OPINION ENTERED: FEBRUARY 18, 2010
CLAIM NO. 2008-01333
BIZZACK CONSTRUCTION, LLC PETITIONER
VS. APPEAL FROM HON. LAWRENCE F. SMITH,
ADMINISTRATIVE LAW JUDGE
MICHAEL R. JOHNSON
and LAWRENCE F. SMITH,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION AFFIRMING AND
GRANTING RESPONDENT’S MOTION
* * * * * *
BEFORE: ALVEY, Chairman; COWDEN and STIVERS, Members.
ALVEY, Chairman. Bizzack Construction, LLC (“Bizzack”) seeks review of a decision rendered June 29, 2009, by Hon. Lawrence F. Smith, Administrative Law Judge (“ALJ”), awarding Michael R. Johnson (“Johnson”) permanent total disability benefits. Johnson was injured on March 14, 2007 when a pipe rolled off of a truck, pinning him against the truck causing injuries to his right hip, right knee, and back. Subsequently, Johnson developed depression, in addition to his physical maladies. In July, 2008, Johnson was assessed by Dr. Hieronymus as having an occupational hearing loss which Johnson promptly reported to his employer.
The claim for occupational hearing loss was consolidated with the claim for injuries by order dated December 15, 2008. The claims were litigated, and a decision was rendered by the ALJ on June 29, 2009. Both parties subsequently filed petitions for reconsideration. Bizzack filed a petition for reconsideration requesting the ALJ to set aside the decision as not supported by substantial evidence. Bizzack also alleged it was error for the ALJ to include the hearing loss in determining Johnson was entitled to an award of permanent total disability benefits. Finally, Bizzack sought reconsideration of an award in excess of a total occupational disability award. Johnson filed a petition for reconsideration seeking clarification of the correct average weekly wage since two different amounts were noted in the decision.
On August 17, 2009, the ALJ entered an order clarifying the average weekly wage issue. On that same date, the ALJ entered an order denying Bizzack’s petition for reconsideration stating he had properly based his determination utilizing the factors set forth in Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3rd 48 (Ky. 2000). The ALJ also advised the award of permanent total disability benefits was based upon Johnson’s physical and mental conditions, and not his hearing loss claim which was treated separately in the decision.
On appeal, Bizzack argues the ALJ erred by finding Johnson to be permanently totally disabled, citing the evidence relied upon by the ALJ was not sufficient to support his decision. Bizzack further argues the ALJ erred by considering Johnson’s hearing impairment in his award of benefits. Because the ALJ’s decision is supported by substantial evidence, and follows the factors set forth in Watson, supra, we affirm.
It is undisputed Johnson sustained multiple injuries in his work related accident occurring on March 14, 2007. After that date, Johnson received treatment from numerous health care providers which was paid by Bizzack. Johnson supported his claim with evidence from Dr. David P. Herr, Dr. Joseph Rapier, Dr. Robert Granacher, Dr. Charles J. Hieronymus and Roy S. Price, LCSW. Bizzack countered with evidence from Dr. Joseph B. Touma, Dr. Daniel D. Primm, Dr. Richard T. Sheridan and Dr. David Shraberg. Also included in the record was the report of the university evaluation performed by Dr. Raleigh Jones and Dr. Jennifer B. Shinn pursuant to KRS 342.315 and KRS 342.7305. Johnson testified by deposition, and at the final hearing.
On March 14, 2007, Johnson, at the request of his boss, unloaded 36” pipes from a low boy trailer by pushing them off with a boom. When the trailer was pulled away, one of the pipes rolled over striking him in the abdomen and pinning him against the truck. At that time, Johnson experienced pain from the bottom of his ribcage to his knees. He was taken from the scene of the accident to the Highlands Regional Emergency Room. He was treated by numerous physicians after the accident, and surgery was eventually performed on the right knee by Dr. Keith Hall. Despite the surgery, Johnson has continued to experience problems with his right knee, including pain and limping. Johnson testified that the surgery helped since the knee no longer locks up, but he still has the sensation that the knee is going to “go out”.
The accident also resulted in a fractured pelvis and low back pain. Johnson continues to have pain in his pelvis and low back. He continues to be treated for his various work related conditions with both medications and injections. Since the accident, Johnson has also experienced depression which is treated with medication. Johnson testified that he has not returned to work since the March 14, 2007 accident, although he desires to do so. His entire work history has involved the changing of tires, including those on large, heavy industrial equipment, and he does not feel that he can return to any of those jobs.
Johnson was evaluated by Dr. Herr on May 8, 2008. The report from that visit, along with a Form 107 was submitted. A supplemental report from Dr. Herr dated April 25, 2009 was submitted as evidence. Dr. Herr observed the history of Johnson being injured on March 14, 2007 when he was pinned by a pipe. At the time of the evaluation, Johnson was complaining of pain in his low back, right knee, and neck. He noted Johnson had concurrent, unrelated problems of coronary artery disease, type 2 diabetes, and hypertension. He noted a history of right knee surgery related to the work injury and treatment in the form of rest, epidural steroid injections, x-rays, MRI, and CT of pelvis. He diagnosed Johnson with post traumatic arthritis to the right hip, and disc herniation of L4-L5, asymmetric to the right side. Dr. Herr assessed an impairment rating of 17% based upon the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”). He also assessed restrictions of maximum occasional lifting of ten pounds, and more frequent lifting of five pounds. He found that Johnson could stand or walk up to three hours in an eight hour work day, limited to only twenty minutes at a time. He found that Johnson could sit up to six hours in a work day, but no more than forty-five minutes at a time. He also found that Johnson should never climb, balance, stoop, crouch, kneel or crawl. Dr. Herr further opined that Johnson does not retain the capacity to perform his previous work due to his work injuries.
Johnson also submitted the form 107-I report of Dr. Rapier, dated May 22, 2008. Dr. Rapier noted the primary complaints as low back and right knee pain. In his report, Dr. Rapier noted Johnson was pinned between a pipe and a piece of equipment. Dr. Rapier diagnosed Johnson with, “a fractured inferior pubic ramus right, torn medical meniscus treated with arthroscopic surgery right knee, and strain to lumbar spine aggravating pre-existing dormant, degenerative disc disease without radiculopathy.” He assessed an 11% impairment based upon the AMA Guides, of which 6% was attributed to the right knee injury and surgery, and 5% was attributed to the low back injury. Dr. Rapier opined Johnson does not retain the capacity to perform the work he was performing at the time of the accident, and that he can only perform light duty work. Dr. Rapier did not explain what he meant by light duty work.
Johnson submitted the report of Dr. Granacher in support of his claim for a psychological injury. Dr. Granacher examined Johnson on August 19, 2008. After administering several tests, reviewing multiple medical records, and performing a mental status examination, Dr. Granacher assessed Johnson with a 5% whole person impairment pursuant to the AMA Guides, based upon his mental condition, due to the work injury of March 14, 2007. Dr. Granacher opined that Johnson should continue to treat with Zoloft and Cymbalta.
Johnson also submitted evidence from Roy S. Price, MSW, LCSW who has provided outpatient psychotherapy services. In his report of July 19, 2008, Price diagnosed Johnson with pain disorder with both psychological factors and a general medication condition (secondary to occupational injury). He also assessed Johnson with depressive disorder NOS (secondary to occupational injury).
Dr. Hieronymus evaluated Johnson for purpose of determining possible hearing loss, on July 28, 2008. Dr. Hieronymus assessed Johnson with a 13% whole person impairment pursuant to the AMA Guides due to work-related hearing loss. Dr. Hieronymus diagnosed bilateral hearing loss, chronic tinnitus, and impaired speech discrimination.
In support of its position, Bizzack filed the reports of Dr. Sheridan dated July 25, 2007, January 30, 2008, and February 11, 2008 who opined that Johnson’s pelvic fractures have healed. He noted that Johnson is at maximum medical improvement from his right knee injury and surgery. Dr. Sheridan assessed a 1% whole person impairment, based upon the AMA Guides, due to the right knee condition, and further noted that Johnson retains no impairment for the pelvic fractures. Dr. Sheridan stated, “He can return to work without restrictions.”
Bizzack also filed the reports of Dr. Primm dated February 3, 2009 and March 4, 2009. Dr. Primm assessed Johnson with a 1% whole person impairment based upon the AMA Guides due to the right knee condition. He noted that Johnson could “return to his regular job at Bizzack Construction with no permanent restrictions.” In his supplemental report, Dr. Primm indicated that Dr. Herr’s assessment of Johnson’s condition, and the causation of same, was incorrect except as it related to the right knee condition.
Bizzack submitted a report of Dr. Shraberg dated February 4, 2009. Dr. Shraberg reviewed various medical records, including the evaluation report of Dr. Granacher. Dr. Shraberg felt Johnson demonstrated “symptom magnification or certainly false attribution and magnification attributions of his pain limitations and mood disorder due to pain.” The diagnoses assessed by Dr. Shraberg include Adjustment Disorder of Adult Life associated with mood disorder due to the injury of March 14, 2007. His diagnoses also included elements of symptom magnification in the form of false attribution of psychological symptoms to the injury of March 14, 2007, and elements of narcotic induced mood disorder – reversible.
Bizzack filed the report of Dr. Touma dated February 5, 2009. Dr. Touma noted, “Within reasonable medical probability, patient’s hearing loss is related to noise exposure in the workplace or workplace accident. Dr. Touma assessed a 9% whole person impairment based upon the AMA Guides. Dr. Touma also noted Johnson “needs to wear hearing protection when he is around noise, and he requires hearing aids in a quiet environment.”
Dr. Jones and Dr. Shinn evaluated Johnson on December 1, 2008 at the request of the Department of Workers’ Claims. They noted that audiograms and other testing established a pattern of hearing loss which was compatible with noise exposure in the workplace. In their opinion, this was due to repetitive hazardous noise over an extended period of employment. The diagnosis included in this report was occupationally related noise induced sensorineural hearing loss. The report signed by both Dr. Jones and Dr. Shinn assigns a 13% whole person impairment based upon the AMA Guides. They also recommended the use of hearing aids, and hearing protection.
As noted previously, the crux of this appeal is whether the ALJ’s assessment of permanent total disability is supported by the evidence. Authority has long acknowledged that in making a determination granting or denying an award of permanent total disability, an ALJ has wide ranging discretion. Seventh Street Road Tobacco Warehouse v. Stillwell, 550 S.W.2d 469 (Ky. 1976); Colwell v. Dresser Instrument Div., 217 S.W.3d 213, 219 (Ky. 2006). What is more, KRS 342.285 designates the ALJ as the finder of fact; therefore, the ALJ has the sole discretion to determine the quality, character, and substance of evidence. See Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). The ALJ as fact finder may choose whom and what to believe and, in doing so, may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same party’s total proof. Pruitt v. Bugg Brothers, 547 S.W.2d 123 (Ky. 1977).
It was within the ALJ’s discretion as fact finder to pick and choose from the evidence whom and what to believe. Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). Because the outcome selected by the ALJ is supported by substantial evidence, we are without authority to disturb his decision on appeal. See KRS 342.285; Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
In his opinion, the ALJ noted as follows:
First, this administrative law judge recognizes that several well respected and highly trained medical care professionals have offered conflicting opinions as to the causes and the extent of plaintiff’s current medical and psychiatric conditions. Suffice it to say, based upon my review of the evidence, much of which is summarized above I am more persuaded by the opinions of Dr. Rapier and Dr. Granacher, finding their report [sic] and conclusions more credible than some of the others. Accordingly, I find that the plaintiff has an 11% impairment pursuant to the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition related to his physical injuries. I also find that the plaintiff has a 5% psychological impairment.
This Administrative Law Judge notes that the evidence indicates that before the plaintiff’s work injury of March 14, 2007 his the [sic] entire work career had been in jobs requiring physical fitness and hard labor. Despite his modest education he had achieved a degree of economic success earning at or more than $1000 weekly. He had been able to provide for his wife and children and was continuing to expand his vocational expertise. However, since the injury, the plaintiff indicates that he has lost his home, he walks with a limp, and can no longer do the type of work that he has known all of his working career.
…
From the evidence reviewed, much of which is summarized above, I find that the plaintiff is totally occupationally disabled within the meaning of the Kentucky Workers’ Compensation Statute.
Given the above analysis, it is apparent that consistent with the holding in Ira A. Watson Department Store v. Hamilton, supra, the ALJ considered all relevant factors, including the claimant’s age, education and past work experience in combination with the various harmful changes produced by the injury, in determining Johnson to be permanently and totally disabled. After thoroughly reviewing the record, we believe the opinions of Drs. Rapier and Granacher, along with the claimant’s own testimony concerning his physical condition after March 14, 2007, constitute substantial evidence from which the ALJ could reasonably conclude Johnson no longer retains the capacity to provide services to another in return for remuneration on a regular and sustained basis in a competitive economy. See KRS 342.0011(11)(c) and (34); Jackson v. General Refractories Co., 581 S.W.2d (Ky. 1979). Johnson’s self assessment of his inability to return to work for which he has previous training and experience, even when standing alone, comprises proof sufficient to support the outcome selected by the ALJ. Carte v. Loretto Motherhouse Infirmary, 19 S.W.3d 122 (Ky.App. 2000); Hush v. Abrams, 584 S.W.2d 48 (Ky. 1979); Ruby Construction Co. v. Curling, Ky., 451 S.W.2d 610 (1970).
Bizzack has argued that pursuant to KRS 342.730(1)(a), which provides in pertinent part that “hearing loss covered in KRS 342.7305 shall not be considered in determining whether the employee is totally disabled,” it was error for the ALJ to take into account the hearing loss claim when assessing the permanent total disability award. This argument is without merit. The ALJ, in the order on reconsideration dated August 17, 2009, clearly stated:
… the Administrative Law Judge finds that, his determination of permanent total disability is based on the factors contained in Ira A. Watson Dept. Store vs. Hamilton, KY, [sic] 34 S.W.3d 48 (2000), as relating to the physical and mental claims to impairment and not occupational hearing loss, which was given separate treatment as to findings of fact and conclusions of law in the opinion.
As such, the ALJ properly made a determination regarding whether Johnson was partially or totally disabled based solely upon his physical and mental conditions. Once the ALJ determined Johnson to be permanently totally disabled, he then determined the impairment due to that hearing loss. In the award, the ALJ found:
Plaintiff shall also recover of the defendant $63.03 per week income benefits relating to the plaintiff’s hearing loss commencing March 15, 2007 and continuing for the duration of his disability. Defendant shall be entitled to a credit the same amount for each week permanent total disability benefits are paid at the statutory maximum.
In reviewing the award, it is clear that although an award was made separately for the hearing loss impairment, proper credit was provided against the award of permanent total disability benefits. Contrary to Bizzack’s argument, it is not required to pay more than a 100% award.
Finally, on October 21, 2009, Johnson filed a motion before this Board for payment of benefits pending appeal. Bizzack filed a response objecting to the motion on October 27, 2009. KRS 342.300 permits the Board to continue in force an award from which an appeal has been taken upon motion of either party setting out “a sufficient showing of reason and necessity therefore.” In addition, 803 KAR 25:010 § 21 (14)(c) requires the motion establish not only the probability of the existence in fact of financial loss, privation, or detriment to the moving party’s property or health, but also a reasonable likelihood that the moving party will prevail on appeal.
Accordingly, the decision rendered June 29, 2009 by Hon. Lawrence F. Smith, Administrative Law Judge, is hereby AFFIRMED. Further, we conclude a reasonable likelihood exists that Johnson will prevail on further appeal. Moreover, we are satisfied Johnson established the probability of the existence in fact of financial loss, privation or detriment to his property and health. Having reviewed Johnson’s motion for continuation of benefits pending appeal, and Bizzack’s response, and taking into account our holding as specified in this opinion, it is hereby ORDERED that Johnson’s motion for payment of the award pending appeal is GRANTED, and Bizzack is ORDERED to commence payments of the award. Payment of income and medical benefits shall continue in force unless suspended by Bizzack upon execution of a supersedeas bond for appeal to the Court of Appeals.
ALL CONCUR.
_______________________________
Michael W. Alvey, Chairman
WORKERS’ COMPENSATION BOARD
COUNSEL FOR PETITIONER:
HON. W. BARRY LEWIS
PO BOX 800
HAZARD, KY 41702
COUNSEL FOR RESPONDENT:
HON. JOHN EARL HUNT
PO BOX 308
STANVILLE, KY 41659
ADMINISTRATIVE LAW JUDGE:
HON. LAWRENCE F. SMITH
410 WEST CHESTNUT ST
SUITE 700
LOUISVILLE, KY 40202
