RENDERED: AUGUST 29, 2019 TO BE PUBLISHED
2018-SC-000542-WC
SAMUEL WETHERBY appelLANT
ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2017-CA-001425-WC WORKERS’ COMPENSATION BOARD NO. 14-WC-68458
AMAZON.COM; APPELLEES WORKERS’ COMPENSATION BOARD; AND HONORABLE STEPHANIE KINNEY, ADMINISTRATIVE LAW JUDGE
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
Samuel Wetherby appeals from the Court of Appeals’ decision upholding
an Administrative Law Judge’s (ALJ) award of 6% permanent partial disability
benefits to Wetherby because of a work-related injury. Ultimately, Wetherby
argues that the ALJ erred by making insufficient findings to exclude a pre
existing condition in assessing his impairment rating. Because our case law
governing pre-existing injuries is inapplicable to this case, we disagree. For the
reasons stated below, we affirm the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
Wetherby began working for Amazon.com (Amazon) on June 5, 2012, as
a warehouse associate, performing duties such as operating forklifts and 9
training new employees. On October 3, 2012, Wetherby operated a forklift for
most of his shift, then moved 50-60-pound boxes from a pallet onto a conveyor.
He stated he was moving a box onto a conveyor when he felt a shooting pain
run from his neck down his right arm, then his hand went numb. Although
the initial pain subsided, Wetherby continually reported numbness in his right
hand. It was ultimately determined that the incident caused a disc herniation
in Wetherby’s neck, necessitating surgery.
Prior to the work injury, Wetherby sustained a work-related cervical
injury and underwent a cervical fusion at the C4-C5 level in 1980. The cervical
injury was caused by moving slabs of cement underwater as part of a boat
dock construction project. He had another cervical fusion, stemming from the
same injury, at C5-C6 in 1985 due to ongoing pain in his left shoulder.
However, no medical records were introduced regarding the injury and
subsequent fusion surgeries, and the record contains no medical records
regarding any medical treatment Wetherby may have received prior to the 2012
work injury. Wetherby testified that he had no pain after the 1985 surgery,
and he was “back to normal.” He continued working operating heavy
equipment and lifting sand bags and wooden boards for approximately four
years, before purchasing a convenience store in Georgia.
On January 14, 2013, about three months after the Amazon injury,
Wetherby visited Dr. Leung reporting decreased grip strength and numbness in
his right hand and forearm. Dr. Leung developed a plan for therapy and
medication. Dr. Leung recommended surgical intervention on several follow-up
2 visits with Wetherby and ultimately referred him to Dr. Owen to discuss
possible surgery. Despite his persisting symptoms, during his initial visit with
Dr. Owen on March 12, 2013, Wetherby indicated that he would like to avoid
surgery if possible.
On July 11, 2013, Dr. G. Christopher Stephens evaluated Wetherby to
assess complaints of pain and numbness. Dr. Stephens opined that Wetherby
had reached maximum medical improvement, unless he elected to undergo the
surgery recommended by Dr. Owen. Wetherby stated that he did not want to
pursue additional surgery unless his symptoms worsened. With respect to
causation, Dr. Stephens believed the issue was not straightforward, given
Wetherby’s pre-existing disease of the cervical spine from the prior fusions in
1980 and 1985. However, Wetherby informed Dr. Stephens that he was
completely asymptomatic prior to the 2012 work injury. Ultimately, Dr.
Stephens rated Wetherby at a 25% impairment immediately preceding the
Amazon work injury, and attributed 3% impairment to the work injury, for a
total whole person impairment of 28%. Dr. Stephens opined that Wetherby
could return to work indefinitely if he refrained from lifting more than 25
pounds without assistance.
Wetherby’s symptoms persisted, and Dr. Owen performed right posterior
foraminotomies at the C6-C7 and C7-T1 levels on June 9, 2014. The surgery
went routinely, but at three months post-operation, Wetherby still reported
numbness in his right forearm and fingers. On October 28, 2014, Wetherby
again visited Dr. Owen. Dr. Owen opined that Wetherby had reached
3 maximum medical improvement and recommended he return to work on
December 10, 2014. Wetherby continued to work at Amazon after the 2012
work injury up until his 2014 surgery and took six months of leave from work
after the surgery. He was still an Amazon employee during discovery related to
his workers’ compensation claim.
On March 25, 2015, Dr. Frank Burke performed an independent medical
evaluation and diagnosed acute cervical spine injury with right radiculopathy,
as well as arousal of pre-existing degenerative disc disease.1 Dr. Burke
assessed a 17% whole person impairment rating using the Fifth Edition of the
AMA Guides to the Evaluation of Permanent Impairment (Guides) based on
Wetherby’s significant radiculopathy. In his deposition, Dr. Burke stated he
knew Wetherby had a prior injury, but believed it was not relevant to this case
because he was asymptomatic prior to the work injury. Dr. Burke also testified
that when he assigned the 17% impairment rating for the work injury, he
disregarded the previous injury and residual impairment because the previous
injury involved the “upper portion of [Wetherby’s] cervical spine” and resulted
in left-sided cervical radiculopathy. He stated that Wetherby “has a historical
issue, but . . . that’s not relevant to this case. It’s a different part of the spine
. . . different extremity . . . [t]o me ... it would not affect the rating.”
Dr. Burke and Dr. Stephens used different methods of rating Wetherby’s
impairment. Dr. Stephens used the Range of Motion (ROM) method, and Dr.1
1 The ALJ recited this in her opinion although the record does not contain a copy of Dr. Burke’s March 25, 2015 report.
4 Burke initially used the Diagnosis Related Estimate (DRE) method. In his
deposition, Dr. Burke stated that he considered the ROM method, but since the
work injury was to a different part of the spine than the previous injury, he did
not think it would be appropriate. Dr. Stephens, on the other hand, criticized
Dr. Burke’s use of the DRE method.
After receiving criticism about the method of evaluation used in the 2015
assessment, Dr. Burke re-evaluated Wetherby on June 13, 2016, to conduct a
ROM assessment and concluded the whole person impairment was 37%,
attributing 21% to loss of range of motion. Given that Wetherby’s previous
injury was to a different part of the spine, Dr. Burke did not attribute any of
the impairment rating to the previous injury.
Wetherby was evaluated by Dr. Timothy Kriss on June 8, 2016. He
stated that after reviewing the criteria in the Guides defining when the ROM
method or the DRE method should be utilized, he could not “find a better
example of a patient” who met the criteria for using the ROM method. Dr.
Kriss opined that the prior injuries and surgeries played a role in Wetherby’s
current condition. He stated that Wetherby had a 31% whole person
impairment, but only attributed 3% to the 2012 work injury and the remaining
28% to the 1980 work injury and subsequent surgeries.
Wetherby initiated a workers’ compensation claim on December 4, 2015.
The ALJ conducted a hearing on November 1, 2016, and heard Wetherby’s live
5 testimony.2 After considering all the medical evidence, the ALJ determined
that Wetherby retained a 25% pre-existing cervical impairment due to his
previous injuries, and a 6% impairment stemming from the 2012 work injury
for a total whole person impairment of 31%. It appears that the ALJ relied on
both Dr. Kriss and Dr. Stephens, adopting Dr. Stephens’s impairment rating
from the 1980 injury of 25%, and Dr. Kriss’s overall impairment rating of 31%,
resulting in a 6% impairment attributable to the 2012 work injury.
The ALJ stated that because Dr. Kriss is a neurosurgeon rather than an
orthopedic surgeon, he is in an excellent position to assess permanent
impairment in this complicated case. The ALJ also noted that Dr. Owen
released Wetherby to work in December 2014, justifying the lower impairment
rating. The ALJ was not convinced that the work injury aroused Wetherby’s
prior cervical condition into a symptomatic and disabling reality because the
work injury affected a different level of his spine, noting the prior cervical
fusions occurred at C4-C6, and the 2012 injury caused disc herniation,
necessitating a surgery at C6-C7 and C7-T1.
Wetherby filed a petition for reconsideration, requesting that the ALJ
make further findings of fact concerning whether he suffered from a prior
active condition. On May 1, 2017, the ALJ reiterated that the work incident
caused injury to an “entirely different level of [Wetherby’s] cervical spine.”
Further, the ALJ stated that the medical evidence indicated that Wetherby’s
2 The ALJ also considered and referenced in her opinion a deposition of Wetherby taken March 28, 2016.
6 prior cervical fusion at the C4-C6 level is stable and she was not convinced
that the 2012 work injury aroused his prior cervical condition. The petition for
reconsideration was accordingly denied.
Wetherby appealed to the Workers’ Compensation Board (Board) and
argued that the ALJ failed to make findings of fact that support the exclusion
for a pre-existing active impairment. On August 11, 2017, the Board
concluded that the ALJ did not address whether Wetherby had a pre-existing
active condition, nor did she state that Finley v. DBM Technologies, 217 S.W.3d
261 (Ky. App. 2007), is inapplicable in the case. The Board determined that
remand was necessary for the ALJ to address Finley, noting that the ALJ may
reach the same conclusion and only find a 6% impairment attributable to the
work injury.
Before the case was remanded to the ALJ, Amazon appealed to the Court
of Appeals and argued that the ALJ’s findings sufficiently addressed all
contested issues and the decision was supported by substantial evidence. The
Court of Appeals agreed with Amazon, holding that the ALJ did not need to
apply Finley because she found that the 1980 injury was stable and had no
disabling effect or connection to the 2012 work injury based on the evidence
presented. Further, the Court of Appeals concluded that the ALJ based her
opinion on the substantial medical evidence provided by both Dr. Stephens and
Dr. Kriss who attributed a 25% and 28% whole person impairment,
respectively, to Wetherby subsequent to his 1985 surgery and prior to the 2012
work injury, noting that the ALJ has discretion to choose which evidence she
7 finds to be most persuasive. Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky.
2000). In a 2-1 decision, the Court of Appeals reversed and remanded to the
Board for reinstatement of the ALJ’s opinion, award and order.
Wetherby now appeals to this Court, arguing that the ALJ erred in
assigning an impairment for Wetherby’s pre-existing condition without any
evidence that it was an active condition.
ANALYSIS
In a workers’ compensation case, Wetherby, as the claimant, has the
burden of proving every element of his claim. Gibbs v. Premier Scale Co./Ind.
Scale Co., 50 S.W.3d 754, 763 (Ky. 2001). The ALJ, as fact-finder, has the sole
authority to determine the quality, character and substance of the evidence.
Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). On appellate review,
the issue is whether substantial evidence of probative value supports the ALJ’s
findings. Whittaker v. Rowland, 998 S.W.2d 479, 481-82 (Ky. 1999). “[T]he
ALJ’s findings of fact are entitled to considerable deference and will not be set
aside unless the evidence compels a contrary finding.” Finley, 217 S.W.3d at
264.
The sole issue on this appeal is whether the ALJ made sufficient findings
in assessing Wetherby’s impairment rating, and more particularly, the impact
of Finley on this case. The gist of one of Finley’s primary holdings is often
stated as follows:
To summarize, a pre-existing condition that is both asymptomatic and produces no impairment prior to the work- related injury constitutes a pre-existing dormant condition.
8 When a pre-existing dormant condition is aroused into disabling reality by a work-related injury, any impairment or medical expense related solely to the pre-existing condition is compensable.
Id. at 265. This portion is identified by the Court of Appeals’ panel as a partial
summary of the Board’s opinion in that case, an opinion which “correctly and
succinctly” stated the law regarding compensability for a pre-existing dormant
condition. Id. In fact, the Board’s own discussion, while lengthier, is a clearer
statement of the law and underscores how the Court of Appeals’ shorthand
summary can create issues. The Board in Finley stated, as quoted by the
Court of Appeals:
To be characterized as active, an underlying pre-existing condition must be symptomatic and impairment ratable pursuant to the AMA Guidelines immediately prior to the occurrence of the work- related injury. Moreover, the burden of proving the existence of a pre-existing condition falls upon the employer. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky.App. 1984).
Alternatively, where the underlying pre-existing disease or condition is shown to have been asymptomatic immediately prior to the work-related traumatic event and all of the employee’s permanent impairment is medically determined to have arisen after that event—due either to the effects of the trauma directly or secondary to medical treatment necessary to address previously nonexistent symptoms attributable to an underlying condition exacerbated by the event—then as a matter of law the underlying condition must be viewed as previously dormant and aroused into disabling reality by the injury. Under such circumstances, the injured employee must be compensated not just for the immediate physical harm acutely produced by the work-related trauma, but also for all proximate chronic effects corresponding to any contributing pre-existing condition, including any previously dormant problem strictly attributable solely to congenital or natural aging processes, as it relates to the whole of her functional impairment and subsequent disability rating, including medical care that is reasonable and necessary pursuant to KRS 342.020.
9 Id. (emphasis in original). Thus, for a dormant condition to produce a
compensable claim “all of the employee’s permanent impairment [must be]
medically determined to have arisen after that event,” i.e., the current work
injury.3 Id. (emphasis added). Against this background, we examine
Wetherby’s case.
In order for a condition to be deemed pre-existing and active, it must be
symptomatic and impairment ratable immediately prior to the work injury.
Finley, 217 S.W.3d at 265. It was undisputed that Wetherby experienced no
symptoms between the 1985 surgery and the 2012 work injury, as supported
by the following: (1) Wetherby’s report to Dr. Stephens that he was
asymptomatic; (2) the absence of any medical records from the period between
1985 and 2012 reflecting that Wetherby sought treatment for any ongoing
symptoms or impairment; (3) the lack of any evidence that Wetherby had any
problems completing jobs or missed any work due to his condition; and (4) his
employment at a variety of jobs, including his Amazon job, without restrictions.
Although Wetherby’s condition prior to the Amazon injury was impairment
ratable (both Dr. Kriss and Dr. Stephens assigned impairment ratings under
the AMA Guides solely based on the prior injury and surgeries), there is no
evidence that his condition was symptomatic. Under Finley it was not an
active pre-existing condition but it also did not qualify as a dormant condition
3 To be compensable, the dormant condition must be aroused and the claimant has the burden of proving that arousal. Bennett u. Special Fund, 919 S.W.2d 225, 227 (Ky. App. 1996).
10 aroused by the 2012 injury because “all of the employee’s permanent
impairment” could not be “medically determined to have arisen after that
event,” i.e., the 2012 Amazon injury. Finley, 217 S.W.3d at 265. Indeed, every
physician who examined Wetherby acknowledged some impairment from the
earlier 1980 injury and resulting fusions.4
The ALJ concluded that Wetherby’s 2012 injury was unrelated to his
prior injury because it involved a different part of the spine. However, the ALJ
cited Finley for the definition of an active, pre-existing injury before stating that
she was “not convinced Plaintiffs October 3, 2012 work injury aroused his
prior cervical condition at a different level in his spine into a symptomatic and
disabling reality.” This reference to arousal suggests that she considered
whether Wetherby’s spinal condition was dormant but in fact the ALJ never
labeled Wetherby’s pre-existing condition as either “active” or “dormant.” To
reiterate, under the Finley definitions it did not fit into either
category. Because Wetherby was asymptomatic but he was “medically” ratable
as impaired prior to the 2012 injury, he had one characteristic of an “active”
condition and one of a “dormant” condition. Ultimately, we agree with the
4 Dr. Stephens assigned a 25% pre-existing impairment, while Dr. Kriss assigned a 28% pre-existing impairment. Dr. Burke did not assign an impairment rating for the 1980 injury until pressed in his deposition. In his deposition Dr. Burke stated that in 1985 Wetherby would have been rated in DRE cervical category IV (25- 28% whole person impairment) for the post-operative resolution of his radiculopathy. Dr. Burke would have rated Wetherby “at the lower end of the range” because of the resolution and his return to regular duty work, utilizing his left upper extremity without restrictions.
11 Court of Appeals that “[t]he ALJ did not need to apply Finley in this case
because the ALJ found the 1980 injury to be stable and that it had no
disabling effect or connection to the October 3, 2012 injury based upon the
medical evidence presented.”
The lack of connection between the two injuries is underscored by
Wetherby’s own testimony. In his deposition, Wetherby testified that his prior
injury resulted in him being unable to lift his left arm, and the fusion surgeries
fixed the problem. For this 2012 injury, the repeated issues that Wetherby
reported to doctors were pain and numbness in the right hand, weakness of
grip in the right hand, and right-sided neck pain. Even Dr. Burke, Wetherby’s
expert, testified that during his initial examination of Wetherby he did not
consider the prior injury in his impairment rating because the 2012 injury was
to a completely different part of the spine.
Wetherby maintains that the ALJ improperly treated him as having an
active pre-existing condition, something never proven by Amazon. This
misconstrues the evidence and the ALJ’s findings. While the ALJ found a 31%
whole person impairment and deducted 25% for the prior injury, this was not a
“carve out” in the sense of a pre-existing active condition under Finley, but
rather a requirement of the AMA Guides regarding spinal impairment.
Kentucky Revised Statute (KRS) 342.730(l)(b) governs the calculation of
permanent partial disability benefits and part of the calculation is “the
permanent impairment rating caused by the injury or occupational disease as
12 determined by the AMA’s “Guides to the Evaluation of Permanent Impairment”5
The medical opinions of Dr. Kriss and Dr. Stephens, upon which the ALJ
relied, were developed after conducting examinations of Wetherby in
accordance with the Guides as outlined below.
The Guides identify two methods used to perform a spinal impairment
rating: the diagnosis-related estimate (DRE) method and the range of motion
(ROM) method. The DRE method is “the principal methodology used to
evaluate an individual who has had a distinct injury. When the cause of the
impairment is not easily determined and if the impairment can be well
characterized by the DRE method, the evaluator should use the DRE method.”
Guides at 379. Dr. Burke initially used the DRE method to evaluate Wetherby,
but later used the ROM method. Although the appropriate method was
originally contested in this case, the ALJ stated that all experts eventually
agreed that the ROM method is most appropriate because Wetherby underwent
surgery for different work injuries at multiple levels.6
One of the initial steps in assessing spinal impairment is to select the
region involved (i.e., the lumbar, cervical or thoracic spine). Guides at 380.
Then an examiner must determine the correct method to use. The Guides state
that the ROM method should be used in several situations, such as when there
5 KRS 342.0011(37) provides that the “Guides to the Evaluation of Permanent Impairment means the fifth edition published by the American Medical Association. 6 “The proper interpretation of the Guides and the proper assessment of an impairment rating are medical questions.” Plumley v. Kroger, Inc., 557 S.W.3d 905, 913 (Ky. 2018) (citing Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206 (Ky. 2003).
13 is radiculopathy at multiple levels in the same spinal region, or when there is
multilevel motion segment alteration (such as a multilevel fusion) in the same
spinal region. Id. at 380. Further, the Guides’ introduction to the section on
spines states “[t]he ROM method is also now used to evaluate individuals with
an injury at more than one level in the same spinal region and in certain
individuals with recurrent pathology.” In Wetherby’s case, the ROM method is
the most appropriate method of evaluation.7 Dr. Kriss explained why the ROM
method must be used in assessing Wetherby, ultimately concluding that he
could not find a better example of a patient justifying the use of the ROM
method than Wetherby.
In a later evaluation step, the Guides state: “[f]rom historical information
and previously compiled medical data, determine if there was a pre-existing
impairment . . . .” After determining whether there is a pre-existing
impairment, the next step directs an examiner to
apportion findings to the current or prior condition, following jurisdiction practices and assuming adequate information is available on the prior condition. In some instances, to apportion ratings, the percent impairment due to previous findings can simply be subtracted from the percent based on the current findings. Ideally, use the same method to compare __________________________ 7 In his medical report, Dr. Kriss referred to the Guides and noted four instances when the ROM method should be used: (1) If an individual cannot be easily categorized in the DRE class (2) When there is multilevel involvement in the same spinal region (3) When there is recurrent radiculopathy or recurrent injury in the same spinal region (4) When there are multiple episodes producing alteration of motion segment integrity. In order to justify use of the ROM method, a patient only needs to meet one of the criteria listed and Dr. Kriss opined that Wetherby qualified for the ROM method based on any of the criteria listed above.
14 the individual’s prior and present conditions. If the ROM method has been used previously, it must be used again. If the previous evaluation was based on the DRE method and the individual now is evaluated with the ROM method, and prior ROM measurements do not exist to calculate a ROM impairment rating, the previous DRE percent can be subtracted from the ROM ratings.
Id. at 381.
In this case, Dr. Kriss and Dr. Stephens were proponents of the ROM
method from the outset of their evaluations. During the hearing before the
ALJ, Wetherby stated that he did not visit any doctors between 1985 and the
2012 injury because he was “back to normal” after the 1985 surgery and
experienced no pain. Additionally, Wetherby did not file any workers’
compensation claims as a result of the 1980 work-related injury, stating that
his employer simply paid for the 1980 and 1985 surgical procedures.
Therefore, there were no impairment ratings or medical evaluations available.
However, based on the history Wetherby orally provided the doctors in his
visits, and evaluations of MRIs conducted after the 2012 work injury, and
before and after the 2014 surgery, both Dr. Kriss and Dr. Stephens attributed
an impairment rating for the 1980 injury.8 Based on DRE cervical category IV,
Dr. Kriss explained that prior to his 2012 injury Wetherby had a whole person
impairment of 25% solely based on the loss of motion segment due to a
successful or unsuccessful attempt at surgical arthrodesis (surgical
immobilization of a joint by fusion). Guides at 392. The ALJ properly relied on
8 See fn. 4, infra. At his deposition, Dr. Burke also acknowledged an impairment rating after the 1980 injury.
15 Dr. Kriss’s medical opinion in subtracting the impairment rating attributable to
the prior injury because the Guides regarding spinal impairment instructed
examining physicians to do so. Simply put, Kentucky statutes mandate that
impairment be determined in accordance with the Guides and the physicians
who examined Wetherby did so. Substantial evidence supported the ALJ’s
findings.
This case is atypical in that the employee’s pre-existing medical condition
cannot be classified as either active or dormant. Ultimately the condition is
unrelated to the current injury but under the AMA Guides for assessing spinal
impairment it cannot be ignored by an examining physician, i.e., it must be
accounted for in determining spinal impairment under the controlling ROM
(Range of Motion) method. While Finley is controlling law, it cannot contradict
the statutorily-mandated AMA Guides and, in any event, given that Wetherby’s
condition does not fit either the active or dormant condition criteria, remand
for consideration of Finley would serve no purpose.
CONCLUSION
Because the 2012 work injury resulted in impairment to a different part
of Wetherby’s spine than the prior injuries, the ALJ did not err in limiting her
discussion of Finley. Moreover, substantial medical evidence supported the 6%
permanent partial disability found by the ALJ. For the foregoing reasons, we
affirm the Court of Appeals.
Minton, C.J.; Buckingham, Keller, VanMeter, and Wright, JJ., sitting. All
concur. Lambert, J., not sitting.
16 COUNSEL FOR APPELLANT:
Peter J. Naake PRIDDY, CUTLER, NAAKE & MEADE, PLLC
COUNSEL FOR APPELLEE:
Jo Alice Van Nagell Brian Wilson Davidson FOGLE KELLER WALKER, PLLC