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NOT TO BE PUBLIS HED OPINION
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RENDERED : JUNE 25, 2009
NOT TO BE PUBLISHED
sUYrrxrrr Caurf of ~r
2008-SC-000767-WC
I 11 Wo2-LCt~-L~lahu-a.c.
CLARENCE HICKS APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2007-CA-002609-WC
WORKERS' COMPENSATION BOARD NO. 06-78469
R & J WELL SERVICE; HONORABLE CHRIS
DAVIS, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) awarded the claimant a period of
temporary total disability (TTD) and medical benefits for a temporary
exacerbation of a pre-existing back condition but dismissed the claim for
permanent income and medical benefits, including benefits for a proposed
surgery. The Workers' Compensation Board affirmed the ALJ . A divided Court
of Appeals affirmed.
We affirm . Although the Court of Appeals' dissent viewed this claim as
being for a gradual work-related injury, the claimant did not allege such an
injury. He alleged an injury from a specific work-related incident on August
18, 2006, that produced permanent impairment and precipitated the need for
surgery . The ALJ's decision that the incident caused no permanent harm was
reasonable under the evidence and properly affirmed .
The claimant was born in 1965 and completed the 9th grade. He worked
as a laborer in a slaughterhouse until 1997 or 1998, when the defendant-
employer hired him to work as a rig operator. His application for benefits
alleged that he injured his back, shoulders, arms, head, and legs on August
18, 2006, while lifting and moving a well head that weighed about 150 pounds .
The employer admitted that the alleged injury "occurred or became disabling on
August 18, 2006." It accepted the claim "as a temporary exacerbation of a pre-
existing condition" but denied that the incident caused a permanent
impairment rating.
The claimant testified that he lifted the well head from a truck on August
18, 2006, and fell to his knees in pain as he turned while holding it. Unable to
finish his shift, he was taken to the hospital and later referred to Dr. Potter, his
family physician . The claimant admitted that Dr. Potter treated him for
intermittent low back and leg pain for about one year before the incident; that
he ordered an MRI and nerve conduction study; and that he took him off work
for one or two days in early August 2006 due to back and leg pain . He did not
recall the medication that Dr. Potter prescribed but testified that it changed
after the injury at work. He stated that Dr. Potter referred him to Dr. Bean,
who recommended surgery. The claimant testified that he worked up to eighty
hours per week before the injury but that increased pain after the injury
prevented him from working.
An August 21, 2006, treatment note from Dr. Potter indicated that the
claimant reported the incident at work and complained that he had been
unable to work due to back, shoulder, and arm pain . Dr. Potter diagnosed
acute lumbosacral pain that radiated into the right leg and acute cervical pain
that radiated into the right arm. He took the claimant off work and ordered
medication, physical therapy, and a lumbar MRI .
A Form 107 indicates that the claimant gave Dr. Potter a history of
experiencing intermittent low back pain for two to three years before the injury .
Dr. Potter treated such complaints in February, May, July, and August 2006,
before the injury. The claimant reported that he missed a few days of work
during that period but denied missing more than a week at a time. He
underwent an MRI that revealed a right L5-S 1 disc protrusion in July 2006 and
a nerve conduction study that was normal early in August 2006 . Dr . Potter
noted that he recommended a neurosurgical evaluation by Dr. Bean on August
7, 2006, but that Dr. Bean did not see the claimant until after the injury.
Dr. Potter attributed the claimant's present complaints to his injury,
explaining that they resulted from years of cumulative trauma and repetitive
strain in his work. The lower back symptoms manifested gradually at work
early in 2006 and the August 18, 2006, injury was superimposed on the pre-
existing, work-related L5-S 1 disc herniation, severely exacerbating it . Dr. .
Potter assigned a 13% permanent impairment rating, stating that no active
impairment existed before the injury. In his opinion, the claimant lacked the
physical capacity to return to the type of work performed on the date of injury.
He stated in an addendum that the claimant had not reached maximum
medical improvement (MMI) because he had not undergone the surgery that
Dr. Bean recommended or exhausted all reasonable therapeutic interventions
such as epidural injections .
Dr. Bean began to treat the claimant's back condition on September 25,
2006 . When he failed to improve with conservative treatment, Dr. Bean
recommended surgery to repair an L5-S 1 disc herniation and relieve the right
hip and leg pain. A letter to the employer's claims examiner dated December 7,
2006, indicates that he agreed with Dr. Jenkinson that there was some
symptom magnification, but he disagreed that the claimant had reached MMI
from the work-related injury with no permanent impairment. A supplemental
report indicated that the claimant's permanent impairment rating was 10%
presently but that he was not at MMI because he continued to experience back,
right hip, and right leg pain. Absent the recommended surgery, he would be
restricted to light duty.
When deposed by the claimant, Dr. Bean stated that the August 18,
2006, injury aroused a pre-existing condition that was evident on the pre-
injury MRI scan. He acknowledged that the claimant missed some work before
the injury due to back pain but noted that he was able to continue to work
until after the injury. He explained that the claimant did not experience the
type of pain that corresponded to the MRI finding until after the injury. Thus,
he thought that the injury caused the disc to protrude further and put
sufficient pressure on the nerve to cause the pain and warrant surgery.
Dr. Bean stated on cross-examination that the back condition was active
before the injury because the claimant had undergone diagnostic studies since
2001 for back pain, but it was non-disabling because he was working.
Moreover, it was dormant in the sense that the right leg pain was not constant.
He acknowledged that the report of the nerve conduction study noted a few
months' history of pain and paresthesia down the right leg to the foot. When
asked about the amount of active impairment that existed before the injury, he
responded that it depended on the extent and duration of his leg pain. He
explained that the claimant would have warranted a 10% pre-injury
impairment rating if he had radiculopathy, even if he was able to work.
Although he would have warranted a 5% pre-injury impairment rating if he had
only back pain or if he had leg pain that lasted a brief period before subsiding,
he would have warranted a 10% rating if the leg pain lasted three to six months
(i.e., if it became chronic) . Dr. Bean testified on re-direct examination that the
10% impairment rating would be divided equally if the claimant had only
intermittent back and leg pain before the injury but constant pain thereafter .
Dr . Templin evaluated the claimant for his attorney in February 2007 .
He noted that Dr. Potter's records showed complaints of back and right leg pain
that dated to March 2001 and that treatment did not resume until five years
later in February 2006 . Dr. Templin diagnosed chronic low back pain, disc
herniation at L5-S 1, disc desiccation at L4-5, and right leg radicular
symptoms. He stated that the injury of August 18, 2006, exacerbated the pre-
existing lumbar disc herniation with radicular symptoms, noting that the
claimant was able to work despite the herniation until the incident at work.
Nonetheless, he apportioned the entire 8% impairment rating to "an active and
symptomatic preexisting lumbar disc herniation ." He imposed extensive
restrictions and stated that the claimant lacked the physical capacity to return
to the type of work performed at the time of the injury.
Dr. Jenkinson evaluated the claimant for the employer in November
2006 . He agreed with Dr. Bean that the MRI revealed an abnormality at L5-S l ;
however, he interpreted the test as showing degenerative changes but no
significant disc herniation . He noted that the claimant's symptoms were
diffuse rather than the specific symptoms that would be expected from a small
herniation at L5-S 1 on the right. In his opinion, the claimant showed excessive
pain behavior and signs that were consistent with symptom exaggeration . He
assigned a 0% impairment rating to the injury and stated that the claimant
could return to work without restrictions .
Dr. Best reviewed the claimant's medical records for the employer, noting
the history of pre-injury complaints . He also noted that the emergency room
records from August 18, 2006, refer to back pain experienced at home a day
earlier but fail to mention increased pain from a work-related injury. He
concluded that the incident at work caused at most a temporary exacerbation
of the pain . Although he assigned a 5% permanent impairment rating, he
attributed it entirely to a pre-existing active condition rather than the injury.
The parties preserved the following contested issues : extent and
duration of disability; pre-existing active condition; compensability of surgery;
interlocutory medical and temporary total disability (TTD) benefits; and date of
MMI . The ALJ noted in a statement before the hearing that the claim was
being bifurcated and that the parties wanted to be certain to include "injury as
defined by the Act" among the contested issues . Counsel for both parties
agreed .
After reviewing the evidence, the ALJ noted that the primary question to
be resolved was whether the incident on August 18, 2006, exacerbated the pre-
existing back condition and precipitated the need for surgery. The ALJ
determined that the claimant's back condition existed before August 18, 2006,
and that he failed to prove more than a temporary exacerbation of the
condition. The ALJ based the decision on Dr. Jenkinson's report, Dr. Bean's
testimony acknowledging the existence of a pre-existing condition, the absence
of an objective change of condition on diagnostic testing, and the fact that Dr.
Potter recommended a neurosurgical consultation before the injury occurred .
The ALJ concluded as follows:
[T]he ALJ will determine that Hicks [sic] condition is a
pre-existing active condition. Hicks has failed to carry
his burden of showing that the work-related temporary
exacerbation resulted in any permanent impairment or
need for permanent medical treatment . His injury is
not work-related and his claim is dismissed .
The ALJ awarded TTD benefits as paid voluntarily and also awarded medical
benefits for "the effects of the temporary exacerbation to the low back injury,"
specifically excluding the recommended surgery.
The claimant's petition for reconsideration asserted that a fair reading of
Dr. Bean's testimony left no doubt that the work-related injury caused an
increase in symptoms and the need for surgery. He requested additional
findings regarding the decision to characterize his entire permanent
impairment as a pre-existing, active condition. He also asserted that the
decision contained a patent error regarding the conclusion that his injury was
not work-related. The ALJ denied the petition and the claimant appealed .
A divided Court of Appeals affirmed, with a concurring opinion
characterizing the result as being draconian but required by the Workers'
Compensation Act. A dissenting opinion stated that the claimant suffered a
gradual injury and took issue with the majority's "unbending adherence to the
deference owed the ALJ," which reduced the substantial evidence test "to a
mere 'scintilla of evidence' test." The claimant appeals.
Relying on the concurring and dissenting opinions, the claimant argues
that this case presents an opportunity for the court to reconsider precedent
regarding active versus dormant impairment disability. He also complains that
Chapter 342 requires an ALJ's decision to be affirmed if even a scintilla of
evidence supports it. He argues that Dr. Bean's uncontradicted testimony
compelled a finding that at least a portion of his disability was compensable ;
that Dr. Jenkinson's testimony did not support the ALJ's refusal to apportion
his permanent impairment rating; and that substantial evidence did not
support the decision to deny the requested surgery. We disagree .
Only reasonable findings of fact may be affirmed on appeal.' The
claimant did not allege a gradual work-related injury that became manifest on
August 18, 2006, although Dr. Potter's report would have supported such an
allegation. Thus, authority concerning multiple injuries or a gradual injury is
inapplicable . The claimant alleged an injury that occurred in a specific work-
related incident on August 18, 2006. He maintained that the incident resulted
in permanent impairment and precipitated the need for surgery. Having
reviewed the evidence, we conclude that the ALJ's decision to the contrary was
reasonable and properly affirmed .
All of the physicians, including Dr. Bean, acknowledged the existence of
a degenerative back condition and herniated L5-S 1 disc before the August 18,
2006, incident occurred. Dr. Bean's reports and direct examination attributed
a worsening of the herniated disk, a change in the type of pain, and the need
for surgery to the incident at work, but his testimony on cross-examination
failed to indicate clearly that the injury caused a permanent change in the
claimant's impairment. Dr. Bean acknowledged on cross-examination that any
impairment due to leg pain would have been active if the claimant experienced
chronic symptoms in his leg before the injury. Although the claimant testified
that his leg pain was only intermittent before the injury and worsened after the
injury, nothing required the ALJ to rely on his testimony. 2 Dr. Potter's pre-
1 Special Fund v. Francis , 708 S.W.2d 641, 643 (Ky. 1986) .
2 Grider Hill Dock, Inc . v. Sloan, 448 S.W .2d 373 (Ky. 1969) (even the uncontradicted
testimony of an interested witness does not bind the fact-finder) ; Bullock v. GaV ,
296 Ky. 489, 177 S.W.2d 883 (1944) .
injury treatment notes from February, May, July, and August 2006 refer to leg
pain as well as back pain. Moreover, he considered the symptoms to be
serious enough to warrant an MRI and nerve conduction studies and to refer
the claimant to Dr. Bean although the actual appointment did not occur until
after the injury. Considered together with testimony from Drs. Potter, Templin,
Jenkinson, and Best, Dr. Bean's testimony did not compel a finding that the
incident on August 18, 2006, caused a permanent harm that warranted
permanent income or medical benefits, including the proposed surgery.
Testimony from Drs . Templin, Jenkinson, and Best supported a conclusion
that the incident caused a temporary exacerbation of the pre-existing condition
but no permanent harm.
The ALJ awarded income and medical benefits based on a conclusion
that the work-related incident caused a temporary exacerbation of the
claimant's pre-existing back condition. After determining that the claimant
failed to show that the incident caused any permanent impairment or need for
permanent medical treatment, the ALJ stated, "His injury is not work-related
and his claim is dismissed ." When read in context, the latter statement
appears to be no more than an inartful attempt to summarize the findings that
the claimant's non-work-related back condition existed before August 18,
2006, and that he failed to show any permanent work-related injury . Thus, the
ALJ dismissed the claim for permanent income and medical benefits.
The decision of the Court of Appeals is affirmed .
All sitting. All concur.
10
COUNSEL FOR APPELLANT,
CLARENCE HICKS:
Thomas Wayne Moak
Moak 8s Nunnery, PSC
P .O. Box 510
Prestonsburg, KY 41653
COUNSEL FOR APPELLEE,
R & J WELL SERVICE:
James Gregory Allen
Katherine Michelle Banks
Riley 8v Allen, PSC
106 West Graham Street
P.O . Box 1350
Prestonsburg, KY 41653