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Wetherby v. Amazon.Com

Supreme Court of Kentucky

August 29, 2019




          COUNSEL FOR APPELLEE: Jo Alice Van Nagell Brian Wilson Davidson FOGLE KELLER WALKER, PLLC



         Samuel 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.


         Wetherby began working for (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.

         Prior 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.

         On 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 possible.

         On July 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.

         Wetherby's 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.

         On 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.[1] 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 rating."

         Dr. Burke and Dr. Stephens used different methods of rating Wetherby's impairment. Dr. Stephens used the Range of Motion (ROM) method, and Dr.

          Burke 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.

         After 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.

         Wetherby 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.

         Wetherby initiated a workers' compensation claim on December 4, 2015. The ALJ conducted a hearing on November 1, 2016, and heard Wetherby's live testimony.[2] 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 ...

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