H. K. SYSTEMS, INC. V. DANNY WHALEN, ET AL.
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NOT TO BE PUBLISH ED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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RENDERED : APRIL 19, 2007
NOT TO BE PUBLISHED
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2006-SC-000558-WC
H . K. SYSTEMS, INC .
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
2005-CA-002229-WC
WORKERS' COMPENSATION NO. 04-76231
DANNY WHALEN ;
HON. ANDREW MANNO,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) determined that the claimant failed to prove
that his degenerative back condition was work-related . The Workers' Compensation
Board affirmed, but the Court of Appeals vacated and remanded for further
consideration, explaining that KRS 342 .0011(1) requires medical causation to be
proved to a reasonable medical probability but does not require it to be proved with
objective medical findings . Because a medical opinion that is based on an incorrect
standard for determining causation cannot constitute substantial evidence and because
it is unclear that the ALJ applied the correct standard, we affirm .
The claimant was born in 1955 and completed the eighth grade . He worked as a
painter on the defendant-employer's production line from December 1, 1975, through
March 10, 2004. His work was physically demanding and fast-paced . There was
evidence that a typical paint line moved at the rate of 6-10 feet per minute but that the
line on which he worked moved at the rate of 12 feet per minute and had moved as fast
as 18 feet per minute. The claimant testified that the job required him to carry 5-gallon
buckets of paint that weighed about 90 pounds and to maneuver 55-gallon drums of
paint from skids onto a hand truck . It also involved frequent bending, twisting, turning,
stooping, and standing . He stated that he and his co-workers commonly had
backaches at the end of a strenuous shift.
Medical records indicated that the claimant had been treated for low back pain
that extended into his left leg in 1993. In 1999, he had complained of "burning" back
pain. In November, 2000, he had complained of back, leg, and foot pain, and in
October, 2002, he had complained of back pain.
The claimant testified that his low back pain arose gradually over the years but
worsened significantly in January, 2004. He presently experienced what he described
as breathtaking stabs of low back and hip pain that shot down his left leg into his toes
and also experienced occasional numbness and weakness in the leg . He stated that
the pain was constant . Although it was relieved temporarily by reclining with his feet in
the air, medical treatment provided inadequate relief. He quit working on March 10,
2004, and filed a claim based on work-related cumulative trauma as of that date.
Testimony from two physicians addressed the cause of the claimant's condition .
An October 10, 2004, report from Dr. Kelly indicated that he had treated the
claimant for back and left leg pain since April 30, 2004. MRI revealed the presence of
degenerative changes in the lumbar spine but no evidence of nerve root compression .
Dr. Kelly diagnosed lumbar spondylosis, lumbar disc degeneration due to repetitive
strain injury, and lumbar radiculopathy . He noted that the claimant had performed the
same job, with the same repetitive twisting and bending, for 29 years . In his opinion,
this caused wear and tear on his lower back that greatly exceeded the normal aging
process. A supplemental report indicated that the highly repetitive nature of the
claimant's work substantially contributed to the premature development of lumbar
degenerative disease. This was consistent with the facet arthropathy and spurring
shown on MRI. In his opinion, the claimant's work caused 80% of the condition, and
the natural aging process caused the remaining 20% .
Dr. Larkin evaluated the claimant for the employer. His December 13, 2004,
report noted that diagnostic testing revealed the presence of degenerative lumbosacral
arthrosis but no evidence of a herniated disc. He stated, "As to whether or not this
represents a repetitive or cumulative trauma effect, findings are consistent for the
normal aging process in a patient of this age." Dr. Larkin noted that neither of the EMG
studies revealed evidence of radiculopathy or perhipheral neuropathy; that the
claimant's radicular complaints could not be replicated on examination by himself, Dr.
Melton, Dr. Hartig, or Dr. Kelly; and that there was no alteration of structural integrity .
He recommended a functional capacity evaluation to assess the validity of the
restrictions that the claimant claimed to have. He concluded that, within a reasonable
medical probability, the claimant lacked the desire to return to his prior level of
employment.
The employer also submitted a questionnaire in which Dr. Larkin was asked to
respond affirmatively or negatively to the following statement: "Is there any objective
medical evidence to support the conclusion that [the claimant's work either caused or
contributed to cause any permanent harmful change or injury to the low back?" He
responded negatively.
Among the contested issues were causation and whether there was an injury
under the Act. Summarizing the evidence, the ALJ noted that Dr. Larkin "concluded
there was no objective medical evidence to support the conclusion that [the claimant's]
work caused or contributed to any permanent harmful change or injury ." This analysis
followed :
This ALJ finds that [the claimant] has not met his burden of
proving a work-related injury. This finding is based upon the
opinions of Dr. Larkin and the diagnosis of degenerative disc
disease. This ALJ finds, based on the opinions of Dr.
Larkin, that [the claimant's] condition is the result of the
natural aging process and is not work-related . Based on the
opinion of Dr. Larkin, this ALJ finds there is a lack of
objective medical findings indicating a harmful change
caused by the work activities . "Injury" does not include the
effects of the natural aging process . (emphasis added) .
As pertinent to this claim, KRS 342.0011(1) defines an "injury" as being :
[A]ny work-related traumatic event or series of traumatic
events, including cumulative trauma . . . which is the
proximate cause producing a harmful change in the human
organism evidenced by objective medical findings .
Under the statute, establishing the presence of a harmful change and establishing if it is
caused by work-related trauma require different standards of proof.
The court explained in Gibbs v. Premier Scale Co ./Indiana Scale Co., 50 S.W .3d
754 (Ky. 2001), that objective medical findings must support a diagnosis in order to
establish the presence of a harmful change. In Staples, Inc. v. Konvelski , 56 S .W.3d
412 (Ky. 2001), the court rejected an argument that the cause of a harmful change
must also be proved by objective medical findings . As stated in Brown-Forman Corp. v.
Upchurch , 127 S.W.3d 615, 621 (Ky. 2004) (citations omitted .), "Medical causation must
be proved to a reasonable medical probability with expert medical testimony, but KRS
342 .0011(1) does not require it to be proved with objective medical findings."
We acknowledge that objective medical findings may lead a physician to
conclude that one cause of a condition is more medically probable than another, but the
legal standard for proving causation is reasonable medical probability . Therefore, a
medical opinion that addresses a different standard of causation is flawed and does not
constitute substantial evidence . Dr. Larkin's response to the employer's questionnaire
is such an opinion . Because the AU relied on Dr. Larkin's opinions, including his
response to the questionnaire, and because it is unclear that the AU applied the
correct standard for decision, the matter must be reconsidered using the correct
standard .
The decision of the Court of Appeals is affirmed .
Lambert, CJ ., and Cunningham, McAnulty, Minton, Noble and Scott, J .J., concur.
Schroder, J ., not sitting.
COUNSEL FOR APPELLANT,
H . K. SYSTEMS, INC . :
HON. RONALD J. POHL
POHL, KISER & AUBREY, P.S.C.
SUITE 100 FIRST NATIONAL BUILDING
167 WEST MAIN STREET
LEXINGTON, KY 40511
COUNSEL FOR APPELLEE,
DANNY WHALEN:
HON . GREGORY N . SCHABELL
BERGER, COX & NIENABER, P.S .C.
401 MADISON AVENUE
COVINGTON, KY 41011
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