BARAK, INC. v. WILLIAM A. STOCKSDALE; SHELIA C. LOWTHER, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED: JUNE 29, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000892-WC
BARAK, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-98513
WILLIAM A. STOCKSDALE; SHELIA C.
LOWTHER, ADMINISTRATIVE LAW JUDGE;
and WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, EMBERTON AND MILLER, JUDGES.
EMBERTON, JUDGE: Two issues are presented in this appeal from an
award to appellee, William Stocksdale, of permanent total
occupational disability benefits stemming from a neck injury he
sustained while in the employ of appellant, Barak: (1) whether
the Administrative Law Judge erred in refusing to “carve out” as
non-compensable the percentage of Stocksdale’s disability
allegedly resulting from a prior active condition; and (2)
whether the ALJ erred in failing to conclude that half of
Stocksdale’s impairment is non-compensable because it is a
consequence of the effects of the natural aging process.
Finding
no reversible error in either proposition advanced by appellant,
we affirm the opinion of the Workers’ Compensation Board.
Stocksdale sustained a work-related injury on November
27, 1997, while moving pipes in a crawl space.
He testified that
at the time the incident occurred he felt a sharp pain between
his shoulder blades and he experienced a gradual onset of
numbness in his hands.
Although he continued to work for
approximately two weeks following the incident, the severity of
his symptoms increased to the point that he ceased working for
Barak on December 16, 1997, and he has not returned to work since
that time.
Stocksdale admitted in his deposition that he had
previously suffered problems in his low back for which he sought
treatment by a chiropractor.
Although he denied ever seeking
chiropractic treatment for any neck complaints, Stocksdale stated
that the chiropractor had treated his neck as part of treatment
on his whole back.
In support of his claim for benefits,
Stocksdale offered evidence from Dr. Daria Schooler, his treating
neurosurgeon.
Dr. Schooler diagnosed a cervical disc herniation
and performed a diskectomy and fusion in January 1998.
She noted
that Stocksdale appeared to suffer from a cervical myelopathy
related to prolonged neck extension while crawling on his hands
and knees.
Stocksdale also submitted a report from Dr. O. James
Hurt, an orthopedic surgeon.
After assessing a 49% impairment
under the AMA Guides, Dr. Hurt noted that Stocksdale had
degenerative disc disease at several levels and attributed 50% of
his impairment to this pre-existing condition.
-2-
The employer submitted records from Dr. Mark Allen,
Stocksdale’s treating chiropractor.
In August 1995, Dr. Allen
treated Stocksdale for pain in his right shoulder and noted at
that time complaints of a stiff neck with “popping.”
The records
indicated regular treatments for right shoulder pain and stiff
neck through August 1996.
Stocksdale received similar treatments
on January 6, 1997, and November 24, 1997.
All other treatment
by Dr. Allen occurred after the November 27, 1997, injury.
The employer also introduced a report from Dr. Gregory
Gleis, an orthopedic surgeon, who was of the opinion that
Stocksdale suffered a pre-existing active condition of the
cervical spine for which he had been treated for several years.
It was Dr. Gleis’s opinion that at least 50% of Stocksdale’s
impairment rating should be apportioned to the effects of the
pre-existing natural aging process.
After reviewing the evidence, the Administrative Law
Judge concluded that Stocksdale was totally occupationally
disabled and entered the following finding concerning the
existence of a prior active condition and the effects of the
natural aging process.
Mr. Stocksdale was apparently seen on
numerous occasions by Dr. Allen, his wife’s
employer. He underwent chiropractic
adjustments, and the treatment notes
contained reference to a stiff neck.
However, there is no indication that Dr.
Allen or any other physician ever assessed an
impairment rating because of these
complaints. There is no indication that Dr.
Allen or any other physician ever restricted
the plaintiff’s activities in any way. Mr.
Stocksdale himself testified that he was able
to work without restrictions, performing any
task he was called upon to do. His routine
-3-
work activities involved heavy lifting. They
also required the manual dexterity necessary
to use tools and the balance necessary to
safely climb stairs and ladders. The
Administrative Law Judge found Mr. Stocksdale
to be a highly credible and persuasive
witness.
Dr. Schooler had the opportunity to
treat Mr. Stocksdale over a prolonged period
of time. She obtained a variety of
diagnostic tests, and performed surgery. Of
the physicians who offered opinions
concerning the plaintiff’s permanent
impairment, she is the only one who saw him
immediately after the injury and prior to the
surgery. She estimated that Mr. Stocksdale
retained a 15% impairment due to the cervical
myelopathy arising out of his injury. . . .
She did not attribute any portion of Mr.
Stocksdale’s impairment to a pre-existing
active dormant [sic] condition. The
Administrative Law Judge finds this evidence
from the treating physician to be the most
credible and persuasive. For that reason, it
is the Administrative Law Judge’s finding
that no portion of the plaintiff’s impairment
and resulting disability is attributable to a
pre-existing active condition or to the
effects of the natural aging process.
In affirming the conclusion of the ALJ, the Board
rejected the contention a percentage of Stocksdale’s disability
had to be attributed to the effects of the natural aging process
under Kentucky Revised Statutes (KRS) 342.0011(1), as well as the
proposition that a portion of his disability was noncompensable
as being due to a pre-existing active disability.
We find no
error in the Board’s decision.
In McNutt Construction v. Scott,1 the Kentucky Supreme
Court addressed the confusion which has arisen concerning the
1
Ky., 40 S.W.3d 854, 859 (2001).
-4-
exclusion of the effects of the natural aging process from the
definition of “injury” in KRS 342.0011(1):
As we construe the definition of
“injury,” the critical question is one of
causation. Although KRS 342.0011(1) clearly
indicates that the effects of the natural
aging process are not considered to be an
“injury,” it also clearly indicates that
work-related trauma “which is the proximate
cause producing a harmful change in the human
organism” is an “injury.” When the two
provisions are considered in concert, it
appears that the purpose is to emphasize that
only those harmful changes which are
proximately caused by work-related trauma are
compensable pursuant to Chapter 342. 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 injury. . . . (FN
omitted). (Emphasis added).
The McNutt analysis was recently reaffirmed by the
Kentucky Supreme Court in Commonwealth, Transportation Cabinet V.
Guffey, 2000-SC-0029-WC (rendered April 26, 2001).
Applying these principles to the ALJ’s findings
concerning Stocksdale’s condition, we are convinced that her
decision comports both with the fact and the statute as explained
in McNutt.
Although there was evidence in Dr. Gleis’s report
indicating that Stocksdale had a prior active impairment, the ALJ
correctly observed that Dr. Schooler, the treating physician, did
not assign any percentage of Stocksdale’s disability to the
effects of a prior active condition or the natural aging process.
On this state of the record, we cannot say that the evidence
-5-
compelled a contrary result.2
Furthermore, in light of our
review of the medical evidence and the claimant’s testimony, we
are not persuaded that the ALJ’s findings were unreasonable or
contrary to the statutory directives.
Finally, our review of the Board’s affirmance of the
ALJ’s decision convinces us that it was not patently unreasonable
nor flagrantly implausible, nor was there any indication that the
decision would result in a gross injustice.3
The opinion of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE WILLIAM A.
STOCKSDALE:
Robert A. Winter, Jr.
Ft. Mitchell, Kentucky
Robert L. Catlett, Jr.
Louisville, Kentucky
2
Special Fund v. Francis, Ky., 708 S.W.2d 641 (1986).
3
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685
(1992).
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
