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RENDERED: APRIL 9, 2010; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2009-CA-001458-WC GARY SIPE APPELLANT

v.

PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-05-63661

HARRISON MEMORIAL HOSPITAL; HON. JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD

APPELLEES

OPINION REVERSING ** ** ** ** ** BEFORE: COMBS, CHIEF JUDGE; CAPERTON, JUDGE; WHITE,1 SENIOR JUDGE.

1

Senior Judge Edwin M. White sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

WHITE, SENIOR JUDGE: Gary Sipe petitions this Court to review an opinion of the Workers' Compensation Board reversing the Administrative Law Judge's opinion that Sipe was entitled to an award based upon a 10% whole-person impairment rating. The Board concluded that Sipe's benefits award should be adjusted to reflect a 10% whole-person impairment with a 5% carve out for a preexisting active condition. Sipe claims that the ALJ's decision was supported by substantial evidence and should have been affirmed by the Board. We agree and, therefore, reverse the Board's opinion. Sipe is a 59-year-old maintenance worker at Harrison Memorial Hospital. He has an eleventh grade education and has an employment history that primarily consists of manual labor on farms, in factories, and in hospitals. Sipe began working in the hospital in 1998. His duties include ordinary maintenance tasks, including lifting and disposing of trash and medical waste. Over the course of his employment at the hospital, Sipe has experienced numerous on-the-job injuries. In 2000, Sipe filed his first workers' compensation claim following a back injury that he incurred while lifting trash. Sipe received treatment from Dr. Frank McKemie and was prescribed muscle relaxers and pain medication. In 2004, Sipe experience a second back injury while lifting trash. He was treated by Dr. McKemie and missed several weeks of work. When Sipe returned to work, he continued to have back pain which was primarily caused by walking for long periods. -2-

Beginning in 2005, Sipe experienced a series of injuries that would later form the basis for this workers' compensation claim. On November 10, 2005, November 28, 2005, December 14, 2005, and June 12, 2006, Sipe injured his back while lifting trash. Sipe experienced numbness in his right leg when he stood for lengthy periods. Dr. McKemie treated Sipe for these injuries and referred Sipe to Dr. Alexis Norelle. In September 2006, Dr. Norelle performed a lumbar discectomy to repair a left L4-5 herniated disc. Although the surgery improved his leg symptoms, Sipe continued to experience back pain. At the end of November 2006, Sipe returned to work with orders to remain on light duty. Eventually, Sipe was able to perform his usual tasks. Dr. McKemie continues to treat Sipe every three months. Sipe is currently on pain medications and muscle relaxers. He continues working at the hospital but questions whether he will be forced to return to full duty. On September 20, 2007, Sipe filed for workers' compensation benefits.2 On January 26, 2009, the ALJ issued an opinion and award concluding that Sipe suffered a 10% whole person impairment based upon a 2006 work related injury. The opinion was primarily based upon the testimony of Dr. Norelle.3
2

In October 2007, Sipe had another work injury that occurred while he was lifting medical waste. Instead of reporting the injury directly to his supervisor, Sipe immediately went to the doctor's office. He missed a couple weeks of work and returned to light duty.
3

Although medical records of other physicians were submitted, Dr. Norelle was the only physician that testified in a deposition.

-3-

The following questions and answers are relevant excerpts from Dr. Norelle's testimony. The questions were asked by various attorneys and were all answered by Dr. Norelle. Q. You filed, a 107, in this case, is that a true and accurate copy of your handwritten report that was filed? A. It is, yes, this is my signature and my office manager did it and I looked at it. Q. Is that still your opinion today? A. Yes. The 10 percent that I gave is just based on the herniated disc and did not take into account any of his pre-existing. Q. Okay. So 10 percent is based upon the herniated disc that he got in 2006? A. Correct. .... Q. Of that 10 percent impairment on the basis of the herniated disc, how much is related to the 7/26/2000 injury? A. Probably the five-percent because I was recently made aware of MRI scans from

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