Workers’
Compensation Board
OPINION
ENTERED: June 27, 2014
CLAIM NO. 201300782
JAMES RIVER COAL SERVICES PETITIONER
VS. APPEAL FROM HON. JONATHAN
R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
IVAN WIREMAN
and HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. James
River Coal Services (“James River”) seeks review of the Opinion and Award
rendered February 14, 2014 by Hon. Jonathan R. Weatherby, Administrative Law
Judge (“ALJ”) finding Ivan Wireman (“Wireman”) sustained low back injuries due
to work-related cumulative trauma for which he awarded temporary total
disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits and
medical benefits. James River also seeks
review of the March 11, 2014 order partially denying its petition for reconsideration.
On appeal, James River
challenges the ALJ’s award of TTD benefits and application of the three
multiplier. James River also argues Dr. Bruce Guberman’s opinion cannot
constitute substantial evidence since he did not review all of Wireman’s prior
medical records. Because the ALJ’s
opinion is supported by substantial evidence, we affirm.
Wireman filed a Form
101 on May 23, 2013, alleging repetitive, cumulative trauma to his low back
resulting from his work as a dozer operator with James River manifesting on
April 27, 2012. The Form 104 indicates
Wireman has worked either as a dozer or heavy equipment operator in the coal
mining industry since 1995. He
previously worked as a welder from 1980 to 1992. Records from the Division of Unemployment
Insurance indicate Wireman was laid off by James River on April 27, 2012.
Wireman testified by
deposition on August 9, 2013 and at the final hearing held December 17,
2013. He was born on June 24, 1963 and
resides in Gunlock, Kentucky. He completed
the ninth grade and is certified as a Boss, surface miner and MET. Wireman testified he had worked as a rock
truck driver or dozer operator for the same coal mining site for approximately
nine years, which changed ownership several times, with James River being the
most recent owner. Wireman stated his
back and body endured constant “beating and jarring” from loading big rocks and
operating the dozer and was “just a constant wear and tear on my body . . .
.” He moved shot rock, built loader pads
and drill benches, maintained roads for haulage trucks, pushed dump and
reclaimed. Prior to working in the coal
mines, Wireman worked as a welder.
Wireman testified his
low back pain began in mid-2010 while working for James River. He sought treatment, and was prescribed
muscle relaxers and Ibuprofen by Mr. Michael Williams, a physician’s assistant
for Dr. Prem Verma. Although he
continued to take Ibuprofen, his back pain gradually worsened and increased in
intensity. Despite his pain, Wireman
worked full time, fifty plus hours a week, until he was laid off. However, he stated by the time he was laid
off, the low back pain had worsened to the point he would have been unable to
continue working much longer. Wireman
currently sees Mr. Williams every three months, who prescribes pain medication
and muscle relaxers. Wireman also stated
Mr. Williams has restricted him from any activity which would put stress on his
back.
Wireman testified after
he was laid off, and he received unemployment benefits for approximately one
year during which time he applied for two jobs a week but was unable to find
employment. Although he applied for a
heavy equipment operator position, he did not think he could perform the job
duties due to his low back condition.
Wireman also applied for Social Security disability benefits, which were
denied.
Wireman admitted he
experienced previous intermittent low back pain but “it’s not as bad as it is
now. It was mild. . . . Before was like
normal, like everybody. It wasn’t nothing
concerning like I am now.” Although he
sought treatment, his symptoms were occasional, he did not take medication
consistently, and was never referred to a surgeon for further treatment. His occasional back pain did not prevent him
from working. On cross-examination,
Wireman did not dispute medical records from 1988, 2001, 2002, 2004, 2008, and
2010 referencing low back pain complaints.
Wireman testified he is
unable to walk, sit, stand or drive for prolonged periods of time. He experiences difficulty sleeping and
described several daily activities he is unable to do, including hunting and
fishing, although he admitted he purchased several hunting licenses following
the lay-off. Wireman stated in his
present condition, he is unable to operate a dozer, and does not believe he can
return to work.
In support of his
claim, Wireman attached the April 22, 2013 medical questionnaire completed by
Dr. Verma. Dr. Verma indicated Wireman’s
current back condition was brought on by his work-related activities which
required repetitive cumulative use of his back on a daily basis. He opined Wireman is unable to maintain
gainful employment due to his low back pain.
Wireman also submitted
the August 15, 2013 report of Dr. Jerry Lewis, D.O., who noted when Wireman was
laid off on April 27, 2012, he was experiencing low back pain due to performing
heavy labor since the age of sixteen.
Dr. Lewis diagnosed neuroendocrine disorder and chronic progressive
lumbago with work-related aggravation and provocation of lumbar degenerative
joint disease resulting in left-sided L4-5 foraminal stenosis and persistent
bilateral radiculopathy. Dr. Lewis
opined Wireman had reached maximum medical improvement (“MMI”) and assessed an
11% impairment rating pursuant to the American Medical Association, Guides
to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”). Dr. Lewis recommended ongoing pain management
and opined Wireman is disabled from work.
Dr. Lewis opined Wireman’s low back symptoms are the direct result of
the work-related injury to his low back which culminated on April 27,
2012. He also found: “The repetitive
heavy labor involved in his job since the age of 16 was altogether of
sufficient force and duration to cause this harm and his back to his human
organism.”
Wireman also submitted
the September 23, 2013 report of Dr. Guberman.
Wireman reported he began experiencing low back pain as a teenager,
which gradually progressed when he began running heavy equipment in 2002. Wireman reported he was a welder prior to
2002. He also reported an automobile
accident at age fifteen resulted in neck and low back injuries. Under the medical record review section, Dr.
Guberman outlined Wireman’s current treatment with Mr. Williams. He also noted an August 7, 2012 lumbar spine
MRI and a September 6, 2012 lumbar CT scan requested by Dr. Martin. Dr. Guberman diagnosed acute and chronic
lumbosacral strain, and post traumatic degenerative disc disease. He stated Wireman attained MMI on September
16, 2013. He assessed an 8% impairment
rating for Wireman’s low back condition pursuant to the AMA Guides,
apportioning 2% to pre-existing conditions and 6% to the April 27, 2012
injury. Regarding causation, Dr.
Guberman stated as follows:
. . . the
Claimant’s low back symptoms are causally related to his work operating heavy
equipment and being jarred from 2002 until 2012. In my opinion, the significant jarring he
experienced is the primary cause for his low back pain, which has persisted
even after he discontinued that type of work.
Dr. Guberman opined Wireman is unable to perform his former position
and assigned various restrictions.
James River filed the
records from Dr. Martin Lowell of the Martin Clinic and office records from “RHC”,
both of which are handwritten and largely illegible. It appears Wireman complained of low back
pain on March 8, 1988; April 5, 1988; July 23, 2001; February 20, 2002 and July
29, 2002. Wireman again complained of
low back pain in August 2002. A
September 6, 2002 CT scan of the lumbar spine demonstrated minor degenerative
changes with small Schmorl’s nodes.
Wireman next complained of low back pain during office visits to the RHC
office on August 31, 2004 and then again on December 16, 2008.
RHC office notes dated
January 20, 2010 and November 24, 2010 indicate a diagnosis of degenerative
disc disease. Wireman returned to RHC
for a medication refill and complaints of a hemorrhoid, for which he was
referred to and treated by Dr. Judy Johnson, on April 25, 2012, two days before
he was laid off. In July 2012, Mr.
Williams ordered a lumbar MRI. The
August 17, 2013 MRI report diagnosed minimal foraminal narrowing on the left at
L4-5. Wireman returned to the RHC office
on October 10, 2012 and February 22, 2013 for unrelated complaints.
James River filed
records from Kentucky Fish & Wildlife indicating after the April 27, 2012
lay off, Wireman applied for a deer permit, hunting license, turkey license and
an elk antlered archery lottery. James River
also filed records from the Social Security Administration indicating his
application for disability benefits had been denied on August 22, 2012.
James River also
submitted the September 13, 2013 report of Dr. Chris Stephens. Dr. Stephens noted Wireman reported a twenty
year history of manual labor as a welder and heavy equipment operator and
stated he had a twenty-five year history of low back pain for which he has
intermittently received treatment. He
diagnosed chronic intermittent back pain likely secondary to degenerative disc
disease. Based upon the history reported
by Wireman and his review of the medical records, Dr. Stephens found no
evidence of a cumulative trauma injury to his back. He therefore assigned no impairment rating, found
no permanent injury, declined to assign restrictions and found the treatment
Wireman received was not work-related.
He further opined that if Wireman had not been laid off, he would still
be working as a heavy equipment operator.
James River filed the
September 23, 2013 vocational report of Ralph C. Haas, Ed.D., Vocational
Counselor. He concluded the testing
results and work history indicate Wireman is incapable of competing for
unskilled to semi-skilled jobs and would not benefit from retraining in a
formal education setting.
After summarizing the
medical and lay evidence, the ALJ found Wireman sustained a work-related
cumulative trauma injury to his low back.
The ALJ adopted the opinion of Dr. Guberman who he found most credible
regarding impairment ratings and restrictions.
The ALJ stated as follows:
21. The Plaintiff
has provided the medical opinions of Drs. Morris, Verma, and Guberman. Dr. Verma opined in response to a
questionnaire that the Plaintiff’s injuries are the result of work-related
cumulative trauma and that he is no longer employable. Dr. Morris opined that
the Plaintiff has an 11% impairment due to lumbar disease and Dr. Guberman has
assessed a 6% work related whole person impairment related to a cumulative
trauma injury to the lumbar spine. The
ALJ notes that Dr. Stephens has opined on behalf of the Defendant that the
Plaintiff’s lumbar spine condition is degenerative in nature and not
work-related. Additionally, the ALJ
notes that the Plaintiff’s most recent MRI noted minimal foraminal narrowing on
the left at L4-5 with no focal disc protrusion or spinal stenosis. The ALJ is more persuaded however by the
testimony of the Plaintiff and the consensus of opinion regarding causation and
injury that the Plaintiff does suffer from the effects of a work-related
cumulative trauma injury.
22. The ALJ finds
however that Dr. Guberman is the most credible with regard to impairment rating
and restrictions because his rating accounts for other contributing factors
such as the prior automobile accident which is ignored by Dr. Morris. The ALJ therefore finds in accordance with
the opinion of Dr. Guberman, that the Plaintiff has an 8% whole person
impairment but that 2% of that total is due to a pre-existing condition.
23. The ALJ also
finds in accordance with the credible opinion of Dr. Guberman that the
Plaintiff is unable to return to his prior employment due to the repetitive
jarring and the associated risk for additional injury.
The ALJ found Wireman was not permanently
and totally disabled based upon Mr. Haas’ report. The ALJ then stated Wireman “shall therefore
be entitled to the three multiplier pursuant to KRS 342.7301(c)1.” Based upon Dr. Guberman’s opinion, the ALJ
found Wireman reached MMI on September 16, 2013 and awarded TTD benefits from
April 27, 2012 through September 16, 2013.
He also awarded PPD benefits and medical benefits.
James
River filed a petition for reconsideration requesting the ALJ offset the award
of TTD benefits by receipt of unemployment benefits during the same period of
time. James River also raised the same
arguments now made on appeal. In the
March 22, 2014 order, the ALJ ordered James River is entitled to a credit
against TTD benefits for unemployment benefits received. Regarding the application of the three
multiplier, the ALJ stated as follows:
The ALJ reiterates the finding that the Plaintiff was
credible in his testimony regarding his inability to return to the same type of
work due to the excessive jarring and the resulting pain and difficulty that it
causes him. This testimony is supported
by the medical evidence provided by Dr. Guberman who opined that the Plaintiff
could not return due to the repetitive jarring and the associated risk of
further injury. The opinion of Dr.
Guberman and the consistent and supporting testimony of the Plaintiff has
convinced the ALJ that the Plaintiff is unable to return to the same type of
employment.
On
appeal, James River argues the ALJ’s award of TTD benefits is not supported by
substantial evidence. James River
asserts the ALJ failed to properly consider the timeline of and stimulus for
Wireman’s alleged disability. It points
to the fact Wireman worked over fifty hours a week, with no restrictions or
absences, up until the day he was laid off.
Wireman then asserts he became totally disabled after the lay-off. James River also argues the ALJ failed to
make a finding Wireman’s inability to work during the period of total temporary
disability was actually caused by cumulative trauma from the mine. James River noted during the period of temporary
total disability, Wireman applied for at least two jobs a week after he was
laid off while receiving unemployment benefits and purchased several hunting
licenses.
James
River argues the ALJ erred in not properly analyzing why Wireman is entitled to
the three multiplier. James River
asserts the ALJ failed to make a finding whether Wireman retains the physical
capacity to return to the type of work he performed at the time of injury.
Finally,
James River asserts Dr. Stephens was the most credible physician to assess
Wireman’s physical condition since he was the only one to review all the
medical records. It notes Dr. Guberman
did not specifically discuss Wireman’s prior back problems when he worked as a
welder and is unclear whether he reviewed any records other than two diagnostic
tests done in 2012. James River insists
Dr. Stephen’s opinion is the most credible since he reviewed all the medical
records. Therefore, it asserts the ALJ’s
decision to award PPD benefits based on a 6% impairment rating was not
supported by substantial evidence.
Wireman,
as the claimant in a workers’ compensation proceeding, had the burden of
proving each of the essential elements of his cause of action, including TTD
benefits, extent and duration of disability, and entitlement to
multipliers. See KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky.
App. 1979). Since Wireman was successful
in his 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 persons.
Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).
As
fact-finder, the ALJ has the sole authority to determine the weight,
credibility and substance of the evidence.
Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ
has the sole authority to judge all reasonable inferences to be drawn from the
evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329
(Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky.
1979). Where evidence is conflicting, the ALJ may choose whom or what to
believe. Pruitt v. Bugg Brothers,
547 S.W.2d 123 (Ky. 1977). The
ALJ 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
adversary party’s total proof. Magic
Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000); Whittaker
v. Rowland, 998 S.W.2d 479 (Ky. 1999); Caudill v. Maloney's Discount Stores, 560 S.W.2d 15 (Ky. 1977). Mere evidence contrary to the ALJ’s
decision is not adequate to require reversal on appeal. Id. In order to reverse the decision of the ALJ,
it must be shown there was no substantial evidence of
probative value to support his decision.
Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
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 (Ky. 1999). It is well established, an ALJ is
vested with wide ranging discretion. Colwell v. Dresser Instrument Div.,
217 S.W.3d 213 (Ky. 2006); Seventh Street Road Tobacco Warehouse v.
Stillwell, 550 S.W.2d 469 (Ky. 1976). So long as the ALJ’s rulings are
reasonable under the evidence, they may not be disturbed on appeal. Special
Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
Although
the issue of injury and causation was not directly challenged by James River,
we find the opinions of Drs. Verma, Guberman and Lewis, together with Wireman’s
testimony, constitute substantial evidence upon which the ALJ could rely in
determining he suffers from
the effects of a work-related cumulative trauma injury.
In his report, Dr. Verma agreed Wireman’s current back condition is due to his work-related activities which
required repetitive cumulative use of his back.
Dr. Lewis diagnosed neuroendocrine disorder, chronic progressive lumbago
with work-related aggravation, provocation of lumbar degenerative joint disease
resulting in left-sided L4-5 foraminal stenosis, and persistent bilateral radiculopathy. He further found Wireman’s back symptoms the
direct result of the work-related injury to his low back culminating on April
27, 2012, noting the repetitive heavy labor involved in his job since the age
of sixteen. Dr. Guberman diagnosed acute
and chronic lumbosacral strain, post traumatic, degenerative disc disease. He likewise opined Wireman’s low back
symptoms are causally related to his work operating heavy equipment and being
jarred from 2002 until 2012. These
opinions constitute substantial evidence supporting the ALJ’s determination
regarding injury and causation. Dr.
Stephen’s opinion amounts to conflicting evidence, which the ALJ was free to
reject.
We likewise find substantial evidence supports the ALJ’s determination
Wireman is entitled to the three multiplier pursuant to KRS 342.7301(c)1. In the February 14, 2014 opinion, the ALJ
relied upon Dr. Guberman in finding Wireman is unable to return to his prior employment and adopted his assessment regarding impairment and restrictions. In the order on reconsideration, the ALJ found Wireman
to be a credible witness regarding his inability to return to the same type of
work due to the excessive jarring and the resulting pain and difficulty it
caused him. He again cited to Dr.
Guberman’s opinion Wireman could not return due to the repetitive jarring and
the associated risk of further injury.
Wireman’s testimony and the opinion of Dr. Guberman constitute
substantial evidence supporting the ALJ’s application of the three multiplier. Here, Dr. Guberman opined Wireman is unable to return to the type of work
performed at the time of his injury. He
also was restricted to lifting/carrying twenty pounds occasionally; ten pounds
frequently; stand/walk two hours in an eight hour day; sit less than six hours
with the ability to alternate between sitting and standing; no repetitive
activities and limited pushing/pulling; never balance, kneel, crouch, crawl, or
stoop; avoid humidity/wetness; and no exposure to vibration and hazards such as
machinery and heights. In addition, a claimant’s self-assessment of
his ability to labor based on his physical condition is evidence upon which the
ALJ may rely. Hush v. Abrams, 584
S.W.2d 48 (Ky. 1979). Therefore,
substantial evidence exists supporting the ALJ’s application of the three
multiplier and the ALJ performed the proper analysis in the opinion and order
on reconsideration in reaching his determination. Because
Wireman never returned to work at the same or greater wage after the injury, an
analysis pursuant to Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003) is not
required.
Next, TTD is the condition of an
employee who has not reached MMI following a work-related injury and who has not reached a level of
improvement that would permit a return to employment. KRS 342.0011(11)(a). Both conditions must be satisfied for an
employee to qualify for TTD benefits. See W.L. Harper Construction Company v. Baker, 858 S.W.2d 202, 205
(Ky. App. 1993); Double
L Const., Inc. v. Mitchell, 182 S.W.3d 509, 513-4 (Ky. 2005). Regarding the second prong, until MMI
is achieved, an employee is entitled to a continuation of TTD
benefits so long as he remains disabled from his customary work or the work he
was performing at the time of the injury. Magellan Behavioral Health v. Helms,
140 S.W.3d 579, 580-581 (Ky. App. 2004); Double L Const., Inc. v. Mitchell,
182 S.W.3d 509, 513-514 (Ky. 2005).
In
the case sub judice, the ALJ relied
upon Dr. Guberman’s opinion in awarding TTD benefits from April 27, 2012
through September 16, 2013. Dr. Guberman
found Wireman attained MMI one week prior to the date of his report, on
September 16, 2013. As noted above, Dr.
Guberman found Wireman is unable to return to his former position and assigned
various restrictions. Again, Dr.
Guberman’s opinion constitutes substantial evidence supporting the ALJ’s
decision.
We
acknowledge James River’s ability to point to contradictory and conflicting
statements made by Wireman at the deposition and hearing. However, it is the ALJ’s role as fact-finder,
not the Board’s, to determine the credibility of the evidence. The ALJ may also choose whom and what to
believe when faced with conflicting evidence.
It was the prerogative of the ALJ to rely on Dr. Guberman’s opinion and
find Wireman totally and temporarily disabled from April 27, 2012 through
September 16, 2013.
Finally,
we are not persuaded by James River’s argument the opinion of Dr. Guberman
cannot constitute substantial evidence.
While Dr. Guberman’s report does not specifically itemize each medical
record reviewed, it does contain a medical review section outlining Wireman’s
treatment with Mr. Williams and specifically discussed the two diagnostic
studies performed in 2012. He
specifically noted a “September 6, 2012” CT scan of the lumbar spine demonstrating
minor degenerative changes with small
Schmorl’s nodes. A review of the medical
records submitted by James River indicates the date is a typographical error,
and the actual date was September 6, 2002.
Therefore, it appears Dr. Guberman may have been in possession of
medical records prior to 2012.
Regardless, the record does not clarify what records Dr. Guberman had in
his possession at the time he formed his opinion since neither party requested
such information or deposed him. We also note Wireman reported his prior
work as a welder and an automobile accident at the age of fifteen which resulted
in a low back injury.
Although
not cited by James River, the facts of this case are distinguishable from those
in Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004). Cepero involved not only a complete failure to disclose, but
affirmative efforts by the employee to cover up a significant injury to the
left knee only two and a half years prior to the alleged work-related injury to
the same knee. Here, we cannot say Dr.
Guberman had such an inaccurate or incomplete history that his opinion was
completely lacking in probative value.
Accordingly, the February 14, 2014
Opinion and Award rendered by Hon. Jonathan
R. Weatherby, Administrative Law Judge, and the March 11, 2014 order on
petition for reconsideration are hereby AFFIRMED.
STIVERS,
MEMBER, CONCURS IN RESULT ONLY.
RECHTER,
MEMBER, CONCURS.
COUNSEL
FOR PETITIONER:
HON TIMOTHY C FELD
333 WEST VINE ST, STE 300
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON W GROVER ARNETT
PO BOX 489
SALYERSVILLE, KY 41465
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R WEATHERBY
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601