IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."

PURSUANT TO THE RULES OF CIVIL PROCEDURE

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER

CASE IN ANY COURT OF THIS STATE; HOWEVER,

UNPUBLISHED KENTUCKY APPELLATE DECISIONS,

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE

BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION

BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED

DECISION IN THE FILED DOCUMENT AND A COPY OF THE

ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE

DOCUMENT TO THE COURT AND ALL PARTIES TO THE

ACTION.
NANETTE WILLIS

V.

sixyrQrar~ C~vurf of `pk~~ ;

ON APPEAL FROM COURT OF APPEALS

CASE NO. 2007-CA-002446-WC

WORKERS' COMPENSATION BOARD NO. 06-99450

FAMILY HOME HEALTH CARE, INC. ;

HONORABLE R. SCOTT BORDERS,

ADMINISTRATIVE LAW JUDGE; AND

WORKERS' COMPENSATION BOARD

MEMORANDUM OPINION OF THE COURT

AFFIRMING

RENDERED: MAY 21, 2009

NOT TO BE PUBLISHED

APPELLEES

An Administrative Law Judge (ALJ) determined that the claimant's workrelated knee injury produced a 4% permanent impairment rating and tripled

her income benefit under KRS 342.730(1) (c)1 . The Workers' Compensation

Board affirmed regarding the amount of impairment that the injury caused but

vacated the triple benefit and remanded for additional findings regarding the

application of KRS 342.730(1)(c) . The claimant appeals a decision by the Court

of Appeals to affirm . We affirm because substantial evidence indicated that the

injury caused no permanent impairment due to osteoarthritis or to the arousal

of the pre-existing condition.

le ~i o9 -6919--aa-b-1-A D.C.

APPELLANT
The claimant was born in 1960, holds a Master's degree in social work,

and has begun classes for a Doctor's degree . She has worked for various

agencies as a social worker since 1982 . The defendant-employer provided

aides who assisted patients with housekeeping, cooking, and self-care to

enable them to remain at home rather than being placed in a nursing home .

The claimant's job was to see patients or at least to speak with them on the

telephone each month. She testified that the job required no physical activity .

She simply talked with the patients.

The claimant twisted her right knee while stepping onto a curb in the

course of her work on September 16, 2005. She first sought medical treatment

about two weeks later from Dr. Reese and eventually had knee surgery. She

returned to work after the surgery, but the employer eventually terminated her

for reasons unrelated to the injury. She had injured her back in previous

automobile accidents but testified that the injuries had resolved. She had also

been treated for post-traumatic stress disorder (PTSD) for about 15 years,

which included medication for depression and anxiety.' At the time of the

hearing, she worked as a therapist for a different organization that she said

was very accommodating. The parties stipulated that she earned a greater

average weekly wage than when she was injured.

Dr. Reese, an orthopedic surgeon, first saw the claimant on September

' In addition to the knee injury, the claimant alleged that her psychological problems

and need for medication increased after the injury. That portion of the claim is no

longer at issue.
27, 2005. Based on diagnostic tests and the claimant's description of the

injury, Dr. Reese determined that it caused tri-compartmental degenerative

joint disease, arthropathy, a tear of the right lateral meniscus, a partial tear of

the right anterior cruciate ligament (ACL), and a patellar misalignment. She

performed arthroscopic knee surgery in January 2006, noting in the operative

report:

This . . . lady injured her knee at work. She had some

arthritic discomfort in her knees prior to this but

developed locking and [a] feeling of giving way and

severe pain . . . .

Dr. Reese assigned a 22% permanent impairment rating to the injury, which

included impairment from the meniscus and partial ACL tears as well as from

the arousal of pre-existing dormant degenerative changes into disability. She

thought that the claimant could probably sit for six hours per day but required

the freedom to move about and also thought that the claimant's depression had

worsened since the injury.

Dr. Jenkinson, an orthopedic surgeon, evaluated the claimant for the

employer in November 2006 . He ordered x-rays, which revealed signs of "very

advanced generalized osteoarthritis of the right knee" and less severe

osteoarthritis in the left knee. He acknowledged that the work-related injury

may have caused or exacerbated the torn meniscus but attributed most of the

right knee symptoms to the pre-existing osteoarthritis, which warranted a 20%

permanent impairment rating. Addressing the relationship between the injury
and the arthritic condition he stated, "This severe arthritic deterioration could

not in any way have been caused by the relatively minor injury of September

16, 2005 ." He thought that, at most, the injury caused a temporary

exacerbation of arthritic symptoms . He thought that the claimant could

perform sedentary work that required minimal standing or walking but would

have difficulty in a job that required physical activity .

Dr. Jenkinson stated in subsequent reports that osteoarthritis results

from wear and tear, which in the claimant's case was due to morbid obesity. In

his opinion, the condition was active when the knee injury occurred. He stated

that if the injury helped cause the torn meniscus and ACL, the surgery would

warrant a 4% impairment rating. He explained that he based the 20% rating

for osteoarthritis solely on the x-rays, which revealed a "complete loss of

cartilage joint space," and that the degenerative changes Dr. Reese found in

September 2005 could not have occurred within two weeks after the injury.

Dr. Jenkinson took issue with Dr. Reese's opinion that none of the impairment

rating she assigned was for pre-existing arthritis, noting that she found

evidence of tri-compartmental degenerative change at the time of the initial

assessment. He insisted that the arthritis merited a 20% impairment rating

when Dr. Reese first saw the claimant and would have been symptomatic even

had she not been injured. Taking issue with Dr. Reese's failure to characterize

any portion of the 22% impairment rating that she assigned as being active, he

noted that records from Carey Chiropractic and Dr. Evans (the claimant's
psychologist) pointed to complaints of symptoms in the knees in 2004 . He

discounted generalized arthritic complaints found in physical therapy records

from 2004 .

Relying on Dr. Jenkinson, the ALJ determined that knee injury caused a

4% permanent impairment rating but found the osteoarthritis and the entire

psychological condition not to be compensable . The ALJ tripled the claimant's

income benefit under KRS 342.730(1)(c)1, noting that she lacked the physical

capacity to perform the type of work she performed when injured. The ALJ

reasoned that she earned the same or a greater wage but did so at a "much less

physically demanding job with accommodations being made for her condition."

Both parties petitioned for reconsideration . Granting the claimant's

request for a specific finding concerning pre-existing impairment, the ALJ

determined from Dr. Jenkinson's testimony that pre-existing, active

osteoarthritis produced a 20% impairment rating. The ALJ denied the

employer's request for a finding concerning the likelihood that the claimant

would continue to earn the same or a greater wage than at the time of the

injury. On that basis, the Board vacated and remanded for additional findings

concerning the claimant's ability to continue to earn the same or a greater

wage in the future . 2 The Board affirmed the decision regarding pre-existing,

active impairment, and the Court of Appeals affirmed.

The claimant takes issue with the Court of Appeals' reliance on Roberts

2 See Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003) .

5
Brothers Coal Co . v. Robinson, 113 S.W.3d 181 (Ky. 2003), and Kentuc .

River Enterprises v. Elkins, 107 S.W .3d 206, 210 (Ky. 2003), when affirming.

She relies on Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007), to

assert that the ALJ erred by characterizing the impairment from osteoarthritis

as being pre-existing, active, and non-compensable. Asserting that the

employer submitted no evidence of any prior symptoms of osteoarthritis or

treatment for the condition, she argues that the employer failed to meet its

burden of proof because the finding was not supported by substantial evidence .

Thus, the Board and the Court of Appeals erred by affirming it . We disagree .

KRS 342.0011(1) defines the term "injury" as being a work-related

traumatic event that is the proximate cause producing a harmful change in the

human organism. KRS 342.730(1) bases income benefits on impairment and

disability that result from work-related injuries. Consistent with the fact that a

pre-existing condition may be work-related, KRS 342.730(2) prohibits income

benefits from duplicating those paid for a previous work-related injury.

McNutt Construction/ First General Services v. Scott, 40 S.W.3d 854 (Ky.

2001), concerned the effect of the post-1996 version of KRS 342 .0011(1), which

excludes the natural aging process from the definition of "injury." The court

determined that a compensable injury occurs when work-related trauma

causes a pre-existing dormant condition "to become disabling and result in a

functional impairment," regardless of whether the pre-existing condition is
work-related . 3 Rendered shortly thereafter, Robertson v. United Parcel Service,

64 S.W.3d 284 (Ky. 2001), explains that an injury occurs when work-related

trauma causes a pre-existing condition to be symptomatic and that a

temporary injury warrants only temporary benefits. The subsequent decisions

in Robinson, Elkins, and Finle provide additional insight into Chapter 342's

treatment of pre-existing conditions .

Consistent with KRS 342.730(1) (e), Robinson explains that pre-existing

active impairment must be excluded from a partial disability award. 4 Although

an injured worker must prove that the injury causes a permanent impairment

rating in order to be entitled to permanent income benefits, an employer

seeking to exclude some or all of the rating must show that it results from

something other than the injury. 5 Elkins stands for the principle that not only

the existence and cause of a permanent impairment but also the date for

assigning a permanent impairment rating, the proper method for doing so, and

the proper amount of the rating are medical questions .

When work-related trauma arouses or exacerbates a pre-existing

condition, it has caused a harmful change in the human organism, i .e . , an

3 Id. at 859. Medical evidence indicated that Scott had a post-injury impairment

rating, half of which resulted from the natural aging process and half of which

resulted from the work-related injury. The ALJ found him to be permanently and

totally disabled and the court reaffirmed the finding.

4 Robinson also determined that KRS 342.730(1)(a) requires pre-existing disability to be

excluded from a total disability award. Thus, a finding of pre-existing impairment

did not compel an exclusion from Robinson's total disability award because he was

working without restrictions when his injury occurred.

5 Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984).

7
injury as defined by KRS 342.0011(1) . Although impairment that results is

compensable, the type and duration of benefits depends on whether the

impairment is permanent or temporary.6 To the extent that the condition is

active immediately before the trauma occurs, it cannot have been aroused by

the trauma and, thus, to that extent cannot be compensable. Finley concerned

the legal criteria for determining whether a pre-existing condition is "dormant"

or "active" immediately before a work-related injury occurs . The court

determined that to be characterized as active, a pre-existing condition must

both be symptomatic and warrant a permanent impairment rating.

The ALJ determined in the present case that the 4 % impairment rating

Dr. Jenkinson assigned to the work-related injury was more persuasive than

the 22% rating that Dr. Reese assigned.? Dr. Jenkinson based the 4% rating

solely on the meniscal tear. He reported that the claimant's severe

osteoarthritis was non-work-related; that the condition warranted the entire

20% impairment rating he assigned before the injury occurred; and that, in his

opinion, the injury caused a temporary exacerbation of arthritic symptoms at

most. His report, Dr. Reese's operative note, and the 2004 notes from Carey

Chiropractic and Dr. Evans provided substantial evidence that the

osteoarthritis was impairment ratable and symptomatic before the injury,

6 See Robertson , 64 S.W.3d 284.

7 Despite the claimant's assertion to the contrary, the ALJ made no finding that the

claimant had active impairment from osteoarthritis . The ALJ noted that Dr.

Jenkinson characterized the 20% rating that he assigned to osteoarthritis as being

pre-existing active impairment.
which supported the ALJ's finding on rehearing that the condition was active

and produced a 20% permanent impairment rating. Dr. Jenkinson's report

also provided substantial evidence that even if the injury aroused the preexisting condition, it caused no more than a temporary impairment and

warranted no permanent impairment rating based on osteoarthritis . 8 Evidence

that the injury aroused a dormant degenerative condition in the claimant's

knee and produced a permanent impairment rating was not so overwhelming

as to render the finding that was made unreasonable . Dr. Reese's testimony to

that effect amounted to no more than a difference of medical opinion .

The decision of the Court of Appeals is affirmed.

All sitting. All concur.

COUNSEL FOR APPELLANT,

NANETTE WILLIS:

Jeffrey Dale Hensley

P.O . Box 1004

1813 Argillite Road

Flatwoods, KY 41139

COUNSEL FOR APPELLEE,

FAMILY HOME HEALTH CARE, INC. :

John Warren Spies

Stephanie Dawn Ross

Ferreri 8v Fogle, PLLC

203 Speed Building

333 Guthrie Green

Louisville, KY 40202

8 Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986) .

9