ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND v. TERRY NOEL; JOSEPH E. SEAGRAM & SONS; HONORABLE IRENE STEEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD JOSEPH E. SEAGRAM & SONS TERRY NOEL; HONORABLE IRENE STEEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: OCTOBER 20, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002578-WC
ROBERT L. WHITTAKER,
DIRECTOR OF SPECIAL FUND
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-91-37774
TERRY NOEL;
JOSEPH E. SEAGRAM & SONS;
HONORABLE IRENE STEEN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
AND:
NO. 1999-CA-002682-WC
JOSEPH E. SEAGRAM & SONS
v.
APPELLEES
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-91-37774
TERRY NOEL;
HONORABLE IRENE STEEN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
OPINION
REVERSING
** ** ** ** **
APPELLEES
BEFORE:
BUCKINGHAM, GUIDUGLI AND HUDDLESTON, JUDGES.
GUIDUGLI, JUDGE.
In these consolidated appeals, Joseph E.
Seagram and Sons (Seagram) and Robert L. Whittaker, Director of
the Special Fund (the Special Fund), appeal from an opinion of
the Workers’ Compensation Board (the Board) entered October 1,
1999, which reversed and remanded an opinion and award of the
Administrative Law Judge (the ALJ) entered July 24, 1998, which
granted benefits to Terry Noel (Noel).
We reverse.
Noel was employed by Seagram as a warehouseman and
filler.
His position required him to maneuver 500 pound barrels
of whiskey.
Noel sustained work-related injuries to his back on
two separate occasions, one occurring on September 10, 1991, the
other on June 29, 1992.
As it appears that the medical evidence
in this case is not in dispute, we adopt the following portion of
the ALJ’s opinion and award as our own:
[Following the 1991 injury, Noel] saw Dr.
Hagan and was placed on physical therapy. At
that time Plaintiff had complained of pain in
his low back and right leg and, in addition
to seeing Dr. Hagan, he was also treated by
Dr. Sewell and Dr. Browne. He eventually
returned to work in 1991, to the same job,
without restrictions, although he stated that
he continued to experience some back
problems.
Plaintiff worked until June 29, 1992, when he
again was lifting some barrels and reexperienced severe low back pain. Plaintiff
returned to Dr. Hagan’s care but was
eventually transferred to Drs. Guarnaschelli
and Petruska. He continued to complain of
the same type of symptoms with pain in his
low back and right leg, as he had at the time
of the previous injury. The record indicates
that he was under the care of Dr. Petruska
for both physical therapy, a diskogram, and a
-2-
pain management evaluation, however, no
surgical intervention has been performed.
. . . .
Plaintiff’s treating physician, Dr. Petruska,
has followed him since September 10, 1992,
subsequent to the second injury herein. Dr.
Petruska’s records reflect that Plaintiff has
suffered from low back and right leg pain,
with occasional numbness into the right foot;
that motion range was limited; straight leg
raising was positive on the right; and a
review of an MRI scan revealed Plaintiff to
have a soft disc herniation on the right at
the L5-S1 level. During this time frame, it
appears that Dr. Petruska did not feel that
Plaintiff’s problems were surgically
correctable. Dr. Petruska’s notes indicate
that Plaintiff has been hospitalized for
severe pain in the past; and he also
performed a cervical fusion which, again was
not a work-related situation. His records
indicate that Plaintiff continues to be
treated at this time, and he felt that
Plaintiff overall had an 8% impairment
rating; that he should not lift in excess of
10 pounds; he was restricted regarding
bending, squatting, crawling, and climbing;
and could only sit, stand, and walk for 1
hour out of an 8-hour day.
Plaintiff also introduced evidence from Dr.
Williamson, the pain management medical
doctor, where Plaintiff underwent a program
in July and August, 1994. Dr. Williamson
noted Plaintiff to be suffering from
degenerative changes from the L2 thru L5
levels, with a right radiculopathy, and
complaints of parathesia. He noted severe
motion limitation, and straight leg raising
was positive at approximately 25 degrees on
the left and zero on the right. He felt that
Plaintiff should not lift in excess of 10
pounds and that he could not bend, squat,
crawl, climb, or stoop.
. . . .
Plaintiff was evaluated in 1993 by Dr.
Auerbach at the request of the Defendant
insurance carrier, and he also reviewed the
functional capacity evaluation which the
insurance carrier requested as well. As of
-3-
1993, Dr. Auerbach had assessed a 22%
impairment rating under the Third Edition of
the AMA Guidelines.
The Defendant/Employer introduced evidence
from Dr. Goldman, who performed an
independent medical evaluation on Plaintiff
and assessed a 10% impairment rating
apportioned 50/50, with lifting limitations
of 25 to 30 pounds. He also imposed
restrictions against excessive walking and
standing, and Plaintiff should avoid bending
forward with the knees straight. It was Dr.
Goldman’s opinion that Plaintiff was unable
to return to his previous employment
performing heavy manual labor at the
distillery. He did note that Plaintiff was
exhibiting excessive pain behavior. It was
his opinion that Plaintiff would be capable
of returning to gainful employment within
these restrictions.
The final medical evidence came from Dr.
Gleis pursuant to an evaluation requested by
the ALJ [pursuant to KRS 342.315(3)]. This
evaluation took place on March 3, 1998.
Plaintiff had complained of back pain, going
from his back into the right leg. Dr. Gleis
reviewed various diagnostic testings,
including a lumbar myelogram, an MRI, and a
diskogram, and it was his opinion that
Plaintiff had a chronic lumbosacral strain
without radiculopathy; that his complaints of
sciatic pain were secondary to the strain;
that there were indications of symptom
magnification while performing Waddell
testings which was confirmed by the diskogram
results; and that the lumbar range of motion
using the Dual Inclinometry indicated a
nonvalid effort on this test. He felt that
Plaintiff warranted an overall 5% impairment
rating, half of which was attributed to
arousal of degenerative changes, and that
Plaintiff was restricting himself
excessively. It was his opinion that
Plaintiff could lift between 20 and 40
pounds.
In awarding benefits to Noel, the ALJ stated:
Based upon the record herein and in first
dealing with whether or not the Plaintiff
should have submitted to a university
evaluation, it is the opinion of this ALJ
-4-
that pursuant to the amendments set forth in
December, 1996 which provides for these
university evaluations, this process is
procedural in nature and under these
circumstances would, therefore, be remedial.
Furthermore, I have noted that the medical
evidence in this record is extremely stale
for the most part, and that there was a great
discrepancy in the impairment ratings.
Additionally, the order which directed
Plaintiff to undergo the university
evaluation was issued by the undersigned ALJ
on January 5, 1998 and a new Pre-Hearing
Conference was originally scheduled for March
18, 1998 but did not, in fact, take place
until June 10, 1998 which is also the time
the Hearing took place, and it is my opinion
that Plaintiff’s counsel had adequate time to
request a cross-examination of Dr. Gleis, had
he so desired. This, however, is an “old law
case” and the principles of Osborne v.
Johnson, Ky., 432 S.W.2d 800 (1968) still
apply. It appears that Plaintiff does suffer
from degenerative changes in the lumbar
spine, but there is no outright diagnosis of
disc herniations. [KRS 342.315(2)] mandates
that the university evaluator’s report be
given presumptive weight and, taking into
consideration the reports filed by Plaintiff,
I do not find any basis on which to deny this
presumptive weight. The report filed by Dr.
Petruska is not sufficient to overcome this
presumption. I do, however, recognize that
Plaintiff has only performed heavy manual
labor in the past, although he does have a
high school education. Based upon the
lifting limitations also set forth by Dr.
Gleis which limits Plaintiff to light to
medium work, as well as his impairment
rating, I find that Plaintiff has sustained
an occupational disability of 40%, one-half
of which shall be paid by the Special Fund as
per previous stipulations.
On appeal to the Board, Noel argued that the ALJ erred
in affording presumptive weight to the opinion of Dr. Gleis
pursuant to KRS 342.315(2).
Based on this Court’s decision in
Magic Coal Company v. Fox, 1998-CA-000527-WC, the Board agreed
-5-
and reversed and remanded the case to the ALJ for further
consideration.
This appeal followed.
Both Seagram and the Special Fund contend that the
Board erred in finding that the presumptive weight provision of
KRS 342.315(2) do not apply to pending claims.
They argue that
the statutory presumption given to the opinion of a university
evaluator pursuant to KRS 342.315(2), as amended effective
December 12, 1996, is procedural in nature and thus applicable to
all claims regardless of the fact that the injury occurred prior
to the effective date of the amendment.
During the pendency of
these appeals, our decision in Magic Coal was under review by the
Kentucky Supreme Court.
On May 18, 2000, the Kentucky Supreme
Court rendered its decision in Magic Coal and held as follows:
[T]he amendments to KRS 342.315 which became
effective on December 12, 1996, apply to all
claims pending before the fact-finder on or
after that date. KRS 342.315(2) creates a
rebuttable presumption which is governed by
KRE 301 and, therefore, does not shift the
burden of persuasion. Pursuant to KRS
342.315(2), the clinical findings and
opinions of the university evaluator
constitute substantial evidence of the
worker’s medical condition which may not be
disregarded by the fact-finder unless it is
rebutted. Where the clinical findings and
opinions of the university evaluator are
rebutted, KRS 342.315(2) does not restrict
the authority of the fact-finder to weigh the
conflicting medical evidence. In instances
where a fact finder chooses to disregard the
testimony of the university evaluator, a
reasonable basis for doing so must be
specifically stated.
Magic Coal Company v. Fox, Ky., ____ S.W.3d ____,
-6-
____ (2000).
Based on the foregoing, the opinion of the Workers’
Compensation Board is reversed, and the opinion and award of the
ALJ entered July 24, 1998, is reinstated.
ALL CONCUR.
BRIEF FOR APPELLANT, SPECIAL
FUND:
BRIEF FOR APPELLEE, NOEL:
Thomas A. Donan
Bardstown, KY
John W. Burrell
Frankfort, KY
BRIEF FOR APPELLANT/APPELLEE,
SEAGRAM & SONS:
Douglas U’Sellis
Louisville, KY
-7-
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