COMAIR, INC. VS. COMPENSATION HELTON (BURL), ET AL.Annotate this Case
RENDERED: NOVEMBER 14, 2008; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-06-91830
BURL HELTON, HON. MARCEL SMITH,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
** ** ** ** **
BEFORE: CLAYTON, NICKELL, AND TAYLOR, JUDGES.
NICKELL, JUDGE: Comair, Inc. (Comair) has petitioned for review of an
opinion of the Workers’ Compensation Board (Board) entered October 19, 2007,
reversing in part, vacating in part, and remanding the Administrative Law Judge’s
(ALJ) opinion, order and award of benefits to Burl Helton (Helton). For the
following reasons, we affirm the Board’s decision.
Helton was employed by Comair as a customer service representative.
His duties included operating tugs on the airport tarmac; moving carts; loading and
unloading luggage; moving, refueling and cleaning aircraft; filling water
reservoirs; and chocking wheels. On October 26, 2004, Helton sustained a workrelated left knee injury when exiting the cargo hold of an airplane. Although he
initially believed the injury to be minor, Helton quickly realized it was more severe
as the pain did not subside. Shortly thereafter, Helton reported the incident to his
supervisor. Prior to the injury, Helton had experienced no medical problems with
his knees. He testified he had never been placed on work restrictions, curtailed any
leisure or work activities, nor sought any medical treatment in relation to his knees.
Following the injury, Helton has undergone three surgeries involving his left knee,
culminating in a total knee replacement. He has also undergone one surgery to his
right knee. During the course of his treatment, Helton was able to return to work
for Comair performing light duty for two ninety-day periods but has been unable to
Helton began his treatment with Dr. Angelo Colosimo (Dr.
Colosimo), an orthopedic surgeon, on November 18, 2004. Dr. Colosimo
diagnosed a probable medial meniscus tear of the left knee and recommended
Helton undergo an MRI.
Comair referred Helton to Dr. John Larkin (Dr. Larkin) for an
examination. On November 24, 2004, Dr. Larkin performed a physical
examination and diagnosed Helton with a posterior horn and mid-body tear of the
medial meniscus of the left knee. Dr. Larkin agreed with Dr. Colosimo regarding
the need for an MRI and further recommended Helton return to work only under
light duty restrictions.
Helton underwent the recommended MRI later that day. The testing
revealed: 1) low-grade tibial collateral ligament sprain; 2) medial compartment
and patellofemoral compartment intermediate-grade III chondromalacia; 3) tear of
the medial meniscus with degeneration; 4) capsular inflammation of the
posteromedial corner of the knee suggestive of a capsular sprain; 5) a prior Baker
cyst which had ruptured; and 6) moderately inflamed prepatellar bursa.
On December 10, 2004, Dr. Colosimo performed a partial medial
meniscectomy and removed the torn posterior horn of the medial meniscus. Dr.
Colosimo noted a nonreparable tear along the periphery of the medial meniscus.
He found Helton’s anterior and posterior cruciate ligaments to be intact and
described Helton’s patellofemoral joint and the lateral compartment of the left knee
On January 27, 2005, Helton had a follow-up appointment with Dr.
Colosimo and informed the doctor the superficial pain in his knee had subsided but
he was experiencing deeper pain when he put his weight on the knee. Dr. Helton
examined the knee and found an eight-degree varus malalignment with isolated
medial compartment degenerative changes. Dr. Helton believed these conditions
were secondary to the prior surgery and recommended a series of injections to
alleviate these conditions. Helton received the injections in April 2005, but
improved only minimally. Dr. Colosimo then recommended an additional surgical
procedure known as a high tibial osteotomy (HTO).1
On June 22, 2005, Helton again saw Dr. Larkin at Comair’s request.
Dr. Larkin noted the MRI conducted two weeks prior to Helton’s surgery indicated
grade III patellofemoral chondromalacia, but Dr. Colosimo found no evidence of
such damage during the surgery. Dr. Larkin noted slight varus positioning in both
knees. He concurred with Dr. Colosimo’s recommendation of an HTO, but
believed another MRI should be performed before such surgery was undertaken.
Helton returned to Dr. Colosimo on June 28, 2005, and reported
continuing knee pain. Upon examination, varus positioning was noted and the
HTO was again recommended. Helton underwent the procedure on September 2,
2005. In his operative report, Dr. Colosimo stated Helton had developed the
painful tibia vara due to the surgical loss of the meniscus. He later indicated
Helton’s injury had resulted in significant knee instability and recommended a
postoperative knee brace.
According to the Board’s opinion, “[a]n ‘osteotomy’ is a surgical procedure whereby a bone is
cut to shorten, lengthen, or change its alignment in order to alter the biomechanics of a joint and
modify the force transmission through the joint. Knee osteotomy is commonly used to realign
the knee structure to address arthritic damage on one side of the knee. The goal is to shift body
weight off the damaged area to the other side of the knee, where the cartilage is still healthy.
Osteotomy is used as an alternative treatment to total knee replacement in younger and active
patients. An osteotomy procedure can enable younger, active osteoarthritis patients to continue
using the healthy portion of their knee thereby delaying the need for a total knee replacement for
several years. The most common type of osteotomy performed on arthritic knees is the ‘high
tibial osteotomy,’ which addresses cartilage damage on the inside (medial) portion of the knee.
See http://www.webmd.com/osteoarthritis/Osteotomy-for-osteoarthritis; See also
Helton’s recovery from the HTO surgery was slow. In early 2006, he
was prescribed a bone stimulator, knee brace, and was referred to pain
management. On March 21, 2006, Dr. Colosimo recommended permanent lifting
restrictions. Comair then denied any further liability for Helton’s treatment.
Helton subsequently began experiencing difficulties with his right
knee. In July 2006, Dr. Colosimo opined any preexisting disease Helton may have
had in his left knee had been dormant and asymptomatic prior to the work-related
injury. Thus, he believed all the medical problems related to the left knee were
work-related. Dr. Colosimo further opined the right knee pain was directly related
to the extended period of injury and prolonged healing of the left knee. He stated
Helton had experienced a meniscus tear of the right knee since the surgery due to
his compensating for the left knee injury. On September 26, 2006, Dr. Colosimo
reiterated his belief Helton’s right knee pain was directly related to the earlier
injury. He noted Helton needed a total replacement of his left knee, but the right
knee would need surgery first.
On October 6, 2006, Helton underwent a right knee arthroscopy with
a medial meniscectomy. On December 11, 2006, he underwent a total left knee
replacement. Following this surgery, Dr Colosimo completed a Form 107 medical
report and assessed a 20 percent whole body impairment rating for Helton’s left
knee, and a 9 percent whole body impairment rating for his right knee. Both of
these assessments were made pursuant to the American Medical Association’s
Guides to the Evaluation of Permanent Impairment (“AMA Guides”). Further, Dr.
Colosimo opined all of Helton’s impairment was due to the work-related injury on
October 26, 2004, and indicated Helton had no prior active impairment.
On June 4, 2005, Dr. Ronald J. Fadel (Dr. Fadel), an orthopedic
surgeon, reviewed Helton’s medical records at Comair’s request. Dr. Fadel
concluded only Helton’s medial meniscus tear was work-related and his other
health problems were the result of preexisting degenerative changes which could
not have arisen in a short time nor been caused by a meniscal tear.
At Comair’s request, Dr. Michael Best (Dr. Best) performed an
independent medical evaluation (IME) of Helton on April 27, 2006. Dr. Best
noted Helton had preexisting degenerative arthritis in his left knee at the time of
the initial surgical procedure. He opined the torn meniscus was work-related, but
believed Helton’s remaining complaints were the result of his preexisting condition
and therefore not work-related. Pursuant to the AMA Guides, Dr. Best assessed a
1 percent whole body impairment rating for the work-related injury.
Dr. Joseph L. Zerga (Dr. Zerga), a neurologist, conducted an IME of
Helton on August 25, 2006. Dr. Zerga found Helton had pain in both knees and it
was possible he had “some degenerative changes” in his knees. He opined the
October 26, 2004, incident probably aggravated Helton’s knee pain.
On November 9, 2006, Dr. Arthur F. Lee (Dr. Lee) conducted an IME
of Helton at Comair’s request. On December 21, 2006, Dr. Lee reviewed Helton’s
medical records. Dr. Lee opined the medial meniscus tear was a work-related
injury and the surgical repair performed by Dr. Colosimo was the appropriate
course of treatment. He further stated the subsequent treatment was performed to
alleviate the symptoms from Helton’s unrelated preexisting arthritis secondary to
congenital tibia vara. Dr. Lee found Helton’s right knee injury to be wholly
unrelated to the October 26, 2004, event. Dr. Lee limited Helton’s need for a total
left knee replacement to his arthritic condition and said it had “nothing to do with,
or almost nothing to do with his meniscus tear.” He opined Helton’s right knee
meniscus tear resulted from “typical degenerative change.” In a subsequent
deposition, Dr. Lee stated Helton was “doomed already to have knee problems, it
is just a question of when. . . .” He admitted there was no evidence Helton had an
active preexisting condition with either knee, only that he was predisposed to have
knee problems. In a supplemental report dated March 20, 2007, Dr. Lee assessed a
1 percent whole body impairment rating for Helton’s left knee meniscus tear, and a
possible 15 to 30 percent whole body impairment for the total knee replacement
based on the AMA Guides. Dr. Lee stated he believed only the 1 percent
impairment was work-related. He assessed a 1 percent whole body impairment for
Helton’s right knee pursuant to the AMA Guides.
The ALJ ultimately granted Helton an award of income benefits based
upon a 1 percent impairment rating. The ALJ declared all medical treatments other
than those directly associated with the left knee meniscectomy to be
noncompensable. The ALJ was persuaded by the opinions of Drs. Best, Lee, and
Fadel which indicated only the left knee meniscus tear was work-related.
Although convinced Helton had other medical problems with his knees subsequent
to the work-related event, the ALJ did not believe these issues to be work-related
nor aroused by that injury from a previously dormant condition. Further, the ALJ
found Helton had received all temporary total disability (TTD) benefits to which
he was entitled based upon the earlier rulings regarding work-relatedness. The
ALJ applied a one multiplier and, under Kentucky Revised Statutes (KRS)
342.730(1)(b), ruled the 1 percent whole body impairment rating became a 0.65
percent permanent impairment rating. Helton’s petition for reconsideration was
denied and he timely appealed to the Board.
Helton argued the record compelled a finding that his preexisting
arthritis and tibia vara were dormant and nondisabling prior to his work injury and
were aroused into a disabling state by the injury. He thus argued the ALJ erred in
excluding much of his extensive medical treatment as noncompensable. Relying
on our decision in Finley v. DBM Technologies, 217 S.W.3d 261 (Ky.App. 2007),
the Board agreed with Helton, finding “Helton’s knees were wholly asymptomatic
prior to the events of October 26, 2004.” The Board stated there was no question
Helton had underlying arthritis in both knees because of his preexisting tibia vara.
However, the Board opined Helton’s condition was dormant, nondisabling, and not
impairment-ratable under the AMA Guides until after the work injury and
subsequent treatment. Thus, pursuant to Finley and the long line of cases
following Robinson-Pettet Co. v. Workers’ Compensation Board, 201 Ky. 719, 258
S.W 318 (1924), the Board reversed the decision of the ALJ.
The Board found Comair had failed to prove Helton’s preexisting
condition was active and impairment-ratable prior to the work injury or that it was
aggravated by some other intervening cause unrelated to the work injury. In
remanding the matter, the Board instructed the ALJ to assess an impairment rating
which included the effects of Helton’s total knee replacement and to award
medical benefits accordingly. The ALJ was further directed to make additional
findings regarding Helton’s entitlement to TTD benefits, the extent and duration of
Helton’s disability including his entitlement to permanent total disability benefits,
the causation and compensability of Helton’s right knee injury, and Helton’s
entitlement to vocational rehabilitation benefits. Comair timely petitioned this
Court for review of the Board’s decision.
Comair contends the Board erred in substituting its judgment for that
of the ALJ as to the weight and credibility of the evidence. In support of this
argument, Comair claims the ALJ’s decision was based on substantial evidence,
and the Board’s conclusion that the evidence established a direct causal link
between Helton’s work-related injury and the entirety of his following medical
treatment was erroneous. After a careful review of the record, we disagree and
affirm the decision of the Board.
Our function when reviewing a decision made by the Board “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 the evidence so flagrant as to cause gross injustice.” Western
Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). Thus, the “standard
of review with regard to a judicial appeal of an administrative decision is limited to
determining whether the decision was erroneous as a matter of law.” McNutt
Construction/First General Services v. Scott, 40 S.W.3d 854, 860 (Ky. 2001)
(citing American Beauty Homes v. Louisville & Jefferson County Planning and
Zoning Commission, 379 S.W.2d 450, 457 (Ky. 1964)).
It is undisputed Helton suffered a work-related tear of the medial
meniscus of his left knee. It is also undisputed Helton had preexisting arthritic
changes in both knees secondary to congenital tibia vara. No evidence was
produced indicating Helton’s degenerative changes were symptomatic prior to his
work-related injury, nor that the changes were impairment-ratable immediately
prior to the incident. As correctly noted by the Board, “the burden of proving the
existence of a pre-existing [sic] condition falls upon the employer.” Finley, supra,
217 S.W.3d at 265 (citing Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736
(Ky.App. 1984)). It is well-established that “where work-related trauma causes a
dormant degenerative condition to become disabling and to result in a functional
impairment, the trauma is the proximate cause of the harmful change; hence, the
harmful change comes within the definition of an injury.” McNutt Construction,
supra, 40 S.W.3d at 859. If an impairment is both asymptomatic and not
impairment-ratable prior to the work-related injury, it is classified as a preexisting
dormant condition. Finley, supra, 217 S.W.3d at 265. When such a condition “is
aroused into disabling reality by a work-related injury, any impairment or medical
expense related solely to the pre-existing [sic] condition is compensable.” Id. This
has been the law of the Commonwealth since 1924. See Robinson-Pettett Co.,
Our review of the record compels us to hold the Board’s decision was
correct in finding Comair failed to prove Helton’s preexisting condition was active
and impairment-ratable immediately prior to his October 26, 2004, work injury.
We also agree with the Board that no credible evidence was presented indicating
Helton’s symptoms were the result of an unrelated intervening cause separate and
apart from the work-related injury and resulting surgery.
The Board correctly noted the medical opinions relied upon by the
ALJ were silent on the issue of whether Helton’s preexisting degenerative changes
were active and impairment-ratable prior to the work injury. The remaining
medical opinions clearly indicated Helton’s preexisting degenerative changes were
dormant and asymptomatic prior to the work injury. It is unrefuted Helton suffered
from dormant arthritic changes secondary to congenital tibia vara. Therefore, the
Board correctly found as a matter of law the ALJ erred in denying Helton
compensation for the arousal of his dormant condition. Finley, supra. The entirety
of Helton’s impairment due to his knee injury is compensable, and the Board did
not improperly substitute its judgment for that of the ALJ in so finding. Finally,
we hold the Board correctly instructed the ALJ as to the matters to be considered
on remand. Comair’s arguments to the contrary are without merit and warrant no
For the foregoing reasons, the October 19, 2007, opinion of the Board
BRIEF FOR APPELLANT:
H. Douglas Jones
Lisa K. Clifton
BRIEF FOR APPELLEE, BURL
Gregory N. Schabell