RENDERED:  JULY 14, 2017; 10:00 A.M.



Commonwealth Of Kentucky

Court of Appeals


NO. 2016-CA-001752-WC



KELLY O’CONNOR                                                                   APPELLANT




                           PETITION FOR REVIEW OF A DECISION


                                        ACTION NO. WC-14-87039







BOARD                                                                                        APPELLEES







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JOHNSON, JUDGE:  Kelly O’Connor (“O’Connor”) petitions for review of an opinion of the Workers’ Compensation Board.  The Board affirmed an order of the Administrative Law Judge (“ALJ”) awarding benefits to O’Connor for a cervical injury, but declining to find that he suffered a work-related lumbar injury.  After reviewing the record in conjunction with the applicable legal authorities, we AFFIRM.


                   O’Connor began working as an auditor at UPS Supply Chain Solutions (“UPS”) around June 2006.   His duties included opening boxes to ensure the contents were in good condition, and then sealing them for shipment.  At some point when UPS was understaffed, he was required to put the boxes away himself, using high lift equipment.  On March 31, 2014, while he was moving boxes he described as weighing more than 70 pounds, he felt a pop in his chest and a painful sensation that wrapped around his left side and back to his shoulder.  He reported his injury to his supervisor and went home.  On April 2, 2014, when he returned to work he was again required to lift heavy boxes and experienced a repetition of the pain he had previously felt.  He left his workplace and went to an urgent care center and then consulted his family physician.  O’Connor was prescribed physical therapy and medication.  After physical therapy, O’Connor claimed no improvement, and was subsequently referred to Dr. Stacie Grossfeld (“Dr. Grossfeld”) an orthopedic specialist.

                   In September 2014, he began consulting with Dr. Grossfeld.  According to O’Connor, he started having more pain in his back at that time, and he experienced numbness and tingling in his legs as well as difficulty standing.

                   Dr. Grossfeld diagnosed a disc bulge in O’Connor’s cervical spine which she attributed to the work he performed in March 2014.  The ALJ found that his cervical spine injury was compensable and it is not at issue in this appeal.  In addition to the cervical spine injury, Dr. Grossfeld also determined that O’Connor’s lower back pain, difficulty standing and the numbness and tingling in his legs were due to a lumbar spine impairment, a pars defect, which is a congenital condition occurring when a spinal growth plate does not fully close.  O’Connor’s pars defect was bilateral and had worsened to the point that he had Grade 1 spondylolisthesis.  Dr. Grossfeld explained that there were no active symptoms the first 2 times she saw him because the process was ongoing.  She did not believe that O’Connor’s work activities caused his low back pain, which she attributed to the pars defect exacerbated by morbid obesity.  She testified that his symptoms were “not from lifting at UPS.  It’s a congenital condition.”  She explained that O’Connor “was most likely, based on medical probability, at some point in his life going to have low back pain from his pars defect.  I could not – based on his history it did not make sense that lifting those boxes caused his back pain.”

                   Dr. Phillip Corbett prepared an evaluation of O’Connor on behalf of UPS.  He described the work-related injury that occurred on March 31, 2014, as a cervical soft tissue sprain/strain, and assigned a 5% whole person impairment with no physical work restrictions.   He did not relate the lumbar condition to O’Connor’s work activities although he acknowledged that there was no evidence of an active impairment prior to the work injury.

                   The ALJ relied on the opinion of Dr. Corbett that O’Connor sustained a work-related cervical injury on March 31, 2014, in the form of a chronic strain.  The ALJ determined that the additional symptoms he suffered on April 2, 2014, were a continuation of the injury of March 31, 2014.  He concluded that O’Connor suffered a compensable, work-related cervical injury on that date, and awarded temporary total and permanent partial benefits and medical expenses accordingly.

                   As to O’Connor’s lower back condition, however, the ALJ held, largely in reliance on Dr. Grossfeld’s testimony, that it was not caused or aggravated or aroused into disabling reality by any work injury or by any cumulative trauma sustained at work.  As further evidence, the ALJ also noted that O’Connor did not mention any lower back complaints to Dr. Grossfeld before his October 2014 visit to her, despite his testimony that he had lower back pain going back to the time of the March 31, 2014, incident at work.

                   O’Connor appealed to the Board, which affirmed the ALJ’s opinion, award and order.  This petition by O’Connor followed.


The function of further review of the WCB [Workers’ Compensation Board] in the Court of Appeals is to correct the Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice.


Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).  As the claimant in a workers’ compensation matter, O’Connor bore the burden of proving every element of his claim, including causation.  Lane v. S & S Tire, Inc., No. 15, 182 S.W.3d 501, 505 (Ky. 2005), as modified on denial of reh’g (Feb. 23, 2006).  As he was unsuccessful in persuading the ALJ that his lumbar symptoms were brought into a disabling reality by the work incident, the question on appeal is whether the evidence in his favor is so overwhelming that it compels a different result.  Wolf Creek Colleries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).


                    “[A] pre-existing condition that is both asymptomatic and produces no impairment prior to the work-related injury constitutes a pre-existing dormant condition.”  Finley v. DBM Technologies, 217 S.W.3d 261, 265 (Ky. App. 2007).  A “disability which results from the arousal of a prior, dormant condition by a work-related injury . . . [is] compensable.”  McNutt Construction/First Gen. Servs. v. Scott, 40 S.W.3d 854, 859 (Ky. 2001).  

                   O’Connor argues his pars defect was dormant and then became symptomatic, active, and impairment ratable following an extended period of heavy lifting at work, and contends that Dr. Grossfeld’s testimony supports his claim.  He has amassed various pieces of evidence from the record to support this argument, including the fact that there was no indication that the pars defect was actively causing symptoms prior to March 2014.  He relies upon Dr. Grossfeld’s testimony that individuals with symptomatic pars defects should avoid heavy lifting as it can worsen their symptoms.  While a party may argue evidence which would have supported a conclusion contrary to the ALJ’s decision, such evidence is not an adequate basis for reversal on appeal.  Ira A. Watson Dep’t Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000).

                   According to Dr. Grossfeld’s records and testimony, O’Connor first mentioned lumbar pain to her on his third visit in October 2014, six months after the workplace incident.  Simply because his lumbar condition became symptomatic several months after the workplace lifting incident does not mean that there was a causal connection between the two.  Dr. Grossfeld testified that O’Connor told her that he was only lifting for a brief period of time, and typically did not lift at UPS.  She then testified as follows:  “If he lifted regularly at UPS, repetitively lifting up to 70 pounds over a course of three to four weeks, I would say that his symptoms most likely were caused from that work injury.  That’s not the history he gave me though.”  O’Connor, on the other hand, provided contradictory testimony that he had lower back pain dating back to the March 31, 2014 work injury.  The ALJ “has the sole authority to judge the weight, credibility, substance, and inferences to be drawn from the evidence.”  AK Steel Corp. v. Adkins, 253 S.W.3d 59, 64 (Ky. 2008) (citation omitted).   “As fact-finder, an ALJ 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.”  Gaines Gentry Thoroughbreds/Fayette Farms v. Mandujano, 366 S.W.3d 456, 461 (Ky. 2012) (internal citation omitted).           

                   Dr. Grossfeld’s opinion that the pars defect was a congenital condition that would worsen inevitably over time and was exacerbated by O’Connor’s obesity constituted substantial evidence to support the ALJ’s decision that the lower back symptoms were not work-related.  Because O’Connor bore the burden of proof and he was unsuccessful in persuading the ALJ our only question on appeal is whether the evidence in his favor is so overwhelming that it compels a different result.  Based upon the facts we find that the ALJ’s decision is supported by the evidence presented and we find no reason to overturn that decision.


                   For the foregoing reasons, we AFFIRM the opinion of the Workers’ Compensation Board.


                   ALL CONCUR.





Alan S. Rubin

Louisville, Kentucky





K. Lance Lucas

Sarah Rogers

Florence, Kentucky