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Parker v. Webster County Coal, LLC

Supreme Court of Kentucky

April 27, 2017

MARSHALL PARKER APPELLANT
v.
WEBSTER COUNTY COAL, LLC (DOTIKI MINE); HON. STEVEN G. BOLTON, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES AND WEBSTER COUNTY COAL, LLC (DOTIKI MINE) APPELLANT
v.
MARSHALL PARKER; MULTICARE MADISONVILLE; DR. RICHARD HOLZKNECHT; COOP HEALTH SERVICES; DEACONESS HOSPITAL; DAVID D. EGGERS, M.D.; NEUROSURGICAL CONSULTANTS; JAMES M. DONLEY, M.D.; CENTER FOR ORTHOPEDICS; WAYNE C. COLE, D.O.; KELLY L. COLE, D.O.; HON. STEVEN G. BOLTON, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

         ON APPEAL FROM COURT OF APPEALS CASE NOS. 2013-CA-001978-WC, 2013-CA-001968-WC WORKERS' COMPENSATION BOARD NO. 09-WC-99663

          COUNSEL FOR APPELLANT/APPELLEE MARSHALL PARKER: Thomas Lawrence Hicks Cetrulo, Mowery 85 Hicks, PSC

          COUNSEL FOR APPELLEE/APPELLANT WEBSTER COUNTY COAL: Stanley Shields Dawson Fulton 85 Devlin LLC

          COUNSEL FOR APPELLEES MULTICARE MADISONVILLE, DR. RICHARD HOLZKNECHT, DEACONESS HOSPITAL, COOP HEALTH SERVICES:

          John C. Morton Morton Law LLC UNREPRESENTED APPELLEES: David D. Eggers, M.D. Neurosurgical Consultants James M. Donley, M.D. Center for Orthopedics Wayne C. Cole, D.O. Kelly L. Cole, D.O.

          OPINION

          KELLER, JUSTICE

         In separate appeals, Marshall Parker challenges the constitutionality of Kentucky Revised Statute (KRS) 342.730(4) and Webster County Coal (Webster County) challenges the Administrative Law Judge's (ALJ) award of benefits to Parker for a back injury. The Board affirmed the ALJ's award of benefits but, because it lacks the jurisdiction to do so, the Board did not address Parker's constitutional claim.[1]The Court of Appeals affirmed the Board and found that KRS 342.730(4) is constitutional. For the following reasons, we affirm the Court of Appeals regarding Parker's entitlement to benefits. However, we reverse that Court's holding that KRS 342.730(4) is constitutional and remand this matter to the ALJ for an award consistent with this opinion.

         I. BACKGROUND.

         Parker was born on October 5, 1939, and he began working as an underground coal miner for Webster County in 1974. On September 8, 2008, Parker slipped while trying to climb over a conveyor belt. He testified that he felt pain in his right knee, right hip, and low back after this incident. Despite his injuries, Parker continued to work for approximately three months. Parker eventually underwent right knee surgery in December 2008 and lumbar spine surgery in June 2011. Following treatment, Parker has continued to have back pain, and he has difficulty walking and climbing stairs. He has not returned to any type of work.

         Webster County accepted liability for Parker's right knee injury and has paid all medical benefits associated with that injury. Because Webster County is not contesting Parker's knee injury claim, we do not set forth the medical evidence regarding that claim. However, Webster County did contest Parker's back injury claim based on medical records containing pre-injury complaints of low back pain and diagnostic testing that showed significant degenerative changes. Therefore, we summarize the medical evidence related to that claim below.

         In support of his back injury claim, Parker filed medical records and a report from his spine surgeon, Dr. David Eggers. In his May 20, 2009 office note, Dr. Eggers stated that Parker had suffered from "intractable low back and right radicular leg pain" since an injury in September 2008. In his Form 107 Medical Report - Injury/Hearing Loss/Psychological Condition, Dr. Eggers stated that Parker suffered from displacement of a lumbar disc, spinal stenosis, and acquired spondylolisthesis. Dr. Eggers related these conditions to Parker's injury; however, he did not specify the date of the injury. Furthermore, although he had been asked to do so, Dr. Eggers would not give an opinion regarding what permanent impairment or restrictions Parker has.

         Webster County filed records from Tri-State Orthopedic Surgeons and Dr. James Donley. The Tri-State records showed, in pertinent part, that Parker complained of and sought treatment for low back and leg pain in September 2003, March 2005, and May 2006. It appears from the records that Parker received at least one epidural steroid injection in late 2005 and one epidural steroid injection in May 2006. Furthermore, Parker's 2003 lumbar MRI revealed multi-level degenerative changes with mild to moderate stenosis. Dr. Donley's records reveal, in pertinent part, that Parker complained of aches and pains/strains but had not received any treatment for back pain in the two years before the work injury.

         Webster County also filed reports from Dr. Russell Travis, Dr. Bart Goldman, and Dr. William Gavigan. Dr. Travis, in his October 9, 2009 report, stated that Parker suffered from right L4 radiculopathy secondary to degenerative spondylolisthesis with a bulging disc at L4-5 and significant degenerative changes throughout the lumbar spine. Dr. Travis concluded that, despite Parker's significant pre-existing lumbar degenerative changes, the surgery then being recommended by Dr. Eggers was work-related. In reaching that conclusion, Dr. Travis stated that he had seen "no records that indicate Mr. Parker had significant low back pain and no right lower extremity pain prior to this." In a November 20, 2009 addendum to his October report, Dr. Travis stated that, upon review of an office note from one of Parker's physicians dated September 28, 2009, Parker's "current problem is not related directly to the injury of 9/28/2008, but is clearly a question of pre-existing severe degenerative changes with neural impingement and previous symptomatic problems with his low back." We note that Dr. Travis had reviewed and summarized the September 28, 2008 office note in his October 2009 report.

         Dr. Goldman stated that Parker suffered from degenerative retrolisthesis at L3-4 which pre-existed the September 8, 2008 work-injury. According to Dr. Goldman, the surgery performed by Dr. Eggers was to alleviate an active preexisting condition, not because of Parker's work injury.

         Dr. Gavigan made diagnoses of severe degenerative disc disease that actively pre-existed the work injury. He opined that all of Parker's back treatment was related to that pre-existing active condition and not to the work injury. Finally, Dr. Gavigan, who imposed no restrictions, assigned Parker a 22% impairment rating, all of which he attributed to the pre-existing active condition.

         Based on the preceding evidence, the ALJ found that Parker suffered a lower back injury on September 8, 2008 and that none of Parker's back-related impairment was the result of a pre-existing active "disability/impairment of the back under the holding in Finley (supra)."[2] The ALJ also determined that Parker is not totally disabled and awarded income benefits based on Parker's 4% knee impairment and his 22% lumbar spine impairment for a combined permanent impairment rating of 26%. However, because Parker had already received two years of temporary total disability income benefits, the ALJ found that Webster County did not have liability for payment of any additional income benefits pursuant to KRS 342.730(4). The Board and the Court of Appeals affirmed.

         As noted above, both Webster County and Parker have appealed from the Court of Appeals's opinion. Webster County argues that the evidence did not support the ALJ's award of benefits related to Parker's low back condition. Parker appeals the ALJ's termination of income benefits pursuant to KRS 342.730(4). We set forth additional necessary background information below.

         II. STANDARD OF REVIEW.

         The ALJ has the sole discretion to determine the quality, character, and substance of the evidence and 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 party's total proof. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Parker had the burden of proving that his back condition is related to the work injury. Gibbs v. Premier Scale Company/Indiana Scale Co., 50 S.W.3d 754, 763 (Ky. 2001), as modified on denial ofreh'g (Aug. 23, 2001). Because he was successful before the ALJ, the question for us on appeal is whether the ALJ's finding of work relatedness is supported by substantial evidence. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999). "Substantial evidence has been defined as some evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men." Id. at 481-82. Thus, the determinative question to be answered on review is whether the ALJ's finding that Parker's back condition is related to the work injury "is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law." KRS 342.285; Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000).

         While we give great deference to the ALJ's factual findings, questions of law, i.e., whether KRS 342.370(4) is constitutional, we review de novo. See U.S. Bank Home Mortgage v. Schrecker, 455 S.W.3d 382, 384 (Ky. 2014). With the preceding standards in mind, we first address Webster County's argument that the ALJ's finding that Parker suffered a work-related back injury is not supported by the evidence. We then address Parker's argument that KRS 342.730(4) is unconstitutional.

         III. ANALYSIS.

         A. Whether Parker suffered a work-related back injury.

         Webster County argues that there was not sufficient evidence to support a finding that Parker suffered a work-related back injury. It notes that Drs. Gavigan, Travis, and Goldman all opined that Parker's back condition actively pre-existed his September 2008 injury. It also notes that, although Dr. Eggers referred to an injury as being the cause of Parker's back condition in his Form 107, he did not specify which injury. Finally, Webster County notes that Parker's ...


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