APPEAL FROM COURT OF APPEALS CASE NOS. 2013-CA-001978-WC,
2013-CA-001968-WC WORKERS' COMPENSATION BOARD NO.
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:
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,
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.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.
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.
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.
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
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
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.
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
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.
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)." 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.
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.
STANDARD OF REVIEW.
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).
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.
Whether Parker suffered a work-related back injury.
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