WILLIS (NANETTE) VS. COMPENSATIO FAMILY HOME HEALTH CARE , ET AL. NAnnotate this Case
RENDERED: SEPTEMBER 26, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-06-99450
FAMILY HOME HEALTH CARE,
HON. R. SCOTT BORDERS, ALJ, AND
THE WORKERS’ COMPENSATION BOARD
** ** ** ** **
BEFORE: DIXON AND NICKELL, JUDGES; AND KNOPF,1 SENIOR JUDGE.
NICKELL, JUDGE: Nanette Willis (“Willis”) appeals from a Workers’
Compensation Board (“Board”) opinion affirming in part, reversing in part, and
remanding an Administrative Law Judge’s (“ALJ”) opinion granting Willis
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 Kentucky Revised Statutes
benefits but reversing and remanding for additional findings as to application of
the appropriate multiplier under Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003).
After reviewing the record, the arguments of counsel, and the applicable law, we
Willis was born on August 31, 1960, stands five feet four inches tall,
and weighs 350 pounds. She has an associate of arts degree in human resources, a
bachelor’s degree in social work, a master’s degree in social work, and has
completed six hours toward a doctoral degree in education.
Willis joined Family Home Health Care (“FHHC”) as a social worker
in January 2005 as a full-time employee earning $17.00 an hour. On September
16, 2005, while setting up a booth at a festival for FHHC, she misjudged a curb
and immediately felt severe pain in her right knee. She continued working for two
weeks before seeking medical attention from Dr. Laura Reese (“Dr. Reese”), an
orthopedic surgeon, on September 27, 2005.
Willis did not describe any arthritic-type discomfort during her initial
consultation with Dr. Reese and provided no prior medical records to her for
review. Based upon weight-bearing x-rays, an MRI and Willis’s account of the
injury, Dr. Reese diagnosed her with tricompartmental DJD arthropathy, a bucket
handle tear of the lateral meniscus, and a partial ACL tear of the right knee, all
stemming from her work-related injury. Dr. Willis also stated any degenerative
changes were a “dormant nondisabling condition” aroused into disabling reality by
the work-related injury.
On January 4, 2006, Dr. Reese performed a right knee diagnostic and
operative arthroscopy. Her operative report said Willis had experienced “some
arthritic discomfort in her knees prior to this.” Willis was off work from
December 28, 2005, until April 21, 2006, with one brief return to work in March
with restrictions (no heavy lifting, no repetitive stair climbing, and icing and
elevating the right knee as needed). When Willis finally returned to work, her
hours had been reduced and instead of being paid hourly, she was paid each time
she visited a client. On June 6, 2006, she was terminated for reasons unrelated to
Dr. Reese assigned Willis a whole body impairment rating of twentytwo percent which she attributed entirely to the work-related injury. Dr. Reese
further stated Willis could probably sit six hours per day but would need freedom
to move around. Dr. Reese stated Willis’s depression2 had worsened since the
Willis applied for workers’ compensation benefits related to her knee
on August 7, 2006. On September 18, 2006, she moved to amend her application
to include a claim for psychological injury saying her twisted knee had exacerbated
her anxiety and depression.
Willis was treated for various mental conditions for two decades as will be discussed later in
Dr. David Jenkinson (“Dr. Jenkinson”), an orthopedic surgeon,
performed an independent medical evaluation (“IME”) at FHHC’s request on
November 7, 2006. In addition to taking a history from Willis, he took x-rays
which showed “signs of very advanced generalized osteoarthritis of the right knee”
and evidence of less severe osteoarthritis in the left knee. Dr. Jenkinson was
confident the main cause of Willis’s knee pain was advanced osteoarthritis which
predated her September 16, 2005, injury, but acknowledged the meniscal tear may
have been caused or exacerbated by her on-the-job injury. He assessed a twenty
percent whole person impairment rating due to the severe osteoarthritis. He stated
Willis would have difficulty performing any job requiring physical activity, but
could do sedentary work requiring only minimal standing or walking.
In a follow-up letter dated December 11, 2006, Dr. Jenkinson stated
he was certain Willis’s advanced osteoarthritis was active at the time she twisted
her knee. He noted morbid obesity, from which Willis suffers, “is a frequent cause
of premature osteoarthritic deterioration of the knee.” Because the meniscus tear
may have occurred during the injury, he gave Willis a permanent four percent
whole body impairment rating due to the partial medial and lateral meniscectomy,
but remained firm in his “opinion that the vast majority of her present impairment
is related to the pre-existing degenerative osteoarthritis of the knee.”
In a supplemental report dated January 19, 2007, Dr. Jenkinson
clarified his twenty percent impairment was based solely on the x-ray of the knee
which showed a “complete loss of cartilage joint space.” He confirmed there was
no way the degenerative change captured on the x-rays taken by Dr. Reese could
have occurred in just two weeks, the time between the knee injury and the initial
consultation with Dr. Reese. Dr. Jenkinson reiterated the major cause of Willis’s
degenerative arthritis was her gross morbid obesity. He disagreed with Dr. Reese’s
opinion that none of Willis’s impairment was related to pre-existing arthritis and
further stated Willis would have been symptomatic with or without the workplace
injury and would have qualified for the twenty percent assessment when Dr. Reese
initially saw her. Dr. Jenkinson repeated “the degenerative change in [Willis’s]
knee was one hundred percent pre-existing the minor work-related injury of
Dr. Betsy Evans (“Dr. Evans”), a clinical psychologist, had treated
Willis for at least fifteen years for mood disorder, post traumatic stress disorder
(“PTSD”), and anxiety. She testified Willis sometimes satisfied the criteria for
obsessive-compulsive disorder and a couple of times she was suicidal and close to
requiring hospitalization. According to Dr. Evans, Willis’s depression and PTSD
were exacerbated significantly by the September 16, 2005, injury. She did not
conduct any objective tests before assigning Willis a pre-injury impairment rating
of fifteen percent based on some active, psychological disability, and a post-injury
impairment rating of seventy-five percent.
Dr. Robert Granacher (“Dr. Granacher”), board certified in both
psychiatry and neurology, evaluated Willis at the request of FHHC on November
8, 2006. After conducting various tests he found no evidence of any psychiatric
impairment due to Willis’s workplace injury. He concluded Willis had the mental
capacity to perform any work for which she was trained, educated or experienced.
He disagreed with Dr. Evans’s assessment of a seventy-five percent whole body
impairment because one cannot have that great an impairment and hold a job. His
testing revealed Willis was fabricating and magnifying much of her
symptomatology and was malingering. According to Dr. Granacher, if true, some
of Willis’s test results would have required her to be institutionalized. He stated
Willis’s daily impairment, stemming from depression and being sexually abused as
a child, was probably about twenty percent before she injured her knee.
At the benefits review conference on March 22, 2007, the parties
stipulated to a pre-injury average weekly wage (“AWW”) of $689.76 and a postinjury AWW of $702.89. Willis testified she was currently earning $34,000.00
annually as a therapist at Pathways, Inc., where she had worked since January 8,
2007. She previously worked as a manager trainee at a gas station and worked
with teenagers at a training center but resigned both positions because of her
physical limitations. Willis described the Pathways staff as being extremely
accommodating to her and said she intended to remain in the employ of Pathways.
Despite having been in three motor vehicle accidents and being in
traction as a young child, Willis testified she had no knee problems prior to her
workplace injury nor had she received any prior treatment for her knee. She did,
however, admit taking antidepressants for several years before the injury; claim
she had been stable at least a year before the injury; and reveal she was considering
filing a wrongful discharge or harassment suit against FHHC.
In an opinion and order dated May 18, 2007, the ALJ found Willis
proved her knee injury was work-related but not her psychological claim because it
was active and pre-existed her injury. In calculating the benefits to which Willis
was entitled, the ALJ found Dr. Jenkinson’s assessment of a twenty percent rating
was the most convincing, but only four percent of the rating was attributed to the
knee injury; the remaining sixteen percent was the result of prior active
osteoarthritis. Pursuant to KRS 342.730(1)(b), the ALJ multiplied the four percent
rating by a factor of sixty-six and two-thirds percent. Then, pursuant to KRS
342.730(1)(c)(1), he applied the three-multiplier because even though Willis was
currently earning more money in a less physically demanding job with
accommodations, she lacked the physical ability to do the job she had performed
before her injury.3 Based upon the AWW of $689.76 stipulated by the parties,
Willis was awarded a weekly benefit of $35.52.
Both parties petitioned the ALJ to reconsider his opinion and make
additional findings of fact. Willis asked the ALJ to specify the portion of her
impairment that pre-existed her injury and to explain the factual basis for his
decision. FHHC asked the ALJ to determine whether Willis would likely continue
Citing KRS 342.730(1)(c)(2), FHHC argues a multiplier of two should be used because Willis
returned “to work at a weekly wage equal to or greater than the average weekly wage” she was
earning at the time she twisted her knee.
earning an AWW equal to or greater than the amount she was earning before she
twisted her knee and to state the factual basis for that finding.
The ALJ denied FHHC’s request, but granted Willis’s request for an
additional finding on whether she had an active impairment before injuring her
knee. The ALJ adopted Dr. Jenkinson’s opinion that Willis had a twenty percent
functional impairment rating for pre-existing active osteoarthritis.
Willis appealed to the Board and FHHC filed a cross-appeal. On
November 2, 2007, the Board issued an opinion affirming in part, vacating in part
and remanding. The Board stated whether Willis qualified for an impairment
rating for her knee prior to her September 2005 knee injury was strictly a medical
question under the AMA Guides. Kentucky River Enterprises, Inc. v. Elkins, 107
S.W.3d 206, 210 (Ky. 2003). Dr. Jenkinson stated Willis would have qualified for
a twenty percent impairment due to severe arthritis in the knee before the knee
injury. Based on Dr. Jenkinson’s opinion, the Board found FHHC had offered
substantial evidence of prior active knee impairment and there was no reason to
disturb the ALJ’s finding. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
The Board went on to say the ALJ was not required to believe Willis’s testimony
that she had no pre-injury knee pain, nor testimony from Dr. Reese that Willis’s
current pain was the sole result of a work-related injury. As the fact-finder, the
ALJ was authorized to pick and choose the evidence it believed and discard the
rest. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985).
While rejecting Willis’s claim, the Board agreed with FHHC and
reversed and remanded the ALJ’s opinion for a determination of the likelihood
Willis could continue earning the same as or more than her pre-injury AWW for
the foreseeable future before applying a multiplier to the benefits calculation.
Willis’s benefits could have been enhanced by the three-multiplier because she no
longer had the “physical capacity to return to the type of work” she performed at
the time of her knee injury. KRS 342.730(1)(c)(1). Alternatively, her benefits
could have been enhanced by the two-multiplier because she returned “to work at a
weekly wage equal to or greater than the” AWW she earned at the time of her knee
injury. KRS 342.730(1)(c)(2). Only one of these multipliers could be applied, and
the ALJ had to determine which was the most appropriate. To do that, he had to
first decide whether, in the foreseeable future, Willis would likely earn as much as
or more than she was earning prior to her knee injury. Since both multipliers were
supported by substantial evidence, the Board reversed and remanded the matter to
the ALJ to perform the full analysis described in Fawbush, supra. Willis has now
appealed to us.
Willis first alleges the Board erroneously affirmed the ALJ’s finding
that she had a pre-existing ratable impairment before injuring her right knee on
September 16, 2005. Willis claims the finding was not supported by substantial
evidence. We disagree.
Dr. Jenkinson’s medical opinion, supported by x-rays, as well as notes
from Drs. Reese and Evans, provided substantial evidence Willis suffered from
active osteoarthritis before she twisted her knee on September 16, 2005. While
Willis testified she had no complaints about her knee and received no treatment
prior to twisting her knee at work, and Dr. Reese testified Willis’s degenerative
changes were a pre-existing, dormant, nondisabling condition aroused into
disabling reality by the workplace injury, only the ALJ decides what evidence and
testimony to believe and what to reject. Caudill v. Maloney’s Discount Stores, 560
S.W.2d 15, 16 (Ky. 1977). Here, the ALJ found Dr. Jenkinson’s opinion to be the
most convincing evidence, as was his prerogative.
Contrary to Willis’s position, Roberts Bros. Coal Co. v. Robinson,
113 S.W.3d 181 (Ky.App. 2003) is the controlling case4 and there was substantial
evidence from Dr. Jenkinson supporting the ALJ’s finding that Willis had an active
impairment and would have qualified for an impairment rating before she twisted
In Roberts Bros, supra, while working without medical restrictions, Robinson, a coal miner,
injured his back. He had no pre-existing active disability, but medical testimony established onequarter to one-half of his impairment was due to the natural aging process. As a result, the ALJ
reduced Robinson’s award by twenty-five percent but still attributed his total disability to his onthe-job injury. As stated in Roberts Bros.,
an exclusion from a total disability award must be based upon preexisting disability, while an exclusion from a partial disability
award must be based upon pre-existing impairment. For that
reason, if an individual is working without restrictions at the time a
work-related injury is sustained, a finding of pre-existing
impairment does not compel a finding of pre-existing disability
with regard to an award that is made under KRS 342.730(1)(a).
Id., at 183.
her knee at work. Since FHHC argued Willis suffered from pre-existing active
osteoarthritis, the ALJ had to determine whether Willis had a ratable impairment
before twisting her knee. Whether, when and why she had an impairment rating
was strictly a medical question under the AMA Guides. Kentucky River
Enterprises, Inc. v. Elkins, supra. Dr. Jenkinson’s medical opinion was based on
the AMA Guides and x-rays of Willis’s knee. Merely presenting some evidence
suggestive of a contrary result does not require reversal. Transportation Cabinet v.
Poe, 69 S.W.3d 60, 61 (Ky. 2001).
Additionally, Willis’s citation to Finley v. DBM Technologies, 217
S.W.3d 261 (Ky.App. 2007), does not persuade us a different result is required.
Finley distinguishes active and dormant impairments. A pre-existing disease or
condition which is symptomatic and impairment ratable under the AMA Guides
immediately before a work-related injury is considered active, whereas a dormant
pre-existing condition is one that is asymptomatic immediately before the injury
and all permanent impairment is “medically determined to have arisen after” the
injury. Id., at 265.
While Dr. Jenkinson assigned Willis a twenty percent whole body
impairment rating, he attributed only four percent of it to tears resulting from her
work-related injury. He attributed the remaining sixteen percent to pre-existing
osteoarthritis. Willis denied prior knee problems, but Dr. Reese’s operative report
noted pre-injury “arthritic discomfort in [Willis’s] knees;” as did records from Dr.
Evans. Furthermore, after reviewing Willis’s November 2006 x-rays, Dr.
Jenkinson said her advanced osteoarthritis could not have developed within one
year of Dr. Reese’s surgery and noted even Dr. Reese’s report had indicated the xrays she took two weeks after the injury showed degenerative changes. Finally,
Dr. Jenkinson stated Willis qualified for an impairment rating during her initial
consultation with Dr. Reese and due to the severity of her arthritis she could have
been assessed an impairment rating with or without symptoms.
As a reviewing Court, our role is to decide, in light of the record,
whether the evidence is so overwhelming as to compel a finding in favor of Willis.
Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App. 1984). Since it is the
sole discretion of the ALJ to judge the inferences to be drawn from the evidence,
we will not substitute our judgment for his. KRS 342.285(2); REO Mechanical v.
Barnes, 691 S.W.2d 224 (Ky.App. 1985). When this Court reviews a decision of
the Board, its function is to correct the Board when we believe it “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). The record before us does
not demonstrate error. Therefore we affirm the Board’s reliance upon Roberts
Bros., supra, and Dr. Jenkinson’s medical opinion and we will neither reverse and
require Willis’s benefits to be calculated upon Dr. Reese’s impairment rating of
twenty-two percent, nor remand for additional findings of fact about Willis’s preinjury symptoms and/or treatment.
Willis’s other complaint is the ALJ properly applied the threemultiplier and there is no need to send the opinion back to the ALJ for a Fawbush,
supra, analysis. Again, we disagree.
The three-multiplier referenced in KRS 342.730(1)(c)(1) applies to
the benefit calculation only if it is unlikely Willis is able to continue earning more
than her pre-injury AWW. While it is undisputed Willis lacks the physical
capacity to perform her old job with FHHC, she has held better-paying post-injury
jobs which would mean the two-multiplier referenced in KRS 342.730(1)(c)(2)
would apply instead. Because only one of the multipliers may be used to enhance
Willis’s benefit calculation, the Board correctly found the ALJ must make an
additional determination as to whether and why Willis will likely continue earning
as much as or more than she earned prior to her injury and then apply the most
For the foregoing reasons, the opinion of the Board is affirmed in toto.
BRIEF FOR APPELLANT:
Jeffrey D. Hensley
BRIEF FOR APPELLEE, FAMILY
HOME HEALTH CARE:
Stephanie D. Ross
John W. Spies