KATHLEEN MARY WESTERFIELD DIVERSIFIED HEALTH CARE, INC.; HON. JOHN B. COLEMAN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEESS DIVERSIFIED HEALTH CARE, INC. v. KATHLEEN MARY WESTERFIELD; HON. JOHN B. COLEMAN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
AUGUST 29, 2003; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002489-WC
KATHLEEN MARY WESTERFIELD
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-99-93179
DIVERSIFIED HEALTH CARE, INC.; HON. JOHN
B. COLEMAN, ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
AND:
NO. 2003-CA-000026-WC
DIVERSIFIED HEALTH CARE, INC.
v.
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-99-93179
KATHLEEN MARY WESTERFIELD; HON. JOHN
B. COLEMAN, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
APPELLEESS
BUCKINGHAM, DYCHE, AND JOHNSON, JUDGES.
CROSS-APPELLEES
DYCHE, JUDGE:
Kathleen Mary Westerfield petitions for review of
a decision of the Workers’ Compensation Board that reversed an
Administrative Law Judge’s (“ALJ”) award of permanent partial
disability (PPD) benefits.
The Board held that the ALJ erred in
awarding Westerfield PPD benefits pursuant to his interpretation
and application of KRS 342.730(1)(c)1. and remanded this matter
to the ALJ for entry of an order dismissing Westerfield’s claim.
Diversified Health Care, Inc. (“Diversified”) cross-petitions,
arguing that the ALJ and the Board erred by not dismissing
Westerfield’s claim based upon her failure to join this claim
with another pending claim.
We affirm the Board’s decision with
respect to the petition and cross-petition.
Westerfield commenced her employment with Diversified,
a pharmaceutical wholesaler, in 1988 as a warehouse operator.1
During her employment, Westerfield stocked, packed orders,
lifted boxes weighing between twenty and twenty-five pounds, and
worked in the receiving department.
On January 18, 1999,
Westerfield tripped over a tote-box containing cases of insulin
and injured her back.
This incident resulted in damage to her
spine at L5-S1, which eventually required surgical fusion.
Diversified voluntarily paid Westerfield temporary total
1
Westerfield began working for Diversified when it was known as Mullen &
Haynes. Mullen & Haynes became known as Diversified as a result of a merger
with an Evansville, Indiana, warehouse in the mid 1990s.
disability (TTD) benefits from the date of the accident until
her return to work in November 1999.
Westerfield first sustained a work-related injury to
her lower back on October 23, 1996.
Even though Westerfield
returned to work, she eventually underwent surgery on her back
in 1997.
Westerfield remained off work until she was declared
to be at maximum medical improvement in mid-1998.
On September
9, 1999, while receiving TTD benefits as a result of her 1999
injury, Westerfield settled her 1996 claim with Diversified and
the Special Fund for a lump sum of $20,672.20 based upon a
permanent partial disability rating of 20%.
This settlement
occurred with no formal application for benefits having been
filed with the Department of Workers’ Claims.
Also, these two
claims were never consolidated.
On October 25, 2000, Westerfield filed an application
for resolution of injury claim alleging entitlement to benefits
as a result of the January 1999 lower back injury.
The matter
was bifurcated on the issue of whether Westerfield was required
to join the 1996 and 1999 claims pursuant to KRS 342.270(1).
The ALJ determined that Westerfield was not required to join
these two claims because the 1996 claim had not yet accrued for
purposes of KRS 342.270(1) and that Diversified actually waived
this issue because it was aware of the 1999 claim, by virtue of
its voluntary TTD payments to Westerfield.
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At this point, we must first address the threshold
issue this employer presents in its cross-petition.
In its
cross-petition, Diversified argues that the Board and the ALJ
erred in allowing this claim to proceed on its merits because
Westerfield did not join all known causes of action as required
by KRS 342.270(1).
We reject this argument.
KRS 342.270(1) specifically provides as follows:
If the parties fail to reach an agreement in
regard to compensation under this chapter,
either party may make written application
for resolution of claim. The application
must be filed within two (2) years after the
accident, or, in case of death, within two
(2) years after the death, or within two (2)
years after the cessation of voluntary
payments, if any have been made. When the
application is filed by the employee or
during the pendency of that claim, he shall
join all causes of action against the named
employer which have accrued and which are
known, or should reasonably be known, to
him. Failure to join all accrued causes of
action will result in such claims being
barred under this chapter as waived by the
employee.
In matters of statutory construction, we are obligated
to interpret the statutory language in accordance with its
common and approved usage.
Claude N. Fannin Wholesale Co. v.
Thacker, Ky. App., 661 S.W.2d 477 (1983).
In conducting our
review, however, we are mindful that the general purpose of KRS
Chapter 342 is to wholly compensate injured workers whenever
possible.
According to the Supreme Court in Beale v. Shepherd,
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Ky., 809 S.W.2d 845, 849 (1991), “[t]his principle of protecting
the interests of the injured worker is a basic tenet of workers’
compensation law.”
KRS 342.270 clearly addresses the mandatory concurrent
filing of all claims an employee has against the named employer
“which have accrued.”
KRS 342.270(1) plainly states that during
any litigation filed against an employer, the employee must
include all causes of action that have accrued.
In order for a
claim against an employer to have accrued, this statute requires
the employee to submit an Application for Resolution of Injury
Claim, known as a Form 101, to the Department of Workers Claims.
KRS 342.270(1); 803 KAR 25:010(3)(1)(a).
Here, the record reveals that Westerfield was
receiving voluntarily paid TTD benefits from Diversified for the
1996 injury when she settled that claim in September 1999.
Westerfield never formally filed a Form 101 for the 1996 injury
because she was receiving voluntary TTD benefits.
Moreover,
Diversified was aware that Westerfield sustained another workrelated back injury in January 1999.
Westerfield, however, had
not filed a Form 101 for that incident.
Despite having
knowledge of the January 1999 injury, Diversified settled the
1996 claim in September 1999.
Plainly, KRS 342.270(1) and 803
KAR 25:010(3)(1)(a) mandate that a formal application for
benefits must be filed for a particular claim “to have accrued.”
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Here, no Form 101 was filed concerning either the 1996 or
January 1999 back injuries.
Since the 1996 injury claim was
settled prior to the filing of any formal application for
benefits, that claim simply never accrued.
As such, KRS
342.270(1) did not require Westerfield to disclose any potential
claim for the January 1999 injury.
We also believe that
Westerfield’s January 1999 injury failed to accrue prior to the
settlement of her 1996 claim.
We reach this conclusion based
upon the fact that she filed a Form 101 for this injury in
October 2000, approximately twenty-one months after sustaining
the injury.
Thus, Westerfield’s application for benefits for
her January 1999 injury was not, and could not have been, filed
during the pendency of the 1996 claim because the 1996 claim
never formally accrued as required by KRS 342.270(1).
Hence, we
conclude that the Board and the ALJ correctly interpreted KRS
342.270(1) in this matter before us and properly reached the
merits of Westerfield’s claim.
The medical evidence before the ALJ came from Dr.
William Madauss and Dr. Bart Goldman.
Dr. Madauss, a
neurosurgeon, treated Westerfield in 1995 when Westerfield first
experienced lower back pain as a result of a non-work-related
injury.
Dr. Madauss diagnosed a huge disc herniation at L5-S1
and performed a micro discectomy at L5-S1 and a foraminotomy at
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S1 on January 10, 1996.
After this surgical procedure,
Westerfield felt no leg pain.
Dr. Madauss testified that he treated Westerfield in
November 1996 for a work-related injury.
According to Dr.
Madauss, Westerfield experienced a pop in her back and leftsided leg pain while stooping.
nucleus pulposis at L4-5.
An MRI revealed a herniated
Dr. Madauss allowed Westerfield to
continue working based upon her statements that the pain was not
very severe.
In January 1997, Westerfield complained of
increased pain.
October 1997.
recovery.
A second discectomy was performed at L4-5 in
Following this surgery, Westerfield had a slow
On May 5, 1998, Dr. Madauss determined that she
attained maximum medical improvement and released her to return
to work with a lifting restriction of forty pounds.
On January 27, 1999, Dr. Madauss examined Westerfield
after she tripped over a box and experienced back pain, right
hip swelling and radiation down her right leg.
During his
examination, Dr. Madauss diagnosed a recurrent disc herniation
at L5-S1 on the right with a free fragment.
Dr. Madauss
eventually performed a lumbar fusion at L4-5 through L5-S1.
Westerfield returned to work on November 19, 1999 with a twentyfive pound lifting restriction.
At his deposition, Dr. Madauss assessed Westerfield a
21% whole body impairment for the 1996 injury based upon the
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American Medical Association, Guides to the Evaluation of
Permanent Impairment (“AMA Guides”).
Following her 1999 injury,
Dr. Madauss stated that, under the Fifth Edition of the Guides,
Westerfield continued to have no more than a 21% whole body
impairment.
Dr. Madauss also indicated that Westerfield would
have received a 21% impairment rating for these injuries under
both the Fourth and Fifth Editions of the AMA Guides.
Even
though the Guides show no increased impairment, Dr. Madauss
testified that the impairment rating mandated by the Guides is
misleading because Westerfield’s whole body impairment has
worsened since 1999.
On July 9, 2001, Dr. Goldman performed an independent
medical examination of Westerfield.
During his examination, Dr.
Goldman found Westerfield to have a reasonable range of motion
and noted that she was working for Diversified on a regular duty
status.
Because of her multiple back injuries, Dr. Goldman
opined that Westerfield’s impairment should be determined by
using the Range of Motion Model of the AMA Guides.
Accordingly,
Dr. Goldman assessed a 10% impairment rating to Westerfield for
the 1995 injury and a 21% impairment for the 1996 injury.
However, for the 1999 injury and surgery, Dr. Goldman assessed a
20% impairment.
Overall, Dr. Goldman believed Westerfield’s
condition had improved slightly since 1996.
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On May 20, 2002, the ALJ rendered his opinion and
award.
In his opinion, the ALJ determined that, based largely
upon Dr. Madauss’s testimony, Westerfield’s impairment rating
had not increased beyond 21% as a result of the January 1999
injury.
Nevertheless, the ALJ concluded that the events of
January 1999 caused Westerfield to lose her physical capacity to
return to the type of work she had performed for Diversified at
the time of the injury.
Consequently, the ALJ elected to apply
the 1.5 modifier pursuant to KRS 342.730(1)(c)1. to her 21%
impairment rating, as well as the .5 modifier allowed under KRS
342.730(1)(c)2.
The Workers’ Compensation Board affirmed the
ALJ’s decision concerning the joinder of claims issue, but
reversed and remanded the ALJ’s decision awarding Westerfield
PPD benefits.
Westerfield’s petition followed.
The Kentucky Supreme Court has clearly defined our
function in reviewing matters from the Workers’ Compensation
Board.
In Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d
685, 687-88 (1992), the Court stated:
The function of further review of the WCB in
the Court of Appeals is to correct the Board
only where the the [sic] Court perceives the
Board has overlooked or misconstrued
controlling statutes or precedent, or
committed an error in assessing evidence so
flagrant as to cause great injustice.
A claimant in a workers’ compensation action bears the
burden of proving every essential element of his cause of
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action.
Snawder v. Stice, Ky. App., 576 S.W.2d 276 (1979).
Since Westerfield was successful before the ALJ, the question on
appeal is whether substantial evidence supports the ALJ’s
conclusion.
Wolf Creek Collieries v. Crum, Ky. App., 673 S.W.2d
735 (1984).
Substantial evidence is evidence which, when taken
alone or in light of all the evidence, has probative value to
induce conviction in the mind of a reasonable person.
Bowling
v. Natural Resources and Environmental Protection Cabinet, Ky.
App., 891 S.W.2d 406, 409 (1994), citing Kentucky State Racing
Comm’n v. Fuller, Ky., 481 S.W.2d 298, 308 (1972).
As the finder of fact, the ALJ has the sole authority
to assess and to evaluate the quality, character, and substance
of the evidence.
(1993).
Square D Co. v. Tipton, Ky., 862 S.W.2d 308
The ALJ may reject any testimony and believe or
disbelieve various parts of the evidence, regardless of whether
it comes from the same witness or the same adversary party’s
total proof.
Halls Hardwood Floor Co. v. Stapleton, Ky. App.,
16 S.W.3d 327 (2000).
Mere evidence contrary to the ALJ’s
decision is not adequate to require reversal on appeal.
Whittaker v. Rowland, Ky., 998 S.W.2d 479, 482 (1999).
To
reverse the ALJ’s decision, it must be shown that no substantial
evidence supports that decision.
708 S.W.2d 641 (1986).
Special Fund v. Francis, Ky.,
Guided by these principles, we now
address the merits of Westerfield’s petition for review.
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Westerfield argues that the Board erroneously reversed
and remanded her award of PPD benefits.
We disagree.
According to KRS Chapter 342, a partially disabling
condition is not compensable unless it results in a permanent
impairment rating under the AMA Guides.
“Permanent partial
disability” is defined as a condition of an employee who, due to
an injury, has a permanent disability rating but retains the
ability to work.
KRS 342.0011(11)(b).
A “permanent disability
rating” under the workers’ compensation act is the permanent
impairment rating selected by an arbitrator or ALJ times the
factor set forth in the table appearing in KRS 342.730(1)(b).
Finally, KRS 342.0011(35) defines “permanent impairment rating”
as the percentage of whole body impairment caused by the injury
or occupational disease as determined by the latest available
edition of the AMA Guides.
Thus, under Kentucky law, it appears
that permanent partial disability is solely a function of
impairment ratings under the AMA Guides.
Accordingly, the ALJ
is required to determine whether a partially disabled worker has
any measurable impairment under the AMA Guides prior to the
subject injury.
If the ALJ so finds, the definitions listed
above require a finding of a non-compensable pre-existing active
disability.
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Kentucky’s workers’ compensation law allows the ALJ to
modify the amount of PPD payments payable to a worker for a
particular injury.
KRS 342.730(1)(c)1. and 2. provide:
1. If, due to an injury, an employee does
not retain the physical capacity to return
to the type of work that the employee
performed at the time of injury, the benefit
for permanent partial disability shall be
one and one-half (1- 1/2) times the amount
otherwise determined under paragraph (b) of
this subsection, but this provision shall
not be construed so as to extend the
duration of payments.
2. If an employee returns to work at a
weekly wage equal to or greater than the
average weekly wage at the time of injury,
the weekly benefit for permanent partial
disability otherwise payable under paragraph
(b) of this subsection shall be reduced by
one-half (1/2) for each week during which
that employment is sustained. During any
period of cessation of that employment,
temporary or permanent, for any reason, with
or without cause, payment of weekly benefits
for permanent partial disability during the
period of cessation shall be restored to the
rate prescribed in paragraph (b) of this
subsection.
KRS 342.730(1)(c)1. requires the 1.5 modifier be
multiplied by the calculation of permanent partial disability
ratings “caused by the injury,” as determined by KRS
342.730(1)(b).
KRS 342.730(1)(c)1. and 2. only modify the
amount of the award and do not affect the disability rating
determined by the ALJ.
However, these provisions, when read in
conjunction with the definitions of “permanent partial
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disability,” “permanent disability rating” and “permanent
impairment rating,” require that a disability rating must exist
before an injury can be found to have caused a compensable
permanent disability.
It is clear to us that the specific
injury at issue must have produced some degree of impairment
pursuant to the AMA Guides before an ALJ can modify a partial
disability award pursuant to KRS 342.730(1)(c).
In this matter before us, the ALJ found that
Westerfield’s 1999 back injury and subsequent fusion did not
independently produce an additional impairment rating beyond the
pre-existing 21% that resulted from her 1995 and 1996 injuries.
According to the testimony of Dr. Goldman and Dr. Madauss, this
result occurs regardless of whether the Fourth or Fifth Edition
of the AMA Guides is used.
Based upon the record before us, we
believe Westerfield’s 1999 work-related back injury produced no
independent impairment rating pursuant to the AMA Guides.
Consequently, if no independent disability rating exists, there
exists no award of PPD benefits for the ALJ to modify.
While we
sympathize with Westerfield’s predicament, Kentucky’s Workers’
Compensation Act fails to afford her any relief.
Since the ALJ
abused his discretion in applying KRS 342.730(1)(c)1. and 2. to
the facts before us, we must affirm the Board’s opinion.
The opinion of the Workers’ Compensation Board is
affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT/
CROSS-APPELLEE:
BRIEF FOR APPELLEE/
CROSS-APPELLEE:
Jeanie Owen Miller
Owensboro, Kentucky
Samuel J. Bach
Morton & Bach
Henderson, Kentucky
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