Opinion
No. 2001-CA-000999-WC.
February 22, 2002.
Petition for Review of a Decision of the Workers' Compensation Board, Action No. WC-98-75268.
Jackson W. Watts, Bradly F. Slutskin, Versailles, Kentucky, Brief for Appellant.
Norman E. Harned, Amanda Anderson Young, Bowling Green, Kentucky, Brief for Appellee.
Before BARBER, McANULTY, and SCHRODER, Judges.
OPINION
The Appellant, Arlin Scott ("Scott"), appeals from an opinion of the Workers' Compensation Board, affirming the ALJ's award of permanent partial disability for a 1998 neck injury. On appeal, Scott contends that the ALJ should have considered his prior active occupational disability attributable to work-related, but time-barred, injuries. We agree, and reverse and remand for further findings in that regard.
Scott, born January 16, 1939, has an eighth grade education and two years of vocational school in the area of general electrician. He worked for the Appellee, Fruit of the Loom ("the employer"), for nearly forty years. On June 5, 1998, Scott injured his neck pulling wire from a ceiling. As a result of this injury, Scott was paid temporary total disability benefits ("ttd") from June 16, 1998 through December 22, 1998. He did not return to work.
Prior to June 1998, Scott sustained several low back injuries at work. He testified that he had injured his low back when he picked up a motor that weighed about 70 pounds while working in the knitting department. Scott could not recall the date of that injury; however, records from the Department of Workers' Claims, filed as evidence by the employer, reflect that Scott had injured his back on April 24, 1980 and that he was paid 2 3/7 weeks ttd. Scott underwent low back surgery performed by Dr. Macon in 1980.
On October 5, 1984, Scott sustained another injury to his low back while lifting a motor. Scott drew workers' compensation benefits as a result of the injury, but explained that he never made a settlement for this or any prior low back injury. The records filed by the employer reflect that Scott received 19 2/7 weeks ttd as a result of the 1984 injury. Scott again injured his back at work on September 12, 1990, while changing the motor on an oscillation fan. He underwent surgery again, and was off work until the following May. Records filed by the employer reflect that benefits paid for this injury were terminated as of May 28, 1991.
On November 22, 1999, Scott filed a motion to amend his claim to include the injuries of October 5, 1984 and September 12, 1990. By order entered December 9, 1999, the ALJ denied the motion, having determined that any claim for those two injury dates was untimely filed under KRS 342.185.
Scott was treated for the subject June 1998 neck injury by Dr. Jelsma. An MRI revealed spinal stenosis at C5-6 with buckled ligamentous flavum posteriorly and spur anteriorly with cord compression. On June 30, 1998, Dr. Jelsma performed a decompressive cervical laminectomy at C5 and 6. Dr. Jelsma initially assigned a 10% impairment to the body, as a whole, which he increased to 20% according to his October 1, 1999 treatment note.
Dr. Jerold Friesen evaluated Scott on August 10, 1999. His report reflects:
The patient is a 60 year old, white male who is seen for evaluation of his neck and back. The patient relates that he has worked at Fruit of the Loom for several years and has had multiple injuries concerning his lower back and neck region. He in approximately 1979 while working as an electrician at Fruit of the Loom developed lower back pain when he lifted and twisted lifting a motor. . . . In 1984, he was lifting a motor on October 5, when he developed low back and left leg pain that was severe. . . . Dr. Macon . . . subsequently performed disc surgery at L5-S1 on October 25. He states that he did well postoperatively but still had some weakness in the left leg. . . . In 1990, he twisted his back while working. He was changing a motor and developed a sharp pain in his lower back. . . . [He] underwent surgery again on October 8, 1990. Operative reports reviewed reveal an extruded fragment at L5-S1 that was removed. . . . He continued to work but weakness in his left foot was present with dorsiflexion, and he noted significant atrophy of his lower leg on the left. He also had a numbness in the outer side of the left leg below the knee into his foot . . . .
[Examination of the] . . . lower back reveals midline scar with mild tenderness in the paraspinal musculature. He has sixty degrees of flexion, twenty degrees of lateral bending right and left thirty degrees of rotation. He is noted to have symmetrical reflexes knee and ankle two plus. Straight leg raising is negative bilaterally. He has weakness of his left foot dorsiflexors and also some weakness in the left foot plantar flexors. Numbness is present in the left foot . . . as well as on the lateral aspect of the lower leg. Atrophy is noted in the left lower extremity
. . . .
[Dr. Friesen's impression was] Herniated nucleus pulposus L5-S1 left-surgical treatment in 1984 . . . . Recurrent disc herniation 1990 requiring surgical laminectomy and removal of extruded fragment
. . . .
Using the combined values chart, Dr. Friesen assigned 24% impairment to the body, as a whole, based upon the AMA guidelines. He attributed 15% to the June 1998 neck injury at work and the remaining 10% to Scott's low back condition — "I feel that he has a permanent functional impairment of ten percent to the lumbosacral region according to the AMA Guidelines with Category III DRE lumbosacral spine." Dr. Friesen assigned the 10% impairment: " 5% to the work injury of October 5, 1984" and "5% to the work injury of September 12, 1990". (Emphasis added.)
The employer presented the testimony of Luca Conte, Ph.D., a vocational rehabilitation counselor. Dr. Conte calculated a 23% occupational loss due to the effects of the 1998 neck injury, alone. According to Dr. Conte, Scott also had a substantial active occupational disability due to his prior low back problems at the time of his 1998 neck injury.
At the August 8, 2000 prehearing, the parties preserved the following issues to be decided by the ALJ: work-relatedness/causation, extent and duration, preexisting active, and credit for retirement plan. On October 30, 2000, the ALJ rendered an opinion, order, and award. He found that Scott suffered a work-related cervical injury on June 5, 1998. The ALJ was persuaded by Dr. Friesen's opinion that Scott had a 15% functional impairment due to his cervical injury. The ALJ calculated the disability rating pursuant to the 1996 version of KRS 342.730(1)(b) for permanent partial disability:
[T]he 15% functional impairment is multiplied by a factor of 1.5 yielding a permanent disability rating of 18.75%. Additionally, I am persuaded by the opinions of Drs. Friesen and Jelsma, as well as the Petitioner's testimony, that he cannot return to the type of work he was performing at the time of his injury and, accordingly, his weekly benefit shall be multiplied by the additional factor of 1.5.
The ALJ was " not persuaded that the Petitioner is permanently and totally disabled due to his neck condition." (Emphasis added.) The ALJ explained that Scott "suffered prior lumbar injuries, which are time-barred, and therefore non-compensable. Accordingly, it is not necessary to make a determination concerning occupational disability, if any, resulting from them."
On November 13, 2000, Scott filed a petition for reconsideration, arguing that the effects of the prior work-related injuries should have been considered. Scott cited Teledyne-Wirz v. Wilhite, Ky.App., 710 S.W.2d 858 (1986) for the proposition that preexisting (non-compensable) disability should be considered in determining whether there is total disability for the purposes of KRS 342.730(1)(a), but then should be excluded later in the apportionment process. By order of December 5, 2000, the ALJ denied Scott's petition for reconsideration, explaining that "KRS 342.730(1)(a) and (e), have eliminated `non work-related disabilities' in the determination of permanent total or partial disability."
Before KRS 342.730(1)(a) was amended in 1994, nonwork-related disability could be considered in the assessment of occupational disability under Teledyne, supra. In 1994, and as further refined by the 1996 changes to the Act, nonwork-related disability shall not be considered in determining total disability under the statute.
Scott appealed to the Board, and argued that the ALJ should have considered his prior work-related impairment in determining total disability. The Board affirmed the ALJ in an opinion rendered April 11, 2000. The Board explained that Teledyne, supra is not applicable where the ALJ determines that the claimant is only partially disabled, nor does it apply in those instances where the prior disability is determined to be nonwork-related citing KRS 342.730(1)(a) and (e). The Board stated that "[u]nfortunately, both of these issues were resolved adversely to Scott."
The Board noted that Scott had unsuccessfully sought to amend to include his prior low back injuries, which were held to be time-barred, and "[t]hereafter, the ALJ was never requested to consider whether Scott's current low back condition is, in fact, a result of previous work-related injuries." The Board recognized that Scott had "clearly testified" that he had injured his back on multiple occasions at work and had received workers' compensation benefits for those injuries; nevertheless, the Board concluded that was "not enough" because causation is generally established by medical evidence. The Board stated that they had searched the record and found "not one scintilla of evidence" of causation of Scott's low back condition. Thus, the Board could not say that the ALJ's determination of work-relatedness was error "as a matter of law."
On May 10, 2001, Scott filed an appeal to this Court. On appeal, Scott contends that the ALJ should have considered his prior low back injuries in determining total disability; further, that contrary to the Board's decision, there was uncontroverted causation language — Dr. Friesen's opinion which attributed 10% functional impairment to the 1984 and 1990 work injuries.
In response, the employer argues that the evidence does not compel a finding that Scott is totally and permanently disabled. That is not the issue. The issue is whether the ALJ erred by failing to consider prior active occupational disability attributable to work-related, but time-barred, back injuries. The employer also makes the curious argument that Scott did not preserve work-relatedness of the prior injuries as an issue. We do not agree. Scott's low back condition was a central issue in this case; the prehearing memorandum and order reflect that work-relatedness/causation, pre-existing active, extent, and duration were listed as contested issues.
We conclude that the Board misconstrued the ALJ's findings and conclusions. The Board believed that the ALJ had decided the issues of partial disability and work-relatedness of prior disability adversely to Scott. We disagree. The ALJ did not find that Scott was only partially disabled. The ALJ only found that Scott was not "permanently and totally disabled due to his neck condition." The ALJ did not find that Scott's prior disability was not work-related. The ALJ did not consider Scott's low back injuries in any way because they were "time-barred and therefore non-compensable." The ALJ explained that "[a]ccordingly, it is not necessary to make a determination concerning occupational disability, if any, resulting from them." This was error. The fact that Scott's prior injuries were non-compensable, because they were time-barred, does not mean that they were nonwork-related.
In Kern's Bakery v. Tackett, Ky.App., 964 S.W.2d 815 (1998), the claimant injured his back in 1995. As did Scott in the case sub judice, the claimant had a prior back injury at work in 1984, for which he received ttd benefits, but did not file a claim. The ALJ concluded that the claimant was totally disabled, attributing five percent occupational disability to the 1984 injury and made a lifetime award for 95% occupational disability for the 1995 injuries.
The employer appealed, arguing the claimant was not entitled to lifetime benefits under KRS 342.730(1)(a). Specifically, the employer contended that KRS 342.730(1)(d) addresses cases such as this, where the preexisting disability is from an uncompensated work injury. Id. at 816. The 1994 amended version of KRS 342.730(1)(a), at issue in Kerns, provides that "[n]onwork-related disability shall not be considered in determining whether the employee is totally disabled for the purposes of this subsection." The 1996 version, at issue in the case sub judice, provides that "[n]onwork-related impairment . . . shall not be considered in determining whether the employee is totally disabled for purposes of this subsection." In Kern's, this Court, adopting the Board's language, stated:
We agree that the Legislature intended to prohibit nonwork-related disability from being combined with work-related injuries in order to determine whether an injured worker is totally disabled under KRS 342.730(1)(a);. . . .
However, we cannot agree that the statute, as written, prohibits combining prior work-related disabilities with work-related injuries to determine . . . total occupational disability
. . . . We believe that to the extent a prior work-related disability is being considered by the fact-finder that Teledyne remains alive and well.
. . . .
The key factor we must consider . . . is whether the ALJ finds the claimant to be totally or only permanently partially disabled. Here, the ALJ found [the claimant] . . . to be totally occupationally disabled. In that circumstance, the method for computing benefits is appropriately under KRS 342.730 (1)(a). This is exactly what the ALJ did in [this] . . . case.
. . . .
When KRS 342.730(1)(a), which deals with total disability, was amended in 1994, a sentence was added which stated "[n]onwork-related disability shall not be considered in determining whether the employee is totally disabled for purposes of this subsection." As the prior disability suffered . . . in this case was a work-related disability rather than a nonwork-related disability, it may be considered in determining whether [the claimant] . . . was totally disabled.
Kern's Bakery v. Tackett, supra at 816-817.
We also conclude that the Board erred by overlooking essential evidence in the record. The Board stated that it could not find a "scintilla of evidence which would weigh on the question of causation as it relates to Scott's back condition." To the contrary, Dr. Friesen's opinion provided evidence of substance that Scott's low back impairment was attributable to his 1984 and 1990 injuries at work.
Hence, we reverse and remand with direction that this case be remanded to the ALJ for further findings of fact. Upon remand, the ALJ shall determine Scott's entire disability, taking into account any prior, active , work-related, occupational disability, and calculate the award under the appropriate provision of KRS 342.730.
ALL CONCUR.