KRISPY KREME v. DELMAR BATSIS; SPECIAL FUND; HONORABLE JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: JUNE 2, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001263-WC
KRISPY KREME
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-1119355
DELMAR BATSIS; SPECIAL FUND;
HONORABLE JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, HUDDLESTON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Krispy Kreme petitions for the review of a
decision of the Workers’ Compensation Board which allowed an
employee to increase an award on reopening for a claim for a low
back injury and a claim for total temporary disability (TTD) that
occurred after the initial award but before the filing of the
motion to reopen.
We reverse the Board because we believe there
was no causation shown for the low back injury and we believe
this TTD is not authorized by law.
Delmar Batsis (Delmar) was a truck driver for Krispy
Kreme on September 21, 1974, when he was involved in a workrelated accident.
His form 11 alleged “cervical spine injury and
both knees severely injured.
injured also.”
Lumbar region of the spine was
Dr. Sexton performed a cervical laminectomy for a
protruding cervical disc in November of 1974, and he performed
right knee surgery to repair torn knee cartilage in June of 1995.
Delmar received $4,737.88 in TTD and settled the claim on
December 22, 1975, for a lump sum of $37,861.39, representing a
35 1/2% occupational disability for “protruded disc - torn knee
cartilage”.
Over the years, Delmar had five knee revisions on the
right knee, paid for by Krispy Kreme.
The last knee surgery was
performed January 23, 1997, after which Delmar underwent physical
therapy until he was released to return to work on June 9, 1997.
There were allegations of other periods of time off for previous
knee surgeries but no definite periods of time.
Delmar moved to
reopen his claim on October 13, 1997, due to change of condition
which resulted in more TTD and low back problems.
Although there is a reference in form 11 to injuries to
the lumbar region of the back, Dr. Sexton, a treating physician
from 1974 through 1998, makes no reference to any treatment for
low back pain.
1993.
Dr. Ford also treated Delmar from 1974 through
Dr. Ford’s records indicate Delmar had low back problems
beginning March 27, 1976.
In April of 1977, Delmar again
complained to him of low back pain.
L4-5.
X-rays revealed spurring at
In early 1982, Delmar was again seen by Dr. Ford for lower
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back pain and hip pain.
In February of 1989, Delmar was again
seen for lower back pain radiating into the right leg.
X-rays
revealed a fusion of the sacroiliac joint on the right side.
On
August 5, 1993, Delmar returned to Dr. Ford experiencing leg pain
and numbness.
An MRI was taken which revealed multiple herniated
discs at L4-5 and L5-S1 with nerve root compression.
Dr. Reidle
started treating Delmar’s knee in November of 1996, and requested
an MRI of the lower back in 1998.
This MRI showed a herniated
disc at L5-S1 with some narrowing.
As to causation of the lower back problems, we have an
independent medical evaluation by Dr. Collis and an opinion by
Dr. Reidle, a treating doctor.
Dr. Collis found the lower back
condition, assessed a 10% impairment, but opined that the lower
back problems were not the result of the original work-related
injury.
Dr. Reidle’s opinion was not as clear.
Dr. Reidle
started seeing Delmar in January of 1998 for the low back
condition.
As stated earlier, he found a herniated disc at L5-S1
with some narrowing.
As to causation, the doctor was asked
specifically:
Doctor, within reasonable medical
probability, would a herniated disk [sic] in
1998 be connected to a 1974 automobile
accident that somebody had been going around
with for 24 years?
The doctor answered:
“I don’t know.”
A second time the doctor
was asked whether the automobile accident 24 years earlier was
related to or caused the back problems to which the doctor again
stated he didn’t know.
A third time, after discussing the back
condition and treatment, the doctor was asked about causation to
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which he replied:
“As we discussed before, we don’t know.
had the problem and needed treatment.”
He
A fourth time the doctor
agreed that he didn’t really know the cause of the low back
problem, only that it was there and the problem was consistent
with what the patient told him about the other doctor’s
treatment.
The doctor had no history of the prior automobile
accident and no records of prior back trouble or treatment from
other doctors.
Only when given the hypothetical question “could
the low-back problems that you treated him for have been related
to that type of accident?”, did the doctor answer, “It could.”
The doctor was then asked if “By the same token, it might not be
related . . .”, and the doctor answered, “That’s correct.
I
don’t have access to the records to know what was done and when
it was done and what was found.”
The arbitrator ordered the claim reopened on
December 11, 1997, and issued a benefit review determination on
April 21, 1998.
Delmar requested and was granted a hearing
before the ALJ which found, based on Dr. Reidle’s testimony, that
the low back problems were related to the work-related injury of
September 21, 1974, but that there was no increase in
occupational disability.
As to the TTD for knee surgery, the ALJ
found the employer could not be liable for TTD for periods before
the date of the motion to reopen.
The Worker’s Compensation
Board affirmed the finding as to causation on the low back injury
and reversed the denial of the TTD.
On appeal, Krispy Kreme questions the sufficiency of
the evidence holding it liable on reopening for the lower back
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condition, and whether the employer can be held liable for TTD
which accrued before the worker’s motion to reopen is filed.
The
function of the Court of Appeals in reviewing the Board “is to
correct the Board only where the . . . Court perceives the Board
had 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 (1992).
We believe this is such a case as to
the causation of the lower back injury and in misconstruing the
law as to TTD.
Case law in Kentucky holds that the trier of fact
in Worker’s Compensation cases is to be accorded considerable
deference.
“When the decision of the fact-finder favors the
person with the burden of proof, his only burden on appeal is to
show that there was some evidence of substance to support the
finding, meaning evidence which would permit a fact-finder to
reasonably find as it did.”
S.W.2d 641, 643 (1986).
Special Fund v. Francis, Ky., 708
Moreover, “the finder of fact, and not
the reviewing court, has the authority to determine the quality,
character, and substance of the evidence presented. . . .”
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419
(1985).
The record reveals that the uncontroverted medical
evidence of Dr. Collis as to causation was that the low back
condition was not the result of the original work-related injury.
Dr. Reidle was the only other doctor that testified as to
causation.
Four times in a row, Dr. Reidle stated he could not
say whether or not the low back injury was related to the
September 21, 1974 injury.
He then admitted it was possible, but
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that he didn’t have the records and couldn’t give an opinion
either way.
The ALJ and the Board’s reliance on Dr. Reidle’s
testimony to show causation within the realm of reasonable
medical probability is an error so flagrant as to cause a gross
injustice under Western Baptist Hospital, 827 S.W.2d at 687 and
must be reversed.
In order for the lower back injury to be
compensable, the claimant has to show it is causally related to
the original injury.
(1952).
Jude V. Cubbage, Ky., 251 S.W.2d 584
A mere possibility does not satisfy the claimant’s
initial burden.
Marcum v. General Elec. Company, Ky., 479 S.W.2d
640 (1972).
The second issue is whether Delmar may recover TTD for
unknown periods prior to the date that he filed his motion to
reopen.
Although Delmar testified to unknown periods, the Board
accepted the specific period of January 23, 1997 (the last
surgery), to June 9, 1997, when he was released to return to
work.
The Board didn’t award anything for the unspecified
periods, so we are limiting our discussion of TTD for January 23,
1997 to June 9, 1997.
In this jurisdiction, “a new award in a
compensation case shall not be retroactive so as to affect a
previous award as to any sums already paid thereunder.”
Hayden
v. Elkhorn Coal Corp., Ky., 238 S.W.2d 138, 140 (1951) (emphasis
added); see also Schabb v. Irwin, 298 Ky. 626, 628; 183 S.W.2d
814, 816 (1944).
Also, we deem KRS 342.125(4) (former KRS
342.125(1) similar) to be controlling.
KRS 342.125(4) provides,
in relevant part:
Reopening shall not affect the previous order
or award as to any sums already paid
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thereunder, and any change in the amount of
compensation shall be ordered only from its
date of filing the motion to reopen.
(emphasis added).
That language is not susceptible to multiple interpretations or
strained conclusions.
“When the words of the statute are clear
and unambiguous and express the legislative intent, there is no
room for construction or interpretation and the statute must be
given its effect as written.”
McCracken County Fiscal Court v.
Graves, Ky., 885 S.W.2d 307, 309
(1994) (quoting Lincoln County
Fiscal Court v. Dept. of Public Advocacy, Com. of Ky., Ky., 794
S.W.2d 162 (1990)).
Accordingly, we adjudge that the language of
KRS 342.125(4) is sufficiently clear and that the Board erred in
ordering TTD for the period ending before the filing of the
motion to reopen.
For the foregoing reasons, the opinion of the Workers’
Compensation Board is reversed and remanded for the entry of an
appropriate order.
HUDDLESTON, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN PART AND DISSENTS IN PART BY
SEPARATE OPINION.
COMBS, JUDGE, CONCURRING IN PART AND DISSENTING IN
PART:
I disagree with the majority opinion and would affirm the
sound reasoning of the Board, which found causation for the low
back injury.
I find that this is a classic case in which Western
Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685 (1992) clearly
applies and precludes this court from substituting its judgment
for that of the Board.
Paramount Foods, Inc. v. Burkhardt, Ky.,
695 S.W.2d 418 (1985).
The Board reviewed the conflicting
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medical reports before it and exercised its statutory prerogative
in selecting and rejecting the evidence according to its
expertise and discretion.
According, I would affirm as to the
issue of causation.
As to the timing of the TTD payments awarded prior to
the filing of the motion to reopen, I concur with the majority
and would vacate and remand on that issue alone.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, DELMAR
BATSIS:
C. A. Dudley Shanks
Louisville, Kentucky
Wayne C. Daub
Louisville, Kentucky
BRIEF FOR APPELLEE, SPECIAL
FUND:
Joel D. Zakem
Louisville, Kentucky
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