VICTORIA GREENE v. UNITED STEEL WORKERS; ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND; DENIS S. KLINE, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD AND UNITED STEEL WORKERS v. VICTORIA GREENE; ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND; DENIS S. KLINE, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 22, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000440-WC
VICTORIA GREENE
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-96-06334
UNITED STEEL WORKERS; ROBERT L.
WHITTAKER, DIRECTOR OF SPECIAL FUND;
DENIS S. KLINE, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
AND
NO.
2000-CA-000518-WC
UNITED STEEL WORKERS
v.
CROSS-APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-96-06334
VICTORIA GREENE; ROBERT L.
WHITTAKER, DIRECTOR OF SPECIAL FUND;
DENIS S. KLINE, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND McANULTY, JUDGES.
CROSS-APPELLEES
McANULTY, JUDGE. Victoria Greene (Greene) petitions for a review
of an opinion of the Workers’ Compensation Board (Board) awarding
her temporary total disability benefits (TTD) but failing to
award her permanent disability benefits for spinal problems
associated with a fall at her employment.
United Steel Workers
(USW) has also filed a petition for review of that portion of the
Board’s opinion awarding Greene temporary total disability
benefits.
Upon review of the record and the arguments of
counsel, we affirm.
Greene, who was born in 1956, had been employed as a
security/office manager for USW since 1975 when she fell down a
flight of stairs at work on August 3, 1994.
In the fall, she
landed on her back and struck her neck on one of the stairs.
Greene was taken to the emergency room where she was treated,
prescribed pain medication and muscle relaxants, and released.
Prior to the fall, Greene had been diagnosed to be
suffering from scoliosis since childhood.
Although it had not
caused her any occupational limitations or restrictions, in
December, 1993, Greene saw Dr. John Johnson, an orthopedic
surgeon, complaining of increasing pain in her neck and back as
well as migraine headaches.
Dr. Johnson’s examination indicated
that Greene exhibited a 49 degree right thoracic curvature of her
spine that he diagnosed as idiopathic scoliosis.
Dr. Johnson
noted that Greene’s left shoulder was higher than her right, her
right leg was shorter than her left, and she had right thoracic
rib prominence.
Dr. Johnson told Greene that there was a 60-70%
probability that her scoliosis would continue to progress and
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that surgical intervention to correct the curvature of her spine
was probably necessary.
In March 1994, Greene saw Dr. Johnson
again complaining of continued pain in her neck and back and he
recommended surgery as a viable option for her scoliosis.
On July 25, 1994, Greene saw Dr. Peter Kirsch, another
orthopedic surgeon, for a second opinion on her condition and the
need for surgery.
Greene told Dr. Kirsch that she had been
experiencing consistent neck and back pain for several years.
She complained especially that in the prior six months, she had
experienced significant worsening of lower back pain that
radiated into her right shoulder.
She also stated that she had
fallen down stairs two or three times in recent months.
Based on
Greene’s information that sitting and typing at work tended to
aggravate her neck and back pain, Dr. Kirsch recommended antiinflammatory drugs, dorsal lumbar support, and conservative
treatment including physical therapy and use of a TENS unit.
Following her fall, Greene saw Dr. Kirsch again on
August 10, 1994.
At that time, she complained of constant pain
in her neck and back and exhibited limited flexation.
He
diagnosed an acute cervical, dorsal and lumbar muscle strain
superimposed on her already existing condition with possible
aggravation due to the fall.
Dr. Kirsch again recommended
conservative treatment with physical therapy, anti-inflammatory
drugs and rest.
On August 24, 1994, Greene’s condition appeared
to improve slightly, so Dr. Kirsch continued with conservative
measures and eventually released her to return to work on
December 2, 1994.
-3-
In late December, 1995, Greene was examined by Dr.
Johnson because of continued pain in her neck and back.
Although
Greene stated that her pain had worsened after the fall, Dr.
Johnson’s examination and MRI test indicated that her condition
had not changed since his earlier examination of her in December,
1993 and March, 1994.
In January, 1995, Dr. Johnson performed
spinal surgery on Greene placing two steel rods in the thoracic
region and fusing the disks from the T5 level to T12 level.
Following the surgery by Dr. Johnson, Greene still experienced
pain, so she returned to Dr. Kirsch, who had an MRI performed and
consulted with Dr. Richard Jelsma on the results.
The MRI
suggested multiple disk protrusions, especially at the C5-6
level, early disk degeneration and osteoarthritis.
Dr. Jelsma
opined that there was no disk herniation and that Greene’s pain
was possibly due to facet arthritis associated with spondylosis
or scoliosis.
After further conservative treatment was
unsuccessful, Dr. Kirsch referred Greene to Drs. David Petruska
and John Guarnaschelli, two neurosurgeons, in April, 1995.
Dr. Guarnaschelli initially attempted conservative
treatment with physical therapy and drugs, but Greene continued
to have severe pain in her neck.
A myelogram and CAT scan
conducted for Dr. Petruska indicated the presence of degenerative
disk disease at the C5-6 and C6-7 levels.
On August 9, 1995, Dr.
Guarnaschelli performed a spinal fusion discectomy by removing
the disks at the C5-6 and C6-7 levels and inserting bone from her
hip.
Greene continued to experience some pain in her neck and
weakness in her arms.
In April, 1996, Dr. Petruska placed her on
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several restrictions including no lifting more than ten pounds,
no lifting above her head, and avoidance of repetitive movement.
He recommended that Greene not return to work because of her
scoliosis, cervical degenerative disks disease, lumbar and
cervical discectomy and fusion, and continued pain.
Dr. Petruska
also referred Greene to Dr. Lounette Humphrey, a pain
psychiatrist for counseling.
Greene has not returned to work
since her fall in August, 1994.
On August 2, 1996, Greene filed an application for
adjustment of injury claim seeking workers’ compensation benefits
based on injuries received in her August, 1994 fall down the
stairs at work.
After the claim was assigned to an ALJ, the
parties conducted extensive discovery including the taking of
depositions of Greene, Dr. Johnson, Dr. Kirsh, Dr. Petruska, and
Dr. Humphrey, along with production of various medical records.
USW denied the claim on the basis that Greene’s injury did not
arise out of and in the course of employment but was due to a
pre-existing condition.
On May 13, 1999, the parties attended a prehearing
conference.
The prehearing order listed as the contested issues
for the formal hearing, inter alia, extent and duration, active
disability, and medical expenses.
On May 14, 1999, Greene
submitted her stipulations and witness list in preparation for
the formal hearing in which she acknowledged USW had paid her
regular salary from August, 1994, through April, 1996,1 and her
1
Greene was retained on the regular payroll under a
provision in the union collective bargaining agreement . In
(continued...)
-5-
medical expenses.
She also listed as the contested issues as
apportionment and extent and duration of the injury.
On June 23, 1999, the ALJ conducted a formal hearing at
which Greene testified.
At the beginning of the hearing, Greene
stated that she had received her full salary until April, 1996,
and no workers’ compensation benefits.
When she indicated that
she had not been told the salary payments were a substitute for
workers’ compensation benefits, USW’s attorney objected stating
the parties had agreed at the prehearing conference that Greene
was not seeking TTD benefits because she had received her salary
payments.
USW’s attorney noted that TTD benefits were not listed
as a contested issue in the prehearing conference order.
The ALJ
noted that that issue need not be explicitly listed, but rather
was subsumed under the “extent and duration” of disability issue,
but he expressed some uncertainty about whether Greene’s attorney
had waived a claim to TTD benefits.
Greene testified that she takes anti-depressant and
pain medication but that she continues to experience constant
pain in her neck and thoracic spinal region.
She stated that she
cannot stand or sit for a very extended period and is limited in
her ability to bend or lift objects.
On August 12, 1999, the ALJ issued an extensive opinion
and order denying Greene’s claim for benefits.
The ALJ declined
to decide whether Greene was entitled to TTD benefits finding
that she had waived that issue by agreement at the prehearing
1
(...continued)
April 1996, she was placed on retirement and began receiving
pension benefits based on a disability status.
-6-
conference, and therefore had not preserved it for review.
The
ALJ noted that USW did not dispute that the August, 1994, fall at
work may have aggravated Greene’s pre-existing spinal problems
but argued that she had received her full salary and medical
expenses related directly to that incident.
Because Dr. Kirsch
released Greene to work as of December 2, 1994, the major issue
involved whether the two spinal surgeries and Greene’s alleged
disability condition thereafter was caused by the fall and was
work related for purposes of workers’ compensation.2
The ALJ
stated:
The plaintiff, of course, bears the
burden of proof on the issue [of causation].
She has established that the fall of August
03, 1994 was an "aggravation of her preexisting problems." She has failed to
convince me, however, that this "aggravation
was any more significant than the others."
The simple fact that it was on that date that
she ceased work is not particularly
persuasive. She was, in fact, treated
conservatively and released to work by Dr.
Kirsch after approximately four months. The
reason she did not return to work is unclear,
however, she has failed to persuade me that
it was the August 03, 1994 work related fall.
I believe that she returned to her "baseline"
physical condition on or about December 02,
1994, and that any problems which she
experienced from that point forward are
solely due to the pre-existing conditions of
degenerate disc disease, scoliosis, and
arthritis.
2
Causation deals with factual casual connection associated
with the requirement that a compensable injury "arise out of" the
employment; while work-relatedness involves time, place, and
circumstances of the accident associated with the "in the course
of" the employment requirement. See, e.g., Stapleton v. Fork
Junction Coal, Co., Ky., 247 S.W.2d 372 (1952); Arthur Larson and
Lex K. Larson, Larson’s Workers’ Compensation, Desk Edition, §3:4
(1999); KRS 342.0011(1).
-7-
The ALJ subsequently denied Greene’s petition for
reconsideration.
On appeal, the Board affirmed the ALJ’s opinion denying
Greene permanent disability benefits, but it reversed his
decision denying her TTD benefits, and remanded the case for
further consideration by the ALJ on the issue of TTD benefits.
The Board found ample evidence to support the ALJ’s conclusion
that the August 3, 1994, fall caused no more than a temporary
aggravation of her pre-existing problems.
It also held, however,
that Greene had properly preserved the issue of TTD benefits as
reflected in the prehearing order’s listing of "extent and
duration" of disability as a contested issue.
The Board remanded
the case for a determination of whether Greene was entitled to
TTD benefits and any offsets or credits allowed to USW because
Greene continued to receive her full salary.
Both Greene and USW
have petitioned the Court for review of the Board’s opinion.
We begin with a discussion of this Court’s limited
scope of review on appeal of a workers’ compensation
administrative decision.
In order for an injury to be
compensable under the Workers’ Compensation Act, there must be a
causal connection between a work-related injury and the harm or
disability.
The employee has the burden of proving every element
of claim by showing that an injury is work-related, that being
that it arises out of and in the course of employment.
Magic
Coal Co. v. Fox, Ky., 19 S.W.3d 88, 96 (2000); Jones v. Newberg,
Ky., 890 S.W.2d 284, 285 (1994); Halls Hardwood Floor Co. v.
Stapleton, Ky. App., 16 S.W.3d 327, 329 (2000).
-8-
As the fact-
finder, the ALJ has the authority to determine the quality,
character, and substance of the evidence.
Square D Co. v.
Tipton, Ky., 862 S.W.2d 308, 309 (1993); Paramount Foods, Inc. v.
Burkhardt, Ky., 695 S.W.2d 418 (1985).
Similarly, the ALJ has
the sole authority to judge the weight and inferences to be drawn
from the evidence.
Miller v. East Kentucky Beverage/Pepsico,
Inc., Ky., 951 S.W.2d 329, 331 (1997); Luttrell v. Cardinal
Aluminum Co., Ky. App., 909 S.W.2d 334, 336 (1995).
"The fact-
finder may reject any testimony and believe or disbelieve various
parts of the evidence, regardless of whether it comes from the
same witness or the same adversary party’s total proof."
Coal, 19 S.W.3d at 96.
Magic
See also Whittaker v. Rowland, Ky., 998
S.W.2d 479, 481 (1999); Halls Hardwood Floor, 16 S.W.3d at 329.
When the decision of the fact-finder is against the party with
the burden of proof, that party bears the additional burden on
appeal of showing that the evidence was so overwhelming that it
compels a finding in his favor and that no reasonable person
would have failed to be persuaded by it.
Bullock v. Peabody Coal
Co., Ky., 882 S.W.2d 676, 678 (1994); Special Fund v. Francis,
708 S.W.2d 641, 643 (1986); Mosely v. Ford Motor Co., Ky. App.,
968 S.W.2d 675, 679 (1998).
Mere evidence contrary to the ALJ’s
decision is not adequate to require reversal on appeal.
Whittaker, 998 S.W.2d at 482.
Upon review of the Board’s
decision, the appellate court’s function is limited to correcting
the Board "only where the the [sic] Court perceives the Board has
overlooked or misconstrued controlling statutes or precedent, or
committed an error in assessing the evidence so flagrant as to
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cause gross injustice."
Western Baptist Hospital v. Kelly, Ky.,
827 S.W.2d 685, 687 (1992).
See also Huff Contracting v. Sark,
Ky. App., 12 S.W.3d 704, 707 (2000); Duff Truck Lines, Inc. v.
Vezolles, Ky. App., 999 S.W.2d 224, 227 (1999).
In the current case, Greene saw both Dr. Johnson and
Dr. Kirsch prior to the August, 1994, fall with complaints about
progressive lower back and neck pain.
Dr. Johnson recommended
spinal surgery during his consultations with Greene in December,
1993, and March, 1994, in order to correct the curvature of her
spine caused by scoliosis.
After the fall, Greene was examined
by Dr. Johnson in November, 1995, and an MRI at that time
indicated essentially no objective change in the condition of her
thoracic and lumbar back regions from the earlier period.
Dr.
Johnson testified that while the fall may have subjectively
aggravated her pre-existing condition, he found no objective
evidence of aggravation of her scoliosis.
Dr. Kirsch stated that
his examination of Greene after the fall indicated that she had
suffered a soft tissue injury or muscle strain of her neck and
low back area because of the fall.
Both he and Dr. Jelsma
interpreted a subsequent MRI as indicating that she had some
bulging of her cervical discs but no herniation.
They attributed
her condition to hypertrophic degenerative arthritis and
spondylosis, possibly related to the scoliosis.
Dr. Kirsch
stated, "I think she had developed an acute cervical, dorsal and
lumbar muscle strain superimposed on her already existing
condition."
-10-
Dr. Petruska deferred to Dr. Johnson on Greene’s lower
back problems but treated her for her neck problems.
The ALJ
discounted his testimony because he did not have a thorough
knowledge of Greene’s prior medical history.
Dr. Petruska’s
deposition indicates that he did not obtain records or
information about Greene’s prior medical treatment and had only a
rudimentary understanding that she had been diagnosed with
scoliosis.
In any event, Dr. Petruska’s testimony on the issue
of causation is equivocal at best.
Although he opined that the
fall aggravated or exacerbated her pre-existing problems, he did
not state that it alone caused a permanent disability.
He
believed that she could not return to work on a regular basis
because of the lumbar scoliosis, the cervical degenerative disc
disease and the two fusion surgeries.
Based on a review of the record, we cannot say that the
ALJ’s conclusion that the August 1994 fall resulted in a
temporary aggravation of her pre-existing problems constitutes an
error in assessing the evidence so flagrant as to cause gross
injustice.
Greene has failed to present contrary evidence so
overwhelming that it compelled a decision in her favor.
Consequently, the Board did not err in affirming the ALJ’s
opinion that Greene had not satisfied her burden of proving
causation sufficient to support an award of permanent disability
benefits.
On cross-appeal, USW challenges the Board’s decision
reversing the ALJ’s finding that Greene did not preserve the
issue of TTD benefits.
The Prehearing Order and Memorandum
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includes a stipulation that no TTD benefits had been paid and
lists "extent and duration" of disability as one of the contested
issues.
USW argues that Greene’s attorney indicated at the
prehearing conference that she was not seeking TTD benefits and
that that understanding is reflected in the prehearing conference
order because the issue of TTD benefits is not listed as one of
the contested issues.
However, when this issue was raised at the
formal hearing, the ALJ stated that TTD benefits do not have to
be specifically listed as a separate issue but would be subsumed
within the listed contested issues involving extent and duration
of disability.
Despite this fact, the ALJ referred to unrecorded
discussions at the prehearing conference in finding that Greene
had effectively waived the issue and not preserved it for review.
The Board criticized the ALJ for referring to unrecorded oral
discussions at the prehearing conference as a basis for his
decision.
It held that the issue of extent and duration of
disability includes the questions of recovery for both TTD
benefits and permanent disability benefits.
We agree with the Board that USW has not shown that
Greene failed to preserve the issue of TTD benefits for
administrative review.
As the ALJ indicated at the formal
hearing, TTD benefits are typically considered to be included as
a component of the extent and duration of disability because the
statute allows recovery of both TTD benefits and permanent
disability benefits.
Greene offered testimony on her receipt of
salary while off work following the fall as part of the
collective bargaining agreement.
-12-
There is no indication in the
transcript of the formal hearing that Greene believed she waived
this issue at the prehearing conference.
We agree with the Board
that the ALJ improperly relied on unrecorded comments or
discussions by the parties at the prehearing conference.
USW contends that the workers’ compensation
administrative regulations in effect at the time of the
prehearing conference and formal hearing required Greene to
specifically include TTD benefits in the pleadings to preserve
the issue.
However, the regulations merely require filing a
notice of contested issues and, unlike prior versions of the
regulations, do not indicate that failure to list an issue
constitutes a waiver.
Compare 803 KAR 25:011 §8(7) (1994) with
803 KAR 25:010 §12(4) (1999).
USW erroneously states that Greene
stipulated that she was not seeking TTD benefits and refers to
portions of the regulations dealing with factual stipulations.
See 803 KAR 25:010 §17.
In any event, USW has provided no
citations to statutory, administrative or case law contrary to
the Board’s position that TTD benefits are included within the
category of issues referred to as extent and duration of
disability.
The record simply does not support USW’s position that
Greene should be held to have intentionally waived the issue and
failed to preserve it.
Accordingly, we believe the Board did not
err or exceed its authority in reversing the ALJ’s ruling that
Greene did not preserve the issue of TTD benefits and remanding
the case for further consideration of her entitlement to those
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benefits and USW’s entitlement to any offsets or credits based on
Greene’s continued receipt of her salary.
For the foregoing reasons, we affirm the opinion of the
Workers’ Compensation Board.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE VICTORIA GREENE:
BRIEF FOR APPELLEE/ CROSSAPPELLANT UNITED STEEL
WORKERS:
G. Phil Williams
Williams, Wagoner & Nevitt
Louisville, Kentucky
Scott C. Wilhoit
Clark, Ward & Cave
Louisville, Kentucky
BRIEF FOR APPELLEE/CROSSAPPELLEE SPECIAL FUND:
John Burrell
Frankfort, Kentucky
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