RENDERED: JULY 9, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0033-WC
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. 2019-WC-0042
MICHAEL GOSPER; HONORABLE JONATHAN WEATHERBY, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: JONES, MAZE, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: The Lexington-Fayette Urban County Government
(hereinafter LFUCG) appeals from an opinion and order of the Workers’
Compensation Board (hereinafter referred to as Board) which affirmed an opinion and order of an administrative law judge (hereinafter ALJ). Finding no error, we
affirm.
FACTS AND PROCEDURAL HISTORY
Michael Gosper began his employment with LFUCG in 2001 as a
firefighter and EMT. The only injury he sustained during his employment prior to
the current claim was a meniscus tear in 2007. That injury was treated and caused
no further problems. Mr. Gosper filed the underlying workers’ compensation
claim alleging he suffered cumulative trauma to his bilateral knees based on the
effects of his employment. Mr. Gosper indicated that the date of injury was
December 13, 2017. Mr. Gosper testified that he had been feeling pain in his
knees for some time, but felt that December 13, 2017, was the day he could no
longer perform his duties. Mr. Gosper’s pain was caused by arthritis.
Mr. Gosper underwent a total right knee replacement in July of 2018,
and a total left knee replacement in August of 2018. He completed physical
therapy in December of 2018. His treating physician, Dr. John Balthrop advised
him to look into another line of work because he could no longer perform
firefighter type activities with his knee replacements. Mr. Gosper testified that he
is relatively pain free in both of his knees and does not take any medication for his
knees.
-2- Four doctors submitted reports as part of the underlying workers’
compensation claim: Dr. Timothy Scott Prince, Dr. J. Rick Lyon, Dr. Frank
Burke, and Dr. Balthrop. Drs. Balthrop and Prince were also deposed. Dr. Prince
believed that Mr. Gosper’s disability was not due primarily to his occupation, but
rather to an underlying varus deformity.1 Dr. Prince did believe that Mr. Gosper’s
disability was likely aggravated by his employment and that both knees were
affected by the employment. Dr. Prince gave Mr. Gosper a 12% whole person
impairment rating attributable to his occupation. Dr. Lyon’s report indicated that
Mr. Gosper’s underlying arthritis was not work related, but that the employment
likely worsened the condition. Dr. Lyon also believed only Mr. Gosper’s right
knee injury was work related. Dr. Lyon attributed an 8% whole person impairment
rating to Mr. Gosper’s employment. Dr. Burke’s report indicated that the nature
and duration of Mr. Gosper’s work contributed to the development of arthritis and
believed both knees were affected by Mr. Gosper’s employment. Dr. Burke
assessed a 36% whole person impairment rating to Mr. Gosper based on
occupational injury. Dr. Balthrop believed Mr. Gosper’s underlying arthritis was
not caused by his employment, but that it was worsened by it. Dr. Balthrop did not
give Mr. Gosper an impairment rating because, as he testified, that was not a usual
part of his medical practice. Drs. Prince, Lyon, and Burke all discussed the AMA
1 Also known as bow-leggedness.
-3- Guides in their reports and discussed Table 17-35 of the Guides. That table details
how to determine an impairment rating based on knee replacement results. Dr.
Lyon’s report went into a little more detail discussing Table 17-35 than the reports
of Drs. Prince and Burke.
After reviewing the evidence and hearing the testimony of Mr.
Gosper, the ALJ held that Mr. Gosper’s cumulative injury was attributable to his
employment. The ALJ found that the strenuous activity performed by Mr. Gosper
during his 19 years of employment worsened his arthritis and his employment
accelerated degenerative changes in excess of what would otherwise be expected.
The ALJ found Dr. Burke’s impairment rating to be most persuasive and adopted
the 36% whole person impairment rating. The ALJ also held that Mr. Gosper was
unable to return to his previous employment or similar type of work. The ALJ
awarded Mr. Gosper permanent partial disability benefits. The Board affirmed the
holdings of the ALJ and this appeal followed.
ANALYSIS
“The function of further review of the [Board] in 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.” Western Baptist Hosp. v.
Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
-4- [Kentucky Revised Statutes (KRS)] 342.285 designates the ALJ as the finder of fact. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985), explains that the fact-finder has the sole authority to judge the weight, credibility, substance, and inferences to be drawn from the evidence. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986), explains that a finding that favors the party with the burden of proof may not be disturbed if it is supported by substantial evidence and, therefore, is reasonable.
AK Steel Corp. v. Adkins, 253 S.W.3d 59, 64 (Ky. 2008). “Substantial evidence
means evidence of substance and relevant consequence having the fitness to induce
conviction in the minds of reasonable men.” Smyzer v. B. F. Goodrich Chemical
Co., 474 S.W.2d 367, 369 (Ky. 1971). “Although a party may note evidence
which would have supported a conclusion contrary to the ALJ’s decision, such
evidence is not an adequate basis for reversal on appeal.” Whittaker v. Rowland,
998 S.W.2d 479, 482 (Ky. 1999) (citation omitted).
LFUCG’s first argument on appeal is that the ALJ erred in finding
that there was a consensus among Drs. Balthrop, Burke, and Prince regarding the
causation of Mr. Gosper’s injury. LFUCG points out that Drs. Balthrop and Prince
believed Mr. Gosper’s injury was not primarily caused by work related activities,
but underlying arthritic conditions, like the varus deformity. We find no error in
the ALJ’s finding.
The ALJ found that there was a consensus among Drs. Balthrop,
Burke, and Prince regarding causation. The ALJ first cited the case of Haycraft v.
-5- Corhart Refractories Co., 544 S.W.2d 222 (Ky. 1976). That case holds that “if it
be found . . . that the nature and duration of the work probably aggravated a
degenerative . . . condition to the degree that it culminated in an active physical
impairment sooner than would have been the case had the work been less
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: JULY 9, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0033-WC
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. 2019-WC-0042
MICHAEL GOSPER; HONORABLE JONATHAN WEATHERBY, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: JONES, MAZE, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: The Lexington-Fayette Urban County Government
(hereinafter LFUCG) appeals from an opinion and order of the Workers’
Compensation Board (hereinafter referred to as Board) which affirmed an opinion and order of an administrative law judge (hereinafter ALJ). Finding no error, we
affirm.
FACTS AND PROCEDURAL HISTORY
Michael Gosper began his employment with LFUCG in 2001 as a
firefighter and EMT. The only injury he sustained during his employment prior to
the current claim was a meniscus tear in 2007. That injury was treated and caused
no further problems. Mr. Gosper filed the underlying workers’ compensation
claim alleging he suffered cumulative trauma to his bilateral knees based on the
effects of his employment. Mr. Gosper indicated that the date of injury was
December 13, 2017. Mr. Gosper testified that he had been feeling pain in his
knees for some time, but felt that December 13, 2017, was the day he could no
longer perform his duties. Mr. Gosper’s pain was caused by arthritis.
Mr. Gosper underwent a total right knee replacement in July of 2018,
and a total left knee replacement in August of 2018. He completed physical
therapy in December of 2018. His treating physician, Dr. John Balthrop advised
him to look into another line of work because he could no longer perform
firefighter type activities with his knee replacements. Mr. Gosper testified that he
is relatively pain free in both of his knees and does not take any medication for his
knees.
-2- Four doctors submitted reports as part of the underlying workers’
compensation claim: Dr. Timothy Scott Prince, Dr. J. Rick Lyon, Dr. Frank
Burke, and Dr. Balthrop. Drs. Balthrop and Prince were also deposed. Dr. Prince
believed that Mr. Gosper’s disability was not due primarily to his occupation, but
rather to an underlying varus deformity.1 Dr. Prince did believe that Mr. Gosper’s
disability was likely aggravated by his employment and that both knees were
affected by the employment. Dr. Prince gave Mr. Gosper a 12% whole person
impairment rating attributable to his occupation. Dr. Lyon’s report indicated that
Mr. Gosper’s underlying arthritis was not work related, but that the employment
likely worsened the condition. Dr. Lyon also believed only Mr. Gosper’s right
knee injury was work related. Dr. Lyon attributed an 8% whole person impairment
rating to Mr. Gosper’s employment. Dr. Burke’s report indicated that the nature
and duration of Mr. Gosper’s work contributed to the development of arthritis and
believed both knees were affected by Mr. Gosper’s employment. Dr. Burke
assessed a 36% whole person impairment rating to Mr. Gosper based on
occupational injury. Dr. Balthrop believed Mr. Gosper’s underlying arthritis was
not caused by his employment, but that it was worsened by it. Dr. Balthrop did not
give Mr. Gosper an impairment rating because, as he testified, that was not a usual
part of his medical practice. Drs. Prince, Lyon, and Burke all discussed the AMA
1 Also known as bow-leggedness.
-3- Guides in their reports and discussed Table 17-35 of the Guides. That table details
how to determine an impairment rating based on knee replacement results. Dr.
Lyon’s report went into a little more detail discussing Table 17-35 than the reports
of Drs. Prince and Burke.
After reviewing the evidence and hearing the testimony of Mr.
Gosper, the ALJ held that Mr. Gosper’s cumulative injury was attributable to his
employment. The ALJ found that the strenuous activity performed by Mr. Gosper
during his 19 years of employment worsened his arthritis and his employment
accelerated degenerative changes in excess of what would otherwise be expected.
The ALJ found Dr. Burke’s impairment rating to be most persuasive and adopted
the 36% whole person impairment rating. The ALJ also held that Mr. Gosper was
unable to return to his previous employment or similar type of work. The ALJ
awarded Mr. Gosper permanent partial disability benefits. The Board affirmed the
holdings of the ALJ and this appeal followed.
ANALYSIS
“The function of further review of the [Board] in 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.” Western Baptist Hosp. v.
Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
-4- [Kentucky Revised Statutes (KRS)] 342.285 designates the ALJ as the finder of fact. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985), explains that the fact-finder has the sole authority to judge the weight, credibility, substance, and inferences to be drawn from the evidence. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986), explains that a finding that favors the party with the burden of proof may not be disturbed if it is supported by substantial evidence and, therefore, is reasonable.
AK Steel Corp. v. Adkins, 253 S.W.3d 59, 64 (Ky. 2008). “Substantial evidence
means evidence of substance and relevant consequence having the fitness to induce
conviction in the minds of reasonable men.” Smyzer v. B. F. Goodrich Chemical
Co., 474 S.W.2d 367, 369 (Ky. 1971). “Although a party may note evidence
which would have supported a conclusion contrary to the ALJ’s decision, such
evidence is not an adequate basis for reversal on appeal.” Whittaker v. Rowland,
998 S.W.2d 479, 482 (Ky. 1999) (citation omitted).
LFUCG’s first argument on appeal is that the ALJ erred in finding
that there was a consensus among Drs. Balthrop, Burke, and Prince regarding the
causation of Mr. Gosper’s injury. LFUCG points out that Drs. Balthrop and Prince
believed Mr. Gosper’s injury was not primarily caused by work related activities,
but underlying arthritic conditions, like the varus deformity. We find no error in
the ALJ’s finding.
The ALJ found that there was a consensus among Drs. Balthrop,
Burke, and Prince regarding causation. The ALJ first cited the case of Haycraft v.
-5- Corhart Refractories Co., 544 S.W.2d 222 (Ky. 1976). That case holds that “if it
be found . . . that the nature and duration of the work probably aggravated a
degenerative . . . condition to the degree that it culminated in an active physical
impairment sooner than would have been the case had the work been less
strenuous,” then it is compensable under workers’ compensation. Id. at 225.
Stated another way, “although a particular affliction is of common occurrence
among the population in general, it may nevertheless be found work-connected,
hence compensable, when the nature of the victim’s occupation has increased the
victim’s susceptibility to it.” Id. at 224. The ALJ then went on to describe the
findings of Drs. Balthrop, Burke, and Prince and found that “[t]hese credible
objective medical opinions have convinced the ALJ . . . that the nature and
duration of [Mr. Gosper’s] work . . . aggravated a degenerative condition into an
active physical impairment sooner than would have been the case had the work
been less strenuous.”
After reviewing the medical opinions of the doctors, we agree with the
ALJ. All three doctors found that Mr. Gosper’s injury was exacerbated by his
employment. This is the causation consensus described by the ALJ. Seeing as
Haycraft allows for a work injury to be caused by cumulative trauma exacerbating
an underlying condition, we find no error with the finding of the ALJ.
-6- LFUCG’s next argument on appeal is that the ALJ erred in relying on
Dr. Burke’s 36% whole person impairment rating.2 LFUCG argues that one of the
lower impairment ratings should have been utilized because Mr. Gosper’s surgeries
were completely successful. We believe that the ALJ did not err in finding Dr.
Burke’s impairment rating to be the most persuasive.
“[T]he proper interpretation of the Guides and the proper assessment
of an impairment rating are medical questions[,]” Kentucky River Enterprises, Inc.
v. Elkins, 107 S.W.3d 206, 210 (Ky. 2003), and “an ALJ must decide the legal
significance of conflicting medical evidence.” Tokico (USA), Inc. v. Kelly, 281
S.W.3d 771, 775 (Ky. 2009). Here, the ALJ did not err in relying on Dr. Burke’s
impairment rating. While Mr. Gosper testified that his knee surgeries went
perfectly and he was pain free, it is also without question that he could not handle
physically demanding activities like he previously could. In addition, the ALJ
could not rely on Dr. Balthrop’s impairment rating because he did not set one
forth. Furthermore, Drs. Prince and Lyon believed Mr. Gosper’s injuries were
more likely caused by an underlying varus deformity as opposed to employment
related activities. Dr. Burke mentioned the varus deformity in his report, but
2 More specifically, Dr. Burke stated that, based on Table 17-35 of the Guides, Mr. Gosper had a score of 76 points for the right knee and 71 points for the left knee. Those points indicated a fair result for the total knee replacements. It also equated to a 20% impairment rating for each knee, which equaled a 36% whole person impairment rating.
-7- focused more on the strenuous activities Mr. Gosper performed as part of his work.
Finally, Dr. Lyon believed only Mr. Gosper’s right knee had a work-related injury,
whereas Dr. Burke believed both knee injuries were work related.
Even though Mr. Gosper’s knees were relatively pain free and he had
excellent range of motion, the ALJ’s reliance on Dr. Burke’s higher impairment
rating was not unreasonable. Dr. Burke believed both knees were affected by Mr.
Gosper’s employment and he described how he arrived at his impairment rating.
The ALJ weighed the conflicting evidence and came to a reasonable conclusion
based on substantial evidence.
LFUCG’s third and final argument on appeal is that the ALJ erred in
relying on Dr. Burke’s impairment rating because he did not go into much detail
regarding his use of Table 17-35. Table 17-35 has a numerical score for different
aspects of a knee replacement, such as pain and range of motion. Those numerical
values are then totaled and turned into an impairment rating. LFUCG argues that
Dr. Burke’s impairment rating should be ignored because he did not sufficiently set
forth the numerical values he relied on. We disagree.
Dr. Burke’s report stated Mr. Gosper had a score of 76 points for the
right knee and 71 points for the left knee. These were both based on the relevant
table. Those points then equated to a 20% impairment rating for each knee, which
was then converted to a 36% whole person impairment rating. While Dr. Burke
-8- could have set forth each numerical score which allowed him to arrive at 76 points
and 71 points, LFUCG cites to no case law which requires such a specific finding.
In his report, Dr. Burke detailed his examination of Mr. Gosper. He also described
Mr. Gosper’s pain levels, his ability to do certain movements, and his range of
motion. This is sufficient to support his impairment rating.
CONCLUSION
Based on the foregoing, we affirm the judgment of the ALJ and
Board. Neither the Board nor the ALJ overlooked relevant precedent. Further, the
ALJ’s opinion weighed the conflicting evidence and his ultimate conclusion was
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE MICHAEL GOSPER: Lori V. Daniel Lexington, Kentucky Donald R. Todd Lexington, Kentucky
-9-