APPEAL FROM COURT OF APPEALS CASE NO. 2017-CA-001425-WC
WORKERS' COMPENSATION BOARD NO. 14-WC-68458
COUNSEL FOR APPELLANT: Peter J. Naake PRIDDY, CUTLER, NAAKE
85 MEADE, PLLC
COUNSEL FOR APPELLEE: Jo Alice Van Nagell Brian Wilson
Davidson FOGLE KELLER WALKER, PLLC
Wetherby appeals from the Court of Appeals' decision
upholding an Administrative Law Judge's (ALJ) award of 6%
permanent partial disability benefits to Wetherby because of
a work-related injury. Ultimately, Wetherby argues that the
ALJ erred by making insufficient findings to exclude a
preexisting condition in assessing his impairment rating.
Because our case law governing pre-existing injuries is
inapplicable to this case, we disagree. For the reasons
stated below, we affirm the Court of Appeals.
AND PROCEDURAL HISTORY
began working for Amazon.com (Amazon) on June 5, 2012, as a
warehouse associate, performing duties such as operating
forklifts and training new employees. On October 3, 2012,
Wetherby operated a forklift for most of his shift, then
moved 50-60-pound boxes from a pallet onto a conveyor. He
stated he was moving a box onto a conveyor when he felt a
shooting pain run from his neck down his right arm, then his
hand went numb. Although the initial pain subsided, Wetherby
continually reported numbness in his right hand. It was
ultimately determined that the incident caused a disc
herniation in Wetherby's neck, necessitating surgery.
to the work injury, Wetherby sustained a work-related
cervical injury and underwent a cervical fusion at the C4-C5
level in 1980. The cervical injury was caused by moving slabs
of cement underwater as part of a boat dock construction
project. He had another cervical fusion, stemming from the
same injury, at C5-C6 in 1985 due to ongoing pain in his left
shoulder. However, no medical records were introduced
regarding the injury and subsequent fusion surgeries, and the
record contains no medical records regarding any medical
treatment Wetherby may have received prior to the 2012 work
injury. Wetherby testified that he had no pain after the 1985
surgery, and he was "back to normal." He continued
working operating heavy equipment and lifting sand bags and
wooden boards for approximately four years, before purchasing
a convenience store in Georgia.
January 14, 2013, about three months after the Amazon injury,
Wetherby visited Dr. Leung reporting decreased grip strength
and numbness in his right hand and forearm. Dr. Leung
developed a plan for therapy and medication. Dr. Leung
recommended surgical intervention on several follow-up visits
with Wetherby and ultimately referred him to Dr. Owen to
discuss possible surgery. Despite his persisting symptoms,
during his initial visit with Dr. Owen on March 12, 2013,
Wetherby indicated that he would like to avoid surgery if
11, 2013, Dr. G. Christopher Stephens evaluated Wetherby to
assess complaints of pain and numbness. Dr. Stephens opined
that Wetherby had reached maximum medical improvement, unless
he elected to undergo the surgery recommended by Dr. Owen.
Wetherby stated that he did not want to pursue additional
surgery unless his symptoms worsened. With respect to
causation, Dr. Stephens believed the issue was not
straightforward, given Wetherby's pre-existing disease of
the cervical spine from the prior fusions in 1980 and 1985.
However, Wetherby informed Dr. Stephens that he was
completely asymptomatic prior to the 2012 work injury.
Ultimately, Dr. Stephens rated Wetherby at a 25% impairment
immediately preceding the Amazon work injury, and attributed
3% impairment to the work injury, for a total whole person
impairment of 28%. Dr. Stephens opined that Wetherby could
return to work indefinitely if he refrained from lifting more
than 25 pounds without assistance.
symptoms persisted, and Dr. Owen performed right posterior
foraminotomies at the C6-C7 and C7-T1 levels on June 9, 2014.
The surgery went routinely, but at three months
post-operation, Wetherby still reported numbness in his right
forearm and fingers. On October 28, 2014, Wetherby again
visited Dr. Owen. Dr. Owen opined that Wetherby had reached
maximum medical improvement and recommended he return to work
on December 10, 2014. Wetherby continued to work at Amazon
after the 2012 work injury up until his 2014 surgery and took
six months of leave from work after the surgery. He was still
an Amazon employee during discovery related to his
workers' compensation claim.
March 25, 2015, Dr. Frank Burke performed an independent
medical evaluation and diagnosed acute cervical spine injury
with right radiculopathy, as well as arousal of pre-existing
degenerative disc disease. Dr. Burke assessed a 17% whole person
impairment rating using the Fifth Edition of the AMA
Guides to the Evaluation of Permanent Impairment
(Guides) based on Wetherby's significant
radiculopathy. In his deposition, Dr. Burke stated he knew
Wetherby had a prior injury, but believed it was not relevant
to this case because he was asymptomatic prior to the work
injury. Dr. Burke also testified that when he assigned the
17% impairment rating for the work injury, he disregarded the
previous injury and residual impairment because the previous
injury involved the "upper portion of [Wetherby's]
cervical spine" and resulted in left-sided cervical
radiculopathy. He stated that Wetherby "has a historical
issue, but . . . that's not relevant to this case.
It's a different part of the spine . . . different
extremity . . . [t]o me ... it would not affect the
Burke and Dr. Stephens used different methods of rating
Wetherby's impairment. Dr. Stephens used the Range of
Motion (ROM) method, and Dr.
initially used the Diagnosis Related Estimate (DRE) method.
In his deposition, Dr. Burke stated that he considered the
ROM method, but since the work injury was to a different part
of the spine than the previous injury, he did not think it
would be appropriate. Dr. Stephens, on the other hand,
criticized Dr. Burke's use of the DRE method.
receiving criticism about the method of evaluation used in
the 2015 assessment, Dr. Burke re-evaluated Wetherby on June
13, 2016, to conduct a ROM assessment and concluded the whole
person impairment was 37%, attributing 21% to loss of range
of motion. Given that Wetherby's previous injury was to a
different part of the spine, Dr. Burke did not attribute any
of the impairment rating to the previous injury.
was evaluated by Dr. Timothy Kriss on June 8, 2016. He stated
that after reviewing the criteria in the Guides
defining when the ROM method or the DRE method should be
utilized, he could not "find a better example of a
patient" who met the criteria for using the ROM method.
Dr. Kriss opined that the prior injuries and surgeries played
a role in Wetherby's current condition. He stated that
Wetherby had a 31% whole person impairment, but only
attributed 3% to the 2012 work injury and the remaining 28%
to the 1980 work injury and subsequent surgeries.
initiated a workers' compensation claim on December 4,
2015. The ALJ conducted a hearing on November 1, 2016, and
heard Wetherby's live testimony. After considering all the
medical evidence, the ALJ determined that Wetherby retained a
25% pre-existing cervical impairment due to his previous
injuries, and a 6% impairment stemming from the 2012 work
injury for a total whole person impairment of 31%. It appears
that the ALJ relied on both Dr. Kriss and Dr. Stephens,
adopting Dr. Stephens's impairment rating from the ...