*/
Workers’
Compensation Board
OPINION
ENTERED: August 5, 2014
CLAIM NO. 201174652
FAMILY DOLLAR STORES, INC. PETITIONER
VS. APPEAL FROM HON. WILLIAM
RUDLOFF,
ADMINISTRATIVE
LAW JUDGE
MADLYEN COOK
and HON. WILLIAM RUDLOFF,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Family
Dollar Stores, Inc. ("Family Dollar") appeals from the January 15,
2014, Opinion, Order, and Award and the February 5, 2014, Opinion and Order on
Petition for Reconsideration of Hon. William Rudloff, Administrative Law Judge
("ALJ"). The ALJ awarded Madlyen Cook ("Cook") temporary
total disability ("TTD") benefits, permanent total disability
("PTD") benefits, and medical benefits. Family Dollar filed a
petition for reconsideration which was denied by order dated February 5, 2014.
On appeal, Family Dollar challenges
the decision on four grounds. First, it argues the medical evidence compels a
finding Cook did not suffer an injury as defined by the Act. Second, it asserts
the ALJ's determination Cook is permanently totally disabled is not supported
by substantial evidence. Third, it contends the ALJ did not set forth
sufficient findings of fact to support a determination of permanent total
disability. Finally, Family Dollar maintains the ALJ relied upon a “factually
incorrect impairment rating.”
The Form 101 alleges Cook injured her
low back and left hip on August 13, 2011, in the following manner:
"Mrs.
Cook was on a ladder, stocking shelves. A customer asked her a question and as
she turned around her left hip popped."
Significantly, the December 3, 2013,
Benefit Review Conference ("BRC") order lists the following
stipulation: "Plaintiff sustained a work-related injury or injuries on
8-13-2011." The BRC order lists the
following contested issues: benefits per KRS 342.730; injury as defined by the
Act; medical benefits; and permanent total disability.
Family Dollar claims objective medical
evidence does not establish Cook sustained an injury as defined by the Act;
therefore, the claim should have been dismissed.
Significantly, Family Dollar
stipulated Cook sustained a work-related injury on August 13, 2011. Pursuant to
803 KAR 25:010 Section 16(2), Family Dollar did not request relief from this
stipulation; therefore, it is disingenuous for Family Dollar to now assert
objective medical evidence does not support the finding Cook sustained an
injury as defined by the Act.
Assuming, arguendo, Family Dollar had secured relief from this stipulation,
the ALJ stated in the January 15, 2014, Opinion, Order, and Award that he
relied upon the opinions of Dr. James Owen and Dr. Gregory Snider in determining
Cook sustained a work-related injury as defined by the Act.
In his August 16, 2013, report, Dr.
Owen diagnosed the following:
1. Chronic pain. I think it is probably of two origins, perhaps
three. She clearly is tender in the area where one would suspect an abdominal
wall hernia that has gone underneath the femoral ligament, which is typical for
a female distribution. She clearly needs [sic] CT scan to rule that out. I did
not see a definitive report from the contrast MRI on chart, but my suspicion is
that it did not get high enough to involve the area of concern.
2. I do think she has SI joint vs. piriformis abnormality there.
The piriformis has not been addressed to this point either, and she did have
some tenderness and weakness to her piriformis testing.
3. I think she has degenerative disc disease
with discogenic pain. All in all perhaps three different sources for the pain
and thus the confusion and difficulty with treatment.
Dr. Owen checked "yes" to
the following question: "Within reasonable medical probability, was
plaintiff's injury the case of his/her complaints?" He opined Cook had no active
impairment prior to the work-related injury. Regarding an impairment rating,
Dr. Owen opined as follows:
The impairment rating I think would be best
served by using a DRE Category II. Within that categorization, for an ACL of
10/10, one would ascribe an 8% whole person impairment. One would also
potentially rate this based upon the gait derangement. Although I do not have
definitive evidence of advanced arthritic changes, she definitely requires use
of a cane for ambulation and I think therefore would fall under Table 17-5 C:
15% whole person impairment. As is the admonition per the 5th Edition Guide to
award the impairment rating that is of greatest benefit for the patient, a 15%
whole person impairment would be appropriate considering the severity and
longevity of her pain syndrome.
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 above-cited evidence comprises
substantial evidence in support of the ALJ's determination Cook sustained a
work-related injury as defined by the Act. Consequently, that
determination will not be disturbed.
Family Dollar's second argument on
appeal is the ALJ's determination Cook is permanently totally disabled is not
supported by substantial evidence.
In the January 15, 2014, Opinion,
Order, and Award, the ALJ provided the following findings of fact in
determining Cook is permanently totally disabled:
In
rendering a decision, KRS 342.285 grants the Administrative Law Judge 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). In this case, I make the
factual determination that the plaintiff’s sworn testimony was credible and
convincing to the effect that she sustained significant physical injuries due
to her work accident on August 13, 2011, which is covered in detail above, that
she last worked on August 15, 2011, that she is not now employed, that she has
constant pain in her left low back, left hip and thigh and leg, that she takes
prescription pain medication, including Lortab, Gabapentin, Naproxen and
Flexeril, that she had no prior back injury or symptoms, that she has had
medical treatment by a pain specialist and a rehabilitation specialist, that
her housework is limited, that physical activity increases her pain, that her
job with the defendant required her to unload trucks and stock shelves, that
lifting was required by her job with the defendant and that she cannot do such
lifting at the present time, and that she cannot physically perform her former
jobs. I also make the factual
determination that the medical evidence from Dr. Owen, which is covered in
detail above, is very persuasive and compelling, i.e., that Mrs. Cook has
diagnoses of chronic pain, SI joint vs. piriformis abnormalities, tenderness
and weakness in her piriformis testing, and degenerative disc disease with
discogenic pain, that within reasonable medical probability the plaintiff’s
injuries were the cause of her complaints, and further that using the AMA Guides,
Fifth Edition, Mrs. Cook’s permanent whole person impairment is 15% and also
Dr. Owen’s opinion that the plaintiff does not retain the physical capacity to
return to the type of work which she performed at the time of her injuries and
that she has physical restrictions as to lifting, handling or carrying objects
more than 10 pounds and should avoid activities that require recurrent bending,
squatting or stooping. I also find
very compelling and persuasive Dr. Snider’s medical opinion that Mrs. Cook has
reached maximum medical improvement as of the time of Dr. Snider’s examination
of her on December 11, 2013.
KRS 342.0011(11)(a) defines “temporary total
disability” to mean 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.
Based on the plaintiff’s sworn testimony, as covered in detail above,
and Dr. Snider’s opinion that she reached maximum medical improvement on
December 11, 2013, the date of his examination, I make the determination that
Mrs. Cook is entitled to recover from the defendant and its workers’
compensation insurer temporary total disability benefits for the period August
17, 2011 to and including December 10, 2013.
"'Permanent
total disability' means 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 . . . ." Kentucky Revised Statutes (KRS)
342.0011. To determine if an injured
employee is permanently totally disabled, an ALJ must consider what impact the
employee's post-injury physical, emotional, and intellectual state has on the
employee's ability "to find work consistently under normal employment
conditions . . . . [and] to work dependably[.]" Ira A.
Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 51 (Ky. 2000). In making that determination,
“the
ALJ must necessarily consider the worker's medical condition . . . [however,]
the ALJ is not required to rely upon the vocational opinions of either the
medical experts or the vocational experts.
A worker's testimony is competent evidence of his physical condition and
of his ability to perform various activities both before and after being
injured.”
Id. at 52.
(Internal citations omitted.) See also, Hush v. Abrams, 584 S.W.2d 48 (Ky.
1979).
In the present case, I considered the
severity of the plaintiff’s August, 2011 work injuries, which are covered in
detail above, and the medical evidence from Dr. Owen, which is covered in
detail above, the plaintiff’s age, which is now 43, her education, which was
limited to the 9th grade with a GED, her complete lack of any
specialized or vocational training or education, her sworn testimony regarding
her very painful injuries, which is covered in detail above, as well as her
physical limitations based upon her sworn testimony and the medial [sic]
evidence from Dr. Owen, all of which is covered in detail above, and Dr.
Snider’s medical opinion that she has reached maximum medical improvement. Based upon all of those factors, I make the
determination that the plaintiff Mrs. Cook cannot find work consistently under
regular work circumstances and work dependably in the highly competitive
employment market. I, therefore, make
the factual determination that she is permanently and totally disabled, and
that her permanent and total disability began on December 11, 2013, the date
she reached maximum medical improvement.
In its petition for reconsideration,
Family Dollar contended the ALJ did not provide sufficient findings of fact to support
a decision Cook is permanently totally disabled. However, it did not request additional
findings of fact regarding this issue. Nevertheless, the ALJ provided additional
findings of fact in the February 5, 2014, Opinion and Order on Petition for
Reconsideration as follows:
The defendant also argues that there was no
basis for the award of permanent total disability benefits to the plaintiff. On
the contrary, this aspect of the case was covered in detail on Pages 9-12 of
the Opinion and Order dated January 15, 2014.
I reviewed in detail the plaintiff’s sworn testimony and the evidence
from both Dr. Owen and Dr. Snider. I
also relied upon the standards for permanent total disability set out in Ira
A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48 (Ky.2000). In addition, I relied upon the decision of
the Kentucky Supreme Court in Hush v. Abrams, 584 S.W.2d 48 (Ky.1979),
where the high court noted that it had in that case lay testimony descriptive
of and supportive of a permanent disability, together with medical testimony
that is not in conflict with that lay testimony. The high court noted that the medical
evidence clearly and unequivocally showed the actual body condition and that
the lay testimony was competent on the question of the extent of disability
which has resulted from the bodily condition.
The high court held that where there is medical testimony from which the
decision maker could have concluded that the plaintiff did suffer a
work-related trauma, having reached that conclusion the decision maker could
then use the lay testimony to determine the extent of the occupational
disability. That is exactly what I did
in the case at bar.
I made that factual determination based upon
Mrs. Cook’s credible and convincing testimony that she had not had any prior
back injury or back symptoms and that since her work-related injuries on August
13, 2011 she now has constant pain in her left low back, left hip, thigh and
leg, and that any physical activity increases her pain. I make the factual
determination that her testimony that she cannot physically perform her former
jobs and is not now employed is credible and convincing.
In rendering a decision, 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).
An 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. Jackson v. General
Refractories Co., 581 S.W.2d 10 (Ky.1979); Caudill v. Maloney’s Discount
Stores, 560 S.W.2d 15, 16 (Ky.1977).
Although a party may note evidence supporting a different outcome than
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 (Ky.1999). It is well
established, whether on reopening or at the time of an original proceeding, 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).
During her October 2, 2013,
deposition, Cook testified she attended Rowan County High School through the
ninth grade and then obtained a GED. Her previous employment includes manual
labor working in tobacco; working for Hardees; keeping books for her mom's
window cleaning business; keeping books for a home improvement business; working
for Thorntons; assistant manager at Super America; a manager position at Dairy
Mart; and cashier and manager at Shell.
Cook testified her symptoms are as
follows:
A: I have pain, my left thigh- I have pain in my left thigh, my
left groin area, my left hip area, my lower left back area and it shoots up to
almost- not quite the center of my back but it goes up to the tailbone area.
Q: Okay.
A: And every now and then, like right now, it goes, it shoots to
the bottom of the foot-
Q: Okay.
A: - and sometimes in the toes. I'm sorry.
Q: That's okay.
A: My hip feels like there's a knife stuck in it, really. And my
lower back is like- it's just [sic] very sharp pains in it. I'm sorry. I can't
sit for very long. It hurts too bad.
Q: That's okay.
A: I have an indent in my hip from it but no one can tell me
why. I was never there before.
Q: And that's your left hip?
A: Yes, sir. That's my left hip.
Q: Okay.
A: And my tailbone, it feels like somebody is
just crushing it and if I try to wing my leg out it literally feels like it's
going to pop out, pop off like you would pop a turkey leg off a turkey.
Regarding her current symptoms, Cook
testified at the December 18, 2013, final hearing as follows:
Q: Where do you experience pain or discomfort?
A: In my lower left back, my left hip, my left thigh.
Q: All right. Now, let's start with the low back first. Prior to
your injury on August 13th, 2011, were you treating with anybody for any back
pain?
A: No, sir.
Q: Were you taking any medications for any back pain before this
injury?
A: Does it count my shoulders? I take Aleve.
Q: But not for the back?
A: Not for the back.
Q: Okay. Had you ever injured your low back in any way?
A: No, sir.
Q: All right. Now, let's talk about the pain that you experience
today. Is the pain in the low back there all of the time or does it come and
go?
A: It's constant pain. The levels change, but it's constant pain.
Q: All right. Now, when you say the levels change, is that the
intensity of the pain, that it gets worse at times?
A: Yes, sir.
Q: All right. Let's take its best time, when it's as good as
you're going to get, okay?
A: Yes, sir.
Q: Let's put that on a pain scale of zero to ten. When it's at
its very best, even with medications, where would it be?
A: Four.
Q: What about when it's at its very worst on the pain scale?
A: It's a ten.
Q: How often in a weeks [sic] time, Ms. Cook, will you experience
ten level pain or is it weekly?
A: It's daily.
Q: Daily.
Concerning her current hip pain, she
testified:
Q: How often will you have pain or discomfort in the left hip?
A: It's a constant discomfort. It- it runs- depending on how
back- how much I'm up or down and what I'm doing on how bad it is.
Q: Now you also said it comes down into the thigh.
A: In the thigh and in the groin area.
Q: Into the groin and the thigh?
A: It's down in here (INDICATING).
Q: You're-
A: It pretty much runs from my lower back all the way down into
the hip joint here, under my buttocks and down this thigh in this leg and groin
(INDICATING).
Q: Does it go past the knee at any time?
A: Occasionally it goes down the back of my
leg into my left knee and these last couple of toes here (INDICATING). It's-
sometimes it will hit that third one. Not very often, but every once in a
while. But it's mostly when the pain gets really worse, it gets into the toes.
It doesn't stay in the toes.
Regarding the medications she takes,
Cook testified as follows:
A: I'm on Lortab 10.
Q: How many times a day?
A: Four times a day. I'm on- it's a generic of Neurontin-
Q: Okay.
A: -gabapentin, I'm on 900 milligrams, three times a day. I'm on
Naproxen, 500 milligrams, twice a day. And then I was on Flexeril three times a
day, but they changed that to a- it starts with a Z. I can't even say it. Zipan
maybe? Something like that.
Q: It's something that is-
A: For the muscle spasms.
Q: Okay.
A: And I'm on that three times a day- four
milligrams, three times a day.
Cook
sees a pain physician every three months and she also sees a rehabilitation physician
at the Lexington Clinic.
Cook testified that she can sit
comfortably in a chair for thirty minutes to one hour. However, standing for
too long causes her pain. Concerning her use of a cane when walking, she explained
as follows:
Q: Okay. So I noticed you walked in here this morning using a
cane.
A: Yes, sir.
Q: And do you use a cane on a consistent basis?
A: Yes, sir.
Q: And what leg are you- for lack of better terminology, what
leg are you trying to support while using the cane?
A: My left.
Q: Okay. So do you use the cane everywhere you go or any time
you're trying to walk, I should say?
A: Yes. The only time I don't use my cane is in my kitchen where
I have counters.
Q: Okay.
A: I mean, as long as- I don't use it if I have some other way
to support myself.
Q: Something you can put your weight on.
A: That's
correct.
Her job at Family Dollar consisted of
the following:
Q: All the merchandise is delivered by a vehicle that is owned
by Family Dollar, correct?
A: It's- well, I don't know if it's always owned by Family
Dollar. But a truck delivers the merchandise that's owned by Family Dollar. It
comes off a conveyor belt roller, you take it off the roller, you put it on the
u-boats- what I call the u-boat, it's called different things, a tray looking
thing that's got little ends on it, you put the stock on it, stack it up there.
You wheel that to the floor. It's got wheels on it. You go to the floor and
then you put the stock away off of it.
Q: So this requires lifting, to some degree?
A: Yes, sir.
Q: How often did a truck come to your Family Dollar store?
A: Once a week.
Q: Okay. Did you have things like cases of bleach?
A: Yes, sir.
Q: Cases of antifreeze?
A: Yes, sir.
Q: Cases of various canned good?
A: Yes, sir.
Q: Did you have to lift those things and move those around?
A: Yes, sir.
Q: Could you do that today?
A: No, sir.
Q: How come?
A: I couldn't lift it. I couldn't hold it.
Cook testified there were not enough
employees to permit her to delegate her lifting responsibilities.
Regarding her current ability to work,
she testified as follows:
Q: Could you- could [sic] go back and do the job that you were
doing for Family Dollar store today?
A: No, sir.
Q: Any of these jobs that you had done before, Ms. Cook, could
you go back and do those?
A: Of course I couldn't.
Q: Is there a job out there that you know of that you could do
and do competitively?
A: I don't believe so, sir.
In order to meet her burden of proving
entitlement to permanent total disability benefits, Cook first had to prove an
impairment rating pursuant to the 5th Edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment
(“AMA Guides”), and second, that she sustained a complete and permanent
inability to perform any type of work as a result of the injury. See
Hill v. Sextet Mining Corp., 65 S.W.3d 503 (Ky. 2001). As long as that
determination is supported by substantial evidence, the ALJ’s finding on the
issue of Cook's permanent total occupational disability cannot be disturbed on
appeal. Special Fund v. Francis,
708 S.W.2d 641 (Ky. 1986).
The above-cited testimony by Cook, relied upon and
cited extensively by the ALJ in both the January 15, 2014, Opinion, Order, and
Award and the February 5, 2014, Opinion and Order on Petition for
Reconsideration, comprises substantial evidence in support of the ALJ's
determination Cook is permanently totally disabled. The ALJ is entitled to rely
upon a claimant's self-assessment of his or her ability to labor in making a
determination of permanent total disability. Hush v. Abrams,
584 S.W.2d 48 (Ky. 1979). Additionally, the ALJ relied upon Dr. Owen's
15% impairment rating, his opinion Cook does not retain the physical capacity
to return to her former work at Family Dollar, and the restrictions he imposed in
determining Cook is permanently totally disabled. Thus, the ALJ's determination
will not be disturbed.
We find Family's Dollar's third argument the ALJ did not provide sufficient findings of fact to support a determination of permanent total disability to be without merit. While we acknowledge the ALJ could have provided a more in-depth analysis of how Cook’s age and education factored into his ultimate conclusion, a review of the January 15, 2014, Opinion, Order, and Award reveals an extensive discussion of the pertinent elements of Cook's testimony as well as Dr. Owen's opinions which factored into his decision. As recounted herein, the opinion contains three and a half pages of findings of fact pertaining to the issue of permanent total disability. Additionally, in the February 5, 2014, Opinion and Order on Petition for Reconsideration, the ALJ provided additional findings of fact regarding Cook’s occupational disability. Thus, we conclude additional findings of fact are unnecessary. The ALJ's findings of fact concerning the issue of permanent total disability are sufficient.
Finally, we find no merit in the assertion
the ALJ relied upon a factually incorrect impairment rating assessed by Dr.
Owen. It contends Dr. Owen assessed a
15% whole person impairment rating for gait derangement, pursuant to Table
17-5, even though he admitted he had no definitive evidence of advanced
arthritic change of the hip, knee, or ankle. Family Dollar argues definitive
evidence of such a condition is required by the AMA Guides.
We conclude the ALJ properly relied upon
Dr. Owen's impairment rating. Cook's testimony establishes she requires the use
of a cane. Additionally, while Dr. Owen stated there is no "definitive evidence of advanced
arthritic change," he did not opine that there is no evidence of advanced arthritic change. Thus, the ALJ could infer
Dr. Owen believed advanced arthritic changes were present even enough he could
not definitely document that fact. As stated in Tokico (USA), Inc. v. Kelly,
281 S.W.3d 771, 774 (Ky. 2009), "physicians must use clinical judgment
when assigning impairment ratings, and that 'clinical judgment, combining both
the "art" and "science" of medicine, constitutes the
essence of medical practice.'" The Tokico Court continues:
Diagnosing what causes impairment and
assigning an impairment rating are different matters. Diagnostic criteria
stated in the Guides clearly have relevance when judging the credibility of a
diagnosis, but Chapter 342 does not require a diagnosis to conform to criteria
listed in the Guides.
Id. at
774-775.
The applicable law affords Dr. Owen certain
discretion and professional judgment when interpreting the Guides and assigning
an appropriate impairment rating. The ALJ's reliance upon Dr. Owen's 15%
impairment rating is appropriate and will not be disturbed.
Accordingly, as to all issues raised on
appeal, the January 15, 2014, Opinion, Order, and Award and the February 5,
2014, Opinion and Order on Petition for Reconsideration are AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON LUCAS R BRAUN
P O BOX 34048
LEXINGTON KY 40588
COUNSEL
FOR RESPONDENT:
HON MCKINNLEY MORGAN
921 S MAIN ST
LONDON KY 40741
ADMINISTRATIVE
LAW JUDGE:
HON WILLIAM J RUDLOFF
400 E MAIN ST STE 300
BOWLING GREEN KY 42101
