Phoenix Mfg. Co. v. Johnson

• Decision Date: 20 December 2001
• Docket Number: No. 2001-SC-0218-WC.,2001-SC-0218-WC.
• Citation: 69 S.W.3d 64
• Parties: PHOENIX MANUFACTURING COMPANY, as Insured by AIK Selective Self-Insurance Fund, Appellant, v. Sallie JOHNSON; Phoenix Manufacturing Company, as Insured by Liberty Mutual Insurance Group; Robert L. Whittaker, Director of Special Fund; J. Landon Overfield, Administrative Law Judge; and Workers' Compensation Board, Appellees.
• Court: United States State Supreme Court — District of Kentucky

69 S.W.3d 64

PHOENIX MANUFACTURING COMPANY, as Insured by AIK Selective Self-Insurance Fund, Appellant, v. Sallie JOHNSON; Phoenix Manufacturing Company, as Insured by Liberty Mutual Insurance Group; Robert L. Whittaker, Director of Special Fund; J. Landon Overfield, Administrative Law Judge; and Workers' Compensation Board, Appellees.

No. 2001-SC-0218-WC.

Supreme Court of Kentucky.

December 20, 2001.

Case Ordered Published by Supreme Court March 21, 2002.

Carla Foreman Dallas, Louisville, Counsel for Appellant.

John F. Anderson, Cole, Cole & Anderson, PSC, Barbourville, Counsel for Appellee Johnson.

W. Barry Lewis, Hazard, Counsel for Appellee Phoenix Manufacturing as Insured by Liberty Mutual Insurance Group.

Joel D. Zakem, Labor Cabinet—Special Fund, Frankfort, Counsel for Appellee Whittaker.

OPINION OF THE COURT

The claimant injured the same area of her lower back in 1989 and in 1992 while working for the defendant-employer. She later settled the claims with the Special Fund and with the insurance carrier that covered the employer's liability for each of the respective injuries, but after undergoing surgery for a herniated disc, she moved to reopen the claims. An Administrative Law Judge (ALJ) later determined that the claimant's disability had increased since the settlement and had become total, that half of each injury was due to the arousal of a degenerative condition, and that a progression of each injury was equally responsible for the ultimate disability. Liability for income benefits was apportioned 25% to Liberty Mutual Insurance Group (the 1989 carrier), 25% to AIK Selective Self Insurance Fund (the 1992 carrier), and 50% to the Special Fund; whereas, liability for medical benefits was apportioned equally to the two carriers. The questions presented by this appeal concern whether the Workers' Compensation Board (Board) and the Court of Appeals properly affirmed the finding of increased disability since the settlement, whether they properly determined that the 1992 carrier should have been held responsible for all medical benefits, and whether the Court of Appeals properly determined that the 1992 carrier and the Special Fund should have been held equally responsible for all income benefits.

In 1989, the claimant injured her lower back while picking up rolls of cloth to put them on a pallet. Dr. Brooks prescribed physical therapy and later released her to return to work without restrictions, which she did. Although a flare-up of symptoms in 1990 caused her to miss seven months of work, she worked without incident until 1992 when she again injured her back while lifting. This injury caused more severe symptoms, and although Drs. Brooks and Gumbert both thought that she could perform light to sedentary work, the claimant was convinced that she could not.

The claims for the two injuries were consolidated, and on April 4, 1994, agreements to settle the claims were approved by an ALJ. With regard to the 1989 injury, the parties agreed to income benefits based upon a 37.5% disability, with liability apportioned 20% to the 1989 carrier and 17.5% to the Special Fund. The agreement also provided, in pertinent part, as follows:

The insurance carrier for the 1989 injury and adjusting agency for the 1992 injury for the Defendant-Employers [sic] agree that each will be responsible for one-half of the Plaintiff's medical expenses related to treatment of her work related injured [sic], with the Plaintiff being required to submit her medical bills and expenses to the adjusting agency for the employer for the November 26, 1992, injury who shall in turn pay same and be entitled to reimbursement for one-half of the medical expenses it has paid on behalf of the Plaintiff.

The agreement was signed by the attorneys for the 1989 and 1992 carriers, the claimant, her attorney, and an attorney for the Special Fund. A separate agreement concerning the 1992 injury provided for income benefits for a 40% disability, with 20% to be paid by the 1992 carrier and 20% by the Special Fund.

On April 3, 1998, the claimant moved to reopen the settlements, asserting that she had undergone surgery in 1996 and that her condition had worsened to the point that she was totally disabled by increased pain and numbness in her right leg. She testified to the deterioration of her condition between 1994 and the reopening.

Dr. Brooks treated the claimant after both injuries and testified that her symptoms and loss of range of motion were much more severe in 1992. He assigned a 15% functional impairment, attributing 8% to the 1992 injury (4% to the injury and 4% to the arousal of the degenerative condition) and 7% to the 1989 injury (3.5% to the injury and 3.5% to the arousal of the degenerative condition). In his opinion the claimant's condition had worsened since 1994, and she was now totally disabled.

Dr. Keifer testified that he had performed surgery to repair a large herniated disc at L5-S1. He indicated that medical records revealed some evidence of disc bulging and a possible protrusion in 1989. He thought that the herniation resulted from degenerative disc disease that existed even before the 1989 injury but that although the injury did not directly cause the herniation, it did contribute to the progression of the underlying degenerative condition. In his opinion, the claimant's need for surgery and her current impairment were due to the work-related injuries and their arousal or aggravation of the pre-existing degenerative changes.

Testifying for the employer, Dr. Ensalada reviewed the medical records. In his opinion, there was no evidence of a worsening of the claimant's condition from the 1989 injury. Recent changes in her lumbar spine were not a result of the 1989 injury, and the 1996 surgery was not necessitated by the 1989 injury.

After reviewing the evidence, the ALJ determined that the claimant sustained an increase in occupational disability since the settlement, that it was entirely due to the effects of her injuries, that she had become totally disabled, and that she had no pre-existing active disability. Pointing to Dr. Keifer's testimony, the ALJ noted that the claimant had pre-existing dormant nondisabling degenerative disc disease before either injury and that "both injuries aroused the dormant condition and created the condition which required surgical treatment." Therefore, based upon Dr. Keifer's opinions and the settlement agreement, the ALJ concluded that both carriers were equally liable for the surgery and related medical care. Likewise, based on Dr. Keifer's testimony, the ALJ attributed the claimant's increased disability to a combination of the two injuries and to a "progression of the injured state of Plaintiff's lumbar disc which was caused by the work-related injuries."

Although recognizing that the entire 425-week period following the 1989 injury had already expired, the ALJ pointed out that the claimant's disability ...