DEBBIE MURSKI V. BETTS USA, INC.; ET AL.Annotate this Case
NOT TO BE PUBLISHED OPINION
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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RENDERED : MARCH 24, 2011
NOT TO BE PUBLISHED
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BETTS USA, INC .
ON APPEAL FROM COURT OF APPEALS
CASE NOS . 2009-CA-001474-WC AND 2009-CA-001640-WC
WORKERS' COMPENSATION BOARD NO . 07-98477
HONORABLE JOSEPH W. JUSTICE,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
ON APPEAL FROM COURT OF APPEALS
CASE NOS . 2009-CA-001474-WC AND 2009-CA-001640-WC
WORKERS' COMPENSATION BOARD NO. 07-98477
BETTS USA, INC .;
HONORABLE JOSEPH W. JUSTICE,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
The Workers' Compensation Board reversed an Administrative Law
Judge's (ALJ's) finding that the claimant did not sustain a work-related left
knee injury and remanded for the entry of an award of medical benefits. The
Board affirmed insofar as the ALJ failed to award permanent income benefits .
The Court of Appeals affirmed.
Appealing, the employer asserts that the Board erred by substituting its
judgment and finding that the claimant sustained a work-related injury that
entitled her to the disputed medical benefits. The claimant asserts in a cross
appeal that the Board erred by failing to order the ALJ to determine on remand
whether she has reached maximum medical improvement (MMI) and, if she
has, to address her permanent impairment rating.
We affirm. The evidence compelled findings that the claimant sustained
a work-related left knee injury; that it was more than a temporary sprain or
strain; and that it caused her pre-existing dormant degenerative condition to
become symptomatic and culminate in surgery. Thus, the surgery and other
reasonable and necessary medical treatment were compensable. The ALJ
determined reasonably that the claimant was not entitled to permanent income
The claimant worked for the defendant-employer as an injection mold
technician . She spent most of the day on her feet, overseeing machines that
manufactured toothpaste tubes. She evaluated production quality, assisted in
packaging the finished product, and lifted boxes that weighed from fifteen to
thirty pounds boxes throughout the day . She also spent about two hours per
. day on paperwork.
The claimant volunteered to perform maintenance work on all fourteen
presses during the 2007 Christmas shutdown . Her duties throughout the
shutdown period required extensive kneeling, crawling, and crouching as well
as raising and lowering her body in order to clean the machines . She testified
that her left knee began to feel sore and that she heard a loud "pop" and
experienced pain in her left kneecap while getting up from a kneeling position
on January 8, 2007. She informed her supervisor immediately and was sent to
St. Elizabeth Business Health Center.
The claimant testified that she had never been treated for left knee
problems before January 8, 2007 except for a viral infection about six years
earlier. Records from St. Elizabeth Business Health Center indicate that she
sought treatment on January 8, 2007 for intermittent pain in her left knee that
she rated at 3 on a scale of 10. She reported a gradual increase in left knee
pain while crawling and squatting at work, which grew worse when she walked
or bent the knee. She stated that the knee made a "crunchy" noise when she
walked. Dr. Kunkler conducted a physical examination that revealed signs of
mild tenderness in the anterior knee, more on the medial aspect, but no
bruising, abrasions, swelling, or effusion. He noted that the knee was stable
and that extension was normal but flexion was 60 degrees. Dr. Kunkler
diagnosed a work-related knee strain for which he prescribed pain medication
and recommended that she use a knee brace and work on range of motion as
her symptoms improved . He attributed the claimant's complaints to her work
activities and assigned restrictions .
Notes from a follow-up exam on January 15, 2007 indicated signs of
tenderness but no swelling in the pre-patellar bursa, signs of tenderness in the
patellar tendon, and limited range of motion. Flexion was 100 degrees. The
diagnosis remained a knee strain .
The claimant remained off work from January 9, 2007 through January
22, 2007, during which time the employer paid voluntary temporary total
disability (TTD) benefits. She returned to Dr. Kunkler on February 21, 2007, at
which time he noted signs of mild tenderness in the left anterior knee . Range
of motion and gait were normal, and the knee was stable. He diagnosed a knee
strain with persistent pain and possible PFS (patellofemoral syndrome) and
noted her wish to continue performing regular duty work.
Dr. Larkin began treating the claimant in March 2007 on referral from
Dr. Kunkler . His treatment notes indicate that she complained of experiencing
pain and catching in the left knee since January 8, 2007 but was unsure what
caused it. Physical examination of the left knee revealed signs of focal
tenderness medially as well as a positive McMurray's, Apley's, and flexion
compression medially, none of which were present in the right knee. Dr.
Larkin thought initially that she had torn the medial meniscus and ordered an
MRI. The radiologist's report noted a history of trauma with medial pain and
reported findings that included a lateral femoral condyle bone bruise,
patellofemoral degenerative changes, and a lateral subluxation of the patella.
Dr. Larkin's notes from March 21, 2007 indicate that the claimant
continued to complain of pain when ascending and descending stairs, kneeling,
squatting, and bending . He noted that the majority of the pain was
anteromedial and recorded findings of positive pain with flexion compression
past 120 degrees; an equivocal Apley's; and diffuse, non-specific pain with
McMurray's. He noted explaining to the claimant that she was "suffering from
patellofemoral [osteoarthritis] directly related to her job."
The claimant missed work from March 14 until April 29, 2007, during
which time her employer again paid TTD. Her condition continued to
deteriorate after she returned to work. Moreover, cortisone injections and
other conservative treatment failed to relieve her symptoms .
Dr. Larkin's findings on March 14, 2007 included pain with patella
compression and a positive flexion compression test but no true Apley's or
McMurray's. They remained the same as of July 30, 2007 . Noting the
duration of the claimant's symptoms and .the presence of "an underlying
recurrent patella subluxation pattern," he recommended arthroscopic surgery .
On September 28, 2007 Dr. Larkin performed surgical procedures on the
left knee to address patellar chondromalacial as well as an extensor
mechanism malalignment. His post-operative notes indicate that arthroscopic
surgery revealed and he repaired a focal osteochondral defect of the lateral
facet that extended onto the medial facet, which he described as being a "full
1 TABER'S CYCLOPEDIC MEDICAL DICTIONARY 395 (19TH ED. 2001) defines chondromalacia as
being a "[s]oftening of the articular cartilage, usually involving the patella.
thickness grade 3 change without exposed bone." In a separate procedure he
realigned the left patella and reconstructed the extensor mechanism.
Although the claimant's symptoms improved initially after the surgery,
they worsened over time and she did not return to work. In February 2008 Dr.
Larkin noted her complaint that her left knee pain had become nearly
unbearable . Yet, the post-operative MRI "looked absolutely fantastic ." He
recommended that she see a neurologist for pain management.
Dr . Burger saw the claimant in March 2008 concerning complaints of
sharp and throbbing pain that she rated at six out of a possible ten. He
compared the pre- and post-surgical MRIs and conducted a physical
examination, which indicated that motion was good with moderate
patellofemoral clicking and that there was diffuse quadriceps atrophy. He
recommended physical therapy and a repeat course of anti-inflammatory
medication and possibly cortisone injections. If they failed, he suggested
viscosupplementation for treatment of the underlying degenerative condition.
In April 2008 Dr. Larkin noted a significant amount of patellofemoral
crepitus from forty to sixty degrees but an otherwise normal exam. He stated
that they would try viscosupplementation injections and recommended aquatic
therapy. A final note from June 2008 indicates that the injections failed to
help and -that the remaining option was pain management.
Dr. Wunder evaluated the claimant in June 2008 . He opined that she
had an acute onset of symptoms while kneeling at work, which substantially
aggravated the pre-existing chondromalacia and lateral subluxation in her
knee . He attributed her present symptoms to the injury at work, noting that
her medical records described the incident and that imaging studies verified
the presence of bone bruising, which would support the occurrence of "fairly
significant trauma to the knee." He did not think that she had reached MMI
unless treatment was discontinued, in which case she would be at MMI with a
permanent impairment rating of 7% .
Dr. Bender, an orthopedic surgeon, evaluated the claimant for the
employer in May 2008 . He identified patellofemoral abnormalities in both
knees. Although he noted that she appeared to have suffered a left knee sprain
or strain on January 8, 2007, he "[did] not believe the event resulted in a
harmful change in the human organism supported by objective medical
findings." Noting that the chronic degenerative changes shown on the March
2007 MRI would have existed before the January 2007 incident at work, he
opined that the incident did not necessitate the surgery performed by Dr.
Larkin and did not require further treatment. He considered the surgery and
present medical treatment to be appropriate medically but attributed the need
for them to the claimant's pre-existing degenerative changes and body habitus.
He stated that she could return to the work she performed before the January
2007 incident and required no additional treatment for its effects.
Dr. Bender was deposed in September 2008. When asked whether the
surgical treatment was reasonable, necessary, and related to "the episode she
described on January 8, 2007," he stated . that it was "appropriate to perform a
diagnostic arthroscopy" but that the procedure performed to adjust the
position of the claimant's patella addressed unrelated pre-existing conditions.
Noting that she was deconditioned, about eighty pounds overweight, had
bilateral patellofemoral disease, and significant valgus in both knees,2 he
stated that the positioning of her patella resulted from her body habitus and
not her work activities of January S, 2007 . He could not say whether the preexisting changes were more advanced in the left knee than in the right before
surgery was performed.
Dr. Bender disagreed with Dr. Wunder's opinion that the claimant had
reached ,MMI with respect to her left knee . He also took issue with the fact that
Dr. Wunder had assigned an impairment rating based on an antalgic gait,
noting that neither he nor Dr. Larkin or Dr. Burger found antalgia. He stated
that his evaluation showed "some suggestion of symptom embellishment."
testified that viscus supplementation injections, such as those Dr. Larkin
performed, are administered to repair the cartilage in arthritic joints and are
not performed for an acute injury.
When cross-examined, Dr. Bender stated that he found no clinical basis
to attribute a bone contusion to the January 2007 event because the claimant
had no external trauma as a result of the event. He considered the MRI
findings to be more consistent with a stress reaction due to the claimant's
underlying arthritic changes. He acknowledged that nothing in the medical
records suggested she had ongoing symptoms in her left knee before the
2 TABER's at 2206 indicates that valgus is a deformity "in which the most distal
anatomical part is bent outward and away from the midline of the body" and gives
knock knee as an example.
incident at work. He stated that he did not consider her work activities on
January 8, 2007 to be "traumatic" and that arising from a kneeling position did
not support the acute onset of symptoms in the knee . Dr. Bender
acknowledged, however, that a strain or sprain is an-injury and can cause an
arthritic condition to be symptomatic if it is severe enough.
When asked how he accounted for the sudden presence of a symptomatic
condition in the left knee after the work-related event, Dr. Bender testified that
the claimant had a "smoldering" knee condition ; "crossed the threshold of some
disability ;" and sought treatment "for what appears to be chronic degenerative
changes ." He stated that he could identify on the initial MRI scan "no
significant injury or traumatic earmarks related to the event of January 8,
2007 ." He acknowledged that it was the only event in her recent history that
could account for the onset of symptoms but stated on re-direct examination
that he could not explain the MRI finding of a bone bruise short of direct
trauma to the posterolateral aspect of the left knee.
The employer submitted the report of a physical capacity evaluation
conducted by Rick Pounds on August 15, 2008. Pounds indicated that no
physical demand level could be estimated because the claimant refused to
participate in most of the evaluation . He noted behavior consistent with
symptom magnification and recommended that issues of secondary gain be
The employer paid all of the claimant's medical bills until the surgery.
As listed by the parties, the contested issues included causation, the extent
and duration of disability, pre-existing impairment, and the employer's liability
for further medical treatment. The employer raised three major arguments.
First, the employer asserted that the claimant suffered from a bilateral
degenerative knee condition before the January 2007 incident and failed to
prove that she sustained a work-related injury. The employer argued that KRS
342.0011(1) requires work to be the proximate cause producing a harmful
change in the human organism; thus, symptoms that arise at work but result
from a non-work-related condition are not compensable .3 The employer also
argued that medical records from the day of the alleged injury contained no
objective medical findings to document a harmful change .
Second, the employer asserted that the claimant's work caused no more
than a temporary aggravation of her non-work-related condition and, thus, that
it was liable for no more than temporary medical benefits.4 The employer
argued that the surgery and proposed therapy related to the underlying
degenerative condition rather than the effects of the January 2007 incident.
Third, the employer argued that the record contained no credible
evidence that the January 2007 incident produced a permanent impairment
rating. The argument focused on attacking Dr. Wunder's finding of an antalgic
gait, which formed the basis for the impairment rating he assigned.
The ALJ found Dr. Bender to be most credible with respect to causation.
Relying on his opinion that the objective medical findings established only the
3 Pierce v. Kentucky Galvanizing Co. Inc., 606 S.W.2d
Robertson v. UPS, 64 S .W .3d 284 (Ky. 2001).
165 (Ky. App . 1980).
presence of abnormalities in the claimant's knee that resulted from her body
habitus, the .ALJ determined that she did not sustain an injury as defined in
KRS 342.0011(1) . The ALJ noted that the claimant may have suffered some
temporary pain while working but that no evidence, showed her work aroused
the underlying knee condition into disabling reality. Noting that the treatment
notes through February 21, 2007 contained "no objective medical findings" but
did contain a diagnosis of knee strain, the ALJ found that the employer was
not responsible for medical expenses incurred after that date and attributed
the need for surgery entirely to the pre-existing, non-work-related condition .
Neither party petitioned for reconsideration or requested any specific findings .
The Board reversed the decision, holding that the evidence compelled a
finding that the claimant sustained a work-related injury that resulted from the
arousal of the pre-existing dormant degenerative condition into disabling
reality. The Board also determined that Dr. Bender's testimony compelled an
award for all of the ,medical expenses incurred in treating the claimant's left
knee because not only did he testify that she sustained a work-related sprain
or strain on January 8, 2007, he acknowledged that no other event would
account for her subsequent problems. Convinced that the claimant failed to
prove a permanent impairment rating from the injury, the Board determined
that the ALJ did not err in failing to award permanent income benefits. The
Court of Appeals affirmed .
The employer continues to assert that the Board usurped the ALJ's role
as fact-finder by determining that the claimant sustained a permanent work-
related injury. Characterizing the ALJ's finding inaccurately, the employer
reasons that substantial evidence supported the finding that the claimant
sustained a work-related left knee strain for which TTD and medical benefits
were payable only through February 21, 2007, when she was released to return
to work without restrictions . What the ALJ found, however, was that the
claimant "did not sustain an injury as defined under the Act" and that "[t]here
was no evidence of an arousal of the conditions of Plaintiffs knee into disabling
Contrary to the employer's assertion, the evidence compelled a finding
that the claimant sustained a work-related injury, i.e., a work-related harmful
change in the human organism . Although KRS 342 .285 designates an ALJ as
the finder of fact, a finding that is unreasonable under the evidence may be
reversed on appeal. 5 Although the findings were minimal, this is not a case in
which no objective medical findings supported the claimant's complaints of
experiencing knee pain when arising on January 8, 2007 after kneeling,
crawling, and crouching while cleaning machinery. 6 On the day of the injury
Dr. Kunkler noted tenderness in the anterior knee and noted that flexion of the
knee was 60 degrees although extension was normal, attributing the findings
"to work activities ." Subsequent treatment notes document additional objective
medical findings that Dr. Kunkler and Dr. Larkin attributed at least in part to
$ Lizdo v. Gentec Equipment, 74 S.W.3d 703, 705 (Ky. 2002); Special Fund v. Francis,
708 S.W.2d 641, 643 (Ky. 1986) .
6 Dr . Bender's statement to the contrary was a medical opinion. What constitutes an
objective medical finding for the purpose of proving a harmful change in the human
organism under KRS 342 .011(1) and (33) is a legal question.
the activity required by the claimant's work. Even Dr. Bender concluded from
the initial treatment notes that she sustained a knee strain or sprain on
January 8, 2007 and admitted that a strain or sprain was an injury.
Although the ALJ found Dr. Bender to be more credible than the other
medical experts, we agree with the Court of Appeals that to believe the strain or
sprain that occurred on January 8, 2007 had no connection to the persistent
knee problems that culminated in surgery "strains credulity." Dr. Bender
insisted that the claimant's symptoms and surgery related solely to her preexisting knee condition, but he admitted that her bilateral knee condition was
"smoldering" before January 8, 2007 and that a strain or sprain, if severe
enough, can cause an arthritic condition to become symptomatic. He
described the event that occurred on January 8, 2007 as rising from a kneeling
position, failing to consider that she had also been engaged in extensive
kneeling, crawling, and crouching. Although he stated that the surgery was
not "necessitated" by the event he described and although he did not consider
the event to be "traumatic," 7 he acknowledged that it was the only event in her
recent history to account for the sudden onset of symptoms .
Drs. Kunkel and Larkin considered all of the activities the claimant
performed on January 8, 2007 . Dr. Kunkel characterized her initial symptoms
as being work-related and Dr. Larkin attributed her ongoing problems and the
need for surgery to the effects of "her work activities ." Considered as a whole,
7 Dr. Bender expressed a medical opinion. A traumatic event for the purposes of
Chapter 342 includes even imperceptible minitrauma . See Alcan Foil Products v.
Huff, 2 S.W .3d 96 (Ky. 1999).
the evidence compelled a finding that the work-related activities caused more
than a temporary knee strain that resolved by February 21, 2007 . It compelled
a finding that they aroused the claimant's pre-existing dormant knee
conditions, causing symptoms that persisted and culminated in surgery. Thus,
disputed medical expenses are compensable .
Dr. Wunder based the permanent impairment rating that he assigned on
an antalgic gait. The ALJ noted specifically that no other physician reported
such a gait and noted earlier, when reciting the evidence, Dr. Bender's
statement that she did not have antalgia. Thus, we agree with the Board and
the Court of Appeals that the ALJ rejected Dr. Wunder's testimony implicitly.
The decision of the Court of Appeals is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT/ CROSS-APPELLEE,
BETTS USA, INC . :
Stephanie Dawn Ross
Ferreri & Fogle, PLLC
7000 Houston Road
Building 300, Suite 26
Florence, KY 41042
COUNSEL FOR APPELLEE/CROSS-APPELLANT,
Michael J. Schulte, PLLC
301 Artillery Park Drive
Ft. Mitchell, KY 41017