OPINION ENTERED: FEBRUARY 18, 2010
CLAIM NO. 08-90505
BLUEGRASS REGIONAL MENTAL HEALTH PETITIONER
VS. APPEAL FROM HON. EDWARD D. HAYS,
ADMINISTRATIVE LAW JUDGE
TERESA BELLAMY,
and HON. EDWARD D. HAYS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
* * * * * *
BEFORE: ALVEY, Chairman; COWDEN and STIVERS, Members.
ALVEY, Chairman. Bluegrass Regional Mental Health (“Bluegrass”) seeks review of a decision rendered August 4, 2009, by Hon. Edward D. Hayes, Administrative Law Judge (“ALJ”), granting Teresa Bellamy (“Bellamy”) an award of workers’ compensation benefits. In so ruling, the ALJ determined that Bellamy suffered a work-related injury on March 9, 2008 to her low back and left leg producing a permanent harmful change to the human organism. The ALJ granted Bellamy future medical benefits and income benefits based on a finding that the injury resulted in a 3% permanent impairment rating. The ALJ further determined that Bellamy was entitled to an award of temporary total disability benefits (“TTD”) for the period spanning April 8, 2008 through January 15, 2009. Bluegrass also appeals from an order issued October 7, 2009, denying in pertinent part its petition for reconsideration.
On appeal, Bluegrass raises three issues. First, Bluegrass argues the ALJ’s finding that Bellamy suffered a permanent work-related injury on March 9, 2008 “is completely unsupported by substantial evidence.” Bluegrass maintains that “at best” the record contains only subjective evidence Bellamy suffered a temporary exacerbation of a preexisting active condition from which she recovered and returned to her pre-injury baseline state of health. Second, based on the same assertion, Bluegrass argues it was error for the ALJ to grant Bellamy an award of future medical benefits. Finally, Bluegrass contends that Bellamy’s award of TTD through January 15, 2009 was unsupported by substantial evidence, and in making that finding the ALJ applied the wrong legal standard. We affirm.
Bellamy was born on May 13, 1964 and is a resident of Winchester, Kentucky. She completed training and became a licensed practical nurse in 1991. She later became certified as a registered nurse. Bellamy entered the employ of Bluegrass as a registered nurse in July 2004.
Bellamy testified she first began experiencing problems with her low back after lifting a patient in approximately 1993. Following the incident, she completed an accident report. She was placed on modified duty and was treated with Flexaria. Bellamy testified that after one month she was released to full duty, but continued to have occasional flare-ups of back pain for which she was later prescribed Robaxin, Skelaxin and Lortab.
Bellamy began treating with Dr. Kimberly Dixon in 1996 for, among other things, occasional back pain. She stated she underwent her first MRI scan of the low back in early 2000. She recalled that her low back complaints worsened substantially around that time after driving long distances to care for her mother.
Bellamy testified that prior to 2008, she had undergone “a branch block, [bilaterally], and a medial branch block, and then an SI injection.” In August 2007, she underwent a rhizotomy (Bellamy incorrectly referred to the procedure as a “lysotomy”), during which she “had the eight nerves burnt in [her] back.”
Bellamy underwent a second MRI scan on November 13, 2007, following a slip and fall in the parking lot of a Rite Aid pharmacy. Bellamy stated she had gone to the pharmacy to pick up pain medication. Following the incident, she was transported to a local hospital by ambulance, after which she sought treatment from Dr. Deborah Tallio. Dr. Tallio subsequently referred Bellamy to Dr. Ellen Flinchum for pain management treatment in January 2008. Bellamy testified that immediately preceding the injury, she was being prescribed Methadone 15 BID, Lortab TIDPRN, and Gabapentin 300 (Neurontin) at bedtime for back pain.
On March 9, 2008, Bellamy slipped and fell on ice in the parking lot at Bluegrass, again injuring her low back and left leg. Bellamy described her ability to work immediately preceding the event as follows:
Q What did you work, about an eight or nine hour day?
A I worked eight hours and then usually on the weekends I worked twel--, well actually it was thirteen hours.
. . . .
Q At that point in time, right before this March 9th, 2008, what kind of problems were you having out of your back?
A Right before then, like if I worked an eight hour shift, I would go home and I would have to lay on the heating pad and I would have pain but it was relieved by the medicine that I was taking, and I would just put ice or heat on my back, and do my exercises for my back, and basically went back to work the next day.
Following the incident, Bellamy completed an accident report and went home. She went to her “regular doctor,” Dr. Dixon, the following day and was referred to Dr. Gregory T. Snider.
Bellamy was first seen by Dr. Snider on March 12, 2008. She reported a history of having fallen on ice at work. She also reported a prior left hamstring injury in November 2007. It was noted at the time of the visit that Bellamy was already treating with ice, heat, a TENS unit and pain medication. Following a physical examination, Bellamy was noted to have symptoms involving her lumbosacral region and left lower extremity. She was restricted to light duty consisting of no lifting in excess of 30 pounds and no repetitive bending or lifting. She was determined to already be taking adequate medications for her complaints. Physical therapy was ordered in April 2008.
Dr. Snider subsequently diagnosed Bellamy as having an acute lumbar strain superimposed on preexisting chronic low back pain. On May 27, 2008, Dr. Snider recorded the following:
Ms. Bellamy returns for follow up of her low back injury. She is a lady who is under care for chronic low back pain per Dr. Flinchum at the Pain Treatment Center on Pasadena Drive. At the time of the injury Ms. Bellamy was not technically on any restrictions. However, she says that she was not able to transfer patients, lift patients, etc. She admits that she “stayed back” and let others intervene when patients fell, etc. She says she sought help frequently for patient transfers, etc. She has not worked since the injury. At the last visit I approved return to work at her prior job status. However, she was not allowed to return. She continues to complain of low back pain worse at her baseline.
. . . .
In my opinion, Ms. Bellamy’s condition has functionally reached a baseline, but is able to get by at work by avoiding strenuous activity. I see no reason she could not return to this habit. Clearly, because of the baseline condition, she has some physical limitations. I cannot see that the 3/9/08 sprain/strain has caused any increase in this.
Dr. Snider further noted prior examinations had revealed modest limitation of range of motion of the low back but no neurologic deficit. He felt she had “baseline moderate to severe disk degeneration at L1-S1.” In a separate hand written note of the same date, Dr. Snider stated that Bellamy could return to “whatever level of work she was performing as of 03-09-08.” He recommended no new restrictions.”
Bellamy testified she went back to work on May 31 and June 1, 2008. According to Bellamy, after working those two days she could barely walk. She then called Dr. Snider who took her off work for three more weeks.
On June 3, 2008, Bellamy underwent an x-ray examination of the lumbar spine at Dr. Snider’s direction that was interpreted as revealing severe degenerative disc disease at L5-S1 and a grade 1 degenerative anterolisthesis at L4-5 that was stable on flexion and extension. Bellamy returned to Dr. Snider for follow up on July 15, 2008. At that time, she underwent nerve conduction studies that suggested evidence of an S1 radiculopathy. Following the study, Dr. Snider increased Bellamy’s work restrictions to no lifting in excess of 10 pounds and recommended that she be able to change positions as needed. Dr. Snider noted that Bellamy’s medications had been changed to MS Contin 15 mg BID, Percocet 10 TID and Neurontin 300 at HS.
In a letter dated October 23, 2008, Dr. Snider indicated he had discussed the possibility with Bellamy of undergoing another MRI study of the low back. Dr. Snider also stated, however, as follows:
In my opinion, the slip and fall injury of 3/9/08 did not produce any permanent harmful change based on any objective medical findings. I believe that this represented a temporary exacerbation in Ms. Bellamy’s preexisting condition. In my opinion, her condition is now at baseline. In my opinion, no additional medical treatment is reasonable or necessary due to the 3/9/08 injury. I did not prescribe any additional medications as a result of the work injury. In my opinion, the 3/9/08 injury did not cause any increase in Ms. Bellamy’s impairment rating (it appears that her condition fit into a DRE Lumbar Category II 5-8% whole-person impairment prior to the work injury). In my opinion, the work injury did not result in the need for any additional work restrictions. Ms. Bellamy apparently needs to be under restrictions for her baseline condition.
On December 23, 2008, Bellamy underwent an MRI at the request of Dr. Snider that revealed mild left neural foraminal stenosis at L4-5, moderate bilateral neural foraminal stenosis at L5-S1 and degenerative changes most prominent at L5-S1. Dr. Snider noted in a letter dated December 30, 2008 that the changes seen on the most recent study were unchanged from the prior MRI performed on November 13, 2007. Dr. Snider further stated:
It remains my opinion that the slip and fall injury of 3/9/08 did not produce any permanent harmful change in Ms. Bellamy’s lumbar spine. It continues to be my opinion that this injury represented a temporary exacerbation in her preexisting condition. In my opinion, her condition is now back to a preinjury baseline. I do not see any reason for additional impairment or work restrictions based on the 3/9/08 injury. I have not scheduled any follow up with Ms. Bellamy.
Bellamy’s final visit to Dr. Snider took place on January 16, 2009. Dr. Snider noted that Bellamy’s medications had been changed to Morphine 120 mg per day, Percocet 10/850 BID and Neurontin 900 mg per day. With regard to a return to work, Bellamy reported to Dr. Snider that “her employer will not accept any restrictions.” Following that visit, Dr. Snider did not complete the work status portion of his report addressing restrictions, other than to state in pertinent part:
I do not see any evidence of an objective anatomic change that has arisen from this work injury that would require additional physical limitations. Ms. Bellamy had physical limitations prior to this work injury but was able to accommodate herself by judging what she could do and obtaining help of her co-workers. In my opinion, Ms. Bellamy could return to that environment if permitted to do so.
According to Bellamy, Dr. Snider has been the only physician to directly treat her for the affects of the March 2008 injury at Bluegrass.
The parties stipulated that Bluegrass voluntarily paid Bellamy TTD from April 8, 2008 through May 11, 2008. Bellamy testified she returned to work at Bluegrass on January 17, 2009 earning the same or greater wages than at the time of the work-related event in March 2008. She stated that with the exception of two days worked on May 31 and June 1, 2008, she had been unable to work anywhere due to the affects of her low back condition. Bellamy testified that Bluegrass would not permit her to resume her former job prior to January 17, 2009 due to the medical restrictions imposed by Dr. Snider. Bellamy stated that since returning to Bluegrass, she lacks the physical capacity to perform all the duties she was capable of performing prior to the March 9, 2008 slip and fall due to continuing symptoms. She stated unlike before the injury, she now must wear a TENS unit and take larger doses of medication more often throughout the work day in order to be able to perform her assigned duties. Bellamy testified:
Q What is the difference between before the injury and the present time, as far as – as best you can functionally, describe your activities now.
A Well, before I was able to, you know, like I said, work with minimum pain medicine. I didn’t have any recuperation time that I had to have from, you know, working. I could work more hours. I was able to do my job. And, really, other than having to lay on a heating pad every once in a while, I was pretty stable. And, then when I went back to work, I can’t do the same job, unless I’m on my medicine and stuff, I can really tell the difference in – you know, as being able to do my job. And, then it takes me two to three days to recuperate from one day of work, which is not like it used to be. I just can’t work like I did.
. . . .
Q And, until January of 2009, when Doctor Snyder (sic) released you to full duty work, was that the first time that they would even let you come back to work?
A Uh-huh. (Yes)
Dr. James Templin performed an independent medical evaluation of Bellamy on September 12, 2008. Following a review of medical records and a physical examination, Dr. Templin diagnosed Bellamy with chronic low back pain, degenerative lumbar disc disease, and grade 3 tear of the left hamstring. Dr. Templin stated that within reasonable medical probability, Bellamy’s injury of March 9, 2008 was the cause of her complaints. Dr. Templin noted that an NCV study performed on July 15, 2008 was suggestive of mild left S-1 radiculopathy. Dr. Templin causally linked the work-related harmful change produced by the injury to an “exacerbation of a chronic lumbosacral degenerative disc disease.”
Pursuant to the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”), Dr. Templin assessed Bellamy as having an 8% whole person impairment due her low back condition. Of that amount, Dr. Templin apportioned 50% to the affects of the March 9, 2008 slip and fall at Bluegrass and 50% to active conditions pre-existing that injury. Dr. Templin stated, however, that in his opinion, Bellamy was not yet at maximum medical improvement (“MMI”) from the affects of the injury.
Dr. Henry Tutt performed an independent medical evaluation of Bellamy on October 7, 2008. Following a review of medical records and a physical examination, Dr. Tutt diagnosed Bellamy with: 1) “[c]hronic low back pain and left leg pain secondary to lower lumbar degenerative osteoarthritis disease, well-documented;” and 2) “[s]train/sprain, transient myofascial injury, superimposed on above, possible.” Dr. Tutt characterized the March 9, 2008 slip and fall as producing a temporary exacerbation of a preexisting condition producing no permanent harmful change. Dr. Tutt further indicated that in his opinion, Bellamy had returned to her pre-injury baseline state of health since the incident at Bluegrass.
Pursuant to the AMA Guides, Dr. Tutt categorized Bellamy as a DRE Category III qualifying for 10% to 13% whole person impairment rating. Dr. Tutt felt, however, the entire amount was due to preexisting active conditions and not the affects of the March 9, 2008 event. Dr. Tutt stated that Bellamy in his opinion had in all probability reached MMI from the effects the work trauma within a few weeks of the incident. Dr. Tutt also concluded that Bellamy was most likely at all times capable of continuing her customary employment, and “at most” was only “temporarily disabled by virtue of a possible acute temporary exacerbation for a few weeks.”
Dr. Tutt felt that Bellamy might continue to improve to the point she would qualify as a Lumbar Category II under the AMA Guides, allowing for the assessment of a 5% to 8% whole person impairment. Dr. Tutt characterized Bellamy’s complaints as being “clearly disproportionate to her musculoskeletal and neurological findings.”
On October 26 and December 7, 2008, Dr. Tutt reviewed additional medical records pertaining to Bellamy’s treatment, after which he indicated his opinions regarding Bellamy’s diagnosis and the non-work-related cause of her complaints remained unchanged.
After considering the evidence, the ALJ determined that Bellamy was entitled to an award of permanent partial disability benefits based upon an 8% impairment rating. Of that impairment rating, the ALJ apportioned 5% to the affects of a pre-existing active condition and 3% due to the affects of the work–related trauma of March 9, 2008. In so ruling, the ALJ reasoned in pertinent part as follows:
The ALJ finds that Teresa Bellamy did sustain a work-related “injury” as defined in KRS 342.0011(1) and that she did sustain additional permanent impairment to her body as a whole as a result of the work related incident on March 9, 2008. The Defendant/Employer has argued that the work incident caused only a temporary exacerbation of Plaintiff’s symptoms and that she had returned to a baseline level. However, the ALJ is not convinced. The testimony of the claimant as to the details of her pain, the extent and the severity of the pain and the efforts which she has made to work despite the pain is found to be credible and persuasive. It is true that Ms. Bellamy has a history of chronic low back pain prior to the work related accident. However, the intensity of the pain has increased and she is on higher dosages of pain medication. According to Dr. Templin, the most recent NCV study of the left lower extremity reveals evidence of a mild left S1 radiculopathy, which condition was never present in any of the pre-injury examinations or studies. Dr. Snider seems to acknowledge that the more recent EMG/NCV study indicates that Plaintiff may suffer from radiculopathy in the left leg. Dr. Snider’s progress notes reflect a worse situation for the Plaintiff than do his answers to certain questions posed to him on later occasions. Interestingly, Dr. Snider placed her on restrictions which prevented claimant from being able to work but Dr. Snider attempted to categorize these restrictions as baseline restrictions and specifically stated in his notes that they were not new restrictions. Nevertheless, she does not appear to have been under such restrictions prior to the incident in question. In any event, the ALJ is not persuaded by either Dr. Snider or Dr. Henry Tutt on this particular issue, both of whom deny that Plaintiff has suffered any increase in permanent impairment as a result of the incident in question.
The ALJ finds that claimant, Teresa Bellamy, now has a permanent impairment under the AMA Guidelines of 8% to the body as a whole, based on the evidence submitted by Dr. James Templin.
. . . .
Accordingly, the ALJ finds that claimant had a pre-existing active impairment of 5% prior to this work related incident. This opinion is based upon the findings and opinions of both Dr. Gregory Snider and Dr. Henry Tutt, both of whom assign a 5% pre-existing active impairment. Both Dr. Tutt and Dr. Snider provide persuasive explanation of their opinions and the ALJ is persuaded by these opinions that an appropriate amount of pre-existing active impairment is 5%. Thus, the Plaintiff is entitled to compensation for an increase in her impairment from 5% to 8% and she shall be compensated accordingly.
Having found the Plaintiff to have sustained an injury as defined under the Act and also having found Plaintiff to have sustained permanent impairment under the AMA Guidelines, the Plaintiff is entitled to medical benefits as provided in KRS 342.020.
The ALJ further concluded that Bellamy was entitled to payment of TTD for the period spanning April 8, 2008 through January 16, 2009. Citing to the Kentucky Supreme Court’s holding in Central Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky. 2000), the ALJ stated:
Claimant requested her treating doctor, Dr. Gregory Snider, to allow her to try to go back to work and she did return to work in May of 2008 for one weekend. On the following Monday morning she could barely walk and she returned to Dr. Snider. Dr. Snider then placed her on certain restrictions and because the employer would not allow an employee to work with restrictions, Ms. Bellamy was off from work from May of 2008 until January 16, 2009 when she was released by Dr. Snider to return to regular duty. *** The ALJ finds that she was entitled to temporary total disability benefits . . . from April 8, 2008 . . . continuing until January 16, 2009 (less a credit for Defendant for the two days which she returned to work in May of 2008). [Citations omitted.] Ms. Bellamy did not return to work during that period of time. The employer offered her no work within her restrictions during that period of time, but did retain her as an employee.
Regarding the issue of TTD, in the order on petition for reconsideration, the ALJ further stated:
Dr. Snider placed on her certain restrictions. *** Ms Bellamy’s testimony supported the finding that she was not permitted to work during the period of May 2008 until January 16, 2008 [sic] because it was the employer’s policy, at least in her case, to not allow her to return to work if she was subject to restrictions. *** The employer could have introduced a witness or witnesses to refute the Plaintiff’s testimony on this particular issue. For whatever reason, the Defendant did not do so. Further, the Defendant made no objection to the Plaintiff’s testimony relative to this issue. *** The ALJ concludes that the claimant was not supposed to be working during this period of time based on the decision of the employer.
It is well established that a claimant in a workers’ compensation claim bears the burden of proof and risk of non-persuasion before the ALJ, as fact finder, with regard to each of the essential elements of her cause of action. Burton v. Foster Wheeler Corp., 72 S.W.3d 925, 928 (Ky. 2002). A finding that favors the party with the burden of proof on an issue in a workers' compensation proceeding must be based upon substantial evidence and, therefore, be reasonable to survive on appeal. Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615 (Ky. 2004). Since Bellamy was successful before the fact finder as regards to her claim, the question on appeal is whether there was substantial evidence of record to support the ALJ’s decision. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Substantial evidence” is defined as evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable persons. Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971). The function of the Board in reviewing the ALJ’s decision is limited to a determination of whether the findings made are so unreasonable under the evidence that they must be overturned. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
In rendering a decision, KRS 342.275 and KRS 342.285 grants the ALJ as fact finder the sole discretion to determine the quality, character, and substance of evidence. AK Steel Corp. v. Adkins, 253 S.W.3d 59 (Ky. 2008). The ALJ may draw reasonable inferences from the evidence, reject any testimony, and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof. Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). Although a party may note evidence that would have supported a different outcome than that reached by the ALJ, such evidence is not an adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). The Board, as an appellate tribunal, may not usurp the ALJ’s role as fact finder by superimposing its own appraisals as to weight and credibility or by noting reasonable inferences that otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999). So long as the ALJ’s ruling with regard to an issue is supported by substantial evidence, it may not be disturbed on appeal. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
In this instance, we believe the outcome selected by the ALJ is both supported by the evidence and in conformity with the Act. For purposes of workers’ compensation in Kentucky, the term “injury” is defined in relevant part as any work-related traumatic event or series of traumatic events arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings. See KRS 342.0011(1). While both Dr. Tutt and Dr. Snider characterized the harmful affects of the March 9, 2008 work event as transient and temporary in duration, Dr. Templin disagreed stating that in his expert opinion the slip and fall injury on that date resulted in harmful changes producing permanent impairment under the AMA Guides superimposed over a preexisting active condition. As such, the differing medical opinions of Drs. Tutt and Snider merely represent conflicting evidence that, as a matter of law, do not compel any particular result. Where, as here, the evidence regarding causation and the extent and duration of a claimant’s work-related harmful changes is conflicting between the medical experts, the ALJ as fact finder is free to pick and choose whom and what to believe. Copar, Inc. v. Rogers, 127 S.W.3d 554, 561 (Ky. 2003). For that reason, we cannot say the ALJ’s conclusions regarding the permanent physical changes caused by Bellamy’s fall at Bluegrass were unreasonable under the evidence. Speedway/Super America v. Elias, 285 S.W.3d 722, 730 (Ky. 2009); Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206 (Ky. 2003). Contrary to Bluegrass’ assertions, Dr. Templin’s opinions, when considered in conjunction with Bellamy’s unrefuted testimony concerning the mechanism of injury that occurred on March 9, 2008, plainly qualify as substantial evidence sufficient to support the ALJ’s ruling. Special Fund v. Francis, supra.
As to any allegations Dr. Templin’s opinions did not rise to the level of substantial evidence because they were not based on objective medical findings, we disagree. KRS 342.0011(33) defines “objective medical findings” as “information gained through direct observation and testing of the patient applying objective or standardized methods.” In Gibbs v. Premier Scale Co./Indiana Scale Co., 50 S.W.3d 754 (Ky. 2001), the Kentucky Supreme Court, in addressing this definition, recognized that in addition to objective diagnostic tools such as x-ray, CT scan, EMG/NCV or MRI, there is a wide array of standardized laboratory tests and standardized tests of physical and mental function available to the medical practitioner. The court further emphasized, “[w]e know of no reason why the existence of a harmful change could not be established, indirectly, through information gained by direct observation and/or testing applying objective or standardized methods that demonstrate the existence of symptoms of such a change.” Id. at 762. The Court explained that the term “testing” does not require the use of sophisticated diagnostic tools and that the statute does not require both testing and observation. The Court also explained that subjective factors cannot be avoided when collecting and interpreting medical information, but that their effect is decreased by the use of standardized methods, and what results is a more accurate and objective assessment of the patient's condition. Id.; c.f. University of Kentucky Family Practice v. Leach, 237 S.W.3d 540, 544 (Ky. 2007). In Staples, Inc. v. Konvelski, 56 S.W.3d 412 (Ky. 2001), the Supreme Court additionally instructed that while objective medical findings must support a diagnosis in order to establish the presence of a harmful change, the Court rejected the argument that the cause of the harmful change must also be proven by objective medical findings. See Staples, Inc. v. Konvelski, 56 S.W.3d 412 (Ky. 2001).
In the case sub judice, it is undisputed that Dr. Templin in conducting his evaluation took a detailed history of Bellamy’s complaints, treatment and various injuries, both work-related and non-work-related, dating back “some ten years.” In addition to performing a physical examination, during which he observed Bellamy and conducted standardized range of motion studies, pinprick studies, strength measurements, and motor, reflex and pulse testing, Dr. Templin also reviewed medical records that included the results of lumbosacral x-ray examinations performed in 2007 and 2008, a lumbosacral CT scan performed in 2006, a lumbar NCV study from 2008, and lumbosacral MRI scans performed in 2007 and 2008. Taking into account the medical information garnered from these various sources, in express reliance on Table 15-3, at page 384 of the AMA Guides, Dr. Templin determined Bellamy to have “[a]n 8% impairment to the whole person due to a DRE lumbar Category II impairment . . . with a clinical history and examination findings compatible with a specific injury together with asymmetrical loss of ROM and nonverifiable radicular complaints.” In light of all this, Templin’s testimony in our opinion plainly qualifies as substantial evidence upon which the ALJ was free to rely, and any argument his expert conclusions were not based upon objective medical findings is wholly without merit. Dr. Templin’s testimony complied sufficiently with the standard described in Gibbs v. Premier Scale Co./Indiana Scale Co., supra, to prove that the trauma incurred on March 9, 2008, worsened Bellamy’s pre-existing active condition, causing additional permanent impairment, i.e., a new injury, that is now compensable under the Act.
We likewise reject Bluegrass’ contention the ALJ’s award of medical benefits under KRS 342.020 was in error. Again, the medical evidence regarding this issue was conflicting. The ALJ determined based on substantial evidence that the injury of March 9, 2008, resulted in a permanent impairment rating over and above any preexisting active impairment, thereby producing permanent disability pursuant to KRS 342.730(1)(b). As a matter of law, therefore, the ALJ was compelled to grant Bellamy an award of medical benefits “for so long as [she] is disabled regardless of the duration of the [her] income benefits.” See KRS 342.020(1); FEI Installation, Inc. v. Williams, 214 S.W.3d 313 (Ky. 2007).
We also conclude the ALJ’s award of additional TTD was reasonable under the law and supported by substantial evidence. KRS 342.0011(11)(a) defines TTD as follows:
‘Temporary total disability’ means the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment.
The above definition has been determined by our courts of justice to be a codification of the principles originally espoused in W.L. Harper Const. Co., Inc. v. Baker, 858 S.W.2d 202, 205 (Ky.App. 1993), wherein the Court of Appeals stated generally:
TTD is payable until the medical evidence establishes the recovery process, including any treatment reasonably rendered in an effort to improve the claimant's condition, is over, or the underlying condition has stabilized such that the claimant is capable of returning to his job, or some other employment, of which he is capable, which is available in the local labor market. Moreover, . . . the question presented is one of fact no matter how TTD is defined.
In Central Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky. 2000), the Supreme Court further explained that “[i]t would not be reasonable to terminate the benefits of an employee when he is released to perform minimal work but not the type that is customary or that he was performing at the time of his injury.” Id. at 659. In other words, where a claimant has not reached MMI, TTD benefits are payable until such time as the claimant’s level of improvement permits a return to the type of work she was customarily performing at the time of the traumatic event.
More recently, in Magellan Behavioral Health v. Helms, 140 S.W.3d 579 (Ky.App. 2004), the Court of Appeals instructed that until MMI is achieved, an employee is entitled to a continuation of TTD benefits so long as she remains disabled from her customary work or the work she was performing at the time of the injury. The court in Helms, supra, stated:
In order to be entitled to temporary total disability benefits, the claimant must not have reached maximum medical improvement and not have improved enough to return to work.
. . . .
The second prong of KRS 342.0011(11)(a) operates to deny eligibility to TTD to individuals who, though not at maximum medical improvement, have improved enough following an injury that they can return to work despite not yet being fully recovered. In Central Kentucky Steel v. Wise, [footnote omitted] the statutory phrase ‘return to employment’ was interpreted to mean a return to the type of work which is customary for the injured employee or that which the employee had been performing prior to being injured.
Id. at 580-581.
In Double L Const., Inc. v. Mitchell, 182 S.W.3d 509, 513-514 (Ky. 2005), the Supreme Court further elaborated with regard to the standard for awarding TTD as follows:
As defined by KRS 342.0011(11)(a), there are two requirements for TTD: 1.) that the worker must not have reached MMI; and 2.) that the worker must not have reached a level of improvement that would permit a return to employ-ment. See Magellan Behavioral Health v. Helms, 140 S.W.3d 579, 581 (Ky.App. 2004). In the present case, the employer has made an ‘all or nothing’ argument that is based entirely on the second requirement. Yet, implicit in the Central Kentucky Steel v. Wise, supra, decision is that, unlike the definition of permanent total disability, the definition of TTD does not require a temporary inability to perform ‘any type of work.’ See KRS 342.0011(11)(c).
. . . .
Central Kentucky Steel v. Wise, supra, stands for the principle that if a worker has not reached MMI, a release to perform minimal work rather than ‘the type that is customary or that he was performing at the time of his injury’ does not constitute ‘a level of improvement that would permit a return to employment’ for the purposes of KRS 342.0011(11)(a). 19 S.W.3d at 659.
That having been said, we believe the ALJ could reasonably infer from the evidence that prior to Bellamy’s return to work at Bluegrass on January 17, 2009, she was not at MMI and had not yet reached a level of improvement that would have permitted a return to her customary employment due to the effects of her March 9, 2008 injury. As previously stated, the ALJ, in his capacity as fact finder, was free to pick and choose from the evidence and reach all reasonable inferences in making a determination with regard to this issue. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000); Jackson v. General Refractories Co., 581 S.W.2d (Ky. 1979).
The parties stipulated that Bluegrass voluntarily paid Bellamy TTD from April 8 through May 11, 2008. Despite any statement by Dr. Snider, or for that matter Dr. Tutt, indicating that Bellamy’s complaints were exclusively the result of a preexisting active condition, it is unrefuted that in March 2008, Dr. Snider imposed work restrictions, which were subsequently increased in July 2008 following an NCV study. These facts are borne out by Dr. Snider’s medical records from that time. Moreover, Bellamy’s testimony that because of these restrictions Bluegrass would not permit her to resume her employment is similarly unrefuted. As of September 12, 2008, following a physical examination, Dr. Templin concluded that Bellamy was not yet at MMI. It was not until January 16, 2009, that the restrictions imposed on Bellamy by Dr. Snider beginning in March 2008 were no longer listed as being in place. This fact, again, is borne out by Dr. Snider’s progress note from that date. It is likewise undisputed that Bellamy returned to work the following day on January 17, 2009 at Bluegrass performing her normal and customary job duties for the first time in more than eight months.
In light of the above evidence, and despite any conflicting testimony which may have supported a different conclusion, we believe the ALJ could reasonably infer that prior to January 17, 2009, Bellamy had not reached MMI from the affects of her work-related injury, and due to that injury had not yet reached a level of improvement that would permit a return to her regular and customary employment with Bluegrass. Central Kentucky Steel v. Wise, supra. Such reasonable inferences are fundamental to the ALJ’s role as fact finder, and the ALJ is vested with broad authority to decide such matters. Dravo Lime Co., v. Eakins, 156 S.W.3d 283 (Ky. 2003); Hush v. Abrams, 584 S.W.2d 48 (Ky. 1979); Jackson v. General Refractories Co., supra. Hence, we find no error concerning the ALJ’s award of additional TTD.
Accordingly, the decision rendered August 4, 2009, by Hon. Edward D. Hayes, Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON. GREGORY L. LITTLE
300 EAST MAIN STREET, SUITE 400
LEXINGTON, KY 40507
COUNSEL FOR RESPONDENT:
HON. TIM WILSON
309 N BROADWAY
LEXINGTON, KY 40508
ADMINISTRATIVE LAW JUDGE:
HON. EDWARD D. HAYS
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
