No. 00-75905 (2002). Middlesboro Coca-Cola v. Akers.

Case DateJuly 10, 2002
CourtKentucky
Kentucky Workers Compensation 2002. No. 00-75905 (2002). Middlesboro Coca-Cola v. Akers MIDDLESBORO COCA-COLA PETITIONER vs. CURTIS AKERS and HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: July 10, 2002CLAIM NO. 00-75905APPEAL FROM HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE AFFIRMING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members. STANLEY, Member. Middlesboro Coca-Cola ("Coca-Cola") appeals from a decision rendered February 7, 2002, by Hon. Donald G. Smith, Administrative Law Judge ("ALJ"), granting the respondent, Curtis Akers ("Akers'), an award of total and permanent occupational disability benefits. Coca-Cola also appeals from the ALJ's order of March 12, 2002, denying its petition for reconsideration. On appeal, Coca-Cola raises a single issue. The petitioner charges that the unrebutted evidence of record mandates a finding that Akers was suffering from a 50% pre-existing active noncompensable impairment prior to the date of the work-related injury that is the subject of this claim. Having thoroughly reviewed the evidence of record and the applicable law, we disagree. Consequently, we affirm the decision of the ALJ. The facts of this claim are relatively undisputed. Curtis was born on December 1, 1952, and is a resident of Pineville, Bell County, Kentucky. He has a high school education with no specialized or vocational training. Past relevant work experience includes employment as a sales representative for a life insurance company; a route salesman for Kern's Baker; a service and sales representative for Orkin Exterminating Company; and, a laborer for a pipeline construction company. In 1979, Akers entered the employ of Coca-Cola as a territorial manager of route sales people. In this capacity, he supervised six route sales people and was responsible for setting up new accounts, closing down older accounts, promoting products, collecting bills, and running routes if needed. As a result, he was required to work sixty to sixty-five hours per week. Of this amount, fifteen to twenty hours per week were spent in the office while the remainder of his hours were spent on the road. Akers suffered a work-related injury on July 18, 2000 while at a Shell Food Mart on Highway 25 East in Barbourville, Knox County, Kentucky. On that occasion, while emptying a walk-in cooler in order to restock new products, Akers bent over to pick up a case of twenty ounce beverages and felt a "pop" in his low back. He immediately experienced the onset of severe pain. The accident occurred on a Tuesday. Akers continued to work in spite of his symptoms through Saturday and then sought medical treatment the following Monday on July 24, 2000. He has not worked anywhere since that time. Initially, Akers sought treatment from a local chiropractor. Three weeks later he was referred to a medical doctor who prescribed medication and physical therapy. An MRI scan was performed on August 30, 2000 which revealed evidence of degenerative lumbar disc disease with moderate degenerative spondylolisthesis. Thereafter, Akers underwent a series of caudal injections. When these injections failed to provide any benefit, surgery in the form of a spinal fusion was recommended. However, this procedure was never performed. Ultimately, Akers came under the care of Dr. James Templin, an occupational medicine and pain specialist. He now sees Dr. Templin approximately every six months for treatment. Of significance to this appeal is the fact that prior to July 1999, Akers had a history of low back problems that had been treated medically. According to the history provided Dr. Templin, Akers suffered his first back injury in November 1981. At that time, he was employed by Coca-Cola and was working at Kroger grand opening. While lifting cases of returnable bottles, he experience sharp pain in his lumbar spine. He was placed off work and on bed rest for approximately eight days. Akers continued to experience occasional low back symptoms thereafter. Nevertheless, he continued to work without restrictions. He suffered a second work-related injury involving his low back in the spring of 1982. He was hospitalized and placed in traction for approximately eight days. After being discharged, he remained off work for approximately eight weeks and then resumed his normal and customary job activities again without restrictions. Akers sustained a third work-related injury in the spring of 1983. As a result of this incident, he was once again hospitalized and placed in traction. Thereafter, he received physical therapy and returned once more to his regular and customary job activities with Coca-Cola. Akers suffered a fourth low back injury on the job in 1986. On this occasion, he was diagnosed as suffering from a herniated disc at L4-5. Akers underwent low back surgery in February 1987. Thereafter, he was unable to return to work for approximately four and a half months. He then returned to work on restricted duties for approximately six weeks and was released to full duty thereafter. Akers suffered a fifth work-related injury in 1992. He was hospitalized overnight for a myelogram and thereafter was diagnosed with a lumbar strain. He missed approximately three days of work as a result of this incident and underwent a series of caudal block shots. After the 1992 episode, he experienced no further episodes involving his low back until July 2000. Nevertheless, from 1992 through the date of his most recent injury, he continued to seek medical treatment on an occasional basis and was prescribed Darvocet, which he took sparingly to help him sleep at night. Akers testified that between 1992 and 2000, he would occasionally experience "maybe a muscle ache, sore muscle." He indicated that at no time prior to July 2000 did any physician ever place permanent restrictions on his physical activities. We take judicial notice of the fact that in spite of Akers' numerous work-related accidents occurring between 1981 and 1992, in spite of the fact that Akers was off work on occasion during that time, records of the Department of Workers' Claims reflect only a single First Report of Injury filed by Coca-Cola in July 1987 relating to his 1986 on-the-job accident. With the exception of the instant case, Akers has never filed a workers' compensation claim against Coca-Cola or, for that matter, any other previous employer. On July 30, 2001, Akers filed an Application for...

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