CARTER LEE TURNER v. DIXIE FUEL COMPANY; HON. MARCEL SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
FEBRUARY 10, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000880-WC
CARTER LEE TURNER
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-03-79201
v.
DIXIE FUEL COMPANY; HON. MARCEL
SMITH, ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Carter Lee Turner has petitioned for review of
an opinion of the Workers’ Compensation Board entered on March
25, 2005, which affirmed the Administrative Law Judge’s award of
permanent partial disability benefits for a work-related back
injury Turner sustained while employed by Dixie Fuel Company.
Having concluded that in assessing the evidence, including the
opinion of Dr. James Bean that only 70% of Turner’s 7%
impairment was work-related, the Board did not commit an error
so flagrant as to cause gross injustice,1 we affirm.
We quote,
in relevant part, from the well-written Board opinion by
Chairman Gardner and adopt that portion of the opinion as our
own:
Turner, born March 14, 1963, has an
eighth grade education, has not earned his
GED, and has no vocational training. His
work history consists of employment as a
grocery stocker, security guard, delivery
truck driver, and coal miner. He began
working as an underground coal miner in
1989. Turner was employed as a roof bolter
by Dixie Fuel.2 He testified he worked in
low coal, requiring him to work in a
kneeling position with his head bent to the
side while performing heavy lifting.3
Turner sustained a work injury on July
7, 2003[,] while hanging cable. He
explained he was squatting on his tiptoes
reaching to hang a length of cable from a
roof bolt when a co-worker jerked the cable,
bending Turner forward then backward. The
sixty pounds of cable struck him across the
lower back, knocking him on his knees and
elbows.4 He reported the injury to
management and continued to work his shift.
Turner testified he left work an hour early
to seek medical treatment.
1
Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992)
2
Turner testified that he had worked for Dixie Fuel since 2001 and that he
worked approximately 57 hours each week.
3
Turner stated in his application that in his job he frequently had to crawl,
crouch, kneel, bend, push and pull forcefully, and lift objects weighing five
to 130 pounds.
4
Turner testified that both the strike of the cable and the bending of his
back are what injured him. He complained of pain in his low back and in his
left hip, radiating to his knee.
-2-
Turner explained that when he sought
medical attention on July 7, 2003, he
thought the pain he was experiencing was due
to a prostate infection. He saw Dr. Sharon
Colton at the Clover Fork Clinic and she
prescribed antibiotics. When Turner’s pain
did not improve by July 10, 2003, he again
saw Dr. Colton and related the details of
his work injury. She excused him from work
for his back condition and he has not
returned to work since.5
Dr. Colton referred Turner to physical
therapy. MRI films recommended by the
physical therapist revealed a moderate left
herniated disc at L4-5 and a mild disc bulge
at L5-S1.6 Turner first saw Dr. Bean on
September 29, 2003, on referral from Dr.
Colton. Dr. Bean recommended physical
therapy including work hardening. Turner
testified that physical therapy did not help
his symptoms.
At his hearing, Turner testified he
suffers from frequent low back and bilateral
leg pain. He has trouble sleeping and when
the pain is intense, he sits in a recliner
and applies heat to his back. Turner
testified he has tried to find lighter work
and has applied for employment at grocery
and home improvement stores.
At his deposition and hearing, Turner
was questioned concerning prior back
injuries. He stated that in 1996 he was
struck by falling rock, which resulted in a
pulled muscle in his back. He testified he
was treated at the Clover Fork Clinic for
this injury, missed about a week of work,
and the pain resolved. Turner also
5
Turner filed an application for resolution of injury claim on February 23,
2004, which was denied on May 24, 2004. Dixie Fuel based its denial on lack
of proof of causation and overpayment of temporary total disability benefits
as to the number of weeks.
6
The MRI was performed on September 18, 2003.
-3-
testified that in May 2002, he was picking
up a can of oil and sustained an injury to
his shoulder and back. He stated he was
placed on light duty and did not miss any
work following this incident. Turner was
questioned concerning a February 6, 2002[,]
visit to the Clover Fork Clinic where he
gave a history of back pain and right knee
pain. He stated he had hurt his knee and
left hip crawling through the mines. Turner
did not miss any work due to this incident.
He testified that prior to the July 7,
2003[,] injury, his back was fine.
Turner relied on a report from Dr.
Krista Muckenhausen who evaluated him on
April 6, 2004. Dr. Muckenhausen took a
history of Turner’s complaints, performed a
physical examination, and reviewed medical
records and diagnostic studies. Dr.
Muckenhausen diagnosed status post low back
strain with lumbosacral radiculopathy,
maximally left secondary to work injury on
July 7, 2003; disc herniation at L4-5 of
moderate degree, eccentric to the left with
disc bulge at L5-S1 and diffuse disc bulging
at L5-S1, secondary to work-related accident
on July 7, 2003; anxiety, depression and
sleep disturbance in context with chronic
pain syndrome, secondary to work-related
accident on July 7, 2003; and, early
restrictive lung condition, pneumoconiosis
and chronic coal dust exposure. In her
original report, Dr. Muckenhausen assessed a
13% impairment for a DRE lumbar Category III
impairment. She assigned an additional 3%
for pain and 10% impairment for anxiety. In
a supplemental report, Dr. Muckenhausen
assessed a 16% impairment for the lumbar and
pain conditions.7
The medical records of Dr. Bean were
attached to Turner’s Form 101 and Dr. Bean
was deposed by Dixie Fuel. Dr. Bean began
7
Dr. Muckenhausen assigned a 13% impairment for lumbar and a 3% impairment
for pain.
-4-
treating Turner on September 29, 2003[,] for
complaints of back pain radiating into his
right leg and hip. Dr. Bean reviewed the
MRI scan which showed a disc herniation at
L4-5 on the left. He noted the herniated
disc was opposite to the side of Turner’s
principal pain. Turner had positive
straight leg raising on the left side8 and
Dr. Bean found no sensory or reflex
abnormality on either side on examination.
His initial impression was lumbar sprain,
right radicular pain, and left herniated
disc at L4-5. He noted the disparity in the
herniated disc and side of Turner’s pain,
and believed surgery would be of little
benefit. Dr. Bean recommended Turner stay
in physical therapy and he prescribed Lorcet
and Skelaxin.9 When seen on November 3,
2003, Dr. Bean recommended a full work
hardening program.10 On December 1, 2003,
Dr. Bean recommended Turner undergo a
functional capacity evaluation to find his
current work capacities.11 In a report dated
February 5, 2004, Dr. Bean opined Turner
reached maximum medical improvement as of
January 15, 2004.12 He indicated the work
restrictions13 listed in the functional
capacity evaluation14 were permanent and
Turner was not able to return to work. Dr.
Bean stated “[Turner’s] impairment rating is
8
Dr. Bean also noted that Turner had a straight leg raise on the right side.
9
Dr. Bean also kept Turner off work during this time.
10
On this date, Turner was still in physical therapy and having continued
pain in his back with some improvement.
11
Dr. Bean also stated that Turner had modest improvement with physical
therapy, but that he did not believe he was going to reach full work
capacity.
12
This opinion was supported by a letter from Dr. Colter written on the same
date. AIG Claims Services, Inc. notified Turner that his lost wage benefits
terminated effective January 15, 2004.
13
These restrictions included 30 pounds lifting, and occasional bending or
twisting, but no more than 8% of the time.
14
This evaluation was conducted on January 5, and January 7, 2004.
-5-
7% by AMA Guidelines, Category II, 30% preexisting and 70% related to injury.”
At his deposition, Dr. Bean reviewed
his findings. He explained the MRI showed
the herniated disc at L4-5 on the left but
since Turner’s pain was on the right, the
herniated disc was not reflective of his leg
pain though it may have been part of his
back pain. Concerning Turner’s impairment
rating, Dr. Bean explained that he placed
Turner in a DRE Category II for 5% and gave
him an additional 2% for pain. He did not
place Turner in a Category III because he
did not have true radicular findings that
would warrant a Category III. Dr. Bean
disagreed with Dr. Muckenhausen’s assessment
of a Category III, because other than
Turner’s non-verifiable radicular
complaints, he did not have any other signs
of nerve root injury or radiculopathy. Dr.
Bean testified he used the restrictions that
were estimated from a functional capacity
evaluation. Dr. Bean was also questioned
concerning medical records from Clover Fork
Clinic and from Dr. Colton. Counsel for
Dixie Fuel reviewed records from Clover Fork
Clinic indicating Turner had been previously
seen for complaints of low back pain on
March 28, 2002[,] and compared it with the
entry dated July 10, 2003. The July 10,
2003[,] record stated “patient reports that
his back has gotten worse.” Dr. Bean was
asked whether the records reflected on the
causation of Turner’s back complaints. Dr.
Bean answered as follows:
Well, it may reflect back to that
prior report dated March ’02, but
that’s quite a long time before
that. But, anyway, he had
complaints of back pain
previously. It’s not quite clear
what that really means to me.15
15
Dr. Bean testified that he had no history of Turner having back pain,
except as reflected in physical therapy notes that he had low back strain
seven years prior to the 2003 injury.
-6-
The records of Clover Fork Clinic were
introduced into the record.16 Turner was
seen on February 6, 2002[,] for complaints
of right knee pain and low back pain from
working in low coal. Straight leg raising
was negative and he was prescribed
Ibuprofen. He was seen again on March 28,
2002[,] for complaints of back pain from
working in low coal.17 Again he had negative
straight leg raising and was given a
prescription for Skelaxin and a refill on
the Ibuprofen. Turner was seen on May 1,
2002[,] for complaints of shoulder and back
pain after picking up a five gallon can of
oil. He had tenderness in the thoracic
spine. Turner was given a prescription for
Ibuprofen and Skelaxin. He was seen again
on May 13, 2002[,] for a follow-up for the
shoulder and upper back. Turner was next
seen on July 7, 2003[,] for complaints of
back pain and diagnosed with prostratitis.
When seen on July 10, 2003, Turner gave a
history of the work injury and reported his
back had gotten worse. He was sent for an
x-ray and given a prescription for Voltarin,
Skelaxin and Lorcet plus. He continued to
see Dr. Colton on a regular basis and was
referred to Dr. Bean on September 23, 2003.
The ALJ reviewed the lay18 and medical
evidence in the record and awarded Turner
benefits19 for permanent partial occupational
16
Turner also had a history of being seen for tension headaches and had a
hernia repair several years prior to the injury.
17
Turner testified that this event of low back pain was due to a prostate
infection.
18
Turner testified that he would have returned to work at the mine, but there
was no light duty work available. He also testified that he had applied for
other jobs around town. He stated that he could no longer mow his yard or go
hunting or fishing. He also testified that he continued to have a throbbing,
steady pain and it hurt to sit for long periods of time.
19
The ALJ stated in her opinion that based on all evidence, Turner did
sustain an injury as defined by the Worker’s Compensation Act.
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disability, declining to find him totally
occupationally disabled. She awarded
benefits based on Dr. Bean’s 7% impairment
rating, reasoning as follows:
In the absence of total
disability, plaintiff’s disability
is computed pursuant to KRS
342.730. Clover Fork records
indicate prior low back pain. I
am persuaded by Dr. Bean’s opinion
regarding impairment and
apportionment. Dr. Bean
attributed 70% of 7% impairment to
the injury. His opinions are well
reasoned and supported by
objective medical evidence. I am
persuaded by Dr. Bean that 70% of
the 7% impairment was caused by
the work injury. 70% of 7%
impairment is 4.9%.
The ALJ then applied the three multiplier of
KRS 342.730(1)(c)1.20
20
The ALJ also stated in her opinion as follows:
It must next be determined whether KRS
342.730(1)(c)1 applies. Does plaintiff retain the
physical capacity to return to the type of work he
performed at the time of his injury. I am persuaded
by the opinions expressed in the functional capacity
evaluation. The opinions are well supported by
objective medical opinions. Plaintiff has physical
restrictions as the result of his work injury. I
find that plaintiff does not retain the physical
capacity to return to the type of work he performed
at the time of injury. KRS 342.730(1)(c)1 applies.
Post injury, did plaintiff return to work at a weekly
wage equal to or greater than his average weekly wage
at the time of injury? Plaintiff testified that he
worked one day, July 9, 2003[,] and has not earned
wages since that date. I find that this one day
attempt is not sufficient to trigger application of
KRS 342.730(1)(c)2. Plaintiff did not return to work
at a weekly wage equal to or greater than his average
weekly wage at the time of injury. KRS
342.730(1)(c)2 does not apply. The 4.9% becomes
3.185% under KRS 342.730(1)(b). It is multiplied by
3.2 under KRS 342.730(1)(c)1 and (1)(c)3. Plaintiff
has less than a 12th grade education.
-8-
Thereafter, both parties filed
petitions for reconsideration. Turner
argued there was no adequate proof to
substantiate a 30% carve out as noncompensable based on Dr. Bean’s evidence.
The ALJ sustained Dixie Fuel’s petition for
reconsideration concerning the calculation
of the award21 and Turner’s petition for
reconsideration was overruled.22
On appeal,23 Turner argues the ALJ erred
in relying upon the evidence of Dr. Bean to
conclude 30% of the 7% impairment was noncompensable. He contends Dr. Bean’s
evidence is too equivocal to constitute
substantial evidence upon which the ALJ
could rely. He also argues that pursuant to
McNutt Construction/First General Services
v. Scott, 40 S.W.3d 854, 859 (Ky. 2001), not
all preexisting conditions must necessarily
be found non-compensable. In the
alternative, Turner argues the ALJ should
have based her decision on Dr.
Muckenhausen’s impairment analysis because
only this physician conducted a thorough
neurological examination as required by the
American Medical Association, Guides to the
Evaluation of Permanent Impairment
(“Guides”).
The Kentucky Supreme Court, in Roberts
Brothers Coal Co. v. Robinson, [113 S.W.3d
181 (Ky. 2003)] addressed the issue of
active disability pursuant to the 1996 Act.
The final issue is whether there was
underpayment of TTD benefits. I am persuaded by Dr.
Bean’s report and find that plaintiff reached maximum
medical improvement on February 5, 2004. He is
entitled to TTD benefits until that date.
21
The ALJ changed the date of Turner’s maximum medical improvement to January
15, 2004, instead of February 5, 2004, and calculated the benefits awarded by
the maximum benefit rate for permanent partial disability, instead of the
maximum benefit rate for permanent total disability.
22
The ALJ entered an order stating such on December 6, 2004.
23
The appeal was filed on December 9, 2004.
-9-
The court explained that impairment and
disability are not synonymous. Since the
amendments to the Workers’ Compensation Act
in 1996, in cases of permanent partial
occupational disability, awards are based
solely on a worker’s impairment and not
disability. Therefore, when there is an
issue of a preexisting condition in
permanent partial disability awards the ALJ
is to determine the worker’s preexisting
impairment and not disability. What is
more, authority clearly holds the existence,
cause, and onset of medical impairment
ratings under the Guides are medical
questions. Kentucky River Enterprises, Inc.
v. Elkins, 107 S.W.3d 206 (Ky. 2003).
In the unpublished case of Reinbold v.
Ford Motor Co., 2004 WL 1907756 (Ky. 2004),
the Kentucky Supreme Court discussed the
impairment versus disability standard
enunciated in Robinson, supra. The court
concluded that as a general rule in
permanent partial disability cases “[a]ny
pre-existing impairment must be excluded
when determining the impairment that is
compensable.” Reinbold at p. 3 [emphasis
original].
The supreme court decisions in Robinson
and Reinbold instruct that the occupational
disability standard existing prior to
December 12, 1996[,] no longer applies to
awards of permanent partial disability.
When a work-related injury is superimposed
on a preexisting impairment, the employer is
only liable for the increase. Any
measurable impairment existing prior to a
work-related injury to the same body part
must be apportioned and found noncompensable when the claimant sustains a
subsequent injury. There is no requirement
for the preexisting impairment to be
vocationally limiting. If there is a
measurable preexisting impairment under the
Guides, that impairment cannot be viewed as
being proximately caused by the subsequent
-10-
injury. On the other hand, it is well
established that an injury which arouses a
preexisting dormant non-disabling condition
remains compensable. McNutt
Construction/First General Services v.
Scott, 40 S.W.3d 854, 859 (Ky. 2001).
While Turner’s previous back condition
may not have been vocationally limiting, the
issue is whether the medical evidence
supports the conclusion that the work injury
was superimposed on a preexisting
impairment, [causing] an increase in
impairment.
Dixie Fuel bears the burden of proving
a non-compensable preexisting condition.
Since it was successful before the ALJ, the
only issue on appeal is whether the ALJ’s
decision is supported by substantial
evidence. Snawder v. Stice, 576 S.W.2d 276
(Ky. App. 1979); Wolf Creek Collieries v.
Crum, 673 S.W.2d 735 (Ky. App. 1984).
Substantial evidence is defined as evidence
of relevant consequence having the fitness
to induce conviction in the minds of
reasonable people. Smyzer v. B. F. Goodrich
Chemical Co., 474 S.W.2d 367 (Ky. 1971).
Here, Dixie Fuel introduced medical
evidence from Dr. Bean that a portion of
Turner’s 7% impairment rating was not due to
the work injury. As stated, the existence,
cause, and onset of medical impairment
ratings under the Guides are medical
questions. Kentucky River Enterprises, Inc.
v. Elkins, supra. Even though Dr. Bean’s
opinion may have fallen short of the mark to
convince another fact finder, we are without
any authority to conclude this evidence was
so lacking in probative value that it must
be disregarded as a matter of law. Stated
otherwise, Dr. Bean’s apportionment
constitutes substantial medical evidence
upon which the ALJ could rely, and her
opinion is not wholly unreasonable.
-11-
For the foregoing reasons, the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Sherry Brashear
Harlan, Kentucky
Timothy J. Walker
Lexington, Kentucky
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