Kentucky River Enterprises, Inc. v. Elkins

107 S.W.3d 206, 2003 Ky. LEXIS 147, 2003 WL 21356765
CourtKentucky Supreme Court
DecidedJune 12, 2003
Docket2002-SC-0622-WC
StatusPublished
Cited by28 cases

This text of 107 S.W.3d 206 (Kentucky River Enterprises, Inc. v. Elkins) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206, 2003 Ky. LEXIS 147, 2003 WL 21356765 (Ky. 2003).

Opinions

OPINION OF THE COURT

The workers’ compensation claimant whose application is the subject of this appeal did not retain the physical capacity to return to his past employment, but he did return to supervisory work for the same employer, earning the same hourly wage as at the time of his injury. An Administrative Law Judge (ALJ) awarded triple benefits, applying the 2000 version of KRS 342.730(l)(e)l and 2, and the Workers’ Compensation Board (Board) and the Court of Appeals affirmed. Appealing, the employer maintains that the award of triple benefits was based upon an incorrect interpretation of the law, that there was no substantial evidence of a work-related accident and injury, and that the finding of a 9.5% AMA impairment was erroneous. We reverse with regard to the first issue and remand for further proceedings but affirm in all other respects.

The claimant was born in 1956. He completed high school, had an associate degree from Southeast Community College, completed one semester at Morehead State University, and had a commercial driver’s license. At the time of his injury, he was working more than 60 hours per week as a mechanic and heavy equipment operator, earning $17.00 per hour, and working sufficient hours to earn an average weekly wage of $1,086.81. He testified that he had been a truck driver for 14 years, 12 of which were spent driving a coal truck. On September 8, 2000, while carrying a five-gallon can of oil to a truck in which he was changing the oil, he felt pain in his lower back and a tingling sensation in his leg. He testified that, although he completed the shift, the individual with whom he was working did any necessary lifting.

The claimant testified that he reported the incident to his supervisor on the day that it occurred, which was a Friday. On the following Sunday, he informed his employer that he could not return to work due to his injury. After recovering from back surgery, he returned to work on December 6, 2000, in a supervisory capacity. The parties stipulated that he received the same “wages” that he earned on the date of injury. At the hearing, the claimant testified that he continued to earn $17.00 [208]*208per hour but worked for only 40 to 60 hours per week.

Mr. Benny Bentley was the co-worker who was helping the claimant at the time of the injury. He corroborated the claimant’s version of the events of September 8, 2000. Bentley also testified that the claimant did no lifting in his supervisory job.

On September 11, 2000, the claimant sought treatment from Dr. Tidal for low back pain that had recently become worse and radiated into his left leg. Dr. Tidal noted no particular injury but did note that the claimant had a longstanding history of such pain and had undergone back surgery in 1990.1 He had been doing well since the surgery, however, and had been able to work up until the present injury.

The claimant was referred to Dr. Shar-ma, an orthopaedic surgeon, whom he first saw on September 14, 2000. Dr. Sharma’s notes indicated that the claimant had experienced low back pain that radiated into the left leg for about five weeks but denied any recent injury. The notes from September 26, 2000, indicate that MRI revealed a “very big” disc herniation at L5-Sl, that surgery was required, that the proposed surgery would be pre-certified with the workers’ compensation carrier, and that surgery would be scheduled thereafter. Subsequently, Dr. Sharma performed a laminotomy and discectomy. His notes from November 7, 2000, indicated that the September 14, 2000, dictation of the claimant’s history should be corrected to indicate that the pain had begun five days rather than five weeks earlier. When questioned about the discrepancy, Dr. Sharma testified that it could have been due to an error in the dictation process and that it was not unusual to have to correct a dictated history. Furthermore, he did not think that the claimant could have worked more than 60 hours per week up until September 14, 2000, had the injury occurred five weeks earlier. He also testified that the claimant’s failure to mention a specific incident during the initial visit is a common occurrence with patients who are in acute pain.

Dr. Sharma assigned various work restrictions and stated that the claimant’s impairment as a result of the L5-S1 disc was 10% under the DRE model of the AMA Guides to the Evaluation of Permanent Impairment (Guides). He acknowledged that the Fourth Edition of the Guides (Section 3.3F, paragraph 9) indicates that a pre-existing impairment to the same anatomic system should be subtracted from the current impairment to determine the additional impairment that the most recent injury caused. He noted, however, that the previous back surgery had involved the L4-5 level and pressure on a different nerve root and that the Guides did not specify that subtraction was appropriate in such an instance. He also noted that the claimant might have improved after the 1990 surgery to the point that he had no impairment, a phenomenon that he had observed in other patients. Thus, he was not certain that the Guides required subtraction under the circumstances.

Dr. Templin, a specialist in pain management and occupational medicine, examined the claimant on January 23, 2001. In his opinion, the claimant injured his back in the September 8, 2000, incident and sustained a 10% impairment under the DRE model as a result. Furthermore, he imposed extensive work restrictions. Addressing the question of pre-existing impairment, he noted the presence of scar tissue from the 1990 surgery and some [209]*209degenerative changes, the arousal of which he thought contributed to the claimant’s present condition. Thus, he attributed a 0.5% impairment to the pre-existing condition and a 9.5% impairment to the 2000 incident, explaining that 5% of the claimant’s left leg radiculopathy existed before the 2000 injury and that 95% was due to the injury.

Dr. Sheridan examined the claimant on February 20, 2001, and assigned a 10% impairment. In his opinion, however, the L5-S1 rupture was secondary to the 1990 rupture and was pre-existing and active before September 8, 2000. Likewise, after conducting a review of the records, Dr. Ensalada determined that the claimant had a 10% impairment, all of which was pre-existing and active, and he thought that the low back condition did not result from the September 8, 2000, incident.

After reviewing the lay and medical evidence, the ALJ was persuaded that the claimant suffered a work-related injury on September 8, 2000, and gave timely notice. Indicating that the claimant had returned to work as a coal truck driver and mechanic after the 1990 surgery and continued in that capacity until the injury that was presently at issue, the ALJ relied upon Dr. Templin’s testimony that the most recent incident accounted for a 9.5% impairment. When multiplied by the statutory factor of 0.85, it produced a disability rating of 8.08%. Based upon the restrictions that Dr. Templin imposed and upon the claimant’s testimony, the ALJ determined that the claimant lacked the physical capacity to return to the type of work that he was performing at the time of the injury and concluded that the weekly benefit must be multiplied by 8 under KRS 342.780(l)(c)l.

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Cite This Page — Counsel Stack

Bluebook (online)
107 S.W.3d 206, 2003 Ky. LEXIS 147, 2003 WL 21356765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kentucky-river-enterprises-inc-v-elkins-ky-2003.