Lexington Fayette Urban Cnty. Gov't v. Gosper
| Decision Date | 27 April 2023 |
| Docket Number | 2021-SC-0386-WC |
| Parties | LEXINGTON FAYETTE URBAN COUNTY GOVERNMENT APPELLANT v. MICHAEL GOSPER; HONORABLE JONATHAN R. WEATHERBY, JR., ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES |
| Court | United States State Supreme Court — District of Kentucky |
1
LEXINGTON FAYETTE URBAN COUNTY GOVERNMENT APPELLANT
v.
MICHAEL GOSPER; HONORABLE JONATHAN R. WEATHERBY, JR., ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
No. 2021-SC-0386-WC
Supreme Court of Kentucky
April 27, 2023
ON APPEAL FROM COURT OF APPEALS V. NO. 2021-CA-0033 WORKERS' COMPENSATION BOARD NO. 2019-WC-0042
COUNSEL FOR APPELLANT, LEXINGTON FAYETTE URBAN COUNTY GOVERNMENT:
Thomas L. Ferreri Lori V. Daniel Ferreri Partners, PLLC
COUNSEL FOR APPELLEE, MICHAEL GOSPER:
Donald R. Todd Todd & Todd PLLC
ADMINISTRATIVE LAW JUDGE:
Hon. Jonathan R. Weatherby, Jr.
WORKERS' COMPENSATION BOARD:
Hon. Michael Wayne Alvey Chairman, Department of Workers' Claims
OPINION
NICKELL, JUSTICE
The Lexington-Fayette Urban County Government (LFUCG) appeals from a Kentucky Court of Appeals opinion affirming an opinion of the Workers' Compensation Board (Board) which, in turn, had affirmed the July 25, 2020, opinion and order of an administrative law judge (ALJ) determining the bilateral knee condition of Michael Gosper (Gosper) was caused by work-related cumulative trauma and awarding permanent partial disability (PPD) income and medical benefits, along with affirming the ALJ's August 20, 2020, order overruling LFUCG's petition for reconsideration. Upon a careful review of the briefs, the record, and the law, we find no error and affirm.
I. SUMMARY OF EVIDENCE AND PROCEDURAL HISTORY
Gosper testified by deposition and at the final hearing. In his Form 101, he alleged his bilateral knee injuries had been caused by cumulative trauma sustained over a roughly eighteen-year period while he worked exclusively for LFUCG as a firefighter and EMT paramedic, beginning on June 18, 2001. He testified his heavy and strenuous duties required him to wear and carry up to eighty pounds of gear, tools, and associated firefighting items while climbing and crawling up and down trucks, ladders, and locales; lifting and dragging heavy hoses; pulling and demolishing ceilings and other structures; and extricating, dragging, or carrying patients and victims. In addition, he was required to complete vigorous training exercises four times per year.
Gosper noted his prior medical history included a 2007 work-related torn meniscus right knee injury which required surgical repair by his treating orthopedic surgeon, Dr. John Balthrop. After a period of recuperation, he returned to normal employment duties with no restrictions and remained symptom-free. Thereafter, he reported occasional "minor bumps and bruises" associated with the nature of his job but noted he missed no work until 2017, some ten years later. In 2012, his primary care physician had begun prescribing Arthrotec, a nonsteroidal anti-inflammatory drug (NSAID), for occasional minor swelling of his right knee arising after particularly grueling "duty days and workdays." However, except for the prior meniscus injury, Gosper reported no other serious knee problems.
Gosper identified December 13, 2017, as the date his condition manifested. On that date, he returned to Dr. Balthrop for medical evaluation and treatment of "unbearable" bilateral knee pain and significant range of motion limitation. The symptoms had arisen earlier in 2017 and had gradually progressed in severity to the point he felt precluded from safely performing his employment duties.
Initially, Dr. Balthrop ordered MRIs and increased Gosper's prescription for Arthrotec. Ultimately, however, Dr. Balthrop performed a total right knee replacement on July 12, 2018, and a total left knee replacement on August 23, 2018. Following completion of physical therapy in December 2018, he advised Gosper against returning to his former work activities. Gosper testified his bilateral knees have remained pain-free postoperatively, with full range of motion, and without need of medication.
When Dr. Balthrop advised him his bilateral knee conditions were work-related during the December 13, 2017, evaluation, Gosper notified his supervisor at LFUCG. His employer had thereafter provided all medically necessary consultations, treatments, and surgeries relative to the bilateral knee conditions and continued payment of Gosper's wages pending his full recuperation.
When Gosper was unable to return to his normal full-time work duties, he applied for and was awarded disability retirement benefits effective April 12, 2019, due solely to his bilateral knee conditions. His last official full-duty day
with LFUCG was April 11, 2019, but he remains employed on a part-time basis as a Toyota valet.
Both Gosper and LFUCG filed medical records of Dr. Balthrop, Gosper's treating orthopedic surgeon. Dr. Balthrop was thereafter deposed on December 6, 2019.
Dr. Balthrop originally examined Gosper in 2006 relative to complaints of right knee pain. At that time, he diagnosed a moderate degree of varus[1]deformity, provided a course of conservative treatment, and ultimately performed arthroscopic surgery. Over ensuing years, he examined Gosper multiple times, occasionally prescribing arthritic medication. He opined Gosper's varus deformity increased over time and noted development of left knee pain by 2013. He ultimately performed the bilateral total knee replacement surgeries in 2018, noting Gosper appeared satisfied with the outcome, and stating any impairment rating should be based on upon Gosper having achieved a good result.
Dr. Balthrop testified Gosper "very likely" experienced significant stress on his joints due to the length of his employment as a firefighter and EMT paramedic, the heaviness of his gear and equipment, and the strenuous aspects of his job duties. He agreed the physically exacting work demands
combined with the varus deformity to accelerate gradual deterioration of Gosper's knees, opining:
Q: ... [I]f you combine his physical makeup, combine the arduous nature of his work, combine the physical activities that he was involved in over a period of time, clearly his knee deterioration and ultimate need for knee joint replacement was accelerated by the combination of those factors?
A: ... I will say that his occupation and what he did, carrying excessive weight and being fairly strenuous would be akin to being an athletic event at an age in which most people are no longer engaging in the type of strenuous event, if you add 19 years of strenuous activity with a predisposed, anatomic tendency to put stress on his knees, the combination of A plus B accelerated his wear over another individual.
LFUCG filed medical records obtained from the Family Practice Associates. These records indicated Gosper had complained of bilateral knee pain on August 21, 2012, was diagnosed with osteoarthritis, and was prescribed Meloxicam, an NSAID. When he returned on April 26, 2013, and May 3, 2013, complaining of right knee pain radiating into his right leg, x-rays revealed mild arthritis. At that time, he was prescribed Baclofen, a skeletal muscle relaxant, and Lortab, a pain relief medication, and was referred back to Dr. Balthrop, his treating orthopedic surgeon.
The medical records indicated Gosper treated with Dr. Balthrop on nine occasions from May 2013 through March 2014, with initial complaints of right knee pain expanding to include bilateral knee pain. During this period, Dr. Balthrop obtained a right knee MRI; diagnosed degenerative joint disease; prescribed various NSAIDs, and administered four injections.
Three and a half years later, records indicated Gosper returned to the Family Practice Associates on October 2, 2017, to refill his medication. At that
time, Dr. Wesley Johnson determined his osteoarthritis had stabilized and recommended continuing his medication regimen. Thereafter, records establish Gosper returned to Dr. Balthrop on December 13, 2017, with increased complaints of constant bilateral knee pain, particularly with weight bearing activity. Dr. Balthrop noted increased bow-leggedness and greater range of motion limitation. Examination and x-ray films revealed increased varus collapse to approximately 17 degrees. Dr. Balthrop opined Gosper's arthritis was more severe medially, consistent with the angulatory deformity, and recommended additional injection therapy.
Gosper also filed various medical records prepared by Dr. Balthrop. A July 12, 2018, operative report relating to the right total knee arthroplasty listed a preoperative and postoperative diagnosis of primary degenerative joint disease of the right knee. An August 23, 2018, operative report relating to the complex left total knee arthroplasty similarly listed a preoperative and postoperative diagnosis of primary degenerative joint disease in both knees, with flexion contracture and fixed varus contracture. Dr. Balthrop's entry on December 19, 2018, indicated Gosper was "status-post bilateral total knee replacement and is functioning well." At that time, Dr. Balthrop placed Gosper on permanent light duty and recommended medical retirement, opining his osteoarthritis "is unlikely to be caused by his occupation which is very vigorous, but his occupation certainly impacted likely even worsen his arthritis."
Dr. Timothy Scott Prince performed an independent medical evaluation (IME) at the request of LFUCG on February 21, 2019. Gosper filed a copy of the medical report.
Dr. Prince's report began with a numerical chronological review of medical records. First, he referenced two incident reports. A report dated January 3, 2006, described a work-related right knee injury resulting from Gosper having been struck by a vehicle's spring-loaded side door. A report dated December 9, 2017, described a work-related slip and fall on ice, causing Gosper to strike his right knee on pavement.
Second, he referenced two MRI examinations of Gosper's right knee. An MRI dated April 27, 2006, demonstrated a tear of the posterior horn medial meniscus, with mild...
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