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Clark Regional Medical Center v. Osborne6/16/2005
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS AUTHORITY IN ANY OTHER CASE IN ANY COURT OF THIS STATE.
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The Workers' Compensation Board (Board) reversed an Administrative Law Judge's (ALJ's) finding that the claimant had become permanently and totally disabled from her work-related injury at reopening, concluding that there was no substantial evidence of increased impairment from the injury as required by KRS 342.125(1)(d). Convinced that the Board misapplied the law and that the award was supported by substantial evidence, the Court of Appeals reinstated it. Dingo Coal Co. v. Tolliver, 129 S.W.3d 367, 370-71 (Ky. 2004). We affirm.
The claimant was born in 1945, has an eleventh-grade education, and is certified as a patient care technician. She began working for the defendant-employer in 1977. She testified that she provided general care for patients at her employer's facility and that the job required her to lift, push, pull, bend, squat. Her application for benefits alleged that she sustained work-related back injuries while lifting patients on October 28, 1998, and June 1, 1999. When the claims were heard, she had not returned to work and alleged that she was totally disabled. She complained of sharp, burning pain in her low back that ran into her right leg and for which she took Ultram and Flexeril daily. She performed only limited household chores such as making a bed, washing dishes, or cooking and could not run a vacuum cleaner or drive.
The employer submitted reports from Drs. Wood and Sheridan, who were of the opinion that the claimant sustained only soft tissue injuries that had resolved. Dr. Sheridan assigned a 0% impairment, stating that he had consulted the DIRE model and the 4th edition of the AMA's Guides to the Evaluation of Permanent Impairment (Guides). Dr. Wood evaluated the claimant and testified that the claimant's symptoms were due to degenerative osteoarthritis in her thoracic and lumbar spine, which existed before the work-related injury. He noted that her treating physician returned her to work within a week of the second injury, albeit with a ten-pound lifting limit.
The claimant introduced testimony from Dr. Vaughan. His report of July 26, 1999, indicated that MRI of the thoracic and lumbar spine revealed disc protrusions/bulges at T11-12, T12-L1, L1-2, and L2-3 but no frank herniations. He attributed her axial thoracic and lower back pain to degenerative spondylosis of the thoracic and lumbar spine. In a December 23, 1999, report Dr. Vaughan indicated that he had seen the claimant twice and had diagnosed thoracolumbar spondylosis. He assigned a "5% [impairment] to the body as a whole" and restricted her from lifting more than 15 pounds and from repetitive twisting and bending of the back.
On October 19, 2000, the claimant was awarded temporary total disability benefits from July 1, 1999, until October 21, 1999. Although the AU noted that whether the claimant was permanently and totally disabled was "a close question," he determined that her permanent disability was only partial and that she retained the ability to perform sedentary work. She received income benefits under KRS 342.730(1)(b) and (c) based on findings that her impairment was 5% and that she did not retain the physical capacity to return to her previous work.
On October 17, 2001, the employer filed a motion to reopen in order to contest the payment of medical expenses for various conditions that it alleged
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