NORTHWEST AIRLINES, AS INSURED BY KEMPER NATIONAL INSURANCE COMPANY v. ALBERT ANDERSON; NORTHWEST AIRLINES, AS INSURED BY LIBERTY MUTUAL INSURANCE COMPANY; ROBERT WHITTAKER, DIRECTOR OF SPECIAL FUND; HON. RONALD JOHNSON, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: SEPTEMBER 27, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000572-WC
NORTHWEST AIRLINES, AS INSURED
BY KEMPER NATIONAL INSURANCE
COMPANY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-92-23709 & WC-98-68909
ALBERT ANDERSON;
NORTHWEST AIRLINES, AS INSURED
BY LIBERTY MUTUAL INSURANCE
COMPANY;
ROBERT WHITTAKER, DIRECTOR
OF SPECIAL FUND;
HON. RONALD JOHNSON,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, MCANULTY AND TACKETT, JUDGES.
GUIDUGLI, JUDGE.
Northwest Airlines, as insured by Kemper
National Insurance Company (hereinafter “Kemper) has petitioned
this Court for review of the Workers’ Compensation Board’s
(hereinafter “Board”) February 20, 2002, opinion affirming the
Administrative Law Judge’s (hereinafter “ALJ”) September 20,
2001, opinion and award.
The ALJ found that Albert Anderson
(hereinafter “Anderson”), upon reopening, established a worsening
of his condition due to a 1991 injury and awarded permanent,
total disability benefits, apportioning 50% to Northwest Airlines
as insured by Kemper and 50% to the Special Fund.
Having
considered the parties’ excellent briefs, the record, and the
applicable case law, we affirm.
Because we do not believe that the Board misconstrued
controlling statutes or precedent or committed an error in
assessing the evidence, and because we cannot improve upon the
Board’s well-reasoned and well-written opinion, we will adopt it
in full as our own.
Western Baptist Hospital v. Kelly, Ky., 827
S.W.2d 685 (1992).
Petitioner, Northwest Airlines,
(“Northwest”), appeals from a decision by
Hon. Ronald Johnson, Administrative Law Judge
(“ALJ”), awarding the respondent, Albert
Anderson (“Anderson”), permanent and total
occupational disability benefits upon
reopening due to a worsening of his
condition.
Our resolution of this appeal first
requires that we set out the procedural
history, as well as identify the parties and
the claims. Anderson was originally injured
on March 31, 1991, while working for
Northwest. At the time of Anderson’s 1991
injury, Kemper National Insurance Company
insured Northwest. We will refer to
Northwest as insured by Kemper national
Insurance Company hereinafter as “Kemper.”
The 1991 injury resulted in a 1994 settlement
agreement for benefits based on an 18%
permanent partial impairment related to a
neck and low back condition. On August 25,
1998, Anderson sustained another work-related
injury to his neck and low back, also while
employed by Northwest. At the time of the
1998 injury, Liberty Mutual Insurance Company
insured Northwest. We will refer to
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Northwest as insured by Liberty Mutual
Insurance Company hereinafter as “Liberty.”
On July 21, 2000, Anderson filed Claim
No. 98-68909, related to the 1998 injury. On
October 23, 2000, Anderson moved to reopen
his 1994 settlement, Claim No. 92-23709,
alleging a worsening of his occupational
disability. At a January 10, 2001, benefit
review conference, the ALJ consolidated the
1998 injury claim and the reopening. On
February 8, 2001, Anderson amended his 1998
claim to include repetitive trauma to his
lumbar spine.
By opinion and award dated September 20,
2001, the ALJ found that Anderson’s current
condition resulted from a worsening of his
1991 injury and awarded Anderson benefits for
permanent and total occupational disability.
Kemper filed a petition for reconsideration,
arguing the ALJ failed to assess Anderson’s
degree of occupational disability as of the
date of his original settlement in 1994.
Anderson filed a petition for reconsideration
alleging the opinion and award lacked
necessary language regarding Anderson’s right
to recover medical benefits. By order dated
October 18, 2001, the ALJ sustained both
petitions for reconsideration and found that
Anderson’s March 31, 1991 injury resulted in
an occupational disability of 18%.
The record on appeal contains no medical
records or testimony from the original claim,
other than historical information contained
within the evidence submitted upon reopening.
Upon petition for reconsideration, the ALJ
determined that Anderson was 18%
occupationally disabled at the time of the
1994 settlement. As neither party has argued
on appeal that the ALJ’s finding of 18% was
improper and the 1994 settlement agreement
was clearly based on an 18% occupational
disability, we accept 18% as Anderson’s
degree of occupational disability in 1994.
Anderson is fifty-five years old. He
has a high school education and no other
vocational or specialized training. Anderson
began working for Northwest in July 1976 as a
baggage handler. His duties consisted
primarily of loading, unloading and cleaning
aircraft. In 1984, Anderson was promoted to
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a supervisory position, where he remained
until he ceased employment on December 30,
1999. Anderson testified that as a
supervisor his duties still included loading,
unloading and cleaning aircraft, as well as
overseeing other employees.
Anderson was first injured on March 31,
1991, when he sustained a lifting injury to
his neck and low back. As a result of the
injury, Anderson underwent fusion surgery at
C5-7. The claim was settled in 1994 for
benefits based on 18% occupational
disability. Thereafter, Anderson returned to
work full-time for Northwest until he
sustained another injury to his middle and
low back on August 25, 1998, when he was
pushing up on a cargo door. He stated that
he experienced sharp pain in his middle and
low back, with the low back primarily
affected. He underwent his second fusion
surgery at L3-5 on January 27, 2000.
Anderson last worked for Northwest on
December 30, 1999. He has not returned to
work since that date. He testified he
currently experiences pain in his low back,
left leg, neck and shoulder. He stated his
pain is present every day, with some days
being worse than other days. His daily
activities include laying in his swimming
pool, operating a riding lawnmower, grocery
shopping, and watching television.
In support of his claim upon reopening,
Anderson submitted testimony and medical
records from Dr. George Raque, a
neurosurgeon; Dr. John Dimar, an orthopedic
surgeon; and, Sally Moore, a vocational
rehabilitation consultant. Dr. Raque began
treating Anderson in 1994 for his neck and
low back condition that resulted from his
March 1991 injury. Diagnostic tests ordered
by Dr. Raque in 1995 revealed multiple level
disc bulging, stenosis at L3-4, disc
protrusion and stenosis at L4-5, disc
protrusion at the S1 nerve root at L5-S1, and
spondylosis at C3-4. Dr. Raque recommended a
three-level fusion, but Anderson opted
instead for a course of epidural blocks. Dr.
Raque continued treating Anderson on a fairly
regular basis for his neck and low back
complaints. In January 2000, he performed a
two-level fusion. Dr. Raque considered the
surgery successful and in an office note of
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March 28, 2000, stated that Anderson “is
doing well and his leg and back pain are
better. He is walking over a mile and doing
a lot.” Dr. Raque testified that he
attributed 50% of Anderson’s condition to the
repetitive nature of his work at Northwest;
25% to the natural aging process; and, 25% to
the 1998 injury.
Dr. Dimar first examined Anderson on
October 15, 1999, upon referral from Dr.
Raque. After reviewing a myelogram and xrays, Dr. Dimar diagnosed severe advanced
degenerative disease at L3-4 and L4-5 with
spinal stenosis. Dr. Dimar recommended
continued spinal blocks and anti-inflammatory
medication. He stated that Anderson would
require future surgery because of instability
in his back. In an August 18, 2000, report,
Dr. Dimar stated Anderson’s January 2000
surgery resulted in reduced leg and back
pain. He did not believe Anderson had
reached maximum medical improvement at the
time of the exam, but nevertheless opined
that Anderson would not be able to return to
his previous type of employment with
Northwest.
Sally Moore conducted a vocational
evaluation, which included a medical records
review, a physical examination and several
telephonic interviews with Anderson. Based
on his physical restrictions, job history,
education, depression, inability to
concentrate and chronic pain, Ms. Moore
concluded Anderson was neither able to
perform in a competitive job market, nor a
good candidate for vocational rehabilitation.
Liberty submitted medical evidence from
Dr. Martin Schiller, an orthopedic surgeon;
Norton Hospital records; and, additional
records of Dr. George Raque. Dr. Schiller
examined Anderson on October 4, 2001. He
diagnosed cervical and lumbar degenerative
arthritis. Dr. Schiller believed the 2000
surgery was necessitated by Anderson’s
arthritis and was not related to the alleged
1998 work injury. He believed the alleged
1998 injury was a temporary exacerbation of a
preexisting, active low back condition. Dr.
Schiller assessed a 10% permanent impairment,
with 9% attributed to the lumbar condition
and 1% attributed to the cervical condition.
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He stated that Anderson should avoid lifting
more than twenty pounds, stooping, bending or
crawling. He also expressed concern that
Anderson’s fusions were not solid and
additional surgery might be required.
After reviewing the evidence, the ALJ
found Anderson to be permanently and totally
occupationally disabled. The ALJ found that
all of Anderson’s current disability resulted
from a worsening of the effects of the 1991
injury. He awarded benefits for total
disability beginning on October 23, 2000.
The award was apportioned 50% to Kemper and
50% to the Special Fund. The ALJ stated:
This is not a situation where the
plaintiff injured in 1991 continues
working symptom free for 10 years
and then has another injury.
Rather there is a continuing
relationship between Dr. Raque and
the plaintiff and continuing
discussions of whether or not the
plaintiff should get surgery in the
lumbar spine. In this particular
case there was a significant injury
[and] subsequently there have been
numerous exacerbations. It is
significant that the incident in
1998 is not well documented and
there was not specific treatment by
Dr. Raque for the 1998 injury.
Rather we have, in this case, a
situation where the plaintiff has
had a continuing deterioration of
his back condition to the point
that surgery was required. The
defendant/employer was aware of the
plaintiff’s original condition, had
allowed the plaintiff to continue
in the same type of job with the
continuing exacerbations to his
physical condition that were bound
to occur. The neurologic studies
in 1994 and 1999 were not
appreciably different. The
difference is the progressive
symptoms that the plaintiff has
experienced as a result of the 1991
injury. The apportionment
testimony by the various
physicians, including Dr. Raque,
has not been overlooked. The 1998
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injury did not produce any
different physiological condition
in the plaintiff. Objective
medical evidence would not have
shown a different MRI before or
after the 1998 incident. The real
question is what is the difference
between continuing exacerbations of
a pre-existing injury and multiple
mini-traumas that produce a
compensable condition. In this
particular case we had an initial
incident which produced a harmful
change to the plaintiff’s body.
That condition never became nonsymptomatic. Rather, the plaintiff
had continuing problems with that
condition throughout the period of
time from 1991 forward until
surgery in January of 2000. There
has not been an appreciable change
in the neurologic condition over
that entire period. Rather, what
we have is a degeneration of the
plaintiff’s condition as a result
of the 1991 injury.
Kemper now appeals from the ALJ’s
opinion and award, arguing the ALJ
erroneously disregarded uncontradicted
causation testimony. Kemper argues it was
Dr. Raque’s uncontradicted opinion that 50%
of Anderson’s current condition should be
apportioned to the repetitive heavy labor he
performed for Northwest. Kemper contends
that because Dr. Raque was the only physician
to testify regarding the cumulative effects
of the repetitive heavy manual labor Anderson
performed for Northwest, the ALJ cannot
disregard his testimony without providing an
explanation. We find no merit in that
particular argument.
While we agree with Kemper that
generally an ALJ cannot disregard
uncontradicted medical evidence without
reasonable explanation, we do not agree that
Dr. Raque’s testimony was uncontradicted.
See Eizabethtown Sportswear v. Stice, Ky.
App., 72 S.W.2d 732 (1986); Commonwealth of
Kentucky v. Workers’ Compensation Board, Ky.
App., 697 S.W.2d 540 (1985).
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The ALJ, as fact finder, has the sole
authority to determine the weight,
credibility, substance and inferences to be
drawn from the evidence. Paramount Foods,
Inc. v. Burkhardt, Ky., 695 S.W.2d 418
(1985). Where the medical evidence is
conflicting, the ALJ may choose whom and what
to believe. Pruitt v. Bugg Brothers, Ky.,
547 S.W.2d 123 (1977). Furthermore, the ALJ
may choose to believe parts of the evidence
and disbelieve other parts, even if it comes
from the same witness or the same party’s
total proof. Caudill v. Maloney’s Discount
Stores, Ky., 560 S.W.2d 15 (1977).
Our review of the evidence reveals that
Dr. Raque and Dr. Schiller offered
contradictory testimony regarding the cause
of Anderson’s disability. Dr. Raque believed
50% of Anderson’s condition should be
apportioned to repetitive trauma; 25% to the
natural aging process; and, 25% to the 1998
injury. On the other hand, Dr. Schiller
believed Anderson’s current disability
resulted from the 2000 low back fusion, which
in turn had resulted from Anderson’s
preexisting active degenerative arthritis in
the low back that began in 1991. Dr.
Schiller specifically stated the alleged 1998
injury was not the basis for the 2000
surgery. Additionally, the medical evidence,
as a whole, reveals that Anderson received
regular medical treatment for his neck and
back conditions from the time of the 1994
settlement to the date he filed his
reopening. The ALJ resolved the conflicting
evidence in favor of Liberty.
In the instant case, Anderson alleged a
worsening of his 1991 injury, a new 1998
injury, and a claim for cumulative trauma.
Evidence was presented that would have
supported a conclusion that any, all, or a
combination of these was the cause of
Anderson’s disability. While another fact
finder may have reached a different
conclusion, there was evidence before the
ALJ, specifically from Dr. Schiller,
constituting substantial evidence of
probative value to support a finding that
Anderson’s current condition is a result of a
worsening of the effects of his 1991 injury.
We have not been directed to any evidence of
record that would lead us to a conclusion
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that the ALJ erred as a matter of law and for
this reason, we must affirm. KRS 342.285.
Accordingly, the opinion and award of
the ALJ is hereby AFFIRMED.
The Board’s opinion affirming the ALJ’s opinion and
award is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, ANDERSON:
James R. Carpenter
Lexington, KY
Bart Colomb
New Albany, Indiana
BRIEF FOR APPELLEE, NORTHWEST
AIRLINES:
C. Patrick Fulton
Louisville, KY
BRIEF FOR APPELLEE, SPECIAL
FUND:
David W. Barr
Frankfort, KY
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