OPINION ENTERED: FEBRUARY 27, 2009
CLAIM NO. 06-74977 & 05-70223
UNIVERSITY OF LOUISVILLE PETITIONER
VS. APPEAL FROM HON. JOHN COLEMAN,
ADMINISTRATIVE LAW JUDGE
JOHN T. SMITH
and HON. JOHN COLEMAN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
* * * * * *
BEFORE: GARDNER, Chairman, COWDEN and STIVERS, Members.
STIVERS, Member. University of Louisville as insured by Pennsylvania Manufacturers Association (“U of L PMA”) appeals from the decision of the Hon. John B. Coleman, Administrative Law Judge (“ALJ”) determining John T. Smith (“Smith”) was totally occupationally disabled as a result of a subsequent injury to his right shoulder on August 4, 2006. U of L also appeals from the order of the ALJ denying its petition for reconsideration. Smith filed two workers’ compensation claims against U of L one as a result of a left knee injury (claim number 05-70223) sustained on February 24, 2005 and the other as a result of a right shoulder injury (claim number 06-74977) on August 14, 2006. U of L was insured by the Kentucky Association of Counties (“KACO”) on the earlier injury and by PMA on the latter injury. The ALJ determined Smith had a permanent partial disability as a result of the left knee injury but as a result of the shoulder injury, Smith became totally occupationally disabled and entered the appropriate award as a result of both injuries. U of L as insured by KACO is not appealing the award of the ALJ.
Smith’s Form 101 asserts he sustained an injury on February 24, 2005 to his left knee when he fell down the stairs while carrying a ladder. Smith also asserted he injured his right shoulder, after returning to work, while pulling on a can of recycled items. At the time of Smith’s first injury he was 58 years of age.
Smith testified at his January 17, 2007 deposition he was in the Navy and while enlisted received training as an interior communications electrician and IC electrician. He is a licensed master electrician. After he got out of the service, he worked at the Metropolitan Sewer District as an electrical helper and then moved onto Reynolds & Metals as a maintenance electrician. He then worked at Phillip Morris from 1972 to 2000. He began drawing a pension from Phillip Morris in 2002. While at Phillip Morris he indicated he was in maintenance dealing with electrical work. After he left Phillip Morris and before he went to work for U of L, Smith worked for Mr. C’s Refrigeration for a very short time. Smith began working for U of L in March of 2002 as a general maintenance mechanic working approximately 40 hours per week. He initially started out as a filter changer changing the filters in dormitories and buildings. Smith indicated after six months, he stopped being a filter changer and became a maintenance mechanic which is the task he performed until he sustained his work injuries. He indicated his job involved “preventative maintenance.” In the event there was a problem in a building, his division would be called first. Smith indicated after his left knee injury in February of 2005, he kept working until he had surgery performed by Dr. Schaper. He returned to work after his surgery in February of 2006. He continued to work until his shoulder injury. After the shoulder injury he returned to work three days later and worked until shortly before his surgery on October 3, 2006. He has not returned to work since the surgery performed by Dr. Smith.
Smith acknowledged he previously had a work-related injury to his hand which resulted in him settling a workers’ compensation claim based on a 12% occupational disability. Smith stated his injured hand “doesn’t work real well sometimes.” He acknowledged he is a diabetic for which he received treatment at the VA Hospital. Currently he is being treated by Dr. Smith who performed the surgery on his shoulder and continues to see Dr. Schaper for his knee. Smith indicated he still has some pain in his left knee and takes an anti-inflammatory for the pain in his left knee.
He indicated he injured his knee on February 24, 2005 when he slipped going down the steps of a building while carrying a ladder. As a result he fell down the steps. He first saw a doctor a couple of days after the fall. Although he saw other doctors he chose to have surgery performed by Dr. Schaper. Smith indicated he had an extended period of physical therapy after the surgery. Although Dr. Schaper is no longer treating him, Smith recently went to Dr. Schaper because he was experiencing knee pain. He has a 30 pound lifting limitation and he is to do no climbing. He acknowledged he returned to work with those restrictions. Smith agreed his primary problem with the knee is weight bearing. Currently because of his shoulder, Smith cannot shoot his shotgun, hunt or fly fish. Since his last visit to Dr. Schaper he has not treated with anybody for his knee. Dr. Schaper told Smith he was to continue abiding by the previous written restrictions Dr. Schaper provided to his employer.
Smith was again deposed on February 27, 2007. He acknowledged he has continued his education to maintain his master electrician’s license. He also acknowledged as a result of a previous work injury he had lost most of the use of his right hand. Smith indicated he must be careful when using his hand especially in climbing. His injured hand will tire and cramp. Between the date of his knee injury and the surgery performed by Dr. Schaper, he only missed a couple of days of work. When he returned to work after surgery his restrictions were limited kneeling, lifting and carrying no more than 30 pounds. He has not been released to full duty. He has a limp and problems with his knee when he performs weight bearing activities. Smith has not seen Dr. Schaper since January of 2007 and has no return appointment. When he returned to work he had problems climbing, squatting, bending and stooping. He is taking no pain medication for his knee.
He injured his shoulder when he grabbed a large heavy can weighing approximately 150 pounds and “it did not move but my shoulder did and it pulled.” After that he thought he had shaken off the problem but his shoulder kept getting worse. He first saw Dr. Ciliberti and then Dr. Mark Smith at Ellis & Badenhausen. He has seen no one else for his shoulder. After the surgery performed by Dr. Smith he was put in a sling for six weeks and then began physical therapy. He was still in physical therapy at the time of the deposition. He has an appointment to see Dr. Smith in the latter part of March. Dr. Smith has not released him to return to work. Dr. Smith discussed with him the possibility he may have a condition known as frozen shoulder and he may need a second surgery to manipulate the shoulder. He does not believe he can return to work at U of L given the present condition of his shoulder or his knee. Smith has problems driving due to his shoulder problems. He does little or nothing around his home. Smith acknowledged he drove to the deposition in a 5 speed standard shift truck which required him to operate a clutch using the left foot. He indicated one of his jobs at U of L included relamping which involved taking out and replacing different types of light bulbs and ballasts. He also did preventative maintenance. In relamping he was required to use a ladder approximately 99% of the time. Because of his hand injury climbing 15 feet ladders is “really dangerous.” His right shoulder condition increases the difficulty in climbing ladders. Before he injured his shoulder he would move cans containing recycled paper using a two-wheel dolly. He acknowledged he could move the cans without the dolly but he would have to drag them 70 or 80 yards. He believed approximately 75% of his job involved relamping which required reaching over his head. As a result he did a lot of work on the ladder. Smith was also required to fix plumbing problems.
Smith was again deposed on February 18, 2008. At that time he testified he is earning no income and currently has no job. He is maintaining his weight. He still has his master electrician’s license but plans to put it into reserve at the end of the month. He has retired from the union hall and is still receiving his pension from Phillip Morris. He also receives social security disability benefits. He indicated he has a torn rotator cuff on the left side. He has no idea how he hurt his left shoulder but he is sure he did not sustain an injury. He has not worked since his last deposition and has not looked for work. He indicated he declined further shoulder surgery because there were no guarantees. He has not received any treatment for his right shoulder since April of 2007 and has no appointments in the future. His last appointment with Dr. Schaper for his knee condition was on January 30, 2008 and no follow up visits are scheduled. He only takes anti-inflammatory medication for his knee. Smith has no additional surgery planned for his knee. He walks “more so than ever” with a limp. He has not been released to work without restrictions for his knee condition. He does not walk with a cane. He still drives his truck which is a standard shift. He does not do any yard or garden work. His recreational activities such as fishing and golfing have been substantially curtailed. He has not engaged in any target shooting. Before the injury to his left knee Smith was able to climb ladders and crawl on his knees. He acknowledged after he had surgery his knee began to worsen. Smith currently has a dull aching pain in his left knee.
At the hearing Smith testified his only significant injury, before his knee injury in February 2005, was to his hand. He had previous knee surgeries but he had recovered from those surgeries. Smith has significant problems with the use of his right hand. He acknowledged knee replacement surgery is the only treatment option for him at this point. After his knee surgery, Smith continued to work until he sustained the shoulder injury in 2006. Smith indicated his shoulder is still “frozen” and he can not reach overhead. He can raise his arm above shoulder level only to a 10 or 11 o’clock position. He is not to do any work above shoulder level and he should only lift 10 pounds. Smith agreed when he returned to work after his knee injury he worked, with the restrictions, at his regular job. Except for maybe a day or two he did not miss any work from the time he returned to work in February of 2006 until he hurt his shoulder in August of 2006. Smith testified his attempt to work as a dispatcher did not work out.
Smith introduced the notes of Dr. Warren Breidenbach relative to the treatment of Smith’s right hand provided by Dr. Breidenbach and the doctors at Kleinert & Kutz and the impairment rating assessed by them. Because there is no issue as to the ALJ’s finding regarding the impairment rating assessed for the injury to Smith’s right hand we find it unnecessary to summarize those medical records.
Both U of L and Smith introduced the records of Dr. Schaper. Those records reflect Smith underwent arthroscopic partial medial meniscectomy of the left knee on September 12, 2005. Dr. Schaper’s December 1, 2005 note reflects Smith still had left knee pain and was still undergoing very aggressive physical therapy. Dr. Schaper also noted Smith was not able to return to work. Smith was again seen on February 2, 2006 when Dr. Schaper noted he had been making steady progress and had full range of motion and very little tenderness in his knee. He was not having much pain when he walked. At that time Dr. Schaper indicated he would allow Smith to return to work with restrictions of no prolonged kneeling and no lifting or carrying over 30 pounds beginning February 22, 2006. On February 24, 2006, Dr. Schaper noted Smith had returned to work on Monday and had increased knee pain that evening. Dr. Schaper pointed out Smith was better on Tuesday and each day thereafter. Dr. Schaper opined Smith probably overdid it on the first day when he was still on restrictions. Smith was exercising as much as possible and he was to continue on his restrictions for another month and they would see him back to x-ray the knee. Smith was again seen on March 31, 2006 and at that time Dr. Schaper noted Smith’s knee was bothering him more and the pain was worse. He noted Smith was having trouble getting up and down ladders and squatting. Dr. Schaper indicated he was going to take Smith off work for two weeks to allow Smith’s problems with his knee to settle down. In April, Dr. Schaper noted Smith had made quite a bit of improvement after taking time off and is back to work and has very few symptoms except for some aching and stiffness. He gave Smith restrictions of no pulling and no carrying heavy loads over 50 pounds.
Smith was again seen on June 7, 2006. Dr. Schaper noted Smith had some pain in the left knee. The knee itself had minimal, if any, effusion and the joint is stable. Because of Smith’s continued symptoms Dr. Schaper continued him on light duty with his previous restrictions. Dr. Schaper’s August 30, 2006 note reflects Smith’s work restrictions would continue. Smith had developed a limp and occasionally his leg gave way. Dr. Schaper did note Smith told him he had injured his right shoulder and would be seeing Dr. Schaper’s partner.
Dr. Schaper again saw Smith on November 15, 2006. At that time he indicated Smith was having pain when he walked. Dr. Schaper was going to allow Smith to work under his current restrictions. If Smith’s symptoms continued he might benefit from a course of visco-supplementation and he may ultimately require knee replacement. A January 10, 2007 note reflects Smith had developed post-traumatic arthritis. Dr. Schaper again reaffirmed the potential course of treatment. He also noted Smith was off work because of his recent shoulder surgery and if he were to go back to work, he would probably have permanent restrictions of no kneeling, climbing or crawling.
A letter signed by Dr. Schaper dated January 10, 2007 reflects he believed Smith had gradually progressive post-traumatic arthritis. Dr. Schaper assessed an 8% impairment pursuant to the Guides due to the February 2005 injury and imposed restrictions of no kneeling, climbing or crawling.
Smith introduced the records of Dr. John T. Smith regarding the treatment of his right shoulder. Dr. Smith initially saw Smith on September 6, 2006. At that time Dr. Smith believed Smith had a significant shoulder strain and may have suffered a rotator cuff tear. A subsequent note reveals the MRI showed a fairly large tear of Smith’s supraspinatus and somewhat in the infraspinatus. Ultimately Dr. Smith recommended an arthroscopy and rotator cuff repair. A January 12, 2007 note reflects Smith had surgery approximately three months earlier and still had pain at night and limitation of motion. Dr. Smith noted Smith had developed adhesive capsulitis. Dr. Smith again saw Smith in February of 2007 and noted Smith was progressing slowly but was still in pain. He was to continue having physical therapy. Smith was seen on March 26, 2007 and at that time Dr. Smith noted Smith was able to elevate to about the 110 to 120° level. Smith experiences course crepitation at this level. He noted Smith had very significant limitation of motion post-surgery due to the rotator cuff repair. He also opined Smith had some degree of “captured shoulder” as well as some degree of adhesive capsulitis. Smith had made some mild improvement but he recommended continuing physical therapy. Dr. Smith also discussed with Smith consideration of an arthroscopy of his shoulder if he did not improve in four weeks. If Smith did not want to have surgery then Dr. Smith stated one consideration would be that Smith would be at MMI. On May 21, 2007 Dr. Smith opined Smith had an 11% whole person impairment as a result of the shoulder injury of August 14, 2006 and had reached MMI. He placed restrictions of no work above the shoulder level and a lifting limit of 10 pounds. He also indicated he had discussed performing a capsular release.
Smith submitted the vocational report of Robert Tiell, MA, dated April 12, 2007. Mr. Tiell’s report reflects he interviewed Smith on March 17 and 24 of 2007. He also reviewed the reports of Drs. Schaper, Smith and Ciliberti, and various other medical records including the records relating to Smith’s hand injury as well as the IME performed by Dr. Frank Wood. After administering a number of tests Mr. Tiell determined as a result of the 2005 and 2006 work injuries for all practical purposes Smith had a 100% occupational loss. He indicated work restrictions imposed by the doctors prevent Smith from doing any work beyond the light level. He noted, especially after the second accident and the problems presented by the injury to the right shoulder, Smith seemed to have further deteriorated. Smith’s ADL pattern prevented him from sitting for an extended period which would make sedentary to light level “work with an alternate sit-stand option problematic.” Given his employment history, Smith would have great difficulty transferring into other jobs. Smith’s narrow work history and advanced age are both significant factors “that weigh heavily against his employability.”
U of L, as insured by KACO, introduced the IME of Dr. Frank Wood conducted on March 13, 2007. Dr. Wood diagnosed a “complex tear posterior horn left medial meniscus, postoperative; localized avascular necrosis left medial femoral condyle and osteoarthritis left knee, primarily involving the medial compartment.” He attributed the condition to the incident of February 24, 2005. He placed restrictions on Smith of no squatting, climbing or standing for longer than 15 minutes within a one hour time frame. He assessed an 8% whole person impairment pursuant to the Guides.
U of L, as insured by KACO, introduced the notes of Jewish Hospital which contained the results of the June 21, 2005 MRI of the left knee without contrast. That MRI reflected a complex tear of the posterior horn of the medial meniscus with an oblique undersurface and radial component, small joint effusion, and post operative changes along the lateral patellar margin.
U of L, as insured by KACO, introduced the vocational evaluation of Dr. Conte dated April 18, 2007. Dr. Conte pointed out neither Drs. Schaper or Wood indicated Smith was incapable of sustained gainful employment. The restrictions of both doctors allow for the performance of work tasks in at least the sedentary and light exertional sectors of the labor market with some medium and above work, where kneeling, standing, crawling is limited. Since Smith returned to his prior job as an electrician at the University of Louisville after the knee surgery and was allowed the flexibility to sit as needed and to occasionally climb with the right leg leading, Dr. Conte opined Smith was capable of performing several of his past jobs including electrician, electronic repair and dispatcher with or without reasonable accommodations. Given his background, Smith could also serve in lighter supervisory and/or inspection occupations as well as some lighter electrician positions. Smith could also work in security occupations, paraprofessional occupations, marketing and sales occupations, administrative support occupations and motor vehicle operator positions. Dr. Conte indicated he only expressed his opinions based on the restrictions placed upon Smith because of the effects of the left knee injury.
Subsequently, Dr. Conte was deposed and he testified Smith retained certain favorable vocational attributes such as vocational training at the Lexington Technical College, training in the military in electronics and a master electrician. Smith also had strong academic qualifications which were supported by his test results. Dr. Conte believed Smith retained the physical capacity even with the injury to his left knee and right shoulder for continued work. As indicated by the ALJ, Dr. Conte generally verified the opinions contained in his report and listed a number of occupations which he believed Smith was capable of performing. Dr. Conte had reviewed the report Dr. Best, and assuming those restrictions to be accurate, those restrictions would not have any meaningful impact on any of the six types of occupations Smith could perform. He outlined those occupations as being paraprofessional, marketing, administrative support, motor vehicle operation, security operations and dispatcher. Dr. Conte, acknowledged, at the time he formulated his report, he did not know Smith had limitations in lifting because of his shoulder condition. Dr. Conte did acknowledge Smith’s age would cut both ways. Smith would not be hired to be a production worker in a new plant with the latest technology. His age also brings maturity which helps on the job. Dr. Conte acknowledged Dr. Smith’s restrictions combined with those of Dr. Schaper would reduce Smith’s capabilities to performing sedentary and some of the light exertional occupations.
U of L, as insured by KACO, introduced the testimony of Dennis James Keith (“Keith”) who is the mechanical superintendent for the University of Louisville. Keith testified Smith worked in one of his general maintenance groups. With the restrictions placed upon Smith by Dr. Schaper, of no prolonged kneeling and carrying 50 pounds, Smith would not have been required, upon return to work, to exceed those restrictions. Even with a modification of no prolonged kneeling and no carrying over 30 pounds, Smith still could have performed his old job. There was no indication Smith was unable to perform his regular job after his knee injury and surgery and before his shoulder surgery. Keith acknowledged he did not have first hand knowledge of how Smith performed his job after he returned from his knee surgery. He did not receive any direct complaints from Smith about the difficulty Smith had performing his duties. Keith indicated the heaviest item Smith would have carried was either his tool box, sink machine or drill. He acknowledged he did not know how much an 8 foot ladder weighed.
Smith was recalled, in rebuttal, at the hearing and indicated the testimony of Keith regarding his maximum weight lifting was not correct. Smith indicated there were many times he would carry items which weighed 50 to 75 pounds. They also moved items with the use of a dolly which weighed from 50 to 200 pounds.
U of L, as insured by PMA, introduced the report of Dr. Best generated as a result of an IME conducted on May 2, 2007. Dr. Best indicated Smith had significant limitation in motion of the right shoulder. He did however have minimal pain and good function at the mid-chest level. Smith had significant restrictive motion above the shoulder level and additional surgical procedures have been offered which Smith had refused. Therefore, in Dr. Best’s opinion, Smith was at maximum medical improvement. Dr. Best opined Smith had a 13% upper extremity impairment regarding the right shoulder which equated to an 8% whole person impairment rating. However, the range of motion of the left shoulder was also calculated. He determined Smith also had a 3% whole person impairment for the left shoulder. Therefore under the Guides the 3% is subtracted from the abnormal right shoulder impairment giving Smith a 5% whole person impairment. Dr. Best pointed out a distal clavicular resection was performed which would give Smith a 10% upper extremity impairment which equates to a 6% whole person impairment. Since the greater of the two impairments is 6%, Smith has a 6% whole person impairment due to the shoulder injury. Dr. Best believed Smith was capable of returning to work performing activities up to chest level. He was unable to definitively determine his maximum strength because Smith refused to perform certain functional testing. Smith would be capable of work to mid-chest level in the light to medium duty work range which meant he would occasionally lift up to 35 pounds, frequently lift 15 pounds and constantly lift 5 pounds.
Dr. Best was subsequently deposed and acknowledged he only examined Smith’s shoulder. He would not recommend additional surgery on Smith’s shoulder because the incidence of shoulder disease, especially rotator cuff pathology, increases significantly with age. Further, because Smith is a diabetic he will have a far greater incidence of frozen shoulder syndrome and as a result will have decreased range of motion. Dr. Best noted Smith almost had painless range of motion in the right shoulder and at shoulder level and had done relatively well from the surgery. Dr. Best also noted Smith rated his pain to be one out of ten on the analog pain scale. Further, Smith is not taking any pain medication. Smith did not exhibit any pain atrophy. Pursuant to the Guides, Dr. Best assessed a 6% impairment to Smith.
The ALJ made the following findings of fact and conclusions of law regarding each injury:
ANALYSIS AND CONCLUSIONS
CLAIM NO. 05-70223
(LEFT KNEE INJURY OF FEBRUARY 24, 2005)
1. After reviewing the evidence, the Administrative Law Judge is convinced from the opinion of Dr. Wood that the work related injury of February 24, 2005 resulted in the plaintiff having a complex tear of the posterior horn of the left medial meniscus with post-operative localized avascular necrosis of the left lateral femoral condyle and osteoarthritis of the left knee. He is convinced that the injury resulted in an 8% impairment under the A.M.A. Guides to the Evaluation of Permanent Impairment, 5th Edition and that no portion of that impairment was pre-existing and active in nature. I am further convinced that injury caused the plaintiff to lose his capacity to perform the full line of his work and that he was, as a result of that injury, limited to light duty work with limitations on his ability to squat, climb, kneel or stand longer than 15 minutes in any one hour timeframe.
2. Under K.R.S. 342.730(1)(b), an 8% impairment carries a multiplication factor of .85 for a 6.8% permanent partial disability. The Administrative Law Judge notes that he is convinced from the evidence as noted above that the plaintiff, as a result of this injury, lacked the physical capacity to return to his job as a maintenance person with the defendant-employer based solely on the limitations in regards to his left knee. However, the Administrative Law Judge also notes that the plaintiff did return to work for a four month period and, in fact, earned an average weekly wage equal to or greater than he earned as of the time of his February 24, 2005 work related injury. Therefore, the Administrative Law Judge must determine pursuant to Fawbush v. Gwynn, Ky., 103 S.W. 3d 5 (2003) whether the plaintiff would likely have continued earning equal or greater wages for the indefinite future due to his left knee limitations to determine whether the modifiers set forth at K.R.S. 342.730(1)(c)1 or K.R.S. 342.730(1)(c)2 is [sic] more applicable. In this instance, the plaintiff’s job required a great deal of his work to be on ladders while changing lights and light fixtures. He was also required to do a lot of carrying and lifting of heavy objects. In addition, he testified that he was only able to return to work with the defendant-employer with restrictions due to help from co-workers. He further testified that job gave him a good deal of difficulty while performing it for the four months between April 16, 2006 and August 14, 2006. Therefore, I am convinced from the evidence that the plaintiff would not have been able to perform that job for the indefinite future earning same or greater wages even if he had not been subjected to the right shoulder injury of August 14, 2006. Therefore, the multiplier set forth at K.R.S. 342.730(1)(c)1 is more applicable and the benefits payable for the 6.8% permanent partial disability must be increased by a factor of 3.4 as the plaintiff lacked the physical capacity to return to the job he was performing at the time of his injury and was over age 55 at the time the injury occurred.
CLAIM NO. 06-94977
(RIGHT SHOULDER INJURY OF AUGUST 14, 2006)
3. As of August 14, 2006, the plaintiff was performing his job with the defendant-employer although with restrictions and with the assistance of co-workers. Nevertheless, he was able to earn a wage and was continuing to do that job on a full time basis when he suffered his right shoulder injury. I am convinced that event resulted in the plaintiff having a large tear of the supraspinatus of the right shoulder for which he underwent surgery. I am further convinced that he subsequently developed adhesive capsulitis and a frozen shoulder rendering him unable to return to work since that time as he has persistently been unable to do work above the shoulder level and has restrictions against lifting more than ten pounds as is noted in the records of Ellis & Badenhausen Orthopedics. I am further convinced that the injury to the right shoulder resulted in an impairment of between 6% and 8% under the A.M.A. Guides to the Evaluation of Permanent Impairment, 5th Edition.
4. The plaintiff argues that he has been rendered permanently and totally disabled. On the other hand, the defendant-employer, as insured at the time of his particular injury, argues that he is only been rendered permanently and partially disabled and, in the alternative, that any total disability would be related to the prior injury rather than the work related right shoulder injury. Permanent total disability is defined in KRS 342.0011(11)c as the condition of an employee who, due to an injury, has a permanent disability rating and has a complete and permanent inability to perform any type of work as a result of an injury. Work is defined as meaning providing service to another in return for remuneration on a regular and sustained basis in a competitive economy. K.R.S. 342.0011(34). In determining whether a worker is totally disabled, an Administrative Law Judge must consider several factors including the workers’ age, education level, vocational skills, medical restrictions, and the likelihood that he can resume some type of “work” under normal employment conditions. Ira A. Watson Department Store v. Hamilton, Ky., 34 S.W.3d 48 (2000). In this particular instance, the Administrative Law Judge notes that at the time of his work related injury, the plaintiff was 59 years old and is now 61. While he has a high school education and is a master electrician, he has several limitations in regards to his ability to perform his past work. The plaintiff is now limited to ten pounds of lifting and no work above shoulder level with his right upper extremity. Due to his left knee injury, he is unable to perform regular work which requires climbing, crawling, kneeling or squatting and also has restrictions on his lifting capacity. In addition, the plaintiff has a limitation in his ability to do fine manipulation as was testified to by the plaintiff with his right upper extremity due to a prior work related injury. When I consider his age, education level, vocational skills and those serious restrictions, I find that the likelihood the plaintiff could return to regular and sustained work is nil. Therefore, I find the plaintiff meets the definition of permanent total disability at this time. Prior to 1994, pre-existing active impairments or disability could be combined with a work-related occupational disability for consideration of total disability. Teldyne Wirz v. Willhite, Ky. App. 710 S.W. 2d 858 (1986). Since December 1996, non-work related impairments and conditions compensable under K.R.S. 342.732 and hearing loss covered in K.R.S. 342.7305 shall not be considered in determining whether the employee is totally disabled. . . K.R.S. 342.730(1)(a). Therefore, it seems clear that the Administrative Law Judge must continue to consider work related impairments and conditions in considering whether a worker is totally disabled. Therefore, the Administrative Law Judge may consider the plaintiff’s past limitations and impairments caused by his work related injuries in finding him permanently totally disabled following the right shoulder injury.
5. Of the plaintiff’s 100% occupational disability, the Administrative Law Judge must carve out the prior active impairment caused by the plaintiff’s right hand injury which he settled for a 12% permanent partial disability. The plaintiff testified that the right hand condition caused him difficulty with fine motor skills and manipulation. The plaintiff had a 12% impairment assessed for that right hand injury and the Administrative Law Judge finds that is an accurate assessment of his occupational disability attributable to that condition. Therefore, the plaintiff’s compensable 100% occupational disability must be reduced by a prior 12% active occupational disability and impairment thereby making his permanent total disability an award of 88%. Further, the plaintiff’s knee condition plays a large role in his total disability as well. The plaintiff herein has been awarded a 6.8% permanent partial disability, but the benefits have been increased by a factor of 3.4 for that left knee injury. In effect, the multipliers result in a 23.12% permanent partial disability resulting from the left knee condition which must also be subtracted from the plaintiff’s award of permanent total disability benefits. The 23.12% permanent partial disability from the left knee and the 12% prior active disability from the prior hand injury equals a prior active impairment of 35.12% leaving the plaintiff’s compensable total disability award at 64.88%. The Administrative Law Judge finds the plaintiff met the definition of permanent total disability as of August 15, 2006 as he has not been able to return to work since that date. Therefore, the plaintiff is entitled to an award of permanent total disability benefits in the amount of $183.11 per week beginning on August 15, 2006 and continuing through February 17, 2013 when he qualifies for regular old age Social Security disability benefits.
Based on his findings, the ALJ then determined for the knee injury Smith was entitled to the TTD benefits already paid and thereafter beginning on April 17, 2006 Smith was to recover permanent partial disability benefits, of $61.61 for 425 weeks. Regarding his shoulder, after carving out the impairment for the hand and the knee, the ALJ determined Smith, beginning August 15, 2006, was entitled to total disability benefits based on 64.88% of the applicable statutory amount resulting in a weekly benefit of $188.11 payable until February 17, 2013 when Smith would normally qualify for old age social security benefits.1 The ALJ also awarded the appropriate medical benefits for the injuries to the knee and shoulder.
U of L PMA filed a petition for reconsideration. Except for amending the opinion and award to reflect Dr. Schaper did not treat Smith’s shoulder, the ALJ overruled the petition for reconsideration.
On appeal U of L PMA asserts the ALJ did not make adequate conclusions of law in violation of KRS 342.275 arguing it can not determine the basis of the ALJ’s decision. Louisville points out there is no recitation of the case law and the ALJ did not state whether he determined Smith was totally occupationally disabled based on the evidence or by operation of law pursuant to Fleming v. Windchy, 953 S.W. 2d 604 (Ky. 1997). U of L points out Fleming is not applicable here because it involved an injury to the same body part and did not address a situation where the first injury continues to deteriorate causing the worker to be totally disabled. U of L concludes by asserting the medical testimony, some of which was not summarized by the ALJ, does not support a determination Smith was totally disabled citing to the opinions of Dr. Best and Dr. Conte as well as Mr. Tiell. Louisville asserts Mr. Tiell’s report indicates Smith was totally disabled without consideration of the shoulder injury and the ALJ made no mention of this in the summary of the testimony.
Since Smith, the party with the burden of proof, was successful before the ALJ, the issue on appeal is whether the ALJ’s decision is supported by substantial evidence. Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979), Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App. 1984). Clearly, the ALJ, as fact finder, has the sole authority to determine the weight, credibility, substance and inferences to be drawn from the evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). Furthermore, the ALJ has the absolute right to believe part of the evidence and disbelieve other parts, whether it comes from the same witness or the same parties’ total proof. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15 (Ky. 1977). It is not enough to show there was some evidence which would support a contrary conclusion. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). So long as the ALJ’s opinion is supported by any evidence of substance, ordinarily we may not reverse. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
While consideration of a total disability award depends on many of the same factors enunciated in Osborne v. Johnson, 432 S.W. 2d 800 (Ky. 1968), it remains within the broad authority of the ALJ to translate an impairment rating into either partial or total disability. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). The factors which the ALJ may consider in making the determination include the worker’s post-injury physical, emotional, intellectual and vocational status and how those factors interact. McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 859 (Ky. 2001). Furthermore, the ALJ may rely on both the medical testimony and a worker’s self assessment of his ability to labor. Hush v. Abrams, 584 S.W.2d 48 (Ky. 1979).
In this case we believe the ALJ sufficiently explained why he found Smith to be totally occupationally disabled. We find no merit in Louisville’s argument the ALJ did not cite adequate conclusions of law and failed to cite the applicable case law. The ALJ correctly determined, based on the evidence, the impairment rating attributable to Smith’s knee injury and performed the proper analysis required by Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003) by determining whether Smith would likely have continued earning equal or greater wages for the indefinite future. The medical evidence related to the knee injury more than adequately supports the ALJ’s determination Smith was capable of performing gainful employment and was not totally disabled as a result of the knee injury. Additionally no doctor indicated Smith’s physical restrictions due to the knee injury prevented him from returning to work. The fact Smith injured his shoulder while at work supports the ALJ’s conclusion the knee injury, while significant, was not totally disabling. Clearly, there was substantial evidence to support the ALJ’s determination Smith, as a result of his knee injury, sustained only a permanent partial disability.
The next inquiry is twofold: 1) Is there sufficient evidence to support the ALJ’s determination the additional occupational effect which resulted from the subsequent disabling injury resulted in Smith becoming totally disabled; and 2) If so, did the ALJ sufficiently explain the basis for his decision? First, we are compelled to point out Windchy v. Fleming is applicable to the case sub judice. Whether the subsequent compensable injury is to the same body part or to another body part is irrelevant. The ALJ must make a factual determination as to the significance of the second injury in determining whether Smith was totally disabled or more partially occupationally disabled as a result of the second injury.
Second, the ALJ was not required to give more weight to certain evidence offered by U of L in determining whether the shoulder injury superimposed on the knee injury served to totally disable Smith. Further, we do not think it significant the ALJ did not rely upon the reports of Dr. Best, Dr. Conte or Mr. Tiell. Although an ALJ must necessarily consider the worker’s medical condition when determining the extent of his occupational disability at a particular point in time, the ALJ is not required to rely upon the vocational opinions of either medical experts or the vocational experts in making his determination. See Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985).
The ALJ, in determining the shoulder injury resulted in Smith becoming totally occupationally disabled, pointed out he was convinced Smith had developed adhesive capulitis and a frozen shoulder rendering him unable to return to work. The ALJ noted Smith has been unable to perform work requiring him to raise his arms above shoulder level and can not lift more than 10 pounds. The ALJ also discussed the effects of the knee injury as well as his previous hand injury. The ALJ cited both KRS 342.0011(11)(c) and (34) as well as Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). The ALJ properly set forth all the factors he must consider and determined based on the statute and the factors set forth in Ira A. Watson Department Store v. Hamilton, supra, Smith was totally occupationally disabled. Although we question some of the language used by the ALJ in arriving at the award, we note no party has complained about the ALJ’s computations and the respective amount each party must pay.
Further, we see no reason the ALJ was required to make additional specific findings of facts or conclusions of law. Given Smith’s restrictions, accurately recited by the ALJ, contained within the record, we believe the ALJ’s award was supported by substantial evidence. Further, in this instance we believe the ALJ rendered findings of facts and provided an explanation regarding his conclusion sufficient to apprise the parties of the basis for his decision and to permit meaningful review on appeal. Shields v. Pittsburgh and Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982). Consequently, we find no error.
Accordingly, the decision rendered September 23, 2008 by Hon. John B. Coleman, Administrative Law Judge, is hereby AFFIRMED.
COUNSEL FOR PETITIONER:
HON DAVID L MURPHY
P O BOX 7158
LOUISVILLE KY 40257
COUNSEL FOR RESPONDENT:
HON ROBERT LINDSAY
515 PARK AVE
LOUISVILLE KY 40208
HON JANET K MARTIN
333 GUTHRIE GREEN
LOUISVILLE KY 40202
ADMINISTRATIVE LAW JUDGE:
HON JOHN B COLEMAN
107 COAL HOLLOW RD STE 100
PIKEVILLE KY 41501
1 The opinion actually stated when Smith “would normally qualify for regular age social security disability benefits,” but it is apparent the ALJ did not intend to insert the word disability before benefits.