WHITE (WANDA) WORKERS VS. COMPENSATION GREAT CLIPS , ET AL.
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RENDERED: JULY 18, 2008; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001855-WC
WANDA WHITE
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-05-00493
GREAT CLIPS; HON. MARCEL SMITH,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING IN PART,
VACATING IN PART, AND REMANDING
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BEFORE: TAYLOR AND THOMPSON, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
THOMPSON, JUDGE: Wanda White appeals an opinion of the Workers'
Compensation Board (Board) entered August 17, 2007, reversing a decision of the
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Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
21.580.
Administrative Law Judge (ALJ) awarding her future medical benefits. For the
reasons stated herein, we affirm in part, vacate in part and remand.
On May 11, 2003, while employed by Great Clips, White injured her
lower back when she lifted chairs to vacuum underneath them. She immediately
left work and sought medical attention the following day from Dr. Robert Hoskins,
her primary care physician. Following her injury, White continued her
employment until February 21, 2005, at which time she stated she could no longer
work due to her back pain.
Dr. Hoskins’ records indicate that he treated her prior to her injury for
lower back pain. According to his notes, he saw her on May 7, 2003, for a bulging
disc with spinal stenosis and degenerative disc disease of the lumber spine. White
contends that she only saw Dr. Hoskins for a sinus problem prior to her injury and
that the date in his notes was incorrect.
White contends that she saw Dr. Hoskins on May 12, 2003, when he
ordered lumbar x-rays to aid in the diagnosis of her condition and referred her to
Dr. Richard Lingreen. After looking at an MRI, Dr. Lingreen diagnosed her as
having lumbar degenerative disc disease, lumbar sciatica, lumbar sprain/strain
syndrome, and thoracic pain.
On May 25, 2005, Dr. Bart Goldman performed an independent
medical evaluation on White and opined that she had suffered a lower back strain
as a result of her work-related injury. White’s x-rays demonstrated that she had
“mild to moderate” degenerative joint disease of the lumber spine, and her MRI
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displayed mild disc bulging without acute injury. He concluded that her
complaints regarding her lumbar spine were unsupported by objective medical
evidence, assessed a 0% permanent partial impairment rating, and opined that she
could return to work.
On June 13, 2005, Dr. Robert Johnson performed an independent
medical evaluation on White and opined that she suffered from degenerative disc
disease at L4-5, cervical pain at C5-6 and C6-7, and was genuine in her complaints
of pain. He assessed a 14% whole body impairment which was equally divided
between the lumbar and cervical spine. Due to White’s physical limitations, Dr.
Johnson opined that she could not return to work in the same capacity as before but
could do non-standing, light-duty assignments.
On June 15, 2005, Dr. Kenneth Graulich performed an independent
medical evaluation on White and opined that she had suffered from a
musculoligamentous sprain of the lumbar spine superimposed on mild
degenerative arthritis. After assessing a 0% percent impairment, he opined that her
condition showed only symptom magnification and that any future pain would be
associated with her underlying degenerative arthritis. Without any restrictions, he
opined that she could return to work as a hairdresser.
After filing her claim and following a benefit review conference, the
ALJ found the following:
In the present case, I am persuaded by the medical
evidence, including the records of Dr. Lingreen and
plaintiff’s testimony that she suffered an injury. I am
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persuaded by the opinions of Dr. Goldman and Dr.
Graulich that the injury resulted in no permanent
impairment. Plaintiff has no permanent impairment for
which to make an award of benefits. KRS 342.730.
Therefore, her claim must be dismissed.
Following White’s petition for reconsideration, the ALJ amended the
original opinion and order to include future medical benefits for White’s injuries to
her back, neck, and shoulders. Reversing the ALJ, the Board found that White’s
injury constituted a “temporary flare-up” of a pre-existing ailment to her spine due
to a degenerative disease and prior injuries to her spine and denied her award of
future medical benefits. This appeal followed.
White contends that the Board incorrectly reversed the ALJ when it
denied her future medical benefits for the treatment associated with her workrelated injury to her back. Specifically, White contends that the Board
impermissibly substituted its judgment for that of the ALJ when it found that she
only suffered a “temporary flare-up of symptoms” following her work-related back
injury.
On appellate review of an ALJ's findings of fact, we are required to
provide these findings considerable deference and cannot set them aside unless the
evidence compels a contrary finding. Mosely v. Ford Motor Co., 968 S.W.2d 675,
678 (Ky.App. 1998). We review the ALJ's and the Board's application of law to
the facts de novo. Further, in workers’ compensation cases, an appellate court
provides no deference to the Board’s and ALJ’s application of the law to the facts.
Newberg v. Thomas Industries, 852 S.W.2d 339, 340 (Ky.App. 1993).
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We first observe that “if work-related trauma causes nonwork-related
degenerative changes to be aroused into disability and to result in an impairment,
that harmful change is compensable.” Bright v. American Greetings Corp., 62
S.W.3d 381, 384 (Ky. 2001). Moreover, regardless of whether an injury or
impairment meets the threshold of receiving a permanent impairment rating, a
permanent disability rating, or eligibility for permanent income benefits, KRS
342.020(1) permits claimants to be awarded future medical benefits “for so long as
the employee is disabled regardless of the duration of the employee's income
benefits.” FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 318 (Ky. 2007).
Disability exists for the purposes of awarding future medical benefits
for so long as a work-related injury causes impairment. Id. at 318-319. “The Fifth
Edition of the Guides, page 2, defines impairment as being ‘a loss, loss of use, or
derangement of any body part, organ system, or organ function.’ Viewed in terms
of KRS 342.0011(1), impairment demonstrates that a harmful change in the human
organism has occurred.” Id. at 318.
Finally, under KRS 342.0011(1), an “injury” is a workrelated traumatic event arising out of and in the course of employment which is the
proximate cause of a harmful change in the human organism as demonstrated by
objective medical evidence. Thus, an “injury,” as defined in KRS 342.0011(1), is
an impairment.
In Finley v. DBM Technologies, 217 S.W.3d 261, 265 (Ky.App.
2007), the Court wrote:
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A pre-existing condition may be either temporarily or
permanently aroused. If the pre-existing condition
completely reverts to its pre-injury dormant state, the
arousal is considered temporary. If the pre-existing
condition does not completely revert to its pre-injury
dormant state, the arousal is considered permanent, rather
than temporary.
In this case, the ALJ found that White suffered an injury (impairment)
that was not compensable but entitled her to future medical benefits. However, the
ALJ failed to make specific findings regarding why White’s spinal injury merited
an award of future medical benefits. This is an essential finding because intelligent
appellate review cannot be conducted without this necessary finding. Shields v.
Pittsburgh and Midway Coal Min. Co., 634 S.W.2d 440, 444 (Ky.App. 1982).
Accordingly, we conclude that the ALJ failed to make essential
findings of fact in this case as stated above in regards to the nature of White’s
injury. Further, “[a]s a reviewing body, neither we nor the Board should attempt to
supplant such a finding of fact.” Finley, 217 S.W.3d at 266. Thus, we are
compelled to vacate and remand for additional findings of fact.
Finally, we note that the ALJ’s amended opinion and order provided
future medical benefits for White’s injuries to her back, neck, and shoulders. The
Board properly held that White’s claim for injuries to her neck and shoulders was
dismissed prior to the ALJ’s original opinion and order, and, therefore, it was error
for the ALJ to award future medical benefits for her neck and shoulder injuries.
To the extent that the Board reversed the ALJ’s award of future
medical benefits for White’s neck and shoulder injuries, it is affirmed. To the
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extent that the Board’s opinion denied White future medical benefits for her back
injury, it is vacated and this case remanded to the ALJ for proceedings consistent
with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
McKinnley Morgan
London, Kentucky
W. Barry Lewis
Hazard, Kentucky
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