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Viwin Tech Windows & Doors, Inc. v. Ivey

Commonwealth of Kentucky Court of Appeals
May 31, 2019
NO. 2019-CA-000106-WC (Ky. Ct. App. May. 31, 2019)

Opinion

NO. 2019-CA-000106-WC

05-31-2019

VIWIN TECH WINDOWS & DOORS, INC. APPELLANT v. MARK E. IVEY; HON. MONICA RICE SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

BRIEF FOR APPELLANT: Donald C. Walton, III Lexington, Kentucky BRIEF FOR APPELLEE: Jeffery A. Roberts Murray, Kentucky


NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-15-78481 OPINION
AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND KRAMER, JUDGES. COMBS, JUDGE: This is a Workers' Compensation case. The sole issue on appeal is whether the evidence compelled a finding that the Appellee, Mark E. Ivey (Ivey), had a pre-existing impairment which should have been carved out from his award of permanent partial disability (PPD) benefits. After our review, we affirm.

We limit our discussion of the record to the issue before us. This case arises out of a June 23, 2015, low back injury in the course and scope of Ivey's employment with Viwin Tech Windows and Doors (the Employer).

The record contains various spellings of the Appellant's name. We shall utilize this version for the purposes of this opinion.

Ivey had two prior low back surgeries - one in 2004 and another in April 2012, both of which were performed by Dr. Davies. According to Ivey, the first surgery occurred after he was hurt at home; he never really knew what he had done to cause that injury. And he was not aware of any particular incident precipitating the second injury.

In September 2012, Ivey started working for the Employer. His job as a shipping manager required him to load trailers with windows and doors involving heavy lifting, twisting and bending.

On June 23, 2015, Ivey was lifting a box of 100 or 200 d-rings. After he raised himself up, he suddenly felt pain in his back and dropped the box. He sought medical attention the following day and ultimately came under the care of Dr. Arendall, who performed additional surgeries.

By opinion, order, and award rendered July 2, 2018, the Administrative Law Judge (the ALJ) concluded that Ivey's low back condition was work-related:

Although Ivey had two prior back surgeries, he received no treatment for his low back after recovering from his 2012 surgery until his work injury of June 23, 2015. During that time to the work injury on June 23, 2015, Ivey worked full time and did constant heavy lifting without difficulty.

With regard to work-relatedness, the ALJ finds the opinions of Dr. Arendall and Dr. Ballard[] most credible. Dr. Arendall opined the lifting incident of June 23, 2015 caused the recurrent herniation and that Mr. Ivey's pre-existing low back condition was aroused into disability reality by the June 23, 2015 work injury. Dr. Arendall thoroughly explained his reasoning on causation. Dr. Arendall highlighted that Ivey had received no treatment since 2012 until the work injury. Ivey also worked doing heavy lifting from that time. Following the work injury, Ivey had immediate pain and sought treatment. Further, upon initial exam, Dr. Arendall noted Ivey had left foot drop, significant weakness in the extensor halluces longus muscle, and pain in the left L4 and L5 dermatomes. Had Ivey had these findings and this pain prior to the work injury, it would be reasonable he would have been seeking treatment. Moreover, Dr. Arendall's December 22, 2015 surgery confirmed the herniated disc noted on the MRI. His May 3, 2017 operative report also noted the spondylolisthesis was "new-onset" which was causing him stenosis. Dr. Arendall opined the fusion surgery was the direct result of the work injury of June 23, 2015.

Dr. Ballard agreed that Ivey had a specific injury on June 23, 2015. She opined based on the history his complaints were caused by the work injury.
Dr. Arendall assigned a rating of 28% for Ivey's condition following the L4-5 fusion.

Dr. Ballard performed an independent medical examination at the insurance carrier's request on November 28, 2016.

Dr. Thomas O'Brien, an orthopedic surgeon, performed an Independent Medical Evaluation at the Defendant-Employer's request on January 4, 2018. Dr. O'Brien assigned a 12% rating. However, the ALJ was not persuaded by Dr. O'Brien's opinion, which the ALJ found to be inconsistent with the medical records. The ALJ concluded as follows:

Ivey had no pre-existing active condition prior to the work injury that would warrant a carve-out. A pre-existing condition must be both symptomatic and impairment-ratable immediately before a work-related injury occurs in order to be viewed as being a pre-existing active condition that is not compensable in a claim for injury. Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007). The exclusion from a partial disability award equals the impairment rating that the pre-existing active condition produces. Roberts Bros. Coal Co. v. Robertson, 113 S.W.3d 181 (Ky. 2003).

It is undisputed that Ivey had a pre-existing back condition that resulted in two prior back surgeries. Finley requires the condition to be symptomatic and impairment-ratable to be active and justify a carve-out. Although Ivey's prior condition may have been impairment-ratable, ViWintech has failed to prove the prior condition was symptomatic. Ivey received no treatment following his last surgery with Dr. Davies for almost three years. Ivey worked full-time performing a job doing heavy lifting on a daily basis. There is no evidence he had any problems completing his job or that he missed any work due to his back condition between 2012 and the work injury in 2015. In addition, there is
no evidence he was working under any work restrictions prior to the June 23, 2015 work injury.

The ALJ found "Ivey's testimony credible in all aspects." Despite the Employer's argument that initial treatment reflected that Ivey had reported intermittent flare-ups of pain, the ALJ was convinced by Ivey's testimony, which she found to be "consistent with the treatment records or lack thereof." The ALJ determined that Ivey had a 28% permanent partial impairment and awarded PPD benefits accordingly.

The Employer filed a petition for reconsideration and requested "fact-finding on the degree of [Ivey's] permanent impairment rating under the Fifth Edition of the AMA Guides prior to the subject 2015 work injury." By order rendered August 2, 2018, the ALJ denied the Petition, having "made all necessary findings of fact pursuant to Finley . . . ."

The Employer appealed to the Workers' Compensation Board (Board), which affirmed by opinion rendered December 21, 2018. The Board noted that the Employer did not challenge the ALJ's findings regarding work-relatedness/ causation or the 28% impairment rating -- but only the ALJ's failure to carve out part of that rating as active. The Board explained as follows:

The arousal of a pre-existing dormant condition into disabling reality by a work injury is compensable. However, an employer is not responsible for a pre-existing active condition present at the time of the alleged work-related event. McNutt Construction/First General
Services vs. Scott, supra. In Finley v. DBM Technologies, 217 S.W.3d at 265, the Court of Appeals stated a pre-existing condition is deemed active, and therefore not compensable, if it is "symptomatic and impairment ratable pursuant to the AMA [Guides] immediately prior to the occurrence of the work-related injury." Moreover, as an affirmative defense, the burden to prove the existence of a pre-existing active condition falls on the employer. Id. . . .

The Board concluded that the ALJ had performed the proper analysis under Finley:

As noted above, . . . Finley held that to be characterized as active, an underlying pre-existing condition must be symptomatic and impairment ratable. While there appears to be little dispute Ivey possessed an impairment rating attributable to his pre-existing low back condition, substantial evidence supports the determination that his low back condition was not symptomatic prior to the work-related injury.

As noted by the ALJ, there is no evidence in the record establishing Ivey sought treatment for his low back condition after he recovered from the 2012 surgery until the June 23, 2015 injury. Ivey began working for Viwintech after the 2012 surgery in September 2012, without restriction. Ivey testified he regularly lifted over fifty pounds, and had to lift approximately two hundred pounds with assistance. His job also required him to bend and twist. Ivey indicated he had no problem performing his job from September 2012 through the June 23, 2015 work injury. Dr. Arendall was additionally aware of the prior 2004 and 2012 surgeries when he assessed the 28% impairment rating, which he attributed in its entirety to the June 23, 2015 work incident. Dr. Arendall also noted Ivey had not sought medical treatment for nearly three years since the summer of 2012, and was performing a job requiring
regular lifting without difficulty until the June 23, 2015 incident. After reviewing Ivey's prior history and the work injury, Dr. Arendall concluded, "the June 23, 2015 lifting incident caused the disc herniation and that Ivey's pre-existing low back condition had returned to a asymptomatic and dormant state and was aroused into disabling reality by the 6/23/15 work related injury." Therefore, we conclude the ALJ performed the proper analysis in concluding Ivey's low back condition was not an active, pre-existing condition.

The Employer argues on appeal that the evidence compels a finding that Ivey had a permanent pre-existing impairment that must be carved out of his PPD award. However, as the Board noted, an employer bears the burden of proving the existence of a pre-existing condition. Where -- as here -- the ALJ finds against the party with the burden of proof, the standard of review on appeal is whether the evidence was so overwhelming as to compel a finding in that party's favor. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984).

In the case before us, the Board concluded that substantial evidence supports the ALJ's determination that Ivey's back condition was not symptomatic before the work injury and that the ALJ properly analyzed the case under Finley. The Employer's argument on appeal to this Court is essentially the same argument that it made before the Board. It is well settled that:

The function of further review of the [Board] in the Court of Appeals is to correct the Board only where [this] 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.
W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). We perceive no such error.

Therefore, we affirm.

ALL CONCUR. BRIEF FOR APPELLANT: Donald C. Walton, III
Lexington, Kentucky BRIEF FOR APPELLEE: Jeffery A. Roberts
Murray, Kentucky


Summaries of

Viwin Tech Windows & Doors, Inc. v. Ivey

Commonwealth of Kentucky Court of Appeals
May 31, 2019
NO. 2019-CA-000106-WC (Ky. Ct. App. May. 31, 2019)
Case details for

Viwin Tech Windows & Doors, Inc. v. Ivey

Case Details

Full title:VIWIN TECH WINDOWS & DOORS, INC. APPELLANT v. MARK E. IVEY; HON. MONICA…

Court:Commonwealth of Kentucky Court of Appeals

Date published: May 31, 2019

Citations

NO. 2019-CA-000106-WC (Ky. Ct. App. May. 31, 2019)