The Kentucky Court of Appeals decided that the Workers’ Compensation Board made an error when they decided to overturn a decision which excluded the impairment caused by a worker’s previous neck injury when calculating his impairment rating from a later accident.

Samuel Wetherby worked for Amazon.com and injured his neck, right arm and right hand in October 2012 operating a forklift. His injury had caused disc herniation at C7-8 and underwent surgery in June of 2014. He returned to his same job but does not lift as much as before and the forklift he uses has power steering and power lift. He still experiences numbness in his right arm, which causes him to drop things, and muscle spasms in his right arm.

His employer determined his injury was compensable but disputed the extent of compensation he was eligible for. In 1980 he had sustained a cervical injury requiring fusions in 1980 and again in 1985 for left cervical radiculopathy. He sustained this injury at work but did not file a claim, his employer paid for both surgeries. The symptoms he exhibited in 2012 were like those he experienced in 1980 but he testified he did not have problems working because of the injury he suffered in 1980.

Wetherby presented medical testimony of Dr. Frank Burke, who assessed Wetherby a 17% impairment rating at an IME in 2015 using the Diagnostic Related Estimate (DRE) method. He reevaluated him in 2016 and assigned a 37% whole person impairment rating, noting chronic myelopathy in his cervical spinal cord from his older injury and peripheral nerve root injury in his left shoulder and right hand. He said he had reached MMI. He knew Wetherby had a previous injury but did not think it was relevant to the case regarding his 2012 injury because he had not exhibited symptoms from that earlier injury and it was related to a different part of the spine.

Amazon presented the reports of Dr. G. Christopher Stephens and Dr. Timothy Kriss. Dr. Stephens concluded half of his current symptoms and treatments were due to the October 2012 injury and half were from the earlier injury. Dr. Kriss stated that Wetherby should be evaluated using the Range of Motion (ROM) Model to obtain an impairment rating because of his history. Using that model Dr. Kriss assessed a 31% whole person impairment for his 2012 injury but used the DRE model to assess his impairment after his 1985 surgery and determined his impairment before his 2012 injury was 28%. He determined that 3% of his impairment could be attributed to the 2012 injury.

The Administrative Law Judge leaned on the report from Dr. Kriss and Dr. Stephens and determined his overall impairment rating because of the 2012 injury is 6%, with a 25% pre-existing cervical permanent impairment rating from his earlier injury. They awarded him partial disability benefits consistent with a 6% permanent impairment rating. Wetherby filed a petition for reconsideration, saying the evidence established that he was asymptomatic and had not received medical treatment for his cervical problem since 1985. The Board agreed with his argument that the ALJ should not have excluded 25% from his impairment rating for a pre-existing impairment. The Kentucky Court of Appeals denied that, concluding that they erroneously vacated the ALJ’s decision on his impairment rating.

Read the case here.