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Boyers v. City of Fort Thomas12/18/2003
THIS OPINIONIS DESIGNATED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS AUTHORITY IN ANY OTHER CASE INANY COURT OF THIS STATE.
MEMORANDUM OPINION OF THE COURT REVERSING
The claimant sustained a work-related fracture of his right arm and moved to reopen his award after re-fracturing the arm in a fall at home. Based upon a finding that the work-related accident was the proximate cause of the claimant's present condition, an Administrative Law Judge (ALJ) increased his award. The Workers' Compensation Board (Board) affirmed, but the Court of Appeals determined that because the second fracture did not occur within the course of the claimant's employment, it was immaterial that the fracture would not have occurred absent the work-related injury. We reverse.
The claimant was employed as a paramedic and firefighter. On September 13, 1999, he sustained a severe fracture to his right arm while attempting to reach an individual who was trapped inside a burning residence. He was taken to the hospital where he underwent surgery. After recovering, he returned to work without restrictions and agreed to settle his claim. On November 12, 2000, he tripped and fell while playing ball with some children in his back yard, catching his weight on his right arm and re fracturing it. He was taken to the hospital where Dr. Grefer performed surgery. The claimant returned to work without restrictions, and on February 14, 2001, he moved to reopen his claim upon allegations of a worsening of condition and increased disability.
The claimant's treating physicians were Dr. Grefer and his partner, Dr. O'Brien. Following the work-related accident, Dr. O'Brien performed an open reduction and internal fixation for a compound fracture of the ulna and a fracture and dislocation of the right elbow. When he last saw the claimant on November 10, 1999, the fracture appeared to have healed well, and he released the claimant to return to work without restrictions. Dr. O'Brien assigned a 6% impairment.
In November, 2000, Dr. Grefer treated a fracture that was distal to the initial fracture. The surgical procedure involved removing the old hardware and re-plating and reducing the new fracture. Dr. Grefer noted that the procedure was very difficult technically because the bone was deformed. In his opinion, the 1999 fracture made the arm more susceptible to injury, and the 2000 incident would most likely not have resulted in a fracture had the claimant's ulna not previously been fractured.
When deposed, Dr. Grefer repeated that if the claimant had not previously been injured, the 2000 incident would probably not have caused any problem, indicating that the second fracture occurred at a "stress riser." He explained that a stress riser is a condition that increases a bone's susceptibility to breaking and that the claimant's fracture occurred through the end screw of the plate in his bone, an area of increased susceptibility. Absent the prior fracture and bone plating, the claimant probably would not have broken his arm when he fell at home and definitely would not have broken it in that location. Dr. Grefer admitted, however, that the claimant did sustain a new trauma in the fall at home. In his opinion, the claimant's present impairment was 10%.
Although acknowledging that the claimant sustained a non-work-related trauma in November, 2000, the AU determined that the 1999 injury was the proximate cause of his present condition and increased his award. The employer then appealed, maintaining that the AU failed to address the re
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