WORKERS COMP CAUSATION AND PREEXISTING: UPS V. ANDERSON (COA 7/20/2007)

UNITED PARCEL SERVICE, INC. V. ANDERSON
WORKERS COMP:  CAUSATION AND APPORTIONMENT WITH PRE-EXISTING CONDITION
2006-CA-002630
PUBLISHED: AFFIRMING
PANEL: THOMPSON PRESIDING;  DIXON, HOWARD CONCUR
COUNTY: WORKERS COMPENSATION BOARD
DATE RENDERED: 7/20/2007

COA affirmed ALJ/WCB who concluded claimant Anderson’s bilateral carpal tunnel syndrome and Kienböck’s disease were work-related and compensable.

United Parcel Service (UPS) appealed from an opinion of the Workers’ Compensation Board affirming the decision of the Administrative Law Judge awarding Paul Anderson permanent partial disability benefits based on a 17% functional impairment rating related to his carpal tunnel syndrome and Kienböck’s disease. 

UPS contends that the Board erred when it affirmed the ALJ’s award which was based on the opinion of Dr. Joseph Zerga regarding causation but did not follow Dr. Zerga’s opinion as to apportionment. Alternatively, UPS argues that the ALJ abused his discretion when he relied on Dr. Zerga as to causation but awarded benefits based on Dr. Michael Moskal’s impairment rating. It also contends that the Board substituted its judgment for that of the ALJ when it found that Anderson did not have a pre-existing active condition.

The ALJ is free to “pick and choose among conflicting medical opinions” and has the sole authority to determine whom to believe.  Thus, the ALJ was free to rely upon Dr. Zerga’s opinion in regard to causation but to rely on that of Dr. Moskal as to the impairment rating.

When a “work related trauma causes a dormant degenerative condition to become disabling and to result in functional impairment, the trauma is the proximate cause of the harmful change; hence, the harmful change comes within the definition of an injury.”

The Board correctly recited the law applicable to the compensability of a pre-existing condition when it stated:

It is well established that in permanent partial disability cases, before a condition may be characterized as “active” the underlying pre-existing condition must be symptomatic and must be capable of being rated pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment (“Guides”) immediately prior to the occurrence of the work-related injury. Roberts Brothers Coal Co. v. Robinson, 113 S.W.3d 181 (Ky. 2003).

The opinion of the Workers’ Compensation Board is affirmed.

By Michael Stevens

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