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Will workers’ comp cover morbidly obese worker’s back injury 22 years later?

When can a company’s workers’ comp insurance stop paying for an employee’s injury? And who bears the burden of proof whether the employee’s current pain is due to a long-ago injury?

In 1989, Sheila Kingery injured her neck and back by performing overhead lifting while working for Sumitomo Electric Wiring in Kentucky. In 1992, an administrative law judge assessed Kingery as having a 15% permanent occupational disability rating and awarded her income and medical benefits. The ALJ noted that he didn’t believe Kingery’s injury would prevent her from continuing to work for Sumitomo.

Fast forward 20 years. Kingery didn’t return to work at Sumitomo after her injury, despite the opinion of the ALJ. Sumitomo challenged its liability for continuing doctor’s office visits and prescriptions which Kingery attributed to her work injury all those years ago.

A December 2011 report from Dr. David Randolph, hired by Sumitomo to assess Kingery’s case, noted the following:

  • Kingery’s weight increased from 178 pounds in 1992 to 255 pounds in 1999 and to 270 pounds in 2011 (a gain of 92 pounds). She is 4’8″ tall, meaning she would be categorized as morbidly obese.
  • Her own physician, Dr. Todd Douglas, noted in 2004 that Kingery’s back pain was “likely exacerbated by weight.”

Dr. Randolph’s report also concluded that none of Kingery’s current problems involving her neck and back were related to her 1989 work injury.

When an ALJ heard Sumitomo’s challenge in 2012, he ruled in favor of the former employee. The ALJ’s reasoning: Kingery said she has never been free from pain in her neck and upper back since the work injury. The judge found Kingery’s testimony to be believable and rejected Dr. Randolph’s because he stated he was skeptical her injury was related to working for Sumitomo at all.

It was that statement by Dr. Randolph about the original injury that led to the ALJ’s rejection of his opinion about her current condition. “This issue has long been settled,” the ALJ wrote in his opinion.

On appeal, the Workers’ Compensation Board of Kentucky affirmed the ALJ’s opinion. The Board ruled Kingery’s own testimony about her condition and the treatment she received from Dr. Douglas constituted substantial evidence capable of supporting the ALJ’s finding that her injury was compensable.

Sumitomo appealed the Board’s ruling, and the Court of Appeals of Kentucky considered the case.

Who has burden of proof?

Sumitomo argued Kingery didn’t meet her burden of proof that her medical treatment was a result of her injury 23 years ago. The company argued Kingery’s testimony and the notes from her doctor (who didn’t testify) didn’t constitute the type of evidence she was required to produce to show her appointments with and prescriptions from Dr. Douglas were related to her work injury.

The court agreed with Sumitomo’s argument. The two-judge majority wrote:

“… a lapse of time amounting to almost 23 years exists between the date of Kingery’s award and this medical fee dispute … the ALJ did not believe that Kingery’s work injury should have prevented Kingery from continuing to work for Sumitomo or anywhere else at all, let alone for the next two decades. Little is known about the state of Kingery’s 1989 work injury, any treatments she might have received for it, or the general condition of her body in the area of her injury since the date of her award … It is also unclear what effect Kingery’s weight and two decades have had upon the condition of her back.”

The ALJ relied on Dr. Douglas’s Feb. 2012 treatment notes to make his decision. However, the notes offer no opinion regarding the origin of Kingery’s back pain or whether it was caused by her 1989 work injury. His notes merely recite Kingery’s complaints about her pain.

The two-judge majority therefore concluded Kingery failed to produce medical evidence that met her burden of proof that her appointments and prescriptions from Dr. Douglas were related to her 1989 work injury. Therefore, it reversed the previous decision, ruling in favor of the company’s petition to end payment for Kingery’s medical care.

One judge on the three-member panel dissented, claiming the Kentucky Supreme Court’s previous decisions show the company and not Kingery had the burden of proof here. The dissenting judge said he would have allowed the ALJ’s decision to remain.

And speaking of the Kentucky Supreme Court, one more appeal is possible in this case, which might ultimately decide who has the burden of proof when a company wants to end medical payments for a worker’s injury.

What do you think about the opinion in this case? Let us know in the comments.

(Sumitomo Electric Wiring v. Sheila Woosley Kingery, Court of Appeals of KY, No. 2013-CA-000855-WC, 6/27/14)

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