UNITED PARCEL SERVICE, INC. v. RALPH BLANKENBAKER; SHEILA LOWTHER, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD
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RENDERED: SEPTEMBER 28, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000069-WC
UNITED PARCEL SERVICE, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 02-95122
RALPH BLANKENBAKER;
SHEILA LOWTHER, ADMINISTRATIVE
LAW JUDGE; WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND KELLER, JUDGES; GRAVES, SENIOR JUDGE.1
GRAVES, JUDGE: United Parcel Service, Inc., petitions for review from an opinion of
the Workers' Compensation Board which remanded the decision of the Administrative
Law Judge (ALJ) for additional findings upon the issue of whether the present injury
brought a dormant preexisting condition into disabling reality. We affirm.
1
Senior Judge J. William Graves sitting as Special Judge by assignment of the Chief
Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
FACTUAL AND PROCEDURAL BACKGROUND
In 1991 Ralph Blankenbaker injured his left knee while in the employ of
United Parcel. He had surgery performed on the left knee in February 1992. As a result
of the injury Blankenbaker was off work for one year and received temporary total
disability benefits during this period of time. He returned to work without restrictions.
The primary issue at hand is whether the 1991 injury resulted in a dormant condition
brought into a disabling reality by the present injury and whether the ALJ adequately
addressed the issue in his opinion and award.
On February 13, 2002, Blankenbaker, while on duty in his job as an air
marshal for United Parcel, suffered a second work-related injury to his left knee. The
injury, which is the subject matter of this litigation, occurred when Blankenbaker slipped
on glycol (a spray used to de-ice planes) while trying to get stairs up to a plane. On
January 27, 2003, Blankenbaker underwent a second operation on his left knee
As a result of his February 2002 injury, Blankenbaker filed a claim for
workers' compensation benefits. Following an evidentiary hearing, on May 26, 2006, the
ALJ issued an opinion and award wherein he recommended that Blankenbaker be
awarded permanent partial disability benefits. Though Blankenbaker had been assessed a
whole-body impairment rating of 14%, the ALJ carved-out 8% of that as being related to
a prior existing condition, thus basing his benefits on a 6% whole-body impairment.
Blankenbaker filed a petition for reconsideration wherein he argued that
his benefits should have been based upon a 14% impairment rating because the evidence
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established that he had a preexisting dormant asymptomatic condition which was brought
into a disabling reality by the February 2002 injury. The ALJ denied the petition for
reconsideration and Blankenbaker appealed to the Board.
On December 15, 2006, the Board issued an opinion remanding the case to
the ALJ upon the issue of whether Blankenbaker had a preexisting dormant condition
which was brought to a disabling reality by the present injury. The Board concluded that
the ALJ had not adequately addressed the issue in his opinion and award This petition
for review followed.
STANDARD OF REVIEW
We begin by noting our standard of review. First, we give broad deference
to the ALJ's factual findings. “The ALJ, as the finder of fact, and not the reviewing
court, has the sole authority to determine the quality, character, and substance of the
evidence.” Square D Co. v.. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). Similarly, the
ALJ has the sole authority to judge the weight and inferences to be drawn from the
evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329, 331 (Ky.
1997). The ALJ, as fact-finder, 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 adversary party's total proof. Magic Coal v. Fox, 19 S.W.3d 88, 96 (Ky. 2000).
Mere evidence contrary to the ALJ's decision is not adequate to require reversal on
appeal. Whittaker v. Rowland, 998 S.W.2d 479, 482 (Ky. 1999). And, as always, our
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review of questions of law is de novo. Bob Hook Chevrolet Isuzu, Inc. v.
Commonwealth, Transportation Cabinet, 983 S.W.2d 488, 490 (Ky.1998).
Our 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, 827 S.W.2d 685, 687-88 (Ky.
1992).
DISCUSSION
Before us, United Parcel contends that the Board erred by remanding the
case to the ALJ upon the issue of whether Blankenbaker had a pre-existing dormant
condition which was brought to a disabling reality by the present injury.
In his opinion and award, relying upon the medical opinions of Dr. William
Renda the ALJ determined that Blankenbaker had a 14% whole-body impairment. The
ALJ further relied upon the medical opinions of Dr. Renda and Dr. Thomas Loeb in
assessing the impairment as 40% related to the present injury, and 60% as related to a
pre-existing condition. Accordingly, of the 14%, the ALJ carved-out 8% as related to
Blankenbaker's pre-existing discrepancy.2 As relevant to this appeal, the ALJ made the
following findings:
7. The ALJ also recognizes the testimony of Dr. William
Renda taken by the Plaintiff. Dr. Renda opined that upon the
surgery he found a fair amount of arthritis in the
patellafemoral joint which is under the kneecap between the
2
We note that 60% of 14% is 8.4%. It is unclear why the ALJ rounded-off to 8%; however, the
parties have not raised the discrepancy as an issue and we do not further consider the matter.
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kneecap and the thighbone in the front of the knee and also a
torn cartilage on the medial meniscus which is on the inside
of the knee and corresponding arthritis at the same area of the
knee joint medially. He indicated that the arthritis found
in the knee predated the subject injury of February 13,
2002. He further noted that based on the type of history
he would characterize this pre-existing arthritis to be a
dormant asymptomatic condition. Moreover, he further
confirmed that it was more likely than not that the work
related injury that described to him occurring February,
2003 [sic] was the precipitating event requiring medical
attention that followed. He further stressed that absent
an injury history to the contrary, he believed that the
work injury of February 13, 2002 was the precipitating
event which brought the pre-existing asymptomatic
arthritic condition into disabling reality. . . . He further
indicated that this 8-10% impairment rating [for the
patellafemoral joint] was due to patellafemoral joint arthritis
which was obviously pre-existing and whether or not it was
aroused or not by the injury one could debate but he thought
that at least a portion of that is due to injury that he had.
8. The Administrative Law Judge recognizes the medical
report of Dr. Thomas Loeb introduced by the
Defendant/Employer dated February 11, 2006. Dr. Loeb
diagnosed a twisting injury to the Plaintiff's left knee on
February 13, 2002 which resulted in an exacerbation of pain
and swelling. Dr. Loeb noted that the Plaintiff did respond to
conservative treatment for a least nine months after his injury
until he had a flare-up of his underlying pre-existing arthritis.
In Dr. Loeb's opinion, this gives more credence to the fact
that the flare-up of severe pain in November, 2002 is more
likely due to the pre-existing condition than due to the
injury itself as he recovered quite well from the injury and
did not have a sustained period of discomfort from the time of
his injury to the time of surgery. Diagnosis at the time of the
surgery was marked arthritis as well as medial femoral
condyle degenerative changes and a tear of the posterior horn
of the medial meniscus. He further opined that within a
reasonable medical probability the Plaintiff's condition
was caused secondary to the original surgery in 1991 and
then the natural aging process from that point forward. He
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did opine that the work injury did cause some aggravation of
the underlying condition but in his opinion based on the
clinical history he would apportion in agreement with Dr.
Renda at 40% to the injury and 60% to the pre-existing
condition. . . . He further opined that Plaintiff did have a
dormant condition without any active symptoms prior to
the injury.
9. The Administrative Law Judge finally recognizes the
deposition of Dr. Richard Sheridan taken by the
Defendant/Employer. Dr. Sheridan diagnosed left knee
media meniscus tear and aggravation of pre-existing
patellafemoral arthritis. He further noted that based on the
1991 surgery the Plaintiff had a 2% whole body
impairment due to a finding of chondormalacia. He
though the Plaintiff merited a 3% whole body impairment,
1% for the meniscal tear and 2% for the aggravation of the
chondromalacia. Dr. Sheridan went on to say as it applies to
the 8% impairment Dr. Renda assessed for a zero cartilage
interval in the patellafemoral joint and noted that if the
Plaintiff had an injury in 1991 that involved the
patellafemoral joint and had it cleaned up, that Dr. Sheridan
would expect there would be some narrowing in the
patellafemoral joint prior to the February 13, 2002 injury.
Dr. Sheridan then noted that if the Plaintiff had
debridement of the patellafemoral joint in 1991 then Dr.
Sheridan indicated there was no way that the entire
narrowing of the joint could have been caused by the 2002
injury alone and that it had to have had some
contribution from the 1991 injury. Dr. Sheridan
indicated that it would be double dipping to assess an 8%
rating for a zero interval change and then put on top of
that another 2% for arthritis. On cross-examination Dr.
Sheridan indicated that the Plaintiff informed him that after
the first surgery he recovered in terms of building up his thigh
muscle to the extent he was able to run and do just about
everything. He further noted that the work injury of 2002
was the precipitating event that brought about the pre-existing
asymptomatic condition into disabling reality. On redirect
examination Dr. Sheridan opined that prior to the
February 13, 2002 incident that it is his testimony that the
Plaintiff would have been assessed a 2% impairment. He
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now opines that the injury that is the subject matter of
this litigation would have generated a 3% impairment.
He now thinks the Plaintiff has a 5% impairment rating
due to both injuries. (Emphasis added).
McNutt Construction/First General Services v. Scott, 40 S.W.3d 854 (Ky.
2001) held that “[w]here work-related trauma causes a dormant degenerative condition to
become disabling and to result in a functional impairment, the trauma is the proximate
cause of the harmful change; hence, the harmful change comes within the definition of
an injury.” Id. at 859. Though the testimony of Drs. Renda and Sheridan raised the
issue that the 2002 injury bought a prior dormant condition into a disabling reality, the
ALJ failed to address this aspect of the case in his assessment of impairment (contained
in paragraph 10 of his opinion and award). The Board remanded the cause to the ALJ for
this aspect of the case to be reconsidered, reasoning as follows:
Since the 1996 amendments to the Workers' Compensation
Act, what was once Special Fund liability has been shifted to
the employer, See McNutt Construction/First General
Services v. Scott, [40 S.W.3d 854 (Ky. 2001)];
Commonwealth Transportation Cabinet v. Guffey, [42
S.W.3d 618 (Ky. 2001)]. In McNutt, the court found that
where work-related trauma caused a dormant degenerative
condition to be disabling and result in functional impairment,
the trauma is the proximate cause of a harmful change and,
hence, the harmful change comes within the definition of
injury. KRS 342.0011(1). As the court stated in McNutt,
“[w]e are not persuaded that the legislature's decision to
abolish Special Fund apportionment with regard to traumatic
injury claims had any effect on the longstanding principle that
a harmful change in a worker's body which is caused by work
is an 'injury' for the purposes of Chapter 342.” Id. at 859. In
other words, when a work-related injury makes an underlying
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dormant condition symptomatic, the totality of the impact of
the injury is compensable.
Here, both Dr. Renda and Dr. Loeb clearly stated
Blankenbaker's impairment was caused by the work injury,
either directly or as aroused into disability reality. Under the
court's holding in McNutt, the medical testimony of Dr.
Renda and Dr. Loeb compels a finding of compensabilty.
Dr. Sheridan, however, assessed a portion of Blankenbaker's
impairment to the prior 1991 injury. Dr. Sheridan made it
clear that Blankenbaker's previous operative knee condition
was a preexisting condition that warranted an impairment
rating. Thus, the medical evidence supporting the finding of
compensability of the entire impairment is not
uncontradicted.
The Kentucky Supreme Court, in Roberts Brothers Coal Co.
v. Robinson, 113 S.W.3d 181 (Ky. 2003), addressed the issue
of active disability pursuant to the 1996 Workers'
Compensation Act. The court explained that impairment and
disability are not synonymous. Since the amendment to the
Act in 1996, in cases of permanent partial occupational
disability, awards are based solely on a worker's impairment.
For that reason, when there is an issue of a preexisting
condition in permanent partial disability awards, the ALJ is to
determine the worker's preexisting impairment. What is
more, authority clearly holds the proper interpretation of the
American Medical Association, Guides to the Evaluation of
Permanent Impairment (“Guides”) and the proper assessment
of an impairment rating are medical questions reserved for the
medical testifiers. Kentucky River Enterprises, Inc. v. Elkins,
107 S.W.3d 206 (Ky. 2003).
Here, the ALJ relied on Dr. Renda's 40/60 apportionment to
exclude 8% of a `4% impairment rating as non-compensable.
However, Dr. Renda's and Dr. Loeb's opinions do not provide
an evidentiary basis for a carve out for preexisting
impairment if the ALJ accepts that portion of their testimony
addressing arousal of a dormant condition. Dr. Sheridan, on
the other hand, assessed an impairment rating specifically
targeted at Blankenbaker's preexisting knee impairment as a
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result of a prior injury and surgery. Inasmuch as the ALJ
failed to address the issue of arousal of a preexisting dormant
condition into disability reality by the work injury, this matter
must be remanded. On remand, the ALJ is directed to
consider the totality of the medical evidence and determine
what, if any, portion of the 14% impairment rating assessed
by Dr. Renda and Dr. Loeb is properly characterized as
preexisting impairment and excludable.
United Parcel argues that there is substantial evidence in the record to
support the ALJ's determination of a carve-out and, hence, remand to the ALJ is
inappropriate. However, the fact remains that the ALJ did not directly address the issue
of whether a prior condition was brought to a disabling reality by the February 2002
injury, and rather than speculate regarding the unstated, remand for specific findings on
the issue is the better course.
As previously noted, our 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, 827
S.W.2d 685, 687-88 (Ky.1992). We agree with the Board that the ALJ failed to address
the issues surrounding the medical opinions that Blankenbaker's 2002 injury bought into
a disabling reality a prior dormant condition. We accordingly will not disturb its
determination that the cause should be remanded for additional consideration of the issue.
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CONCLUSION
For the foregoing reasons the judgment of the Workers' Compensation
Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
H. Douglas Jones
Christopher G. Newell
Louisville, Kentucky
Ched Jennings
Louisville, Kentucky
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