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April 27, 2018 201664257

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  April 27, 2018

 

 

CLAIM NO. 201664257

 

 

TOYOTA MOTOR MANUFACTURING KENTUCKY, INC.      PETITIONER

 

 

 

VS.        APPEAL FROM HON. JANE RICE WILLIAMS,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

ESTILL RICKERSON and

HON. JANE RICE WILLIAMS,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING IN PART,

VACATING IN PART & REMANDING

 

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

ALVEY, Chairman.  Toyota Motor Manufacturing, Kentucky, Inc. (“Toyota”) appeals from the Opinion, Award, and Order rendered January 23, 2018 by Hon. Jane Rice Williams, Administrative Law Judge (“ALJ”), finding Estill Rickerson (“Rickerson”) sustained a work-related low back injury.  The ALJ awarded temporary total disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits and medical benefits.  Toyota also appeals from the February 12, 2018 order on its petition for reconsideration. 

          On appeal, Toyota argues the ALJ inaccurately summarized Dr. Nicholas Leverette’s chiropractic records which compel a finding that Rickerson’s low back condition occurred prior to the alleged September 1, 2016 injury date.  Toyota also argues the ALJ’s summary of Dr. Leverette’s records is insufficient.  Toyota also argues the ALJ erred in awarding 12% interest on all past due benefits.  Because the ALJ’s determination regarding causation is supported by substantial evidence, we affirm in part.  However, we vacate in part and remand regarding the applicable interest rate.   

          Rickerson filed a Form 101 alleging he injured his low back and legs on July 1, 2016, when he was forcing an exhaust system onto an engine and felt immediate low back pain.  Rickerson disclosed he had previously been awarded benefits for a low back injury in 1997. 

          Rickerson filed a motion to amend the date of injury to September 1, 2016 based upon the July 7, 2017 deposition of Deborah Woods (“Woods”).  Woods, an assistant claims manager, completed the first report of injury.  Woods testified the July 1, 2016 date of injury contained in the report is a typographical error, and should reflect September 1, 2016 as the injury date.  Rickerson also moved to pursue the claim both as a specific injury and cumulative trauma injury.  The ALJ granted Rickerson’s motion and amended the Form 101, “to reflect the correct injury/manifestation date of September 1, 2016 and to include an injury due to cumulative trauma.”    

          Rickerson testified by deposition on March 1, 2017, and at the hearing held November 28, 2017.  Rickerson has worked for Toyota since 1990.  He also has worked in the quality control department of powertrain at all relevant times.  Rickerson sustained a work-related low back injury in 1997, and underwent surgery by Dr. James Bean at L5-S1 that same year.  Overall, Rickerson was satisfied with the 1997 surgery.  However, he returned to Dr. Bean in 2004 for back pain and subsequently began treating with a chiropractor, Dr. Leverette.  He saw Dr. Leverette “about every four or five years, whether it would be muscle spasms or just a strain.”  Rickerson explained when he reported work-related low back pain to Dr. Leverette on August 2, 2016, he was referring to the 1997 injury.  Prior to September 1, 2016, Rickerson stated he was able to perform his job without restrictions, and had no symptoms in his right leg. 

          Rickerson stated he experienced a new onset of low back pain on September 1, 2016 as he was forcing a new engine into place.  Rickerson continued to work, and his symptoms progressively worsened to the point he sought treatment.  Rickerson initially treated with Dr. Leverette before visiting his family physician, Dr. John Reesor.  Rickerson also treated with Dr. Paul Harries and Dr. Brett Scott, who ultimately performed surgery at L3-4 on November 1, 2016.  Rickerson was restricted from work from October 17, 2016 through March 6, 2017, when he returned to his normal job without restrictions. 

          Rickerson testified he initially thought his low back pain was due to a flare-up of his 1997 injury and was unaware of the severity of his injury.  He explained, “Every couple of years, every couple of months, my back would hurt.  I would wake up stiff; I would have trouble walking.  I’d go see the chiropractor . . . and I’d be fine.”  Subsequent to September 1, 2016, he experienced low back pain radiating down his left leg, as well as numbness in his right leg and difficulty walking.  Rickerson testified he did know he had a new injury, nor did he know the extent of his injury, until an October 7, 2016 MRI, which revealed problems at the L3-4 level.  Rickerson reports his symptoms have significantly improved since the November 1, 2016 surgery, but he continues to experience numbness in his right leg below the knee.   

          Alan Hampton (“Hampton”), the production group leader in quality control and power train at Toyota, also testified by deposition on June 28, 2017.  Hampton testified Rickerson did not report a work injury to him on July 1, 2016.  Hampton acknowledged Rickerson stated to him he was treating with a chiropractor in September or October 2016, but did not attribute his complaints to a work injury.   

          Toyota filed the records from Dr. Leverette for chiropractic treatment received in August, September and October of 2016.  Rickerson completed a registration and history form on August 2, 2016, and listed his chief complaints as tingling and numbness in his left leg and knee, which began one month prior and had progressively worsened.  He also reported the 1997 L5-S1 surgery.  In examining Rickerson that same day, Dr. Leverette noted he complained of low back pain radiating down his left leg, numbness and tingling down the front and in his toes, and severe cramps in his left leg, which Rickerson attributed to work.  Dr. Leverette provided chiropractic adjustments on August 4, 8, 10, 15, 22, 25, and 30, 2016.  Rickerson’s complaints included low back pain and muscle spasms, bilateral leg pain and numbness, numbness and tingling in the toes, and neck pain and stiffness.  Rickerson returned on September 1, 2016 complaining of pain radiating down the left leg and a headache.  Similarly, on September 12, 2016, Rickerson complained of worsening low back pain radiating down both legs.

          Toyota filed the September 13, 2016 record of Dr. Reesor, who noted Rickerson reported the sudden onset of back pain radiating into his left leg, which had been occurring in a persistent pattern for months.  

          Toyota filed the October 17, 2016 record of Dr. Harries.  He noted Rickerson reported low back pain radiating into his legs, as well as bilateral lower extremity numbness.  Rickerson reported his symptoms began abruptly one month prior.  Dr. Harries noted an October 6, 2016 MRI demonstrated a large right L3-4 disc herniation and left sided facet hypertrophy resulting in stenosis.  Dr. Harries diagnosed radiculopathy, cauda equina syndrome, and long term (current) use of an opiate analgesic.  He restricted Rickerson from work and ordered a thoracic MRI.  

          Rickerson filed the records of Dr. Scott.  On October 19, 2016, Dr. Scott noted Rickerson reported his current symptoms of low back and left leg pain, as well as complete numbness in the right leg, began at work while pushing and tugging on an engine.  Dr. Scott noted the October 6, 2016 MRI demonstrated disc desiccation at L3-4, L4-5, and L5-S1; and a disc central herniation at L3-4 associated with spinal stenosis and bulging disc at L4-5.  He recommended surgical intervention.  The November 1, 2016 operative report reflects Dr. Scott performed bilateral L3-L4 partial hemilaminectomies, L3-4 medial facetectomies, and L3-4 discectomies.  He diagnosed Rickerson with L3-L4 herniated nucleus pulposus and spinal stenosis with bilateral leg pain and multilevel lumbar spondylosis. The treatment records reflect the prior 1997 L5-S1 laminectomy.  Dr. Scott noted Rickerson did well after his 1997 surgery, and did not have any leg pain prior to the September 1, 2016 incident. 

          Rickerson filed the January 5, 2017 report of Dr. Frank Burke, which reflects a July 1, 2016 date of injury.  Dr. Burke concluded Rickerson sustained a new lumbosacral back work injury as a result of work duties on July 1, 2016.  He assessed a 13% percent impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”). 

          In a supplemental report dated July 18, 2017, Dr. Burke noted the date of injury had been corrected to September 1, 2016, and Rickerson had received chiropractic treatment for low back pain on August 2, 2016.  Dr. Burke opined Rickerson sustained an acute specific incident on September 1, 2016.  He opined as follows:

I believe this patient sustained an acute specific incident on September 1, 2016.  Performing heavy repetitive work activities contributed to the development of the lumbar spondylosis with radiographically-defined findings on his studies.  This pathology was not active or ratable prior to his event of September 1, 2016.  He did not require surgical intervention as a result of minor aches and pains, corrected with rest or minor manipulations as provided by the chiropractor, Dr. Nicholas Leverette.  Progressive radiographic change could potentially have little or no pain.  Working in a factory with lifting, pushing, pulling, and twisting can easily cause muscle strains.  Repeated loading and over-loading probably contributes over time to further degeneration of the damaged joints of the spine.

 

Finally, I do believe that Mr. Rickerson did sustain a specific incident on September 1, 2016.  The heavy-duty physical activities that he engaged in for the 26 years plus while working on the line probably also contributed to the progression.  His work was in the very heavy functional capacity physical demand category . . . . This is not a normal state for people in their normal lives.  It is, however, typical of people who work on a line in a heavy physical demand category.

 

I do believe that the September 1, 2016 incident constituted a manifestation of the symptoms of the acute mechanism principally, but with some contribution of both mechanisms over time of progression of his lumbar spondylosis.

 

          Toyota filed the March 28, 2017 report of Dr. Thomas Menke, who also testified by deposition on May 2, 2017.  Dr. Menke noted Rickerson’s work injury occurred on July 1, 2016 and he had previously undergone low back surgery in 1997.  Dr. Menke noted there was no mention of a specific work accident or injury in the August 2, 2016 note of Dr. Leverette, the September 13, 2016 note of Dr. Reesor, or the October 17, 2016 note by Dr. Harries.  Dr. Menke diagnosed a large right paracentral disc herniation at L3-4, for which he underwent surgery with a good result.  Dr. Menke opined the balance of the medical records do not support a work-related injury.  He opined Rickerson has attained maximum medical improvement (“MMI”) and, without considering causation, assessed an 11% impairment rating pursuant to the AMA Guides for the L3-4 disc herniation.  He opined Rickerson did not have a pre-existing, active impairment since the 1997 surgery was successful, and he was able to work regular duty with only occasional flare-ups.  Dr. Menke recommended no further treatment and declined to assign permanent restrictions. 

          At his deposition, Dr. Menke reiterated his opinion regarding causation.  He concluded there is an inconsistent history of a work-related injury.  Dr. Menke assessed a 10% impairment rating for the 1997 L5-S1 surgery, but testified the prior condition was not active.  Dr. Menke testified Rickerson now has a 12% impairment rating, but he did not believe the disc herniation is work-related.   

          In the January 23, 2018 opinion, the ALJ summarized the evidence, including Dr. Leverette’s records.  The ALJ summarized the chiropractic notes as follows: “[Toyota] introduced handwritten treatment notes from August 2, 2016 reflecting complaints of tingling and numbness of the left leg.  He treated on five more dates over the course of the month.” 

          Regarding causation, the ALJ provided the following relevant analysis:

It is undisputed that Rickerson suffered preexisting back problems and had surgery in 1997, a laminectomy at L5-S1.  It is also clear from the record that while he did continue to have some pain at times through the years, at some point he suffered a new injury to his back at a different level, L3-4.  This new injury is found to be the result of his work.  Dr. Scott is persuasive on this issue as is Dr. Burke.  While Dr. Menke offers compelling testimony, his opinion on  causation is not followed.

 

          The ALJ found Rickerson provided timely notice of his injury.  Based upon Dr. Menke’s testimony, the ALJ found the 1997 surgery resulted in a 10% impairment rating.  Dr. Menke testified Rickerson now has a 12% impairment rating, with 2% attributable to the work injury.  The ALJ awarded TTD benefits from October 17, 2016 through March 28, 2017, the date Dr. Menke found Rickerson attained MMI.  The ALJ awarded PPD benefits based upon a 2% impairment rating and medical benefits.  The ALJ awarded 12% interest rate on all past due amounts.   

          Toyota filed a petition for reconsideration, arguing TTD benefits should be awarded through March 6, 2017, the date Rickerson returned to full duty work without restrictions. 

          Toyota requested additional findings of fact regarding the medical records.  Toyota requested the ALJ reconsider the records of Dr. Leverette, which demonstrate “complaints of tingling and numbness of the left leg.”  Toyota requested additional findings of fact regarding Rickerson’s prior condition and if he indeed did experience back pain and leg pain prior to the work injury.  Toyota requested further explanation as to how the alleged work injury caused Rickerson’s complaints in light of the fact they were present the month prior to September 1, 2016. 

          Toyota also argued the interest rate on all past due benefits should be 6% since the January 23, 2018 opinion was rendered subsequent to the effective date of House Bill 223.  

          The ALJ sustained in part Toyota’s petition, and amended the award of TTD benefits through March 6, 2017.  The ALJ denied the remainder of Toyota’s petition noting she considered the fact Rickerson had back problems before the date of injury.  The ALJ also found the award of interest appears to comply with current law.    

          On appeal, Toyota argues the ALJ’s summary of Dr. Leverette’s records is inaccurate and insufficient.  Toyota argues Dr. Leverette’s records compel the conclusion that the herniated disc occurred prior to the alleged September 1, 2016 injury.  Toyota argues substantial evidence does not support the ALJ’s finding of causation.  Toyota also argues the ALJ’s limited discussion of Rickerson’s prior symptoms in the month before September 1, 2016, amount to insufficient findings of fact.

          Toyota additionally argues the award of all past due benefits with a 12% interest rate is erroneous.  It asserts 6% applies to all past due benefits since the award was rendered after the effective date of House Bill 223.  Rickerson argues the ALJ correctly awarded 12% interest on all past due benefits.  

As the claimant in a workers’ compensation proceeding, Rickerson had the burden of proving each of the essential elements of his cause of action, including causation  See KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Since he was successful in his burden, the questions on appeal are whether the ALJ performed the proper analysis, and whether substantial evidence of record supports his decision.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).  Substantial evidence” is defined as evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable persons.  Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).  

 In rendering a decision, KRS 342.285 grants an ALJ as fact-finder the sole discretion to determine the quality, character, and substance of evidence.  Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).  An ALJ may draw reasonable inferences from the evidence, reject any testimony, and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof.  Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).  In that regard, an ALJ is vested with broad authority to decide questions involving causation.  Dravo Lime Co. v. Eakins, 156 S.W.3d 283 (Ky. 2003).  Although a party may note evidence supporting a different outcome than reached by an ALJ, such proof is not an adequate basis to reverse on appeal.  McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).  Rather, it must be shown there was no evidence of substantial probative value to support the decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). 

The function of the Board in reviewing an ALJ’s decision is limited to a determination of whether the findings made are so unreasonable under the evidence that they must be reversed as a matter of law.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).  The Board, as an appellate tribunal, may not usurp the ALJ's role as fact-finder by superimposing its own appraisals as to weight and credibility or by noting other conclusions or reasonable inferences that otherwise could have been drawn from the evidence.  Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).

          Toyota’s arguments on appeal are essentially a request for this Board to reweigh the evidence and direct a finding in his favor, which we are not permitted to do.  Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  The ALJ chose to rely upon the opinions of Drs. Burke and Scott in determining Rickerson sustained a work-related injury.  In the October 19, 2016 record, Dr. Scott noted Rickerson’s symptoms began approximately four weeks prior when he was at work pushing and tugging on an engine, and progressively worsened.  He diagnosed a herniated nucleus pulposus at L3-4 and recommended surgical intervention.  Dr. Burke opined Rickerson sustained an acute specific incident on September 1, 2016 even in light of records indicating he received chiropractic treatment in August 2016.  On appeal, Toyota does not challenge the conclusions of Dr. Burke.  Rather, Toyota has identified evidence which would support a decision in its favor.  It is not the function of this Board to reweigh the evidence and reach a different conclusion.  That duty lies within the sole discretion of the ALJ.  Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  The ALJ’s decision is supported by substantial evidence, and we will not disturb her determination regarding causation on appeal.  

          The ALJ’s findings are sufficient to apprise the parties of the basis for her decision.  While authority generally establishes an ALJ must effectively set forth adequate findings of fact from the evidence in order to apprise the parties of the basis for his decision, he or she is not required to recount the record with line-by-line specificity nor engage in a detailed explanation of the minutia of his reasoning in reaching a particular result.  Shields v. Pittsburgh and Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982); Big Sandy Community Action Program v. Chaffins, 502 S.W.2d 526 (Ky. 1973). 

          Toyota next argues KRS 342.040(1), as amended effective June 29, 2017, requires the ALJ to award 6% interest on all past-due benefits.  We vacate in part and remand.  In its brief to the Board, Toyota references House Bill 223, Section 5, which the final version of the bill does not contain.  Prior to June 29, 2017, KRS 342.040(1) provided, in relevant part, as follows:

All income benefits shall be payable on the regular payday of the employer, commencing with the first regular payday after seven (7) days after the injury or disability resulting from an occupational disease, with interest at the rate of twelve percent (12%) per annum on each installment from the time it is due until paid, . . .

          Effective June 29, 2017, the Kentucky legislature amended KRS 342.040 to read, in relevant part, as follows:

All income benefits shall be payable on the regular payday of the employer, commencing with the first regular payday after seven (7) days after the injury or disability resulting from an occupational disease, with interest at the rate of six percent (6%) per annum on each installment from the time it is due until paid, . . .

 

          In Stovall v. Couch, 658 S.W.2d 437 (Ky. App. 1983), the Court of Appeals resolved the very issue raised by Toyota on appeal.  Couch was found totally occupationally disabled due to CWP.  The issue on appeal was whether the Board erred in awarding interest at the rate of 12% on all past due benefits.  On the date of last injurious exposure to CWP, the statute allowed 6% interest on unpaid benefits.  However, the statute was subsequently amended effective July 15, 1982, increasing the interest rate to 12% per annum on each installment from the time it is due until paid.  In determining the employer owed 6% interest on all past due installments through July 14, 1982, and 12% on all unpaid installments thereafter, the Court of Appeals concluded as follows:

On this appeal, appellants contend that KRS 342.040, governing the rate of interest on past due installments, was misapplied. On the date of last injurious exposure, that statute allowed 6% interest on such benefits. However, the provision was amended, effective July 15, 1982, increasing the rate of interest to 12% per annum on each installment from the time it is due until paid. To uphold the Board's award would amount to retroactive application of the amendment, appellants contend.

As this particular application of KRS 342.040 has yet to be the topic of an appellate decision, both sides in this controversy look for analogy to the case of Ridge v. Ridge, Ky., 572 S.W.2d 859 (1978). Ridge dealt with the application of an amendment to the statute governing the legal rate of interest on judgments. The Kentucky Supreme Court decided:

... to adopt the position that the rate of interest on judgments is a statutory rather than a contractual matter. We therefore hold that the increase of the legal interest rate applies prospectively to prior unsatisfied judgments, the new rate beginning with the effective date of the amendment. Id. at 861.

Appellants assert that, employing the logic of Ridge, the 12% rate of interest should begin on the effective date of the statutory amendment, July 15, 1982, and that prior to that date, interest should be 6% as per the old statute. Appellee Couch looks to the language in Ridge, namely that the new rate of interest “applies prospectively to prior unsatisfied judgments,” thus concluding that the rate of interest is controlled by the date of judgment and not the date of accrual of the cause of action, and that the 12% rate in effect upon the date of judgment is applicable.

In Campbell v. Young, Ky., 478 S.W.2d 712, 713 (1972), the then Court of Appeals discussed the question of when interest was to begin accruing on unpaid compensation benefits. That court held that interest was due from the date the claim for compensation was filed. In the instant case, when Couch filed his claim, the interest rate in effect was 6% per annum. In our opinion, the plain wording of KRS 342.040 dictates that appellants may only be assessed interest on unpaid benefits at 6% prior to July 15, 1982, and at 12% thereafter. Consequently, the Board's award to the contrary and the lower court's affirmation thereof was in error.

Id. at 437-438.

          The same logic applies here.  Rickerson’s entitlement to PPD benefits vested at the time of his injury.  Therefore, as of the date of injury through June 28, 2017, Rickerson is entitled to 12% interest on all past due unpaid benefits.  Rickerson is entitled to 6% interest on unpaid income benefits accrued from and after June 29, 2017. 

          In Hamilton v. Desperado Fuels, Inc., 868 S.W.2d 95, 97 (Ky. 1993), the Supreme Court instructed:

Accordingly, we believe that what constitutes an authorized attorney's fee for prosecuting a claim for those particular benefits also should be determined by the law in effect on the date of the injury. A contract that provides otherwise is void. KRS 342.320(2).

KRS 446.080(1) provides that statutes are to be liberally construed in order to promote their objectives and the legislative intent, and KRS 446.080(3) provides that no statute is to be applied retroactively absent an express legislative directive. In Peach v. 21 Brands Distillery, Ky. App., 580 S.W.2d 235 (1979), the court emphasized that the rule against the retroactive application of statutes should be strictly construed. Particularly where a statute creates new rights or duties, it should be presumed that the legislature intended for the statute's application to be prospective only. The 1990 amendment to KRS 342.320(1) exposes injured workers to liability for substantially greater attorney's fees in relation to the size of their awards than was authorized at the time the maximum amount of the award was fixed. We find no indication, whatever, that the legislature intended for the 1990 amendment to KRS 342.320 to apply retrospectively to awards of attorney's fees relative to injuries which occurred before its effective date.

          We find no indication, express or implied, that the legislature desired the recent amendment to have retroactive effect.

          Accordingly, the January 23, 2018, Opinion, Award, and Order and the February 12, 2018 Order rendered by Hon. Jane Rice Williams, Administrative Law Judge, is hereby AFFIRMED IN PART.  We VACATE IN PART and REMAND for the ALJ to include a provision granting 12% interest on unpaid benefits due on or before June 28, 2017 and 6% interest on unpaid benefits due thereafter. 

          ALL CONCUR.

 

 

 

COUNSEL FOR PETITIONER:

 

HON EMILY E WALTERS

1511 CAVALRY LN, STE 201

FLORENCE, KY 41042

 

COUNSEL FOR RESPONDENT:

 

HON TIM WILSON

309 NORTH BROADWAY

LEXINGTON, KY 40508

 

ADMINISTRATIVE LAW JUDGE:

 

HON JANE RICE WILLIAMS

657 CHAMBERLIN AVE

FRANKFORT, KY 40601