FRITO LAY (RSK Co) V JAMES RATLIFF ; HON . ROBERT WHITTAKER, DIRECTOR OF SPECIAL FUND ; ADMINISTRATIVE LAW JUDGE JOHN B . COLEMAN ; FRITO LAY KENTUCKY WORKERS' COMPENSATION BOARD
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINIONIS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PR OCED URE PR OMUL GA TED B Y THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITY INANY OTHER
CASE IN ANY CO UR T OF THIS STATE.
RENDERED : AUGUST 21 2003
NOT TO BE PllBIgiED
FRITO LAY (RSK Co)
V
APPELLANT
APPEAL FROM COURT OF APPEALS
2002-CA-0235-WC
WORKERS' COMPENSATION BOARD NO .99-00924;
98-80322 ; 95-11954; 89-30116
JAMES RATLIFF; HON. ROBERT
WHITTAKER, DIRECTOR OF SPECIAL
FUND; ADMINISTRATIVE LAW JUDGE
JOHN B . COLEMAN ; FRITO LAY
(TRAVELERS INSURANCE) ; FRITO LAY
(CRAWFORD & COMPANY) AND
KENTUCKY WORKERS'
COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Frito Lay (RSK Co .) contests an opinion affirming by the Court of Appeals, which
unanimously upheld the Workers' Compensation Board's adoption of a finding of the
Administrative Law Judge of permanent total disability for the claimant .
The employer presents two questions for the court to consider on appeal .
Whether the ALJ and the later reviewers failed to answer how the injury in 1998 was
the proximate cause of the claimant's total occupational disability. Or in the alternative,
whether there was substantial evidence to support the finding of total occupational
disability for the claimant .
Ratliff started work for his employer in 1985. In 1987, Ratliff experienced back
and leg pain after moving chips, a normal part of his employment with Frito Lay. Dr.
Tuft, his treating physician, diagnosed an instable segment at L5-S1, and performed a
discectomy. He received an award for 16% occupational disability, while his employer
was underwritten by Crawford and Company. Ratliff returned to work.
In 1995, Ratliff slipped on some ice during the course of his duties . Dr. Tuft
performed another discectomy. Ratliff filed and received 5% occupational disability for
a total of 21 %, while his employer was underwritten by Travelers' Insurance Company.
He returned to work.
In 1998, Ratliff experienced pain after moving chips on the job. Dr. Tuft brought
in Dr. Lockstadt and performed a discectomy followed by a fusion operation . Ratliff did
not return to work after this operation and filed for disability.
The AU conducted his hearings and found Ratliff to have total occupational
disability of which 21 % was prior, active. The AU also found the proximate cause of
this present condition to be the injury incurred at work in 1998 . Based on the findings,
the ALJ did not increase the percentage disability allotted to the previous underwriters,
and assigned the appellant 79% of Ratliffs disability.
I . Proximate Cause
Regarding proximate cause, the employer asserts that either there was not
substantial evidence to support the ALJ's finding that the injury of 1998 was the
proximate cause of Ratliffs new condition, or that the ALJ, the Board and the Court of
Appeals misinterpreted "proximate cause" as used in KRS 342.011(1).
If the decision of the AU is supported by any substantial evidence of probative
value, it may not be reversed on appeal . Special Fund v. Francis , Ky., 708 S .W.2d 641
(1986); Newberg v. Armour Food Co., Ky., 834 S .W .2d 172 (1992); Burton v. Foster
Wheeler Corp . , Ky., 72 S.W .3d 925 (2002). Substantial evidence has been defined as
some evidence of substance and relevant consequence, having the fitness to induce
conviction in the minds of reasonable people. Smyzer v. B.F . Goodrich Chemical Co. ,
Ky., 474 S .W .2d 367, 369 (1971). Further review intends to correct the Board only
where the Board has overlooked or misconstrued statutes or precedent, or committed
an error in assessing the evidence as to create gross injustice . Western Baptist Hosp.
V. Kelly, Ky., 827 S .W .2d 685 (1992); Phoenix Manufacturing Co . v. Johnson , Ky., 69
S.W .3d 64, 67 (2001) .
The AU had relied on Dr. Primm, a consulting physician, who assigned 50% of
Ratliff's impairment to the arousal of pre-existing degenerative conditions by the injury
of 1998 . The AU considered this assignment indicative of proximate causation .
Further, the AU gave weight to the fact that this injury in 1998 caused Ratliff not to go
to work, in contrast to the previous two . The ALJ found this fact indicative of proximate
causation as well. The Board affirmed the ALJ's decision, also giving weight to the
same evidence . The Court of Appeals found that the AU and the Board relied on
credible sources of substantial evidence, and we agree .
II .
The second of the contentions, that the previous bodies of review have
misinterpreted the meaning of "proximate cause" in KRS 342.011(1) is highly
unpersuasive . In fact, the employer cites authority that to the normal reader
undermines its contention that the previous injuries and condition of claimant are the
proximate cause of the injury .
"[W]here no danger exists in a condition that merely makes it possible for an
injury to happen through some independent, unrelated and efficient cause, the existing
condition cannot later be held to be the proximate cause of the injury." Collins Co. v.
Rowe, Ky., 428 S.W .2d 194, 199 (1968). With regard to the requirements of the 1996
Act, we have determined that when a work related trauma causes a dormant
degenerative condition to become disabling, the trauma is the proximate cause of the
harmful change. McNutt Construction/First General Services v. Scott, Ky., 40 S .W. 3d
354 (2001).
However, relating to Collins Co. v. Rowe , the employer argues that the word
"work" could be interchanged for "condition" in the previous rule, while his previous
injuries and 21 % permanent condition of disability are an "independent, unrelated and
efficient cause" upon the "condition" of work . The employer's contention is without
merit . Dr. Primm testified that Ratliff had a pre-existing degenerative condition and that
the injury in 1998 was the cause of its arousal, leading to Ratliffs total incapacity . This
injury of 1998 was the first to cause Ratliff not to return to work. The injury of 1998 was
a trauma and proximate cause of Ratliffs present condition .
III . Substantial Evidence
On the issue of total occupational disability, the employer contends there was not
substantial evidence to support the ALJ's finding. The employer asserts that only the
claimant's own testimony supports the theory that he is now totally disabled . The
employer also seems to assert that Osborne v. Johnson , Ky., 432 S.W .2d 800 (1968)
has been completely overruled by the new 342 .011(11)(c) . This Court has stated the
contrary three times in the past three years .
Some of the principles of Osborne v. Johnson remain viable when determining
whether a worker's occupational disability is partial or total. Ira A. Watson Department
Store v. Hamilton , Ky., 34 S .W .3d 48 (2000); McNutt Construction/First General
Services v. Scott, Ky., 40 S .W . 3d 854, 860 (2001); Transportation Cabinet v. Poe, Ky.,
69 S .W .3d 60, 63 (2002). A worker's testimony is competent evidence of the extent of
disability and of his ability to perform various activities both before and after being
injured. Hush v. Abrams , Ky., 584 S .W .2d 48 (1979). Though consideration of medical
evidence is necessary to establish injury, the ALJ is not compelled to rely upon the
vocational opinions of either the medical experts or the vocational experts when
determining extent of injury. Eaxton Axle Corp . v. Nally, Ky., 688 S .W .2d 334, 337
(1985) . Under the 1996 Act, the ALJ may consider factors such as intellectual and
vocational status when determining total or partial disability . Ira A. Watson Dept. Store
v. Hamilton , supra .
The ALJ relied upon the testimony of the claimant, Ratliff, as to his capabilities
for work. The ALJ noted his prior actions supported his credibility. The ALJ considered
the testimony of the doctors as to medical impairment . Combined with Ratliffs age,
education, and past work experience, the ALJ determined Ratliff to have a permanent
total disability . The ALJ relied on substantial and credible evidence in concluding that
Ratliff had a total permanent disability.
The opinion of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
Walter E, Harding
Boehl Stopher & Graves LLP
Suite 2300, Aegon Center
400 W. Market St.
Louisville, KY 40202-3354
COUNSEL FOR APPELLEES :
Thomas G. Polites
Wilson, Sowards, Polites & McQueen
200 West Vine Street
Lexington, KY 40507
For Ratliff
Michael P. Neal
1800 One Riverfront Plaza
401 West Main Street
Louisville, KY 40202-2927
For Frito Lay (Travelers)
Walter A. Ward
Gregory L. Little
Clark & Ward
The World Trade Center
333 West Vine Street, Suite 1100
Lexington, KY 40507
For Frito Lay (Crawford)
David W . Barr
1047 US Hwy 127 S Ste 4
Frankfort, KY 40601
For Workers' Compensation Funds
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