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Workers’
Compensation Board
OPINION
ENTERED: August 12, 2016
CLAIM NOS. 201300439 & 201300438
CDR MINERALS PETITIONER
VS. APPEAL FROM HON. WILLIAM J RUDLOFF,
ADMINISTRATIVE LAW JUDGE
RANDY RICHIE
HON. WILLIAM J RUDLOFF,
FORMER ADMINISTRATIVE LAW JUDGE
AND HON JEANIE OWEN MILLER
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. CDR Minerals (“CDR”) appeals from the October 23, 2015 Amended
Opinion and Order on Remand rendered by Hon. William J. Rudloff,
Administrative Law Judge (“ALJ”), and the March 15, 2016 Order rendered by Hon.
Jeanie Owen Miller (“ALJ Miller”). On
remand, the ALJ found Randy Richie (“Richie”) permanently totally
disabled. On appeal, CDR argues the
evidence does not support the occurrence of an injury as defined in KRS
342.0011(1), that all of Richie’s impairment is attributable to pre-existing
active conditions, and that the ALJ erred in finding Richie permanently totally
disabled. For the reasons set forth
herein, we affirm.
Richie filed claim number 2013-00438 on March 23, 2013
alleging injuries to his low back, right hip and right leg on January 8, 2012
as a result of cumulative trauma. He
acknowledged filing first reports of injury in claim numbers 2007-95154,
2002-97151 and 2011-75266, though no formal claims were filed.
In our previous decision, we summarized the evidence as
follows:
Richie testified by deposition and
at the hearing. He was born on July 27,
1955 and is a high school graduate and certified miner. During his entire adult life, he has worked as
a heavy equipment operator, most recently for CDR as a grader operator at mine
sites. In 2001, Richie was injured when
the blade of a grader he was operating struck a tree and he was whipped
forward, striking the windshield. He
missed nine weeks of work. Since the
time of the 2001 injury to the present, Richie’s back pain periodically flares
up and he takes over-the-counter pain medication for relief. Similarly, his right hip has been hurting
since the 2001 injury, and also periodically causes pain. Until the time of his layoff from CDR in
January, 2012, Richie experienced low back and right hip pain while
working.
Dr.
Arthur L. Hughes examined Richie on April 24, 2013. He reviewed the July 21, 2005, October 18,
2005 and July 30, 2009 notes of Dr. Mitchell Wicker. These reports concerned treatment for
conditions unrelated to the alleged work injuries. Dr. Hughes also reviewed Dr. Williams’
January 30, 2013 report regarding Richie’s low back pain with radiculitis into
the right hip and leg.
At
the examination, Richie gave a history of forty years working as a heavy
equipment operator. He reported the 2001
grader accident which resulted in severe low back pain, though it was unclear
whether Dr. Hughes was aware the accident required Richie to miss nine weeks of
work. Dr. Hughes noted:
He continues to have lower back pain
extending into the right hip and he also has pain behind the right knee, which
is of recent origin. He has had right
shoulder pain for the past three years.
Dr. Hughes diagnosed low back pain;
bilateral hip pain, right worse than left; right knee pain; and right shoulder
pain. Regarding causation, he opined as
follows:
Within reasonable medical probability,
the plaintiff’s multiple pains and restricted motion of joints is a consequence
of his 40 years as a heavy equipment operator causing repetitive injury to
multiple areas of the body. These have
accumulated over a period of years.
Dr.
Hughes further opined Richie had no prior active impairment, explaining his
impairments were the consequence of accumulated trauma over many years of
operating heavy equipment and are not due to any specific injury. He assessed an 8% impairment pursuant to the
American Medical Association, Guides to the Evaluation of Permanent
Impairment, 5th Edition (“AMA Guides”), consisting of 5%
for the low back, 2% for the right hip and 1% for the right knee. Dr. Hughes assigned a lifting restriction of
ten pounds regularly and twenty-five pounds occasionally, and recommended he
sit or stand for only “brief” periods of time.
He additionally cautioned Richie against repetitive bending and twisting
of the lumbar spine, and forward flexing at the waist.
During
a deposition on July 3, 2013, Dr. Hughes was informed the 2001 accident
resulted in nine weeks of missed work, and acknowledged the injury was more
substantial than he initially believed.
Dr. Hughes was also presented with and reviewed Dr. Williams’ intake
note indicating an onset of low back and hip symptoms in 2002. Based upon the 2001 accident, a 2007 low back
incident, and ongoing symptoms following the 2001 injury, Dr. Hughes agreed
Richie would have had an impairment rating under the AMA Guides. Consequently, he conceded the 5% impairment
he assigned for Richie’s low back may have been in existence as early as
2002. Furthermore, because the rating
for the hip was based upon range of motion, Dr. Hughes did not know what
Richie’s impairment rating would have been following the 2001 injury. It could have been more or less than the 2%
he assigned based upon his examination.
Finally, Dr. Hughes acknowledged the 1% rating for the knee is based
solely on pain and there is no objective substantiation of the condition,
particularly since Richie’s range of motion of the knee was normal.
Dr.
Hughes was questioned as follows regarding the impairment rating:
Q. Okay.
Turning back to the impairment rating you’ve assessed in this case, and
you’ve already agreed that the five percent to the lumbar spine, within
reasonable medical probability, would have been in existence as early as 2001,
2002 because of his persistent low back pain; is that correct, sir?
A. Yes, that’s correct.
Q. The two percent attributable to the hip,
right hip, that likewise may have been in existence as early 2001, 2002 because
of his prior accident; is that correct?
A. That’s correct.
Q. And the one percent that is due to knee pain, that really is not supported by any objective
findings; is that correct?
A. That’s correct.
Dr.
Daniel D. Primm evaluated Richie on July 26, 2013, and also received a history
of the 2001 accident. Dr. Primm observed
that Dr. Wicker’s notes document continued low back pain and right leg pain, as
well as a 2002 MRI revealing a bulging disc.
Dr. Primm concluded Richie’s physical examination was essentially normal
for a fifty-eight year old man, and found no evidence of lumbar radiculopathy
or myelopathy. He placed Richie in DRE
Category I with no objective signs of injury, and found no impairment of the
knees, hips or lumbar spine pursuant to the AMA Guides.
The ALJ relied upon Dr. Hughes’ April 24, 2013 report to
find Richie had no pre-existing active impairment or occupational disability
prior to January 8, 2012, and to find he sustained an 8% impairment rating as a
result of cumulative trauma injuries.
Relying primarily upon Dr. Hughes’ report, the ALJ determined Richie was
permanently totally disabled.
The Board issued an opinion on March 12, 2014 affirming in
part, vacating in part and remanding.
The Board found the ALJ insufficiently explained the extent of Richie’s
injuries and did not demonstrate he had considered Dr. Hughes’ deposition
testimony, thus precluding meaningful review of the award of permanent total
disability benefits. Therefore, the
Board remanded for additional fact finding.
The ALJ rendered his Amended Opinion and Order on Remand on
October 23, 2015, summarizing the deposition testimony of Dr. Hughes and again
finding Richie permanently totally disabled.
Relying on Richie’s testimony and Dr. Hughes’ report, the ALJ determined
Richie sustained serious permanent injury to his back due to cumulative trauma
in his employment with CDR. The ALJ
found Richie did not suffer any pre-existing occupational disability before
January 8, 2012. He further determined
Richie sustained repetitive injuries to his right knee, low back and right
shoulder as a result of years of working for CDR as a heavy equipment operator. The ALJ accepted the 8% impairment rating
assessed by Dr. Hughes and made the following findings relevant to this
appeal:
. . . . On cross-examination of Dr.
Hughes by the defense attorney, Dr. Hughes’ [sic] admitted that Mr. Richie’s
low back complaints may have been in existence as early as 2002 and that
his right hip complaints may have been in existence as early as 2001 or
2002. I emphasize that since Rogers v. Sullivan, 410 S.W.2d 624 (Ky.
1966), the law has clearly required a physician’s opinion to be based upon
reasonable medical probability as contrasted with possibility, which is not
adequate. Clearly, statements by Dr.
Hughes phrased in terms may and may have been are not competent
medical evidence. See also Gilbreath v. Perkins, 461 S.W.2d 360 (Ky.1970) and
Seaton v. Rosenberg, 573 S.W.2d 333
(Ky.1978).
The
case at bar is very similar to the facts in McNutt
Construction/First General Services v. Scott, 40 S.W.3d 854 (Ky.2001),
where work-related trauma caused a dormant degenerative condition to become disabling
and to result in a functional impairment and the trauma is the proximate cause
of the harmful change and hence the harmful change comes within the definition
of an injury. I make the factual
determination based upon Mr. Richie’s credible and convincing testimony and the
medical evidence from Dr. Hughes that Mr. Richie’s work-related trauma while
employed by the defendant caused a dormant degenerative condition to become
disabling and to result in a functional impairment and that that trauma is the proximate
cause of the harmful change and hence the harmful change comes within the
definition of an injury.
CDR filed a petition for reconsideration making essentially
the same arguments it raises on appeal.
By order dated March 15, 2016, ALJ Miller denied the petition, noting
she had no authority to re-interpret the evidence upon reconsideration.
On appeal, CDR argues the evidence does not support the
occurrence of an injury as defined in KRS 342.0011(1). It contends there is no objective evidence
indicating Richie suffered injuries to his right shoulder, right knee or left
hip because the diagnoses related to these body parts are based solely on
subjective complaints. Further, Dr.
Hughes assigned no impairment for the right shoulder and admitted the 1% rating
assigned for the knee was based solely on subjective complaints of pain. CDR argues the entirety of the impairment
rating assessed for the low back and right hip is due to pre-existing active
conditions. CDR contends it met its
burden of conclusively proving the low back and hip problems are
non-work-related pre-existing active conditions. It interprets Dr. Hughes’ testimony as
establishing the impairment would have been in existence at least as early as
2001 or 2002 because of Richie’s persistent low back pain. Further, Dr. Hughes’ report and qualifying
deposition testimony indicate no medical findings exist to establish an injury
to the right shoulder, right knee or left hip.
Finally, CDR argues the ALJ erred in finding Richie permanently
totally disabled. Again, CDR contends
Richie failed to establish he sustained an injury as defined by the Act. Additionally, CDR contends the ALJ’s decision
is inconsistent. In Section V, Paragraph
A, the ALJ found a low back injury, while in Paragraph D the ALJ determined
Richie’s diagnoses were bilateral hip pain, right knee pain, low back pain and
right shoulder pain. However, the ALJ
made no finding as to whether the bilateral hip pain, right knee pain, or right
shoulder pain were injuries as defined by the Act. The ALJ appears to have included these
conditions in his determination that Richie is permanently totally
disabled. CDR concludes inclusion of
these conditions was improper, requiring reversal of the finding of permanent
total disability.
As the claimant in a workers’ compensation proceeding, Richie bore the burden of proving each of the essential
elements of his cause of action. Snawder v. Stice, 576 S.W.2d 276 (Ky.
App. 1979). Because he was successful in that burden, the question
on appeal is whether substantial evidence supports 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 people. Smyzer v. B. F. Goodrich Chemical Co.,
474 S.W.2d 367 (Ky. 1971).
We begin by noting there was some
degree of ambiguity in the deposition questions posed to Dr. Hughes regarding
pre-existing impairment. As noted by the
ALJ, a number of questions were posed as to the possible presence of prior
impairment ratings using terms such as “might”, “may” and “may have been”. Even if we assume the 5% rating for the back
condition pre-existed the alleged cumulative trauma injury, Dr. Hughes could
not say the entirety of the impairment rating he assessed for the right hip
injury was pre-existing. CDR submitted
no other evidence which would compel a finding of a pre-existing impairment
rating for the right hip. In his
deposition, Dr. Hughes continued to indicate cumulative trauma over Richie’s
entire work history contributed to the conditions. He was questioned regarding apportioning the
impairment rating and responded that the early employment contributed very
little while the later employment contributed more.
Though CDR focuses its arguments on
appeal on the evidence supporting the finding each individual injury, the true
issue is the extent of Richie’s occupational disability. In other words, there being an impairment rating
attributable to the cumulative trauma injuries, the ALJ could proceed to the
determination of whether Richie was permanently totally disabled. Therefore the determinative issue for our
consideration is whether the ALJ erred in finding Richie permanently totally
disabled.
There is evidence that ongoing
cumulative trauma to Richie’s low back, hips, right knee and shoulder made his
symptoms worse and produced any occupational disability related to those
conditions. Contrary to CDR’s assertions,
the ALJ specifically found Richie sustained cumulative trauma injuries to his
hips, back, right knee and right shoulder.
Even if we assume any impairment rating for the low back was
pre-existing, as recognized by the ALJ, only pre-existing occupational disability
is excluded from an award for permanent total disability. In Roberts
Brothers Coal Co. v. Robinson,
113 S.W.3d 181 (Ky. 2003), the Supreme Court explained an exclusion for
pre-existing disability from a total disability award must be based upon a
finding of occupational disability rather than existence of an impairment
rating. Although Richie may have
been symptomatic following an incident in 2001, he testified he did not take
medication nor did he seek medical treatment for ten years prior to 2012 and he
worked dependably until that time. The
ALJ could reasonably conclude Richie did not have prior occupational
disability.
Permanent total
disability is defined 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. KRS
342.0011(11)(c).
“Work” is defined as providing services to another in
return for remuneration on a regular and sustained basis in a competitive
economy. KRS
342.0011(34). In Ira A. Watson
Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000), the Kentucky Supreme
Court noted the statute requires an individualized
determination of what the worker is and is not able to do after recovering from
the work injury. The determination
includes consideration of factors such as the worker's post-injury physical,
emotional, intellectual, and vocational status and how those factors interact,
the likelihood that the particular worker would be able to find work
consistently under normal employment conditions, whether the individual will be
able to work dependably, and whether the worker's physical restrictions will
interfere with vocational capabilities.
A worker is not required to be homebound in order to be found to be
totally occupationally disabled.
The ALJ considered Richie’s age,
education, work experience, medical conditions and restrictions in finding
Richie permanently totally disabled. Dr.
Hughes opined Richie does not retain the physical ability to return to his
previous work, and restricting him from lifting 10 pounds regularly and repetitive
bending and twisting. He also
recommended only periods of sitting, which is required in Richie’s work as a
heavy equipment operator. These
restrictions prevent any heavy physical labor employment, the ALJ noted.
Additionally, the ALJ relied upon Richie’s credible
testimony. Richie testified about his
current symptoms and his belief he can longer perform any work due to the
effects of his condition. He is 58 years
old and has a high school education. He
has worked exclusively as a heavy equipment operator his entire adult
life. Richie’s testimony
regarding his post-injury ability to work and his symptoms is substantial
evidence, as an injured worker’s credible testimony is
probative of his ability to labor post-injury.
See Hush v. Abrams,
584 S.W.2d 48 (Ky. 1979). See also Carte v. Loretto
Motherhouse Infirmary, 19 S.W.3d 122 (Ky. App. 2000).
These
circumstances constitute the requisite substantial evidence to support the
ALJ’s determination Richie is permanently totally disabled. The ALJ undertook the analysis required under Ira
A. Watson and sufficiently articulated the evidence upon which he relied in
reaching the conclusion. He acted within
his discretion to determine which evidence to rely upon, and it cannot be said
his conclusions are so unreasonable as to require reversal.
Accordingly, the October 23 2015, Amended Opinion and Order
on Remand rendered by Hon William J. Rudloff,
Administrative Law Judge, and the March 15, 2016 Order on Petition for
Reconsideration rendered by Hon. Jeanie Owen Miller, Administrative Law Judge,
are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON GUILLERMO A CARLOS
444 W SECOND ST
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON MCKINNLEY MORGAN
921 S MAIN ST
LONDON, KY 40741
ADMINISTRATIVE
LAW JUDGE:
HON JEANIE OWEN MILLER
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
