Newberg v. Sleets

899 S.W.2d 495, 1995 Ky. App. LEXIS 85, 1995 WL 245351
CourtCourt of Appeals of Kentucky
DecidedFebruary 10, 1995
DocketNos. 93-CA-2527-WC, 93-CA-2351-WC
StatusPublished
Cited by1 cases

This text of 899 S.W.2d 495 (Newberg v. Sleets) 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
Newberg v. Sleets, 899 S.W.2d 495, 1995 Ky. App. LEXIS 85, 1995 WL 245351 (Ky. Ct. App. 1995).

Opinion

OPINION

HOWERTON, Judge.

The Special Fund and the employer, Trey-ton Oak Towers, each petition this Court for review of the opinion of the Workers’ Compensation Board (Board) dated September 3, 1993, affirming the Administrative Law Judge’s (ALJ) order wherein Ruth Sleets was found to be 100 percent occupationally disabled due to carpal tunnel syndrome (CTS)/tendinitis, with liability apportioned equally between the Special Fund and Trey-ton Oak Towers. The Special Fund raises the sole issue of apportionment of liability, while the employer raises issues of notice, [496]*496causation, and extent of disability. With regard to those issues raised by the employer, we affirm. However, we are compelled to reverse the decision concerning Special Fund liability, as there is no proof that any preexisting condition in Ruth’s elbow, shoulder, or hand was anything but normal. Newberg v. Armour Food Co., Ky., 834 S.W.2d 172 (1992).

Ruth Sleets was employed by Treyton Oak Towers as a nurse’s aide or nursing assistant. Her job duties involved basic hands-on care of the patients, including but not limited to assisting in showers, personal hygiene, lifting, and taking vital signs. On October 12, 1990, Ruth reported an injury to her supervisor involving her right arm which had become very swollen and hot to the touch. Her supervisor immediately took her to be examined by a Dr. Amin who diagnosed tendinitis of the elbow cap and prescribed medication. Ruth got no relief from Dr. Amin’s treatment, so he referred her to Dr. Ghazi who also diagnosed tendinitis. He saw her on two separate occasions in November 1990 and on one occasion gave her an injection which afforded her some temporary relief. Ruth received a subsequent referral by Dr. Amin to see Dr. Tsai.

Ruth first saw Dr. Tsai on January 29, 1991, at which time she complained of pain in the right upper extremity. During that initial visit, Dr. Tsai diagnosed lateral epicon-dylitis with possible radial tunnel compression. In her next visit, Dr. Tsai added pro-nator and carpal tunnel compression to the diagnosis. In March 1991, Dr. Tsai performed surgery involving carpal tunnel and pronator release, tennis elbow release, and radial tunnel release which resulted in improvement of Ruth’s condition. However, by late May 1991, Ruth had developed cubital tunnel compression to the ulnar nerve which was initially treated conservatively with a brace and medication but ultimately required surgery in August 1991. Ruth subsequently developed symptoms of thoracic outlet compression and seapulofasciitis. She was last seen by Dr. Tsai on December 26,1991. Dr. Tsai released her to return to light to medium work duty with lifting restrictions of no more than 50 pounds, or no more than 25 pounds frequently for at least one year. It was his opinion that Ruth might not be able to resume her duties as a nursing assistant if such required lifting patients.

Dr. Tsai was further of the opinion that Ruth’s condition was not caused solely by her work. Rather, he attributed 50 percent of the cause to work and 50 percent to an underlying disease process. According to Dr. Tsai, Ruth was predisposed to suffer from this condition due, in part, to her age and gender (related to hormonal changes).

Dr. Timir Banerjee saw Ruth at the instance of the Special Fund. Based upon her medical history and his examination, he concluded that she had a total permanent impairment of nine percent, three percent of which he attributed to her actual injury, with the remaining six percent attributable to multiple operation syndrome. Dr. Banerjee also had difficulty in causally relating CTS to her described injury. However, he believed a diagnosis of tendinitis would be consistent with pulling/lifting a patient.

Ruth was also examined by Dr. Thomas Harter at the request of Treyton Oak. He did not find her symptoms consistent with CTS. He further stated that while he did not believe her to have medical impairment of function, she could have an occupational impairment based upon all of the surgeries she had undergone.

The ALJ placed great significance and weight upon the testimony of Dr. Tsai in finding Ruth 100 percent occupationally disabled and in determining apportionment of liability between the Fund and Treyton Oak. The Board affirmed the award, opining that the ALJ’s findings and conclusions were based upon substantial evidence.

The Special Fund claims that it should not be subject to any liability in this particular case. It alleges that the claimant failed in her burden of proof by offering no evidence that her disability was caused in part by a preexisting condition constituting a departure from the normal state of health. We must agree in light of Yocom v. Jackson, Ky.App., 554 S.W.2d 891 (1977), and Armour Food Co., supra.

Because the ALJ found that Ruth successfully met her burden of proof on the issue of

[497]*497the Special Fund’s liability, our only concern in reviewing this matter is whether the order of the ALJ is supported by substantial evidence. Kentland Elkhorn Coal Co. v. Johnson Ky.App., 549 S.W.2d 308 (1977). Evidence sufficient to find a dormant, nondis-abling condition justifying apportionment of liability to the Special Fund has been defined in detail in Armour Food Co., supra, at 175. There the Kentucky Supreme Court held as follows, to-wit:

The critical issue is to determine under what circumstances a predisposition to a particular type of injury constitutes a dormant, nondisabling condition which was aroused into disabling reality by work.... As this Court has interpreted KRS 342.120(2)(b), a dormant, nondisabling condition must constitute a departure from the normal state of health. Yocom v. Jackson, Ky., 554 S.W.2d 891 (1977).... [W]e are unwilling to say that a predisposition, in and of itself, constitutes a dormant, nondisabling condition for the purposes of KRS 342.120(2)(b).... [W]e believe that it is more appropriate to consider the underlying medical condition which caused the predisposition to determine whether or not that condition was a departure from the normal state of health, and whether it was aroused into disabling reality by the work-related injury.

We have reviewed the medical testimony proffered in this matter which was before the ALJ and the Board for consideration. While the medical experts do not agree as to whether Ruth suffered from CTS or tendinitis, in either case the medical evidence is devoid of any objective findings to establish, under Armour, that Ruth suffered from a preexisting condition. As was the case with the claimant in Armour, there was competent medical testimony (from Dr. Tsai) in the form of an opinion that Ruth must be suffering from narrowing of the tunnels (although no objective findings support this) which, when accompanied by repetitive, prolonged motion, caused the predisposition to suffer from CTS to become aroused into disabling reality. Dr.

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Bluebook (online)
899 S.W.2d 495, 1995 Ky. App. LEXIS 85, 1995 WL 245351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newberg-v-sleets-kyctapp-1995.