ANITA THOMASSON v. RYAN'S FAMILY STEAKHOUSE; WORKERS' COMPENSATION BOARD; LAW JUDGE
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RENDERED: October 5, 2001; 2:00 p.m.
ORDERED NOT PUBLISHED BY SUPREME COURT
APRIL 29, 2002 (2001-SC-000891-WC)
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
2000-CA-002658-WC
and
2000-CA-002873-WC
ANITA THOMASSON
v.
APPELLANT/CROSS-APPELLEE
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-99-83212
RYAN'S FAMILY STEAKHOUSE;
WORKERS' COMPENSATION BOARD;
and DONALD SMITH, ADMINISTRATIVE
LAW JUDGE
APPELLEES/CROSS-APPELLANTS
OPINION
AFFIRMING IN PART,
REVERSING IN PART,
AND
REMANDING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND MILLER, JUDGES.
BUCKINGHAM, JUDGE: Anita Thomasson petitions for review from an
opinion of the Workers’ Compensation Board (Board) which reversed
an award of benefits by an administrative law judge (ALJ) based
on permanent partial disability.
While we agree with the Board
on two issues, we conclude the Board misconstrued the controlling
statute concerning a third issue.
reverse in part and remand.
Thus, we affirm in part and
Thomasson worked at Ryan’s Family Steakhouse in
Owensboro, and her duties included baking, cooking, cleaning, and
stocking.
On February 1, 1999, Thomasson worked a double shift.
Her workday started at 8:00 a.m. and ended at 10:00 p.m.
Her
duties that day included baking in the morning and cooking in the
afternoon and evening.
Once closing time arrived, she cleaned
the kitchen.
Included among other cleaning chores, Thomasson was
required to scrub the underside of a shelf that rests high above
the preparation table.
To see the underside of the shelf, she
had to lean over the table while twisting her head and neck
backward.
While maintaining that position, Thomasson had to
extend her arm upward to scrub.
This cleaning regimen took
approximately forty-five minutes during which time her head and
neck remained in an awkward position.
On the following morning, Thomasson awoke with severe
pain and limited mobility in her neck that rendered the turning
of her head virtually impossible.
Despite the pain and
difficulty, she worked her shift but never returned to work after
that day.
Because the pain did not subside, she visited her
family physician on February 8, 1999.
He referred her to a
neurosurgeon, Dr. David Eggers, who examined Thomasson on
March 9, 1999.
On March 23, 1999, Thomasson sought treatment
from Dr. Kara Liebenauer, a chiropractor.
Dr. Liebenauer took
Thomasson’s history and conducted an extensive physical
examination.
Dr. Liebenauer conducted Dynometer testing, neutral
cervical compression testing, Jackson’s lateral flexion
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compression test, cervical distraction test, reverse Adson’s
test, and Valsalva maneuver.
On the basis of these tests and the
history Thomasson provided, Dr. Liebenauer diagnosed her with
spasmodic torticollis (ST), possible cervical disk herniation or
rupture, or thoracic outlet syndrome.
Dr. Liebenauer later referred Thomasson to Dr. Matthew
Kern, a neurosurgeon for further evaluation.
Dr. Kern determined
that Thomasson did not suffer from obviously herniated cervical
disks and deemed her a non-surgical patient.
Because Thomasson
continued to have pain, Dr. Liebenauer referred her to Dr. Walter
Olson, a neurologist specializing in movement disorders.
Dr.
Olson took Thomasson’s history, reviewed her medical records, and
conducted a thorough physical examination.
In addition to
examining her head, nose, ears, throat, neck, and extremities, he
conducted the Folstein Minimental State Examination to test her
higher cortical function.
He also examined her cranial nerves.
Dr. Olson noted a limited range of motion of the head
and neck and a tendency for the head to turn to the left.
Relying upon the history and the physical examination of
Thomasson, Dr. Olson diagnosed spasmodic torticollis, a movement
disorder.
In addition, he found the prolonged awkward
positioning a “plausible cause” of Thomasson’s ST and stated in
his deposition that “she doesn’t have anything else that is a
proximate cause.”
Dr. Olson found a 28%-51% impairment rating
under the AMA Guidelines.
At the direction of Ryan’s, Thomasson was examined by
Dr. Gregory E. Gleis, an orthopaedic surgeon.
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He diagnosed her
with neck pain and did not believe a strong causal relation for
work injury existed.
He further indicated that if the injury
were work-related, he would assess a 5% whole person impairment.
Thomasson’s claim for benefits was filed on May 28,
1999.
An award of benefits was made by an ALJ on April 14, 2000.
First, the ALJ determined that Thomasson’s condition was workrelated.
The ALJ found Thomasson’s testimony to be credible and
also cited the testimony of Dr. Olson and Dr. Liebenauer in this
regard.
The ALJ held that “[a]lthough there is evidence to the
contrary this Court did not find that to be persuasive.”
The ALJ
next addressed the issue regarding whether Thomasson’s condition
met the definition of “injury.”
Again citing testimony from Dr.
Olson and Dr. Liebenauer, the ALJ held that the circumstances on
February 1, 1999, constituted an “injury” as that term is defined
in the statutes.
Ryan’s then appealed to the Board.
In an opinion rendered on October 18, 2000, the Board
agreed with the ALJ that the work incident constituted a
“traumatic event.”
For purposes of the Workers’ Compensation
Act, “injury” is defined in part as follows:
[A]ny work-related traumatic event or series
of traumatic events, including cumulative
trauma, arising out of and in the course of
employment which is the proximate cause
producing a harmful change in the human
organism evidenced by objective medical
findings.
KRS 342.0011(1).
Citing the testimony of Dr. Olson, the Board
also held that the ALJ’s finding that Thomasson’s work activities
were the proximate cause of her ST was supported by substantial
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evidence in the record1.
Finally, the Board reversed the
decision of the ALJ “based on the record being devoid of
‘objective medical findings’ which produced a change in the human
organism.”
Thomasson then filed a petition for review with this
court, and Ryan’s filed a cross-petition for review.
Thomasson’s sole point of contention in her petition is
that the Board erred in reversing the ALJ’s decision and holding
that there was a lack of “objective medical findings” that an
injury had occurred.
KRS 342.0011(33) defines “objective medical
findings” as “information gained through direct observation and
testing of the patient applying objective or standardized
methods.”
In reaching its conclusion that the record was devoid
of objective medical findings, the Board stated it was relying on
an unpublished case of this court, Premier Scale Co./Indiana
Scale Co. v. Kelly D. Gibbs, Case No. 1998-CA-002238-WC, wherein
this court reversed the Board and its interpretation of the term
“objective medical findings.”
In that case, the Board relied on
the testimony of a neurologist that the claimant had postconcussive syndrome and directed an award of benefits for such an
injury even though the condition was not evidenced by any
diagnostic tests.
However, a panel of this court reversed the
Board and held that “a physician’s medical opinion is derived
1
If claimant prevails on his or her claim before an ALJ,
the question on appeal to the Board is whether the ALJ’s decision
is supported by substantial evidence. See Wolf Creek Collieries
v. Crum, Ky. App., 673 S.W.2d 735, 736 (1984).
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from objective medical findings and the opinion is not, itself,
an objective medical finding.”
Since the briefs have been filed in this case, the
Kentucky Supreme Court has rendered an opinion in the Premier
case which is now final.2
Therein, the supreme court affirmed
the panel of this court but stated that “our reasoning differs
somewhat from that expressed by the majority of the Court of
Appeals panel.”3
See Kelly D. Gibbs v. Premier Scale
Company/Indiana Scale Company, Ky., 50 S.W.3d 754 (2001).
The
supreme court first noted that unless the harmful change in the
human organism was evidenced by objective medical findings, then
it was not compensable as an “injury” as that term is defined in
KRS 342.0011(1).
Id.
The court next agreed that a diagnosis was
not an objective medical finding, but a diagnosis must be
supported by objective medical findings in order to establish the
existence of a compensable injury.
Id.
However, the court
further reasoned:
In view of the evidence which was presented
in this particular case, a question has
arisen concerning whether a harmful change
must be, or is capable of being, documented
by means of sophisticated diagnostic tools
such as the x-ray, CAT scan, EEG, or MRI in
order to be compensable. Contrary to what
some have asserted we are not persuaded that
it must. Furthermore, at least to some
extent, we view that question as being off
the mark. Likewise, we are not persuaded
that a harmful change must be both directly
observed and apparent on testing in order to
be compensable as an injury.
2
The opinion became final on August 24, 2001, and is to be
published.
3
The opinion of this court in Premier was by a 2-1 vote.
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In the instant case, the claimant has focused
upon the shortcomings of the sophisticated
diagnostic tools. However, in addition to
testing which utilizes the aforementioned
diagnostic tools, a wide array of
standardized laboratory tests of physical and
mental function is available to the medical
practitioner. Although there may not be a
standardized test which would apply to every
conceivable symptom of which a patient might
complain, or every symptom which cannot be
directly observed, such tests are capable of
confirming the existence and extent of a
number of symptoms. We know of no reason why
the existence of a harmful change could not
be established, indirectly, through
information gained by direct observation
and/or testing applying objective
standardized methods that demonstrated the
existence of symptoms of such a change.
Furthermore, we know of no reason why a
diagnosis which was derived from symptoms
that were confirmed by direct observation
and/or testing applying objective or
standardized methods would not comply with
the requirements of KRS 342.0011(1).
Id. at 762.
Nevertheless, the supreme court affirmed the opinion
of this court on the ground that the claimant’s evidence was
lacking.
The facts of this case are different from those in the
Premier case.
In that case, the doctor made his diagnosis based
on the symptoms described by the claimant.
The doctor testified
concerning the lack of definitive, observable physical findings
of the condition.
In the case sub judice, however, both Dr.
Olson and Dr. Liebenauer, as well as other doctors, performed
tests such as range of motion, strength, and reflex.
Their
opinions were based on Thomasson’s medical history, their direct
observation of her, and the results of the standardized tests.
There were “objective medical findings” used as a basis for the
doctor’s opinions in this case, where there were none in the
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Premier case.
In short, we conclude, based on the Kentucky
Supreme Court’s recent opinion in the Premier case, that the
Board erred when it failed to affirm the ALJ on this issue.
Ryan’s Steakhouse argues in its petition that the workrelated incident did not meet the definition of a “traumatic
event” as that term is used in KRS 342.0011(1).
First, we agree
with the Board that the work activity in which Thomasson engaged
on February 1, 1999, when she developed pain in her neck after
working in an awkward position qualified as an “event” for
purposes of the statute.
As the Board stated, “[t]here is
substantial evidence in the record to support the finding that
the neck pain experienced by Thomasson was the outcome or
consequence of her work activities.”
Second, we agree with the
Board that the event qualifies as “traumatic.”
In North American
Refractories Co. v. Jackson, Ky., 346 S.W.2d 10 (1961), the court
held that “any injury caused by a work-connected external force
satisfies the requirement of ‘traumatic’ within the meaning of
[the statute][.]”
Id. at 13.
We conclude the Board did not err
in this regard.
Ryan’s second argument is that there was no credible
evidence to support a finding that Thomasson’s work activities
were the proximate cause of her developing ST.
As we have noted,
KRS 342.0011(1) requires that the work-related traumatic event be
“the proximate cause producing a harmful change in the human
organism[.]” Ryan’s argues that Thomasson had a prior history of
having cricks in her neck and that the statute requires the work
activities to be “the” cause of the resulting injury and not just
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one of a number of possible causes.
We agree with the Board that
there was substantial evidence to support the ALJ’s decision
based on Dr. Olson’s opinion and Thomasson’s testimony that the
work incident caused Thomasson’s ST.
This court’s function in reviewing the Board’s decision
is “to correct the Board only where the Court perceives the Board
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).
Because we believe the Board
misconstrued the applicable statute in light of this court’s
opinion in the Premier case, we will reverse and remand on that
issue4.
Otherwise, we perceive nothing to indicate the Board
erred in assessing the evidence and thus affirm on the other
issues.
The opinion of the Board is affirmed in part and
reversed in part and remanded for the reinstatement of the ALJ’s
award.
ALL CONCUR.
BRIEF FOR ANITA THOMASSON,
APPELLANT/CROSS APPELLEE:
BRIEF FOR RYAN’S FAMILY
STEAKHOUSE,
APPELLEE/CROSS-APPELLANT:
Daniel Caslin
Owensboro, Kentucky
Mary E. Schaffner
Louisville, Kentucky
4
Because the opinion of the Kentucky Supreme Court had not
been rendered in the Premier case when the Board issued its
opinion, it is understandable that the Board would rely on our
opinion in that case.
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