ROBERT PHILPOTT v. RAINBO BAKERY; HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
AUGUST 10, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-002885-WC
ROBERT PHILPOTT
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-55560
RAINBO BAKERY; HON. DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: HUDDLESTON, JOHNSON AND KNOPF, JUDGES.
JOHNSON, JUDGE: Robert Philpott petitions for review of an
opinion of the Workers’ Compensation Board rendered on November
5, 1999.
The Board appeared to interpret changes made by the
Legislature effective December 12, 1996, as precluding any award
for disability resulting from the arousal of a dormant, nondisabling disease or condition by reason of a work-related event.
Consequently, it remanded Philpott’s award for total occupational
disability benefits to the Administrative Law Judge “on the issue
of compensability based on the definition of injury contained in
KRS 342.0011(1).”
Having concluded that the Board’s ruling is
inconsistent with the recent case of McNutt Construction v.
Scott,1 we reverse and remand.
On March 13, 1997, Philpott injured his back while
lifting multiple trays of bread in the course of his employment
for the appellee, Rainbo Bakery.
Philpott took over-the-counter
medication and continued to work until March 18, 1997, when his
back pain increased and began radiating down his left leg.
has not worked since that date.
He
On October 30, 1997, Philpott
underwent a discectomy at the L4-5 level by neurosurgeon Dr.
Susanne Fix.
Following the surgery, Philpott continued to
complain of pain in his low back that radiated into his left leg.
On October 6, 1997, Philpott filed an application for
resolution of injury claim against Rainbo and the Special Fund.
The Special Fund was dismissed by order dated October 16, 1997.
After an arbitrator dismissed his claim for lack of notice,
Philpott requested a hearing before an ALJ.
In the ALJ’s opinion
and award dated June 15, 1999, Philpott’s back injury was found
to be work related and he was found to have given proper notice
to his employer.
The ALJ found Philpott to be “suffering a total
100% occupational disability” and he did not exclude any
disability as a result of the “natural aging process.”
In its appeal to the Board, Rainbo argued that the
Board in Wolverine Janitorial Service v. Harold R. Wheatley,
Claim No. 97-91736 had “concluded that the December, 1996
Amendments to the Kentucky Workers’ Compensation Act evidenced an
intention by the legislature to exclude compensation for arousal
1
Ky., 40 S.W.3d 854 (2001).
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of a pre-existing, dormant condition.
As such, any award of
permanent disability benefits made in favor of the claimant
herein should properly have been reduced by one-half.”
Rainbo
relied on the testimony of Dr. John Nehil, an orthopedic surgeon,
in support of its argument that 50% of Philpott’s back condition
was attributable to the arousal of a dormant, pre-existing, nondisabling condition and one-half of his disability should be
excluded from the award as being due to the effects of the
natural aging process.
Simply stated, it was Rainbo’s position
that the Legislature did not intend for employers to be
responsible for those benefits previously imputed to the Special
Fund.
In its review, a majority of the Board agreed with the
argument’s advanced by Rainbo and rendered an opinion relying on
Wolverine, as follows:
The ALJ’s decision concerning
compensability of the award on the issue of
the natural aging process is somewhat more
problematic. Since the rendition of the
ALJ’s Opinion and Award and order on petition
for reconsideration, this Board issued its
decision in Wolverine Janitorial Service v.
Harold R. Wheatley, (Claim No. 97-91736). In
Wolverine, this Board held that the 1996
amendments to the definition of injury
contained in KRS 342.0011(1) were intended by
the Legislature to absolve employer’s [sic]
from liability from the effects of the
natural aging process, whether active or
dormant, existing prior to a work-related
traumatic event. Now, to be compensable, an
injury requires a “work-related traumatic
event . . . arising out of and in the course
of employment, which is a proximate cause
producing a harmful change in the human
organism as evidenced by medical findings.”
The new definition of “injury” expressly does
not include the effects of the natural aging
process. See, KRS 342.0011(1). In
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Wolverine, the Board believed that the
medical evidence which attributed on[e]-half
of Wheatley’s functional impairment to the
“natural aging process” was a significant
factor. That evidence was uncontroverted.
Here, in Philpott’s case, the medical opinion
is controverted as to the factual
determination. In addition, since the Board
published Wolverine, we subsequently decided
Heitzman Bakeries v. Tina Poole, (Claim No.
97-95158) on September 10, 1999. Therein, we
took the opportunity to further expand on our
ruling [in] Wolverine Janitorial Service. We
opined that not every pre-existing disease or
condition is automatically excluded under the
1996 Act. Under KRS 342.0011(1), as amended
in 1996, we believe pre-existing changes and
congenital defects are no longer compensable
even when aroused by work-related traumatic
event unless those conditions themselves are
medically proven to be the proximate result
of an injured employee’s past work
activities. Pre-existing changes that
manifest in excess of normal aging, whether
caused by repetitive activity at work over
time or occurring as the result of a prior
work injury or work-related disease, are
compensable provided the arousal of these
conditions can be demonstrated through
objective medical findings. Similarly, we
held that degenerative changes that occur
subsequent to a work-related traumatic event
are also compensable provided the changes are
medically foreseeable, proximately related,
and result in some degree of measurable
impairment under the AMA Guides as evidenced
by objective medical findings.
Further, in James McIntosh v. Link-Belt
Construction Co., (Claim No. 95-49061)
rendered September 17, 1999, the Board
instructed that in utilizing the AMA Guides,
as mandated by the Legislature, in the
determination of impairment, that where the
physician, in rendering an opinion as to the
percentage of functional impairment for the
spine under the Guides, uses the “Injury
Model” or “Diagnosis-Related Estimates” (DRE)
Model, as required by regulation, then the
adjudicator need not be concerned with
carving out “the effects of the natural aging
process.” That computation has already been
accomplished by the AMA Guides in arriving at
the functional disability rating to which the
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physician decides an individual is entitled,
in his medical opinion. See, AMA Guides to
the Evaluation of Permanent Impairment,
Fourth Edition, 1993, pages 3/94 through
3/100.
In the case at bar, the ALJ concluded
that Philpott was totally occupationally
disabled based on his own testimony, as well
as the testimony of Drs. Nehil and Fix. Dr.
Fix, in her report of August 5, 1998,
indicated that Philpott had severe disc
deterioration from his injury. Dr. Nehil
apportioned half of Philpott’s impairment to
the arousal of a pre-existing dormant
condition or congenital abnormality; to wit:
degenerative disc disease of the lumbar
spine.
Inasmuch as our decision in Wolverine
Janitorial Services, and subsequent decisions
in Heitzman Bakeries and McIntosh, have been
rendered since the ALJ’s Opinion herein, we
believe it is necessary to remand this matter
to the ALJ on the issue of compensability
based on the definition of injury contained
in KRS 342.0011(1).
Philpott has sought review of the Board’s opinion in this Court.
His appeal was abated pending the resolution of the issue of the
proper interpretation of KRS 342.0011(1) pending in the Supreme
Court of Kentucky.
Recent decisions from that Court have
rejected the Board’s interpretation of the statute.
In McNutt Construction, supra, the claimant, like
Philpott, suffered a low back injury at work and required
surgery.
Medical testimony was offered that established that
McNutt had a dormant, pre-existing, degenerative, arthritic
condition of the lower spine which one doctor opined was
consistent with the natural aging process.
However, the ALJ
determined that the claimant’s disability was attributable to the
work-related accident and not to the natural aging process.
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The
Board affirmed the ALJ and this Court affirmed the Board.
In
further affirming the ALJ’s award, the Supreme Court held:
Where 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. We 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 to a worker’s body which is
caused by work is an “injury” for the
purposes of Chapter 342 [footnote omitted].2
Thus, based on McNutt Construction, the Board erred in concluding
that the ALJ was required to carve out of Philpott’s award any
disability attributable to his dormant back condition, aroused by
the work-related injury.
In Guffey, supra, the Court reiterated that it was the
role of the ALJ to “to translate the lay and medical evidence
into a finding of occupational disability.”3
Where there is
sufficient evidence to support the ALJ’s findings, it is
inappropriate for the Board to substitute its opinion for that of
the ALJ.
Clearly, the ALJ’s determination that Philpott’s March
1997 injuries alone caused his functional impairment is supported
by the evidence.
Specifically, evidence from Dr. Fix, upon whom
the ALJ stated he relied, supports the ALJ’s finding.
Thus, the
ALJ’s findings are supported by substantial evidence and his
2
Id. at 859. See also Commonwealth, Transportation Cabinet
v. Guffey, Ky., 42 S.W.3d 618 (2001).
3
Guffey, supra at 621.
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decision is not erroneous as a matter of law.4
Accordingly, the opinion of the Board is reversed and
the matter is remanded with instructions to reinstate the award
of the ALJ.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, RAINBO
BAKERY:
Tamara Todd Cotton
Louisville, KY
No brief filed.
4
Special Fund v. Francis, Ky., 708 SW.2d 641 (1986).
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