dr. Bilkey stated the impairment rating attributable to the current injury would be 17.5%.  Alternatively, he calculated a 16% impairment rating attributable to the current injury by subtracting 10%, the pre-existing active impairment rating assessed by Dr. Gregory Nazar.  Dr. Nazar had conducted an IME in 2010 following Coyle’s fusion surgery.

 

At a later deposition, Dr. Bilkey elaborated that he believed Coyle’s lumbar strain is a result of his work activities since November 2011.  He further stated the chronic low back pain is a combination of his work activities since November 2011 and an aggravation of his 2005 injury and subsequent fusion.  Dr. Bilkey also explained his opinion of Coyle’s current impairment rating.  He stated he did not agree with the 8.5% impairment rating used in the 2007 settlement agreement, or the 10% impairment rating assigned by Dr. Nazar in 2010.  Dr. Bilkey explained he would have assigned an impairment rating between 20% and 23% following the 2009 surgery.

 

Dr. Timothy Kriss conducted an IME and reviewed Coyle’s medical records.  In a report dated April 17, 2013, Dr. Kriss diagnosed Coyle with axial low back pain and opined his current condition is unrelated to the 2005 injury or 2009 surgery.  He emphasized that Coyle’s current pain is in an anatomically distinct location than the site of his prior fusion surgery.  He also rejected any theory of adjacent segment degeneration, a phenomenon whereby a patient’s prior fusion surgery will accelerate or cause degeneration at adjacent levels of the spine.  Dr. Kriss concluded Coyle suffered from dormant degenerative disease that was brought into disabling reality by his work activities in late 2011 and throughout 2012.

 

In a supplemental report dated January 28, 2014, Dr. Kriss explained he had reviewed an IME report prepared by Dr. Henry Tutt, as well as the lumbar CT scans performed in 2009 and 2012.  He was unable to discern any significant difference in the L3-L4 level from 2009 to 2012.  However, Dr. Kriss’[s] original opinion remained unchanged, as the “absence of discernable structural change at L3/L4 does not automatically rule out lumbar work injury in Mr. Coyle.”  Dr. Kriss explained he found Coyle’s history of the onset and severity of his symptoms convincing and credible, and corroborated by the contemporaneous medical records of Drs. Johnson and Collis.  Thus, Dr. Kriss’[s] opinion remained unchanged that Coyle’s current low back pain is a result of his 2011-2012 work activities.

 

Atlantic (as self-insured) filed the October 2, 2013 IME report of Dr. Henry Tutt.  Dr. Tutt’s physical examination of Coyle indicated normal musculoskeletal and neurological structures.  He opined Coyle may have sustained a lumbar strain at the end of 2011 or in 2012, but that injury would have healed by the time of his examination.  He noted Coyle has minor degenerative changes at the L3-4 level, but that minor disc bulge would not be the cause of his current complaints.  Dr. Tutt concluded there is no evidence to indicate Coyle sustained any recent structural alteration of the lumbar spine as a result of his work activities in 2011 and 2012, and that he has not acquired any additional impairment rating relative to the 2005 injury.

 

Dr. Russell Travis conducted a records review on January 13, 2013 and testified at a December 18, 2013 deposition.  Dr. Travis noted Coyle had degenerative changes at the L3-4 level before his 2005 injury, and his current complaints are a natural progression of the degenerative process.  He believed Coyle’s current back problems relate to neither the 2005 accident nor his work activities in 2011 and 2012.

 

                   When Coyle moved to reopen his 2005 claim, AIG responded by presenting Dr. Kriss’s April 17, 2013 report, which concluded Coyle’s current condition was unrelated to the 2005 injury or 2009 spinal fusion.  As a result of Dr. Kriss’s report, Coyle notified opposing counsel on May 7, 2013, he would file a second claim alleging cumulative trauma from his work-related activities from 2011 to 2012.  Coyle filed a Form 101 on May 30, 2013, alleging an injury date of December 10, 2012, based on his last day of employment.  Coyle amended the claim later to include an additional injury date of April 17, 2013, based on the date he first received Dr. Kriss’s diagnosis of cumulative trauma injury.

                   After considering the evidence, the ALJ issued an opinion and order on July 21, 2014, concluding Coyle had suffered a new and distinct cumulative trauma injury resulting from work activities in 2011 and 2012.  In reaching this conclusion, the ALJ explicitly relied on the opinions of Drs. Bilkey and Kriss, as well as the lay testimony of Coyle himself.  The ALJ determined Coyle’s cumulative trauma injury became occupationally disabling on December 11, 2012.  Further, the ALJ found Coyle was first informed of the cumulative trauma injury by means of Dr. Kriss’s report on April 17, 2013.  Coyle’s Form 101, filed May 30, 2013, was therefore timely submitted.  Accordingly, the ALJ awarded Coyle PTD benefits and medical benefits.

                   Multiple parties petitioned for reconsideration.  In response, the ALJ issued a second opinion and order on August 25, 2014, in which he reiterated the substance of his previous opinion but acknowledged his failure to address Coyle’s motion to reopen the 2005 claim.  Because he adopted the opinions of Drs. Bilkey and Kriss indicating Coyle’s current injury was new and distinct from the earlier injury, the ALJ dismissed the reopening of the 2005 claim.  Finally, the ALJ held the various insurers “may have afforded coverage for the plaintiff’s cumulative trauma injuries and that those coverages must be apportioned in a declaratory judgment action filed in Circuit Court under Civil Rule 57 and Chapter 418 of the Kentucky Revised Statutes.”

                   Coyle, Liberty Mutual, and Atlantic (as self-insured) appealed the ALJ’s rulings to the Board.  Coyle appealed the ALJ’s dismissal of his motion to reopen the 2005 claim.  Liberty Mutual argued the ALJ should have found Atlantic Aviation, as its insured, not liable for the 2012 cumulative trauma injury.  Atlantic (as self-insured) argued to the Board as follows:  (1) the ALJ’s finding of cumulative trauma was not supported by substantial evidence; (2) the ALJ failed to address the appropriate date of manifestation with sufficient specificity; (3) the ALJ should have discussed the import of Dr. Johnson’s records as to whether Coyle gave proper notice to Atlantic Aviation; and (4) the ALJ failed to properly designate which insurance carrier is responsible for Coyle’s cumulative trauma injuries.

                   In a thorough, well-reasoned opinion, the Board considered the arguments and affirmed in part, vacated in part, and remanded.  The Board held the ALJ’s decisions were largely supported by substantial evidence.  However, the Board also held the ALJ failed to properly designate the insurance carrier or carriers responsible for Coyle’s cumulative trauma injury and in what proportion: 

Pursuant to KRS[3] 342.325, the ALJ “shall” determine all questions arising under Chapter 342.  The exercise of this jurisdiction is not discretionary; the language of KRS 342.325 is mandatory.  Therefore, this portion of the Opinion is vacated and the claim remanded to the ALJ for a determination of whether Liberty Mutual, Atlantic or both are liable for Coyle’s cumulative trauma injury.

 

(Footnote added).  Furthermore, the Board held the ALJ should have entered specific findings of fact as to whether Coyle suffered from a pre-existing active disability at the time of his cumulative trauma injury.  Finally, the Board vacated the finding of PTD and held “the ALJ must determine if Coyle’s current cumulative trauma is sufficient, by itself, to cause permanent total disability.”  The Board, therefore, remanded the matter to the ALJ for additional specific findings of fact on those questions.  Atlantic (as self-insured) petitioned this Court for review of the Board’s decision.

                   Atlantic (as self-insured) raises four arguments on appeal:  (1) whether the Board erred in upholding the ALJ’s finding of a new cumulative trauma injury as being supported by substantial evidence; (2) whether the Board erred in upholding the ALJ’s finding of total disability as being supported by substantial evidence; (3) whether the Board erred in affirming the ALJ’s finding of April 17, 2013, as the appropriate manifestation date of the alleged cumulative trauma injury; and, (4) whether the Board erred in affirming the ALJ’s dismissal of the reopening of Coyle’s 2005 claim. 

                   The other parties have submitted briefs staking out their own positions on issues raised by Atlantic (as self-insured).  Coyle originally appealed the ALJ’s decision to dismiss his 2005 claim to the Board; he now abandons this argument and asks us to affirm the Board.  AIG asks us to affirm the Board “in all respects.”  Liberty Mutual joins Atlantic (as self-insured) in all arguments except (3), and instead asks us to affirm the Board and the ALJ with regard to the manifestation date of Coyle’s injury.

STANDARD OF REVIEW

                   Our review of the Board’s opinion is limited.  “When reviewing the Board’s decision, we reverse only where it has overlooked or misconstrued controlling law or so flagrantly erred in evaluating the evidence that it has caused gross injustice.”  GSI Commerce v. Thompson, 409 S.W.3d 361, 364 (Ky. App. 2012) (citing Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992)).  The Board’s review of the ALJ’s decision is likewise limited:

KRS 342.285(2) provides that the Board shall not reweigh the evidence and substitute its judgment for that of the ALJ with regard to a question of fact.  The standard of review with regard to a judicial appeal of an administrative decision is limited to determining whether the decision was erroneous as a matter of law.  Where the ALJ determines that a worker has satisfied his burden of proof with regard to a question of fact, the issue on appeal is whether substantial evidence supported the determination.  Substantial evidence has been defined as some evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable people.  Although a party may note evidence which would have supported a conclusion contrary to the ALJ’s decision, such evidence is not an adequate basis for reversal on appeal.  The crux of the inquiry on appeal is whether the finding which was made is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law.

 

Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000) (citations omitted).

ANALYSIS

                   Atlantic (as self-insured) first argues the Board erroneously concluded the ALJ’s findings were supported by substantial evidence.  As asserted in the Board’s opinion, the ALJ has discretion as the finder of fact to determine the weight and credibility of the evidence presented.  “The ALJ has the sole discretion to determine the quality, character, and substance of the evidence and may reject any testimony and believe or disbelieve various parts of the evidence regardless of whether it comes from the same witness or the same party’s proof.”  Thompson, 409 S.W.3d at 364. 

                   In this argument, Atlantic (as self-insured) asserts the ALJ erred in relying on Drs. Bilkey and Kriss instead of Dr. Tutt.  As the Board correctly held, this argument amounts to an improper attempt to reweigh the evidence.  “Where there is conflicting medical testimony concerning the cause of a harmful change, it is for the ALJ to weigh the evidence and decide which opinion is the most credible and reliable.”  Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615, 621 (Ky. 2004).

                   Likewise, in its second argument, Atlantic (as self-insured) asks us to reject the ALJ’s finding of PTD, claiming it too, is unsupported by substantial evidence.  “‘Permanent total disability’ means the condition of an employee who, due to an injury, has a permanent disability rating and has a complete and permanent inability to perform any type of work as a result of an injury[.]”  KRS 342.0011(11)(c).  “[D]etermining whether a particular worker has sustained a partial or total occupational disability as defined by KRS 342.0011(11) clearly requires a weighing of the evidence concerning whether the worker will be able to earn an income by providing services on a regular and sustained basis in a competitive economy.”  Ira A. Watson, 34 S.W.3d at 51.

                   Arguing against the PTD finding, Atlantic (as self-insured) cites the testimony of Drs. Travis and Tutt, both of whom opined Coyle only exhibited physical restrictions appropriate for someone having undergone a spinal fusion.  Atlantic (as self-insured) also points out Coyle personally expressed a desire to return to work and felt he could perform some of the duties of his old job.  A party’s citation to contradictory evidence in the record supporting a different outcome “is not an adequate basis for reversal on appeal.”  Id. at 52.  Even so, we note the Board’s opinion ultimately vacated and remanded the PTD award.

The award of [PTD] benefits must be vacated and remanded for further findings of fact.  On remand, if the ALJ believes Coyle did not have a pre-existing disability at the time of his cumulative trauma, he must enter a specific finding of fact and identify the evidence upon which he relies in reaching such a conclusion.  Such a finding, if supported by evidence, would imply that Coyle’s subsequent injury in 2012 was totally disabling by itself.  However, if the ALJ determines Coyle suffered a pre-existing disability at the time of his cumulative trauma, the ALJ must determine what percentage of Coyle’s current impairment rating is attributable to the pre-existing active disability.  Furthermore, the ALJ must determine if Coyle’s current cumulative trauma is sufficient, by itself, to cause [PTD].  We compel no particular result.

 

Because the Board addressed the matter, the issue is moot and we need not consider it further.

                   Next, Atlantic (as self-insured) argues the Board erroneously affirmed the ALJ’s finding April 17, 2013, as the appropriate manifestation date for Coyle’s cumulative trauma injury.  Atlantic (as self-insured) argues the ALJ’s findings insufficiently addressed the issues of notice and the statute of limitations, stating only the claim was filed within two years of Dr. Kriss’s opinion that a new cumulative trauma injury had occurred.  While acknowledging the ALJ could have been more explicit in its findings, the Board concluded the ALJ’s language “sufficiently apprises the parties of his ultimate determination.” 

                   Having thoroughly reviewed the record and arguments on appeal, we affirm the Board.  In the section of his opinion addressing notice, the ALJ discusses Hill v. Sextet Min. Corp., 65 S.W.3d 503 (Ky. 2001), specifically referencing the portion in which the claimant was deemed to have given timely notice immediately upon being diagnosed with a gradual, work-related injury.  Id. at 507.  In applying Sextet to the case sub judice, the ALJ found:

[i]n the case at bar, when Mr. Coyle learned from Dr. Kriss that his back symptoms were due to cumulative trauma, Mr. Coyle’s attorney gave prompt written notice to the defendant’s attorney of the claim.  I, therefore, make the factual determination that Mr. Coyle was not required to self-diagnose his symptoms and that he gave due and timely notice to the defendant of his work-related cumulative trauma as soon as practicable under KRS 342.185(1).

 

                   The ALJ’s opinion noted Coyle’s counsel sent a notification letter to Atlantic Aviation’s counsel on May 7, 2013, advising of the new claim of cumulative trauma injury.  Furthermore, the ALJ opinion points out Coyle had filed his new Form 101, alleging cumulative trauma injury, on May 30, 2013, and had identified April 17, 2013, as one of his injury dates.  Lastly, when discussing the medical evidence, the ALJ notes April 17, 2013, was the date on which Dr. Kriss examined Coyle and diagnosed cumulative trauma injury.  The clear inference to be drawn from the ALJ’s analysis is he found April 17, 2013, to be the manifestation date for purposes of notice and statute of limitations.  On this factual basis, the ALJ concluded Coyle’s letter of May 7, 2013, and his May 30, 2013 Form 101 were timely.  There is substantial evidence in the record to support this conclusion, and the ALJ’s opinion sufficiently apprises the parties of his determination.  Thus, the Board did not err in affirming the ALJ’s factual findings. 

                   Finally, Atlantic (as self-insured) argues the Board erred in affirming the ALJ’s denial of its motion to reopen Coyle’s 2005 claim.  It asserts Coyle’s current infirmity represents a continuation of his 2005 injury rather than a new injury.  Atlantic (as self-insured) merely argues the ALJ should not have relied upon the opinions provided by Drs. Bilkey and Kriss, who concluded Coyle suffered a new cumulative trauma injury.  Again, we decline the invitation to reweigh the medical evidence.  A physician’s opinion is not rendered unreliable merely because other physicians disagree.  See City of Owensboro v. Adams, 136 S.W.3d 446, 452 (Ky. 2004).  The Board did not err in affirming the ALJ’s determination. 

CONCLUSION

                   For the foregoing reasons, we affirm the opinion of the Workers’ Compensation Board.

                   ALL CONCUR.

 

BRIEF FOR APPELLANT:   Carl M. Brashear Lexington, Kentucky

BRIEF FOR APPELLEE, JOHN COYLE:   Wayne C. Daub Louisville, Kentucky     BRIEF FOR APPELLEE, ATLANTIC AVIATION as insured by AIG:   Joel W. Aubrey Brian D. Wimsatt Louisville, Kentucky     BRIEF FOR APPELLEE, ATLANTIC AVIATION as insured by LIBERTY MUTUAL:   James R. Wagoner Derek S. Monzon Louisville, Kentucky