Robertson v. United Parcel Service, 2001-SC-0054-WC.

• Decision Date: 21 November 2001
• Docket Number: No. 2001-SC-0054-WC.,2001-SC-0054-WC.
• Citation: 64 S.W.3d 284
• Parties: Mike ROBERTSON Appellant v. UNITED PARCEL SERVICE; Ronald Johnson, Arbitrator; James L. Kerr, Administrative Law Judge; and Workers' Compensation Board Appellees
• Court: United States State Supreme Court — District of Kentucky

64 S.W.3d 284

Mike ROBERTSON Appellant v. UNITED PARCEL SERVICE; Ronald Johnson, Arbitrator; James L. Kerr, Administrative Law Judge; and Workers' Compensation Board Appellees

No. 2001-SC-0054-WC.

Supreme Court of Kentucky.

November 21, 2001.

Case Ordered Published by Supreme Court January 17, 2002.

Wayne C. Daub, Louisville, Counsel for Appellant.

Thomas L. Ferreri, Kamp T. Purdy, Ferreri & Fogle, Lexington, William A. Miller, Sr., Ferreri & Fogle, Louisville, Counsel for Appellee, United Parcel Service.

OPINION OF THE COURT

The claimant worked as a hod carrier for a masonry company and also worked for United Parcel Service (UPS), driving truckloads of packages from the respot area to areas where they were loaded onto airplanes by loading crews. He alleged that on January 3, 1998, he injured his low back while working for UPS. Although he missed only two days' work for UPS, he was not able to return to his masonry job for approximately three months and sought workers' compensation benefits. An Administrative Law Judge (ALJ) later determined: that the claimant failed to prove more than a temporary exacerbation of his pre-existing, nonwork-related spondylolisthesis; that he sustained no permanent disability as a result of his injury; that he was entitled only to the medical expenses that UPS had paid for treatment of the temporary flare-up of symptoms from his spondylolisthesis; and that he was not entitled to temporary total disability benefits for the time that he missed from the masonry job. The decision has been affirmed by the Workers' Compensation Board (Board) and the Court of Appeals, and the claimant appeals.

First, the claimant argues that the ALJ erred by requiring objective medical evidence rather than objective medical findings when determining causation. A second argument is that he was entitled to future medical expenses that are reasonably related to his injury. Finally, he argues that although he was able to return to his UPS job, he was entitled to temporary total disability benefits for the period during which he was unable to return to his masonry job as well.

The record indicates that as early as 1996 the claimant was treated for pain in the left groin that was not associated with a specific injury. On April 23, 1997, he sought treatment from Dr. Baker after experiencing low back, leg, and buttock pain following an injury that occurred while lifting weights at home. His primary symptoms at the time were lower lumbar pain and hamstring tightness. Contemporaneous x-rays revealed first to second degree spondylolisthesis. The record also indicates that on July 16, 1997, the claimant sought treatment from Dr. Stearns for neck and low back pain following a nonwork-related automobile accident. He last saw the claimant on October 20, 1997, at which time the claimant had some chronic low back pain and tightness in his hamstrings. No neurological deficits were apparent.

The work-related injury occurred on January 3, 1998, after which the claimant underwent a course of physical therapy. A January 12, 1998, x-ray revealed grade 1 spondylolisthesis of L5/S1 but revealed no acute changes or other abnormalities. On February 11, 1998, he saw Dr. Ellis concerning the injury and indicated that he felt 95% better. He still had lower back pain as of March 25 and had been to a chiropractor who confirmed the presence of spondylolisthesis with an MRI.

On March 30, 1998, the claimant was referred to Dr. Puno. Despite the complaints of low back pain to Drs. Baker and Stearns following the nonwork-related incidents, Dr. Puno's notes indicated that the claimant never had any low back problems before the work-related incident but had significant pain thereafter. He also indicated that the claimant was presently feeling much better, was completely asymptomatic, and had no complaints of leg or back pain. He thought that the pre-existing spondylolisthesis was probably aggravated by the work-related incident, causing it to become symptomatic, and that the claimant could return to work without restrictions. In August, 1998, the claimant indicated that his pain was tolerable with medication and that he had jarred his back and was having pain in the thoracic region. X-rays revealed no progression of his spondylolisthesis.

Dr. Hargadon saw the claimant on July 22, 1998. Although his report indicates that he was informed of the work-related incident, the cervical "whiplash" from the automobile accident, and the fact that the claimant was diagnosed with spondylolisthesis after a weightlifting incident, it does not demonstrate an awareness that the claimant had been treated for low back pain before the work-related incident or of the prior treatment for groin and leg pain. It was Dr. Hargadon's opinion that the claimant had preexisting, nondisabling spondylolisthesis, that he had re-injured himself at UPS, and...