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RENDERED: JUNE 16, 2016
NOT TO BE PUBLISHED
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2015-SC-000426-WC
REM COMPANY, INC.,
D/B/A ARTICLEAN APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2014-CA-001838-WC
WORKERS' COMPENSATION NO. 11-74810
ROBERT CUMMINS;
HONORABLE R. SCOTT BORDERS,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, REM Company, Inc., d/b/a Articlean ("REM"), appeals a
decision of the Court of Appeals which affirmed a Workers' Compensation
Board ("Board") opinion and Administrative Law Judge's (ALJ) opinion and
award which granted workers' compensation to Appellee, Robert Cummins.
REM argues that the ALJ erred by not applying the direct and natural
consequences rule in this matter and that Cummins's claim should have been
barred. For the below stated reasons, we affirm the Court of Appeals.
Cummins has a history of back injuries. In 2004, he was hit in the back
and developed a bone spur. Dr. Timothy Kriss performed a two-level, left-
sided, unilateral L4/L5 and L5/S1 discectomy surgery. The surgery was
successful and Cummins suffered no ongoing symptoms. He was released to
work with no restrictions.
In 2009, while working for REM, Cummins suffered a work-related injury
while lifting. He was diagnosed with a right-sided L4/L5 disc herniation. Dr.
James Bean performed a right L4/L5 lumbar discectomy. Again, the surgery
was successful and Cummins was released to work with no restrictions.
Cummins entered into a workers' compensation settlement with REM for the
injury which included a waiver of his rights to future medical benefits.
The injury which is the focus of this appeal occurred in June 2011, while
Cummins was on a work-related trip to install ozone units in Nevada and
California. Cummins stated that while pulling on a unit which shifted while
being delivered, Cummins felt pain in his low back. Cummins initially did not
feel much discomfort, but as the trip continued the pain worsened. Cummins
was unable to drive the company truck and had to recline his seat to obtain
some 'relief from his discomfort. He said the pain emanated in his low back
and left buttocks which radiated down his left leg when he coughed.
In August 2011, Cummins was seen by Dr. Bean who diagnosed him
with a recurrent disc herniation. Dr. Bean took Cummins off of work and
recommended he undergo surgery. Cummins filed for workers' compensation
in November 2011.
The ALJ bifurcated the claim to first determine whether Cummins had
suffered a work-related injury and whether the proposed surgery was
2
compensable. As a part of the claim, Cummins testified that he began to
experience back pain while on the trip to Las Vegas and California. He also
testified that he did not experience pain from one particular event or direct
trauma, but as he was putting an ozone unit on the wall he felt a "good twitch"
and a burning sensation.
Cummins submitted the report of Dr. Bean to support his claim. Dr.
Bean concluded that Cummins's current injury was unrelated to his 2009
injury. Dr. Bean noted that the 2011 injury is on Cummins's left side and his
2009 injury was on the right side. Dr. Bean admitted that Cummins's 2004
surgery was also on the left side, but pointed out he was symptom free from
that surgery prior to 2011. Additionally, Cummins's physical labor during the
trip consisting of lifting ozone units led Dr. Bean to conclude the current
herniation is work-related.
REM rebutted the claim by arguing that Cummins was actually
symptomatic from his 2009 injury at the time of the alleged 2011 injury. REM
noted that Cummins had to take work breaks to relieve discomfort on long
trips and that he took Ibuprofen for progressive lumbar spine pain. REM filed
the report of Dr. Daniel Agnew who believed there was no indication Cummins
sufferpd a new injury. Instead, Dr. Agnew believed Cummins's symptoms are
related to the 2009 injury. A report from Dr. Kriss was also filed. He stated
that if the history he heard regarding Cummins's alleged injury is true, then
his condition is work-related.
3
In an interlocutory opinion and order, the ALJ found that Cummins
suffered a new work-related injury to his lumbar spine in 2011. He relied on
Dr. Bean's report and Cummins's own testimony to conclude the injury
occurred while lifting ozone units during the work-related trip. The ALJ
ordered REM to pre-certify the surgery which was performed by Dr. Bean.
REM filed a petition for reconsideration of the interlocutory opinion and
order. In support, REM submitted the testimony of several of Cummins's co-
workers who went on the trip to California and did not remember him
exhibiting any pain or discomfort. One individual observed Cummins bowling
and riding go carts during the trip. A new report from Dr. Kriss was also filed
where he stated that he changed his mind regarding the nature of Cummins's
injury_ He now concluded that the injury is degenerative and not work-related.
The ALj denied the petition.
Prior to the final hearing, Dr. Bean provided additional testimony. He
still believed that Cummins's injury was work-related and was distinct from the
2009 injury. In response to the testimony of Cummins's co-workers, Dr. Bean
stated that it was quite possible that Cummins could have engaged in physical
activities on the trip after the injury because a herniated disc does not always
cause immediate symptoms. It may begin as a low-grade, nagging pain. He
admitted that degenerative changes to Cummins's spine could have
contributed to the new injury. He attributed 25% of Cummins's 2011 injury to
the 2004 surgery, 25% to the 2009 surgery, and 50% to the injury itself. Dr.
4
Bean concluded Cummins had a 10% pre-existing, active impairment at the
time of the 2011 injury.
After a review of the evidence, the ALJ again concluded that Cummins
suffered a new work-related injury to his back while lifting an ozone unit in
2011. He awarded Cummins temporary total disability benefits, medical
benefits, and vocational rehabilitation. Permanent partial disability benefits
were also awarded based on a 21% functional impairment rating.
REM filed a petition for reconsideration requesting that the AU consider
the direct and natural consequence rule and provide further fact finding
regarding the vocational rehabilitation benefits.' The ALJ denied the petition,
but did enter an order correcting several typographical errors. In regards to
the direct and natural consequence rule, the ALJ stated:
The [ALJ] acknowledges the fact that Dr. Kriss changed his
opinion in regards to the issues of causation but does not find his
testimony persuasive. In fact, it appears Dr. Kriss based his
opinion on the lay witnesses presented by [REM] whose testimony
the [ALJ] found to be inconsistent and not credible. The [ALJ] has
found [Cummins's] story of how he injured himself to have been
consistent throughout his deposition testimony and his hearing
testimony presented in front of the undersigned ALJ on two
separate occasions.
In addition, the [ALJ] has reviewed Dr. Bean's testimony
once again and believes that his testimony was sufficient to enable
[Cummins] to meet his burden of proving that he suffered an
injury as defined by the Act sufficient enough to entitle him to
permanent partial disability benefits. Dr. Bean clearly believes
that the incident at work necessitated the need for his most recent
surgeries and resulted in his current disability. While Dr. Bean
acknowledged that [Cummins] had some prior active back
problems he did not attribute his current condition to that pre-
existing active condition.
1 REM has not appealed the award of vocational rehabilitation benefits to this Court.
5
Further, the [ALJ] did not find the lay testimony presented
by [REM] to be credible or persuasive. As mentioned in the opinion
and award, the ALJ believes that the timing of the presentation of
this testimony is somewhat tenuous and appears to have been
presented solely in attempts to set aside the interlocutory findings
of the undersigned. The [ALJ] simply did not believe that this
testimony was persuasive or credible.
REM appealed to the Board. In affirming the ALJ, the Board stated:
To the extent REM argues the ALJ did not adequately
address its argument based on the 'direct and natural
consequences rule,' we disagree. In the June 9, 2014 Order on
Reconsideration, the ALJ specifically acknowledged this argument
and reiterated his belief that a new work injury had occurred, and
his reliance on Dr. Bean's opinion for this finding. In determining
a distinct injury occurred, the ALJ implicitly rejected the argument
that Cummins'[s] condition flowed directly from the 2009 injury.
Upon review of the ALJ's interlocutory and final orders in this case,
,we are convinced he completely grasped REM's theory of the case
and rejected it. Furthermore, he sufficiently stated his reasoning
and the evidence upon which he relied in reaching this conclusion.
The Court of Appeals also affirmed and this appeal followed.
The Board's review in this matter was limited to determining whether the
evidence is sufficient to support the ALJ's findings, or if the evidence compels a
different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992)
Further, the function of the Court of Appeals is to "correct the Board only
where the Court perceives the Board has overlooked or misconstrued
controlling statutes or precedent, or committed an error in assessing the
evidence so flagrant as to cause gross injustice." Id. at 687-88. Finally, review
by thi's Court "is to address new or novel questions of statutory construction,
or to reconsider precedent when such appears necessary, or to review a
question of constitutional magnitude." Id. The ALJ, as fact-finder, has the sole
discretion to judge the credibility of testimony and weight of evidence.
6
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). Similarily, the
Al.,J has the sole authority to judge all reasonable inferences to be drawn from
the evidence. Miller v. East Kentucky Beverage/ Pepsico, Inc., 951 S.W.2d 329
(Ky. 1997). The ALJ may reject any testimony and believe or disbelieve various
parts of the evidence, regardless of whether it comes from the same witness or
same adversary party's total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky.
2000).
REM argues that the direct and natural consequence rule should be
applied in this matter to bar Cummins's workers' compensation claim. The
direct and natural consequence rule states that "a subsequent injury, whether
an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary
injury." Addington Resources, Inc. v. Perkins, 947 S.W.2d 421, 423 (Ky. App.
1997) quoting Larson's Workers' Compensation Law §13.11 (1996). In other
words,, "[w]hen the primary injury is shown to have arisen out of and in the
course of employment, every natural consequence that flows from the injury
likewise arises out of the employment" and is compensable. 1 Larson's
Workers' Compensation Law §10 (2004). Presumably REM makes this
argument because if the 2011 injury flowed from the 2009 injury then the
settlement agreement entered into by Cummins would prevent this workers'
compensation award.
The direct and natural consequences rule is not applicable in this case.
The ALJ clearly stated that, based on Dr. Bean's opinion, Cummins's 2011
injury is different from his 2009 injury. He also believed Cummins's testimony
that he experienced pain while lifting an ozone unit while on the work-related
trip, which supports a finding that an injury occurred. Even if the 2009 injury
made Cummins more susceptible to future injuries, the fact that the ALJ found
the 2011 injury was a new and distinct work-related injury, means the
settlement agreement waiver does not apply as a matter of law. The ALJ was
within his discretion to rely on that evidence, and his conclusion that the direct
and natural consequences rule does not apply is supported by the record.
For the reasons stated above, we affirm the decision of the Court of
Appeals.
All sitting. All concur.
COUNSEL FOR APPELLANT,
REM COMPANY, INC.,
D/B/A ARTICLEAN:
Diniel J. Urbon
COUNSEL FOR APPELLEE,
ROBERT CUMMINS:
Charles William Gorham