HENRY I. SIEGEL COMPANY V. TERESA HULIN; SPECIAL FUND; THOMAS A. NANNEY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: November 25, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000386-WC
HENRY I. SIEGEL COMPANY
V.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-96-6364
TERESA HULIN; SPECIAL FUND;
THOMAS A. NANNEY, Administrative
Law Judge; and WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION AFFIRMING
* * * * * * * *
BEFORE:
GUDGEL, Chief Judge; DYCHE and KNOX, Judges.
GUDGEL, CHIEF JUDGE:
This matter is before us on a petition for
review of an opinion of the Workers’ Compensation Board (board)
affirming in part, reversing in part, and remanding an opinion an
award of an Administrative Law Judge (ALJ).
The ALJ awarded
appellee Theresa Hulin benefits for a 20% occupational disability
and apportioned liability for the award equally between appellant
Henry I. Siegel Company (Siegel) and appellee the Special Fund.
The board concluded that the ALJ erred by assessing any liability
against the Special Fund.
On appeal, appellant contends that the
board erred by reversing the ALJ’s apportionment finding and by
affirming the remainder of the ALJ’s opinion and award.
disagree.
We
Hence, we affirm.
Appellee Teresa Hulin sustained a work-related injury
to her lower back on March 8, 1995, as she lifted a box of
clothing which weighed approximately thirty pounds.
She returned
to work two days after the accident after being treated with
muscle relaxers and pain relievers.
She continued to work until
she was terminated by appellant in June 1996 for reasons
unrelated to her injury.
Hulin filed a claim for benefits in August 1996.
In
this connection, written medical reports from three physicians
were filed.
Dr. Morris W. Ray reported that his findings from
Hulin’s MRI included “moderate desiccation of the L4-5 disc . . .
some bulging of the L1-2 disc . . . [and] minimal bulging of the
L4-5 disc.”
However, Dr. Ray did not express an opinion as to
the issues of causation or permanent impairment.
Dr. Laxmaiah
Manchikanti, an anesthesiologist with a sub-specialty in pain
management, reported that Hulin’s low back pain was causally
related to the March 8, 1995, work-related injury.
Moreover, he
diagnosed Hulin as suffering from “lumbar disc displacement,
lumbar facet anthropathy, degenerative disc disease of lumbar
spine and ilio-luymbar syndrome.”
Neither Dr. Ray nor Dr.
Manchikanti expressed an opinion regarding physical limitations
to which Hulin should adhere.
Dr. Robert J. Barnett, who evaluated Hulin in October
1996, reported that Hulin “obviously has a medically documented
injury with possible ruptured disc . . . she has a 10% permanent
physical impairment to the whole body due to her industrial
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injury.”
Dr. Barnett further stated that the work-related injury
was the cause of Hulin’s physical impairment and that no part of
the impairment stemmed from the arousal of a preexisting
nondisabling dormant or degenerative condition into disabling
reality.
Unlike the other physicians, he placed limitations on
her physical activities.
Hulin also filed a vocational
evaluation in support of her claim which contained an opinion
that she suffered from an occupational loss of 50% to 55% as a
result of her injury.
The ALJ found that Hulin’s work-related lower back
strain aroused a preexisting degenerative condition into
disabling reality and resulted in an occupational disability of
20%.
The ALJ apportioned liability for the award equally between
appellant and the Special Fund.
On appeal, the board found that
there was no evidentiary support for the ALJ’s finding that the
work-related injury aroused a preexisting degenerative back
condition into disabling reality.
Accordingly, the board
reversed the ALJ’s apportionment finding and directed that all
liability be apportioned against appellant.
The ALJ’s opinion
and award was affirmed in all other respects.
This appeal
followed.
Appellant contends that the board erred by reversing
the ALJ’s apportionment finding.
We disagree.
KRS 342.1202(1), which was in effect on the date of
Hulin’s injury, mandated that an award of workers’ compensation
income benefits in a back injury claim be apportioned equally
between the employer and the Special Fund where the award is
based “in whole or in part, on a pre-existing disease or
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pre-existing condition of the back . . . .”
In Bennett v.
Special Fund, Ky. App., 919 S.W.2d 225 (1996), we addressed this
mandated apportionment pursuant to KRS 342.1202 as follows:
[T]he evidence must establish that the
degenerative disc disease or other
pre-existing condition played a role in the
present occupational disability. While based
upon our experience, we may assume that to be
the case, assumptions are not a valid basis
for rendering the decision. . . .
KRS 342.1202 specifically notes that
equal apportionment is appropriate in back
cases when the disability is based in whole
or part on a pre-existing condition. That
statement in our opinion necessitates direct
evidence from the Plaintiff or the Defendant
employer to establish by competent evidence
that any pre-existing condition played a role
in the present occupational disability.
919 S.W.2d at 226-27.
S.W.2d 878 (1998).
See also Whittaker v. Huff, Ky., 962
Thus, for there to be 50/50 apportionment
pursuant to KRS 342.1202(1), the claimant or the employer must
not only prove the existence of a preexisting condition, but also
adduce direct evidence that the work-related injury aroused that
preexisting condition into disabling reality and that the
claimant’s occupational disability is at least partially
attributable to the preexisting condition.
We perceive no
substantial evidence exists to support such a finding in the
instant action.
The ALJ stated that he relied upon the “combined
testimonies of Dr. Ray and Dr. Manchikanti” to find that the
work-related injury aroused a preexisting degenerative condition
into disability reality, and appellant contends that the reports
of Dr. Ray and Dr. Manchikanti do indeed provide credible
evidence to support the ALJ’s apportionment finding.
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However, we
agree with the board’s conclusion that, while the existence of a
preexisting degenerative condition is certainly supported by the
reports of Dr. Ray and Dr. Manchikanti, neither report provides
substantial evidence to support the ALJ’s finding that the
work-related injury aroused such preexisting condition into
disabling reality.
Indeed, there is simply no direct evidence
that the work-related injury aroused such preexisting
degenerative condition into disabling reality.
Further,
appellant points to no evidence in the record which supports such
a finding.
Instead, appellant merely claims that the evidence
“lead[s] to the conclusion that [the degenerative disc disease]
was aroused.”
As stated in Bennett, however, “assumptions are
not a valid basis for rendering the decision.”
226.
919 S.W.2d at
We conclude, therefore, that the board did not err by
finding that there is no evidence to support the ALJ’s
apportionment finding.
Moreover, we note that appellant’s
attempts to distinguish Bennett are unpersuasive.
Next, appellant contends that the existence of a
degenerative disc condition necessarily provides the only basis
for an award of permanent partial disability herein.
We
disagree.
Appellant’s argument in this vein is based upon the
inaccurate premise that Hulin’s degenerative condition is the
cause of her permanent occupational disability.
In his Form 107,
Dr. Barnett states that the March 1995 injury caused Hulin’s
disability and that no part of her impairment was the result of
the arousal of a preexisting degenerative condition.
Dr. Barnett
further stated that Hulin’s impairment was “due to her industrial
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injury.”
Clearly, therefore, contrary to appellant’s contention,
a preexisting degenerative condition does not provide the only
basis for an award of permanent disability benefits.
Rather, Dr.
Barnett’s testimony clearly was substantial evidence sufficient
to support a finding that Hulin’s impairment was caused by her
work-related injury.
Moreover, the mere fact that Dr. Barnett
examined Hulin eighteen months after her injury, nor the fact
that the impairment rating assigned to her by Dr. Barnett related
to a surgically treated disc when her work-related injury did not
necessitate surgery, do not render Dr. Barnett’s opinions
incapable of belief.
This is especially true since appellant
could have exercised its right to cross-examine Dr. Barnett, but
chose not to take his deposition.
See Union Underwear Co., Inc.
v. Scearce, Ky., 896 S.W.2d 7 (1995).
As is often noted, the function of this court’s review
is to correct the board only where it has “overlooked or
misconstrued controlling statutes or precedent, or committed an
error in assessing the evidence so flagrant as to cause gross
injustice.”
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d
685, 687-88 (1992).
Here, appellant has failed to point to any
evidence which was overlooked by the board, and the view of the
evidence taken by the board is “neither patently unreasonable nor
flagrantly implausible.”
Id. at 688.
It follows that the
board’s opinion as to the apportionment issue may not be set
aside.
The board’s opinion is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR TERESA HULIN:
J. Denis Ogburn
Louisville, KY
Rodger W. Lofton
Paducah, KY
BRIEF FOR SPECIAL FUND:
David W. Barr
Louisville, KY
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