Central Uniform Rentals v. Richburg

468 S.W.2d 268, 1971 Ky. LEXIS 324
CourtCourt of Appeals of Kentucky
DecidedJune 11, 1971
StatusPublished
Cited by7 cases

This text of 468 S.W.2d 268 (Central Uniform Rentals v. Richburg) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Central Uniform Rentals v. Richburg, 468 S.W.2d 268, 1971 Ky. LEXIS 324 (Ky. Ct. App. 1971).

Opinion

DAVIS, Commissioner.

The Workmen’s Compensation Board found that Lois Richburg suffered a low back strain as the result of a work-connected incident on October 5, 1967. The Board concluded that the injury caused 15% permanent partial disability and made its award accordingly. (No question is presented concerning an allowance for a period of temporary total disability.) The Special Fund was made a party to the proceeding on motion of the employer, but the Board' found no basis for apportionment and dismissed the Special Fund from the proceeding. No appeal was taken as to that ruling by either the employee or the employer.

The employee appealed to the circuit court which ruled that the Board’s award was clearly erroneous and directed that an award be made for total permanent disability. The employer challenges that ruling of the circuit court.

Following the injury on October 5, 1967, Mrs. Richburg was off work until the latter part of January 1968. She was examined by a company doctor in January 1968, who pronounced her able to resume work. She went back to work and continued without incident until August 12, 1968, when she injured her right hand. She undertook to return to work on August 19, 1968, but found that the condition of her hand prevented her operating a pressing machine. She asked her foreman to assign other duty not requiring the use of the hand, but he declined. She left work, not because of any back complaint, but on account of the hand injury. It was and is her contention that she is totally disabled because of disability produced by her back injury.

At the time of her injury Mrs. Richburg was forty-nine years old, about five feet three inches tall, and weighed approximately 240 pounds. She had had some problem with hypertension, and there was evidence that hypertrophic arthritis existed in her spine. She had worked for the appellant for about seventeen years and had not appeared occupationally disabled during that time.

Mrs. Richburg was examined by several physicians who testified. Dr. E. M. Hubbard, Jr., was the first doctor she saw after the incident of October 5. He related that she complained of low back pain but did not mention any injury incident as the cause of it. Dr. Hubbard did not see Mrs. Richburg after her visit to him on October 19, 1967. He had treated her on several earlier occasions beginning on August 20, 1966. Her chief problem, Dr. Hubbard said, was her obesity. He later noted hypertension and diagnosed her problem as “hypertensive heart condition.” On at least two occasions prior to October 5, 1967, Dr. Hubbard had written notes to Mrs. Richburg’s employer suggesting her assignment to light work and limited activity.

Next, Mrs. Richburg consulted Dr. John Ryan who expressed the view that the injury had caused a herniated disc. Dr. Ryan regarded her as totally and permanently disabled. He caused her to be hospitalized and called in for consultation Dr. Andrieves J. Dzenitis. Dr. Dzenitis found [270]*270no objective signs of a significant back injury or strain.

The next doctor on the scene was Dr. Richard Spear who examined Mrs. Rich-burg on January 31, 1968, for her employer, with a view to determining whether she was able to return to work. He found that she was able to resume work and advised her to continue to wear a low back brace. It was Dr. Spear’s impression on January 31, 1968, that Mrs. Richburg had recovered from her acute lumbar back strain sufficiently to permit her to return to work. She did return to work and continued until August 12, 1968, when she left because of injury to her hand. Dr. Spear saw her respecting that incident and pronounced her fit to return to work as of August 19, 1968. She made no complaint to him concerning her back on the two visits in August relating to her hand. When she returned to work on August 19, 1968, she worked only forty-five minutes and left because of her hand, not her back. She never returned to work after that, and Dr. Spear did not see her after August 1968.

Dr. Avrom Isaacs examined Mrs. Rich-burg with regard to a soft tissue mass possibly attached to the right kidney. Dr. Isaacs was of the opinion that the mass was not causing the lumbosacral strain symptoms.

Dr. William McDaniel Ewing examined Mrs. Richburg on January 10, 1969, at the request of her employer. He found limitation of motion of 50% in all three planes in the lumbar region. He noted some hy-pertrophic arthritis and expressed the conclusion that she exhibited a sprain of the lumbar musculature, with marked obesity and a possibly cyst of the right kidney. Dr. Ewing said that Mrs. Richburg’s obesity significantly affected her posture and range of motion. He noted that standing on her feet for work could be quite difficult, even when wearing a back support.

When the Special Fund was joined as a party, the Board appointed Dr. K. Armand Fischer pursuant to the provisions of KRS 342.121. In effect, the Board sustained objections to Dr. Fischer’s report, since it authorized the taking of his deposition and noted in its opinion that it had considered the entire record. See Young v. White Deer Coal Company, Ky., 441 S.W.2d 108.

Dr. Fischer estimated that the injury of October 5, 1967, produced functional partial permanent disability of 15% to the body as a whole. He also reported and testified that Mrs. Richburg had hyper-trophic arthritis in her dorsal and lumbar spine and some disc problems in the lumbar and lumbosacral area, which were aroused into disabling reality to the extent of 15% partial permanent disability to the body as a whole. In his report and deposition Dr. Fischer emphasized that Mrs. Richburg was grossly overweight. He said that her back motions were limited 50% in all directions and that her straight-leg-raising test was limited 50% on both sides. He noted about ten degrees of shortening of the right and left heel cords, but said that condition was not caused by the injury. Dr. Fischer noted that X rays of the patient’s thoracic and lumbar spine revealed old dorsal rounding of the spine with hy-pertrophic arthritic changes of an extensive nature, with other hypertrophic arthritic changes in the lumbar spine which were not quite as extensive. He found a mild narrowing of the lumbar spine disc and a lesser narrowing of the second lumbar disc space.

In his deposition Dr. Fischer stated that he did not deem it advisable for Mrs. Rich-burg to lift, stoop, or bend; he noted that Mrs. Richburg had been wearing a back support and stated that she should continue wearing it or something stronger.

The following questions and answers are noted in Dr. Fischer’s deposition:

“Q. Now, in your report, Doctor Fischer, you find on physical examination that [271]*271this lady’s back motions were limited fifty percent in all directions?
A. Yes, sir.
Q. And that her straight leg raising test was limited fifty percent on both sides ?
A. Yes, sir.
Q. Now, to what was this attributable, this limitation?
A. Well, it was attributable to a low back condition.
Q. Was it in any way connected to or related to her obesity ?
A.

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Bluebook (online)
468 S.W.2d 268, 1971 Ky. LEXIS 324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/central-uniform-rentals-v-richburg-kyctapp-1971.