January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  May 11, 2018



CLAIM NO. 201696509





















                       * * * * * *



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



RECHTER, Member.  CCI Industrial Services (“CCI”) appeals from the November 9, 2017 Opinion, Order and Award and the January 3, 2018 Order on Reconsideration rendered by Hon. Richard E. Neal, Administrative Law Judge (“ALJ”).  The ALJ awarded Anthony Tucker (“Tucker”) permanent partial disability (“PPD”) for a work-related injury to the lumbar spine and a psychological injury[1].  CCI argues the ALJ should have apportioned a percentage of the lumbar spine injury to a non-work-related pre-existing condition.

     Tucker began working for CCI as a millwright on June 1, 2015.  Prior to CCI, Tucker worked at Perkins Flooring Covering.  While working for Perkins, Tucker developed low back pain that would occasionally radiate into his right leg.  He underwent a lumbar discectomy in 2007.  He was released from care without restrictions.

     At CCI, Tucker was injured on January 21, 2016 while removing and replacing a sump pump.  He and a helper were pulling a metal grate from the floor when Tucker immediately experienced sharp back pain.  The pain radiated into his left leg.  Tucker finished his shift but did not engage in any strenuous physical work.  He reported the incident the following day after the pain did not resolve overnight.

     Tucker treated at Lake Cumberland Medical Associates on January 23, 2016 and eventually was referred to Dr. William Brooks.  Dr. Brooks ordered physical therapy and pain medication, and reviewed a lumbar MRI ordered by Lake Cumberland Medical Associates.  Dr. Brooks diagnosed a lumbar disc herniation, and referred Tucker to Dr. Harold Rutledge for epidural steroid injections at left L5-S1. 

     Tucker continued to treat with Dr. Brooks but showed little improvement after conservation treatment.  On May 19, 2016, Dr. Brooks recommended a discectomy at L5-S1.  Dr. Brooks additionally noted changes on the lumbar MRI, which would require a posterior lumbar interbody fusion, which could be performed concurrently with the discectomy.  Tucker refused this recommendation, fearing the uncertain outcome of a fusion or internal fixation.  At a November 1, 2016 visit, Dr. Brooks placed Tucker in DRE Lumbar Category II and assigned an 8% whole person impairment pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”).  He also indicated Tucker has a 10% impairment for the prior right side problems and associated surgery. 

     Tucker returned to Dr. Brooks on July 6, 2017 with complaints of increased low back pain and numbness in his legs.  A new lumbar MRI was taken and revealed degenerative disc disease at L4-5 and L5-S1.  Dr. Brooks also noted mild spinal stenosis at L3-S1.  He did not recommend surgery for these diagnoses.  He placed Tucker at maximum medical improvement (“MMI”) and recommended vocational rehabilitation.

     Dr. Warren Bilkey conducted an independent medical evaluation (“IME”) on November 1, 2016.  He diagnosed a recurrent lumbar disc herniation at L5, and S1 radiculopathy.  Dr. Bilkey noted the 2007 surgery was successful and that Tucker had no recurrent symptoms until the work accident.  He placed Tucker at MMI and assigned a 24% impairment rating pursuant to the AMA Guides.  He apportioned 10% to Tucker’s prior back surgery, and the remaining 14% to the work accident.  Dr. Bilkey also explained he used the ROM method to assess Tucker’s impairment rating because his diagnosis involved a case of recurrent lumbar radiculopathy. 

     Dr. Gregory Snider conducted an IME on March 29, 2017.  He diagnosed remote right L5-S1 discectomy, and low back pain with left S1 radiculopathy.  He did not believe Tucker had yet reached MMI and recommended surgery.  Dr. Snider opined Tucker would have a 10% impairment rating prior to surgery and should be rated according to the ROM method.  On May 3, 2017, Tucker presented for a second IME.  Upon being informed Tucker refused surgery, Dr. Snider assessed a 26% whole person impairment rating utilizing the ROM method.  He attributed 10% to the 2006 surgery, and 16% to the work accident. 

     The ALJ determined Tucker suffered a work-related injury to his lumbar spine which resulted in a 24% whole person impairment rating.  In so finding, the ALJ relied upon Dr. Bilkey’s opinion.  The ALJ then considered any pre-existing active disability, and acknowledged Tucker would have qualified for a 10% impairment rating as a result of the 2007 surgery.  However, the ALJ determined Tucker had excellent results following the 2007 surgery and was working full-time with no restrictions until the day of the work accident.  On this basis, the ALJ determined Tucker did not suffer an active pre-existing condition at the time of the work accident because, though impairment ratable, the prior condition was not symptomatic.  Ultimately, the ALJ awarded PPD benefits for the lumbar spine injury based upon a 24% impairment rating. 

     CCI petitioned for reconsideration, challenging the ALJ’s decision not to apportion any of Tucker’s current impairment to the 2007 surgery.  The ALJ denied the petition and explained:

     The Defendant is correct in that the physicians in this claim found that the Plaintiff had a prior impairment rating of 10% due to a low back surgery that he underwent in 2007. However, such medical opinions do not fully answer the legal question as to whether or not the Defendant is entitled to a carve-out for the impairment from the 2007 surgery. Again, the ALJ is bound by the parameters of Finley vs. DBM Technologies, 217 S.W. 3d 261 (Ky. App. 2007) in making such a determination. The Defendant in this case had the burden of proving an active pre-existing impairment in order to be entitled to the carve-out. In this case, the ALJ finds that the Plaintiff had no active impairment. The Plaintiff’s low back condition was not symptomatic or limiting in any way during years leading up to his work injury. He took no medication for his back and worked full duty in a heavy manual labor position. As such, the ALJ finds that there is no apportionment under Finley. The ALJ agrees with the Defendant in that they properly preserved the issue at the BRC; however, finds that they simply are not entitled to the carve-out under the facts and the law.


     On appeal, CCI argues the ALJ erred by awarding benefits based upon an impairment rating that was partially attributed to Tucker’s non-work-related, pre-existing condition.  The ALJ relied upon Dr. Bilkey’s impairment rating of 24%, of which 10% was attributed to the 2007 surgery.  CCI argues Tucker is entitled to an award based on only the 14% attributable to the work injury.  

          “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).  Stated otherwise, a pre-existing condition must be both symptomatic and impairment ratable to be considered active.  “When a pre-existing dormant condition is aroused into disabling reality by a work-related injury, any impairment or medical expense related solely to the pre-existing condition is compensable.” Id.

          Dr. Bilkey provided a medical opinion and impairment rating based on the AMA Guides.  He was not asked or qualified to apply the law to Tucker’s condition; this task lies solely within the province of the ALJ.  Acting within his discretion, the ALJ determined Tucker’s pre-existing lumbar condition, though ratable, was not symptomatic.  This factual finding was not appealed.  The ALJ properly applied Finley to the facts of this claim: a carve-out is not required when a pre-existing condition is asymptomatic.

          Nonetheless, CCI argues this finding does not preclude consideration of apportionment.  However, CCI cites to no case law supporting this interpretation, and essentially has asked this Board to create new law, which we are not at liberty to do.  Furthermore, we disagree with CCI’s contention that a prior surgical alteration of the spine constitutes an active impairment as a matter of law.  Again, CCI has cited to no statute or case law supporting this theory, and we find none.

          For the reasons set forth herein, the November 9, 2017 Opinion, Order and Award and the January 3, 2018 Order on Reconsideration rendered by Hon. Richard E. Neal, Administrative Law Judge, are hereby AFFIRMED.         

          ALL CONCUR.










2452 SIR BARTON WAY #101
















[1] The issues on appeal do not involve Tucker’s claim for a psychological injury and will not be discussed further.