MICHAEL REYNOLDS V. MAXIM/CARLISLE CONSTRUCTION , ET AL
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THIS OPINION I5DESIGNATED "NOT TO BE
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RENDERED : AUGUST 24, 2006
NOT TO BE PUBLISHED
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MICHAEL REYNOLDS
V
APPELLANT
APPEAL FROM COURT OF APPEALS
2005-CA-1613-WC
WORKERS' COMPENSATION NO. 03-91900
MAXIM/CARLISLE CONSTRUCTION ;
HONORABLE DONNA H. TERRY,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) determined that the statute of limitations
barred a claim for the incident that caused the claimant's back injury and that the
incident that occurred on November 3, 2003, was a temporary exacerbation of the
injury . The ALJ awarded medical expenses from November 3, 2003, through
December 24, 2003, after noting that the claimant's symptoms appeared to have
returned to their pre-incident state by then and that the employer was not liable for
medical treatment provided after the statute of limitations for the back injury expired .
The Workers' Compensation Board and the Court of Appeals affirmed .
The claimant now concedes that the November, 2003, incident caused no
permanent disability. However, he continues to assert that it caused a separate and
distinct injury and that the AU erred by limiting the duration of his medical benefits .
Having concluded that the evidence did not compel a finding that the November 3,
2003, incident was anything more than a temporary exacerbation of the time-barred
injury and, therefore, that the employer bore no liability for medical benefits after the
two-year period of limitations expired, we affirm .
The claimant began working for the defendant-employer in 1998 as a field
mechanic, performing on-site heavy equipment repair and maintenance. On January
10, 2004, he filed an application for income and medical benefits . Among other things,
he alleged that he sustained work-related back injuries on January 3, 2002, and
November 3, 2003.'
Describing the January 3, 2002, back injury, the claimant stated that he felt pain
throughout his back while attempting to remove a test kit from the bed of a pickup truck .
He completed the shift and informed his supervisor on the following day when his
symptoms increased . Although he continued to work, he was prescribed pain
medication and muscle relaxers and underwent several months of physical therapy. He
also received injections for leg pain that radiated from his buttocks to his calf with
occasional numbness and tingling . In July, 2003, he began chiropractic treatment with
Dr. Schweitzer.
The claimant testified that his symptoms increased on November 3, 2003, when
he attempted to lift a heavy cylinder . He kept his regularly-scheduled appointment with
Dr. Schweitzer later that day and returned about twice weekly for a period of time
thereafter. The claimant described his pain from the incident as approximating what he
'The claim also alleged left elbow injuries that occurred on December 24, 2001, and
June 18, 2002, as well as a right shoulder injury that occurred on November 26, 2002.
experienced in January, 2002; however, after treating with Dr. Schweitzer for about a
week, he was able to walk, stand erect, and perform his work. He stated that before
the November, 2003, injury, his pain was 6 or 7 on a 10-point scale. At the hearing, he
testified that he presently required treatment about every two weeks and rated his pain
at about 5 on a 10-point scale. He took no medication, obtained his only treatment
from Dr. Schweitzer, and continued to perform the same work that he did both on
January 3, 2002, and November 3, 2003.
The medical evidence consisted of a Form 107, supplemental report, and
deposition of Dr. Schweitzer. Dated September 13, 2004, the Form 107 indicated that
the claimant sought treatment after suffering a herniated disc and radiculopathy due to
an injury . He improved dramatically with treatment and was nearing maximum medical
improvement (MMI) when he sustained another injury on November 3, 2003. That
injury necessitated more frequent treatments . In Dr. Schweitzer's opinion, the second
injury caused the majority of the claimant's present symptoms and/or residuals and 80
to 90% of the symptoms that he treated from November 3, 2003, to the present. The
supplemental report of October 4, 2002, indicated that the claimant's present
impairment was 8% but that he was not at MMI and that Dr. Schweitzer expected him to
improve with further treatment.
When deposed, Dr. Schweitzer corrected the Form 107 to state that the
claimant's initial injury occurred on January 3, 2002, and that the initial visit occurred on
July 10, 2003. He stated that a February, 2002, MRI revealed numerous abnormalities
in the claimant's spine : an L4-5 herniation with mild to moderate foraminal narrowing, a
diffuse disc bulge with bilateral foraminal narrowing at L3-4, a disc herniation at L5-S1
that impacted the thecal sac, and mild hypertrophy of the facet joints in the lower back.
Reviewing his treatment notes, most of which were not of record, Dr. Schweitzer stated
that the claimant's condition improved during the initial months of chiropractic therapy.
However, on November 3, 2003, the claimant reported really bad days the previous
Monday, Tuesday, and Wednesday and stated that he had pulled on a big cylinder
while working . The treatment Dr. Schweitzer provided on that day was no different from
that on earlier visits. By November 10, 2003, the claimant was regaining elasticity . He
stated that "this week was pretty good" and that his leg pain continued but "would go
away at times ." By December 12, 2003, he reported to Dr. Schweitzer that he was
much better and rated his pain at 5 on a 10-point scale. His gait had improved
dramatically. On January 5, 2004, Dr. Schweitzer diagnosed left leg sciatica, chronic
but stable .
As he had in the Form 107, Dr. Schweitzer attributed the symptoms that he
treated after November 3, 2003, to an injury on that date. He explained that the
claimant had experienced numerous episodes at work that could be classified as being
a re-injury or exacerbation, but the November 3, 2003, episode was the most
significant . He stated that the claimant's present impairment and residuals were
probably about the same as before the injury and that he was "at about the same
baseline that he was before the November 2003 exacerbation ." Dr. Schweitzer
acknowledged that an individual with the claimant's back condition might be expected to
have occasional flare-ups of symptoms with certain activities .
The parties stipulated that the employer paid no temporary total disability
benefits for the January 3, 2002, low back injury but that it did pay nearly $26,000 .00 in
medical benefits arising from the injury, which the AU noted was largely for chiropractic
treatment . After summarizing the evidence, the AU determined that KRS 342.185
barred any claim for the January 3, 2002, back injury . The ALJ then noted that the
claimant was undergoing active chiropractic treatment before November 3, 2003, for
back symptoms that waxed and waned depending on his job duties . Yet, he was "an
industrious worker" and continued to perform his usual job, which involved activities that
"could be expected to exacerbate his already-active back complaints." Relying on Dr.
Schweitzer's testimony that the claimant's present symptoms were about the same as
before the incident and that he had returned to what had been his baseline before the
incident, the AU determined that the incident caused only a temporary exacerbation of
the pre-existing back injury rather than a new injury. The ALJ awarded medical benefits
to December 24, 2003, explaining that the claimant reported significant improvement on
December 12, 2003, at which point his symptoms and range of motion had improved
dramatically. After that, his symptoms appeared to wax and wane, just as they had
done before November 3, 2003. Moreover, the employer was not liable for medical
services provided more than two years after the Neither party petitioned for
reconsideration .
Dr. Schweitzer indicated in the Form 107 and his deposition that the claimant reinjured his back on November 3, 2003, and that 90% of the chiropractic treatment
thereafter was for the effects of the incident. Pointing to those statements, the claimant
asserts that Mengel v. Hawaiian-Tropic Northwest and Central Distributors, Inc., 618
S .W.2d 184 (Ky. App. 1981), prohibited the ALJ from disregarding uncontradicted
medical evidence that the claimant sustained a new injury on November 3, 2003, and
that the evidence compelled the ALJ to award reasonable and necessary medical
treatment for the effects of that injury .
The evidence did not compel the ALJ to determine that the November 3, 2003,
incident caused a distinct injury rather than a temporary exacerbation of the time-barred
injury . Contrary to the claimant's assertion, the ALJ did not ignore uncontradicted
evidence of causation. As the finder of fact, the ALJ had the freedom to consider all of
Dr. Schweitzer's testimony, to weigh conflicting testimony, and to draw reasonable
inferences . Dr. Schweitzer's interpretation of the February, 2002, MRI provided
objective medical findings regarding the claimant's condition after the time-barred injury
but before the alleged injury on November 3, 2003. When deposed, he stated that the
claimant's impairment would have been about the same both before and after
November 3, 2003, and that the claimant had returned to "the same baseline that he
was before the November 2003 exacerbation ." He also stated that it was not unusual
for an individual with the claimant's underlying back condition to have occasional flareups of symptoms that required a period of more frequent treatment .
Under the circumstances, the ALJ made reasonable findings : 1 .) that the
claimant sustained a pre-existing back injury that was time-barred ; 2 .) that he did not
sustain a new injury in November, 2003, but suffered a temporary exacerbation of
symptoms from the pre-existing injury ; and 3.) that he had greatly improved by
December 12, 2003, after which his symptoms waxed and waned as they had done
before November 3, 2003. Because a claim for the pre-existing injury was time-barred,
the ALJ did not err in concluding that the employer was not liable for medical treatment
provided more than two years after the injury occurred .
The decision of the Court of Appeals is affirmed .
Lambert, C.J. ; Graves, McAnulty, Roach, Scott, and Wintersheimer, JJ ., concur.
Minton, J ., not sitting.
COUNSEL FOR MICHAEL REYNOLDS:
Larry Hicks
Sutton, Hicks, Lucas, Grayson & Braden, PLC
130 Dudley Road, Suite 250
Edgewood, KY 41017
COUNSEL FOR MAXIM/CARLISLE CONSTRUCTION :
Ronald J. Pohl
Pohl, Kiser & Aubrey, PSC
167 West Main Street, Suite 100
Lexington, KY 40507
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