ENERSYS, INC. v. JOSEPH WALTERS; HON. LAWRENCE SMITH, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 22, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-001752-WC
ENERSYS, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-04-77539
JOSEPH WALTERS; HON.
LAWRENCE SMITH, Administrative
Law Judge; and WORKERS’
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: BARBER AND VANMETER, JUDGES; KNOPF,1 SENIOR JUDGE.
KNOPF, SENIOR JUDGE:
The sole issue in this appeal is whether
substantial evidence supports an award of workers’ compensation
benefits to the claimant Joseph Walters.
Rejecting the
employer’s contention that Walters’ disability was the result of
a pre-existing condition, the Administrative Law Judge (ALJ)
concluded that a work-related shoulder injury sustained on
1
Senior Judge William L. Knopf sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
August 14, 2004, brought into disabling reality a “dormant neck
injury already in evolution,” but which had not yet resulted in
an active impairment.
The Workers’ Compensation Board found no
error in the ALJ’s assessment of the medical evidence and
affirmed his conclusion that it showed no pre-existing active
impairment.
Our review of the record reveals no error in the
Board’s analysis and we affirm its opinion in this case.
In February 2005, Walters filed an application for
resolution of injury claim alleging that on August 14, 2004, he
sustained an injury to his neck and shoulder in the course of
his employment with appellee Enersys.
Walters stated that while
stowing away cell plates of batteries, his shirt was caught on a
pneumatic hoist which wrenched his arm up above his head and
lifted him above the floor until he was able to free himself.
He later amended his claim to include an injury date of July 21,
2004.
Enersys resisted Walters’ claim on the basis of an
active impairment which it alleged pre-existed the August 14th
injury.
Walters testified that on July 22, 2004, he woke up
with a “crick” in his neck and sought treatment from his family
physician, Dr. Jamil Farooqui, at the East Bernstadt Medical
Center with complaints of neck pain on the right side going into
his right shoulder.
Although he told clinic staff that the pain
started after moving heavy objects, Walters testified that he
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did not realize anything had happened to him until the next
morning when he woke up with the “crick.”
Dr. Farooqui,
prescribed Flexeril and Ketoprofen and Walters continued to
work.
Walters again saw Dr. Farooqui on July 30, 2004, with
complaints that his neck and shoulder pain was getting worse and
that the prescribed medicine was not providing relief.
An MRI
was scheduled and Walters was told see Dr. Farooqui again in 1-2
weeks.
Walters testified that he had no restrictions and was
able to do his regular job up until the time of the August 14th
injury.
He stated that he did not report any injury or incident
relating to July 21st because he intended to turn it in to his
insurance company and because he believed it would keep down
conflict.
After the injury of August 14th, Walters stated that it
felt as if his shoulder had been ripped from its socket.
He
reported that injury and went to Pattie A. Clay Hospital which
was located across the street from Enersys.
rayed and he was released.
His shoulder was x-
Walters went to Marymount Hospital
in London, Kentucky, the next day and he returned to Dr.
Farooqui on August 16, 2004.
Dr. Farooqui took Walters off work
and referred him to Dr. Henry Tutt for a neurological
consultation.
Dr. Tutt ultimately performed a fusion at C5-6
and released Walters to return to work on November 15, 2004.
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Upon his return, Walters was terminated for “falsification of
documents.”
As noted by the Board, the ALJ was persuaded that
although Walters did have a work injury incident on July 21,
2004, his failure to provide notice required dismissal of any
claim related to that incident.
Regarding Enersys’ claim of a
pre-existing active disability, the ALJ concluded that despite
Walters’ inconsistent statements regarding his neck and shoulder
problems prior to August 14, 2004, there was no evidence of preexisting active impairment prior to that date.
The ALJ
determined on the basis of objective medical evidence that the
August 14th injury brought into “disabling reality a dormant neck
injury already in evolution from an earlier work incident.”
Following the denial of Enersys’ petition for
reconsideration, it appealed to the Board alleging that the
substantive medical evidence did not support the ALJ’s
conclusion that the August 14th aroused a dormant non-disabling
condition, but rather reveals that Walters had a pre-existing
active cervical herniation which ultimately resulted in his need
for surgery.
After reviewing the medical evidence offered by
both parties, the Board was persuaded that the record contained
substantial evidence supporting the ALJ’s determination:
There was substantial evidence that Walters
sustained a harmful change as a result of
the incident in August 2004. There was no
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evidence that Walters had the radiculopathy
into his right arm prior to the August 14
incident. Dr. Farooqui indicated Walters
had no neurological findings prior to August
14, 2004. Dr. Farooqui diagnosed
musculoskeletal right neck pain and right
shoulder pain prior to August 2004 and did
not diagnose radiculopathy until after
August 14, 2004. Dr. Tutt testified that
without radiculopathy, surgery would not be
considered. Dr. Tutt, in his December 13,
2004 report, assigned a 25% impairment
rating for Cervical DRE Category IV and
stated Walters’ disc herniation was related
to the August 14th work injury. Walters
clearly made a prima facie showing of a
harmful change as a result of the August 14th
injury and of impairment related to that
injury. The ALJ could clearly conclude from
the evidence of record that at least some
portion of Walter’s functional impairment
rating was related to the August 2004 work
injury. The burden then was on Enersys in
its affirmative defense of prior active
impairment to show that some or all of the
impairment existed immediately prior to the
August work injury. We believe the evidence
falls far short of compelling a finding of a
prior active impairment. No doctor offered
an opinion as to what functional impairment
rating Walters would have had immediately
prior to the August 14, 2004 injury. No
doctor offered an opinion apportioning the
impairment between the August injury and the
impairment, if any, that existed immediately
before the work injury. As noted by the
ALJ, Dr. Tutt’s assessment of a 25%
impairment rating was undisputed. The ALJ
weighed the evidence and found it did not
show any pre-existing, active impairment.
Again, we note Enersys had the burden of
proof on the issue of prior active
impairment.
Despite Enersys’ insistence to the contrary, a review
of the medical evidence supports both the findings of the ALJ
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and the Board’s analysis of the evidence on appeal.
Our role in
reviewing an opinion of the Worker’s Compensation Board is
closely confined by the direction of the Supreme Court of
Kentucky in Western Baptist Hospital v. Kelly, 827 S.W.2d 685,
687-88 (Ky. 1992):
The function of further review of the WCB in
the Court of Appeals is to correct the Board
only where the Court perceives the Board has
overlooked or misconstrued controlling
statutes or precedent, or committed an error
in assessing the evidence so flagrant as to
cause gross injustice. [Emphasis added.]
Here, the Board carefully summarized and correctly analyzed the
conflicting medical evidence offered in this case.
The fact
that the record may contain evidence which would support a
conclusion other than that reached by the ALJ is an insufficient
basis for disturbing his decision.
Because the ALJ has sole
authority to judge the weight and inferences to be drawn from
the evidence and because the record contains sufficient evidence
to support his decision, we cannot say that the evidence
compelled a different result or that any of the factors set out
in Western Baptist are present in this case.
Accordingly, the opinion of the Workers’ Compensation
Board is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael P. Neal
Erin C. Logsdon
SEWELL & ASSOCIATES
Louisville, Kentucky
Phillipe W. Rich
HUGHES AND COLEMEN
Louisville, Kentucky
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