Workers’
Compensation Board
OPINION
ENTERED: October 3, 2014
CLAIM NO. 201392740
PIKE COUNTY BOARD OF EDUCATION PETITIONER
VS. APPEAL FROM HON. WILLIAM
J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE
DONALD G. ROBINSON
and HON. WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Pike County Board of Education (“Pike County”) seeks review of the May 19,
2014, Opinion and Order of Hon. William J. Rudloff, Administrative Law Judge
(“ALJ”) finding Donald G. Robinson (“Robinson”) totally occupationally disabled
as a result of a November 2, 2011, right shoulder and neck injury. The ALJ awarded permanent total disability
(“PTD”) benefits and medical benefits.
Pike County also appeals from the June 13, 2014, Opinion and Order on Reconsideration.
On appeal, Pike County challenges the ALJ’s decision on
four grounds. First, it asserts the ALJ
erred in finding Robinson sustained a cervical spine injury. Second, Pike County asserts Robinson does not
have a permanent impairment of his right shoulder. Alternatively, it argues in the event
Robinson has a permanent impairment of the right shoulder, he is only entitled
to permanent partial disability (“PPD”) benefits. Third, it asserts substantial
evidence does not support an award of medical benefits for either the cervical
spine or the right shoulder injury. Finally,
it argues Robinson is not totally occupationally disabled.
Robinson sustained three previous work-related
injuries for which he received an award of workers’ compensation benefits. In a December 23, 1997, Opinion, Order &
Award, Hon. W. Bruce Cowden, Administrative Law Judge (“ALJ Cowden”) determined
Robinson had a 4% occupational disability as a result of an April 3, 1995, right
knee injury, a 5% occupational disability as a result of an October 20, 1995, left
knee injury, and a 15% occupational disability as a result of a September 12,
1996, low back injury. ALJ Cowden
awarded PPD benefits and medical benefits for each injury. Additionally, in a February 24, 1999, Opinion
and Award, Hon. Ron May, Administrative Law Judge (“ALJ May”) determined
Robinson suffered from coal workers’ pneumoconiosis and awarded benefits not to
exceed 208 weeks.
Robinson’s February 10, 2014, deposition testimony reveals
he was born on March 8, 1956, and is right handed. He acknowledged working in the coal mines,
primarily underground, for approximately twenty years. Robinson testified he sustained two work-related
knee injuries and a back injury for which he filed workers’ compensation
claims. He last worked in the coal mines
in 1996 and was off work until approximately 2004 when he was employed by Pike
County. While employed by Pike County he
worked the dayshift at Shelby Valley High School as a custodian from 6:30 a.m.
to 3:00 p.m. Robinson provided the
following testimony regarding his job duties:
Q: Okay. With your custodian duties, if
you would, tell me a little bit about that job and what you would do on a
typical day or a typical week?
A: I took care of a lot of the outside
work. I weed eated, I picked up the garbage, I ran the mowers. Just anything
they needed done outside, you know, that’s mostly what I done during the
summer. And the wintertime work was, you know, mostly inside. But, you know, I
took care of the gym. We took care of the floors, you know, like sweep them and
mop them and stuff. And I done [sic] some welding and stuff for them also. I
took care of their chairs and stuff at the school.
Q: Like if the chairs broke or
something?
A: Yes, I would weld it up. I took care
of that.
Q: Okay. Did you have more outdoor
responsibilities than some of the other custodians?
A: Well, yes. I took care of the
outside mostly. I mean, I had somebody to help me, but I was mostly outside.
Yes, sir.
. . .
Q: Okay. In terms of physically doing
your job there, what would have been the toughest things or thing that would be
the heaviest to do or most difficult thing to do? Was there a certain activity?
A: Well, weed eating is tough, you
know. And a lot of times we would move classrooms, you know, the chairs, the
desks, whatever we had to move them. And during the summer, I mean, the early
part of the summer, we would move all of the classrooms. We would move all of
the chairs, desks and all out, and strip and wax the floors.
Q: In terms of moving furniture or
equipment and things like that, would you have help from the other custodians?
A: Yes, sir.
He testified that at some point
during his employment as a custodian with Pike County he moved from a 205-day period
of employment to a 240-day period of employment which required him to work the
full year. Robinson was injured on
November 2, 2011, when the ten foot ladder he had climbed in order to hang
pictures in the gymnasium gave way and he fell to the gymnasium floor. Robinson did not know how far he fell but
believed he still had to descend several steps when the ladder collapsed. He explained he landed on his “right side
primarily on his arm and butt.” The
other custodians working with him were present when he fell. Although he was able to get up and walk, he
did not perform his normal job duties the rest of the day. An accident report was filled out at the main
office.
Robinson testified he worked
regularly after the accident with the help of the other custodians who assisted
with lifting. In August 2012, he finally
sought medical attention from Dr. Ronald Mann.
At that time he complained of neck and right shoulder symptoms. Dr. Mann sent him to physical therapy for both
conditions. He was then seen by Dr. Anbu
Nadar, an orthopedic surgeon who performed surgery on his shoulder in February
2013. After the shoulder surgery, he
underwent another course of physical therapy which he indicated was
helpful. Dr. Nadar later released him
from his care. No other physician has
seen him for his neck and shoulder problems.
Prior to treatment by Dr. Mann,
Robinson had been treated by Dr. Brendon Coughtry for low back problems for
approximately four years. Dr. Coughtry
had administered injections and regularly prescribed Hydrocodone, Celebrex, and
Neurontin. Dr. Coughtry did not treat
his shoulder and neck condition.
Robinson described his current
problems due to the shoulder injury as follows:
Q: Okay. Right now why don’t you tell
me what type of problems you have out of your shoulder?
A: Well, like I said, I can’t lift, you
know. If it’s down low I can hold it, but I can’t lift it up with my arm. And
my neck hurts a lot, and sometimes I’ve got numbness in my fingers. I can’t
sleep on my arm, my right arm. I can’t sleep with it. I have to hold it over a
pillow, and that’s the way I sleep.
Q: Do you feel like the surgery helped
your shoulder at all?
A: Yes. The constant pain is not there
anymore like it was.
Q: Okay. But in terms of like what you
can do or can’t do, do you feel like that the surgery helped with that in terms
of your ability to do things?
A: Well, before I couldn’t do it and I
still can’t lift, like I said, with it and stuff.
. . .
Q: Do you feel like you’re getting any
improvement?
A: Well, like I said, still can’t sleep
with it, you know. It’s hard. I can’t reach behind my back. Like my belt loops
and stuff, it’s hard to get my belt. I have a time, you know. It takes me a
while to try to get my hand back there to get the belt and stuff.
Robinson testified he currently has more neck problems than
shoulder problems. However, he still cannot
reach and retrieve items. He has not
returned to work.
Robinson has very little problems
with his knees but still has back problems.
He explained he did not return to work in the underground mines because
it involved constant crawling, bending, and stooping which he could not do even
on an occasional basis.
At the April 23, 2014, hearing,
Robinson testified all of his previous jobs in the coal and construction
industry involved bending, pushing, pulling, and using his right arm and
shoulder. When he was not operating
machinery underground he was engaged in lifting. Concerning his ability to perform his
previous jobs, Robinson explained as follows:
Q: From your shoulder, alone, and I
know your neck is bothering you, too, I’m going to ask you from your shoulder
alone, could you do any of these previous jobs listed on this work history on a
consistent full-time basis?
A: No, sir I couldn’t do a good job.
Q: Why not?
A: Because of the pain. I can’t use it
like I did before. Like, I run a roof bolter and I always had to bend bolts
with my right arm and stuff, and there’s no way that I can do that.
Q: And, in a custodian job there’s all
kinds of things you had to do using your right arm.
A: Oh, yeah I changed, you know, bulbs
and stuff, and I lifted desks and stuff all the time.
Q: Are you right handed?
A: Yes, I am.
Q: At the present time, the pain you’re
having in your shoulder, is it constant pain or does it come and go?
A: Well, it’s constant but sometimes
it’s worse, you know, than others.
Q: What type of things make it worse?
Do you have to even exert yourself sometimes for it to get worse or does it
just get worse?
A: Well, as an example, yesterday I – I
don’t know what I done, but it was hurting all day yesterday. It and my neck,
you know, I don’t know. Maybe, I laid wrong or something. I don’t know, but it
hurt all day yesterday.
Robinson testified his shoulder and neck pain limit his ability
to sit. The loss of the strength in his
right shoulder limit his ability to carry items. He has lost some range of motion in his
shoulder and cannot move his shoulder above a certain level. His pain prevents him from holding down a
job. Although he did not return to the
coal mines after his low back injury, he worked on a full-time basis from 2004
until November 2011.
Pike County introduced the February 19, 2014, report of Dr.
Gary Bray and the July 24, 2013, report of Dr. Richard Sheridan. It also introduced the records of Pikeville
Medical Center and Dr. Coughtry.
Robinson introduced Dr. Nadar’s record and a Form 107 he completed on
February 26, 2014, and the October 31, 2013, report of Dr. David Muffly.
The April 10 2014, Benefit Review Conference Order and
Memorandum (“BRC Order”) reflects the parties stipulated Robinson sustained a
work-related injury on November 2, 2011, and Pike County received due and
timely notice. It listed the contested
issues as follows: “benefits per KRS 342.730; ‘injury’ as defined by the Act; and
medical benefits.” Under “Other” the BRC Order listed “permanent total
disability; whether Whole Man Doctrine and Teledyne Doctrine apply.”
After providing a brief summary of Robinson’s testimony and
an extensive summary of the medical evidence, the ALJ provided the following
findings of fact and conclusions of law regarding Robinson’s occupational
disability:
A. Injury
as defined by the Act.
KRS 342.0011(1) defines “injury” to mean any
work-related traumatic event or series of traumatic events, including
cumulative trauma, 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. KRS
342.0011(33) defines “objective medical findings” to mean information gained
through direct observation and testing of the patient applying objective or
standardized methods.
I saw and heard the plaintiff Mr. Robinson testify
at the Final Hearing and make the factual determination that he was a credible
and convincing lay witness. Based upon
the plaintiff’s sworn testimony, which is summarized above, and the persuasive
and compelling medical report from his treating orthopedic surgeon, Dr. Nadar,
which is summarized above, as well as the persuasive and compelling medical
report from Dr. Muffly, which is summarized above, I make the factual
determination that the plaintiff Mr. Robinson sustained significant permanent
physical injuries to his right shoulder and neck as a result of his
work-related fall while employed by the defendant on November 2, 2011.
In concluding Robinson was
permanently totally disabled, the ALJ provided, in relevant part, the following
findings of fact and conclusions of law:
B. Benefits per KRS 342.730; permanent total
disability; whether whole man doctrine and Teledyne doctrine apply?
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).
As indicated above, I saw and heard Mr. Robinson
testify at the Final Hearing. I
carefully observed his facial expressions during his testimony. I carefully listened to his voice tones
during his testimony. I carefully
observed his body language during his testimony. I again make the factual determination that
he was a credible and convincing lay witness.
This case calls to mind the Opinion of the Kentucky
Court of Appeals in Jeffries v. Clark & Ward, 2007 WL 2343805
(Ky.App.2007), in which the Court of Appeals quoted from Chief Judge
Overfield’s Opinion in the case, where he made the following statement . . .
“It is often difficult to explain to litigants and counsel why one witness is
considered credible and another is not considered credible. No doubt many of the factors related to the
credibility by a trier of fact are subconscious and many are related to life
experiences” (emphasis supplied).
The Court of Appeals stated that it was within the Judge’s sole
discretion to determine the quality, character, and substance of the evidence,
and the Court of Appeals did not disturb Judge Overfield’s determination that
one witness was not credible, despite the fact that Judge Overfield used his “life
experiences” in making that determination.
Both
Dr. Nadar, the treating orthopedic surgeon, and Dr. Muffly, the examining
orthopedic surgeon, stated that as a result of Mr. Robinson’s work-related fall
on November 2, 2011 he will sustain a 5% permanent impairment to the body as a
whole under the AMA Guides, Fifth Edition, due to his right shoulder
injuries and an additional 5% permanent impairment to the body as a whole due
to his neck injuries, producing a combined permanent impairment of 10% to the
body as a whole, all of which is related to the plaintiff’s work injuries on
November 2, 2011. Dr. Muffly stated
that Mr. Robinson has permanent restrictions, including avoidance of reaching
above shoulder level, maximum lifting above shoulder level being 15 pounds,
lifting of 30 pounds from waist to chest and further that plaintiff cannot
return to his custodian job. Dr. Nadar
stated that the plaintiff does not retain the physical capacity to return to
the type of work which he performed at the time of his injuries and has
restrictions as follows: Avoid lifting,
pushing, pulling, climbing and crawling.
Mr.
Robinson testified that he has a history of manual labor, including lifting,
and that he cannot physically return to work at his former jobs. That is credible and convincing evidence
under the holding of the Kentucky Supreme Court in Hush v. Abrams, 584 S.W.2d 48 (Ky.1979).
As
indicated above, the evidence was that the plaintiff worked on a regular
full-time basis as a custodian for the defendant from 2004 to 2013. One of the most important decisions in modern
Kentucky workers’ compensation law is that of the Kentucky Supreme Court in Roberts Brothers Coal Company v. Robinson,
113 S.W.3d 181 (Ky.2003), where the high court held that if an individual is
working without restrictions at the time a work-related injury is sustained,
the finding of pre-existing impairment does not compel a finding of
pre-existing disability with regard to an award made under KRS
342.730(1)(a).
"'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).
Based
upon the credible and convincing lay testimony of the plaintiff, as summarized
above, and the persuasive and compelling medical evidence from the treating
orthopedic surgeon, Dr. Nadar, as covered above, as well as the persuasive and
compelling medical evidence from Mr. Muffly, the examining orthopedic surgeon,
as summarized above, I make the factual determination that as a result of his
work-related fall on November 2, 2011, Mr. Robinson will sustain a 10%
permanent impairment to the body as a whole due to his right shoulder and neck
injuries, which are causing him pain and weakness in his right shoulder,
limitation of motion in his right shoulder, pain in his neck and intermittent
tingling down into his right arm. Mr.
Robinson is presently 58 years of age and he is, therefore, an older worker in
the highly competitive job market. He
has absolutely no specialized or vocational training. His work history has been at manual labor
jobs requiring lifting. Based upon his
sworn testimony and the medical evidence from both Dr. Nadar and Dr. Muffly,
specifically regarding his permanent physical restrictions, I make the factual
determination that Mr. Robinson is not physically capable of returning to any
of his former jobs. If he should go out
into the job market to attempt to find another job, it is reasonable to state
that he would have a very difficult time finding a regular full-time job and I
make that factual determination.
In this case, I considered the severity of
the plaintiff’s work injuries, which are covered in detail above, his work
history, which is covered in detail above, his education, which is covered in
detail above, his sworn testimony, which is covered in detail above, the
medical evidence from Dr. Nadar, the treating orthopedic surgeon, which is
covered in detail above, and the medical evidence from Dr. Muffly, the
examining orthopedic surgeon, which is covered in detail above. Based on all of those factors, I make the
factual determination that the plaintiff Mr. Robinson cannot find work
consistently under regular work circumstances and work dependably. I, therefore, make the factual determination
that he is permanently and totally disabled.
The ALJ awarded medical benefits for
the right shoulder and neck injury.
Pike County filed a petition for reconsideration alleging
the determination Robinson was totally disabled is a patent error appearing on
the face of the award. The remainder of
its petition was a re-argument of whether Robinson sustained work-related
shoulder and neck injuries.
Significantly, Pike County did not ask for additional findings of fact nor
did it assert the ALJ’s analysis regarding whether Robinson was permanently
totally disabled was deficient.
In the June 13, 2014, Opinion and Order on Reconsideration,
the ALJ noted the petition for reconsideration was an attempt to reargue the
case. However, out of an abundance of
caution, he provided, in relevant part, the following findings:
The plaintiff Mr. Robinson
testified that on November 2, 2011 he fell off a stepladder while working for
the defendant and struck his right arm and buttocks on the surface below. He
testified that as a result of his fall he sustained injuries to his neck and
right shoulder. He testified that his work history was at manual labor, which
included lifting. He stated that he was taking prescription pain medications.
He testified that he cannot return to his former jobs. He stated that he has
been awarded Social Security total disability benefits.
At the Hearing on
April 23, 2014 I sat a few feet from Mr. Robinson during his testimony. I
carefully observed his facial expressions during his testimony, carefully
listened to his voice tones during his testimony and carefully observed his
body language during his testimony. I am the only decision maker who has
actually seen and heard the plaintiff testify. He was a very stoic gentleman. I
make the factual determination that he was a credible and convincing lay
witness and that his testimony rang true.
. . .
The
plaintiff filed the medical report of Dr. Anbu Nadar dated February 26, 2014.
Dr. Nadar recounted the plaintiff’s history of his work injuries arising
out of his work-related fall. Dr. Nadar
noted that Mr. Robinson had an MRI and shoulder surgery. Dr. Nadar produced his findings on physical
examination. His diagnoses were a
cervical strain and a right shoulder strain and impingement and cuff tear. Dr. Nadar stated that within reasonable
medical probability the plaintiff’s injuries were the cause of his
complaints. Dr. Nadar stated that
using the AMA Guides, Fifth Edition, the plaintiff’s permanent whole
person impairment will be 10%, consisting of 5% permanent impairment for his
cervical spine injury and 5% permanent impairment for his right shoulder
injury. Dr. Nadar stated that Mr.
Robinson did not have an active impairment prior to his injuries. Dr. Nadar
stated that the plaintiff reached maximum medical improvement in October,
2013. Dr. Nadar stated that the plaintiff does not retain the
physical capacity to return to the type of work performed at the time of his
injuries, and that restrictions should be placed upon the plaintiff’s work
activities as a result of his injuries:
Avoidance of lifting, pushing, pulling, climbing and crawling.
The plaintiff also
filed the medical report of Dr. David Muffly dated October 31, 2013. Dr. Muffly
took a history from Mr. Robinson regarding his fall injuries on November 2,
2011 and his subsequent medical treatment, including arthroscopic surgery by
Dr. Nadar on February 14, 2013. The plaintiff also recounted his recurrent
painful symptoms. Dr. Muffly conducted a comprehensive physical examination of
the plaintiff. Dr. Muffly also reviewed diagnostic test results and medical records
dealing with Mr. Robinson. Dr. Muffly’s
diagnosis was that the plaintiff sustained a right rotator cuff tear and a
cervical strain relating to his November 2, 2011 work injury. Dr. Muffly stated
that the plaintiff’s chronic pre-existing low back pain was not made worse by
his November 2, 2011 work injury. Dr. Muffly stated that using the AMA Guides,
Fifth Edition, Mr. Robinson will sustain a 5% permanent impairment due to his
right shoulder injury and a 5% permanent impairment due to his cervical spine
injury, with the combined permanent impairment being 10%, all of which is
related to the work injury on November 2, 2011. Dr. Muffly placed upon the plaintiff
permanent restrictions as follows: Avoid
reaching above shoulder level, maximum lifting above shoulder level of 15
pounds, a lifting limitation of 30 pounds from waist to chest, and that the
plaintiff cannot return to his custodian job.
The
evidence was that the plaintiff worked on a regular full-time basis as a
custodian for the defendant from 2004 to 2013.
One of the most important decisions in modern Kentucky workers’
compensation law is that of the Kentucky Supreme Court in Roberts Brothers
Coal Company v. Robinson, 113 S.W.3d 181 (Ky.2003), where the high court
held that if an individual is working without restrictions at the time a
work-related injury is sustained, the finding of pre-existing impairment does
not compel a finding of pre-existing disability with regard to an award made
under KRS 342.730(1)(a).
"'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).
I made and again make
the factual determination that the testimony of the plaintiff Mr. Robinson, as
summarized above, and the persuasive and compelling medical evidence from the treating
orthopedic surgeon, Dr. Nadar, as summarized above, as well as the persuasive
and compelling medical evidence from Mr. Muffly, the examining orthopedic
surgeon, as summarized above, led me to the decision that as a result of Mr.
Robinson’s work-related fall on November 2, 2011, he will sustain a 10%
permanent impairment to the body as a whole due to his right shoulder and neck
injuries, all of which is causing him pain and weakness in his right shoulder,
limitation of motion in his right shoulder, pain in his neck and intermittent
tingling down his right arm. The parties stipulated that Mr. Robinson last
worked back on February 14, 2013. He is now 58 years of age and is, therefore,
an older worker in the highly competitive job market. He has absolutely no
specialized or vocational training or education. His work history has been at
manual labor jobs requiring lifting.
Based on the plaintiff’s sworn testimony, as covered above, and the
medical evidence from both Dr. Nadar and Dr. Muffly, as covered in detail
above, and specifically regarding the plaintiff’s permanent physical
restrictions, I make the factual determination that Mr. Robinson is not
physically capable of returning to any of his former jobs. I further make the
factual determination that if he goes out into the job market to attempt to
find another job, it is reasonable to believe that he will have a very
difficult time finding a regular full-time job. In this case, I considered the
severity of the plaintiff’s work injuries, which are covered in detail above,
his work history, which is covered in detail above, his education, which is
covered in detail above, his credible and convincing sworn lay testimony, which
is covered in detail above, the medical evidence from Dr. Nadar, the treating orthopedic
surgeon, which is covered in detail above, and the medical evidence from Dr. Muffly,
the examining orthopedic surgeon, which is covered in detail above. Based on
all of those factors, I made and again make the factual determination that the
plaintiff Mr. Robinson cannot find work consistently under regular work
circumstances and work dependably. I,
therefore, make the factual determination that he is permanently and totally
disabled.
In support of its first argument, Pike
County relies upon the opinions of Drs. Bray and Sheridan and asserts Dr.
Muffly found no objective findings to support his conclusion Robinson had an
impairment of the cervical spine. As to
Dr. Nadar’s findings, it argues he provided no analysis to support his findings
and impairment rating. Pike County
asserts the mechanism of the injury does not support a finding of a neck injury
and the persuasive medical evidence indicates Robinson did not sustain a
cervical injury.
In its second argument, Pike County
concedes Robinson may have sustained a shoulder injury, but argues he has no permanent
impairment. It relies solely upon the
findings and opinions of Dr. Sheridan.
Alternatively, it asserts that should the Board disagree and affirm the
ALJ’s conclusion Robinson has a permanent impairment of the right shoulder, the
medical records only support an award of permanent partial disability benefits enhanced
by the three multiplier. It contends
there is no evidence he is totally disabled.
In support of this argument, it cites to opinions of Dr. Bray, Dr.
Muffly, and Dr. Nadar and the restrictions each imposed.
Next, Pike County contends that since there
is not sufficient evidence to support a finding of a cervical or shoulder
injury and Robinson does not require any further treatment of the shoulder or
cervical spine, he is not entitled to an award of future medical benefits.
Finally, it contends there is no medical
evidence establishing Robinson cannot return to gainful employment. It emphasizes a vocational evaluation is not
in evidence establishing he cannot return to gainful employment. It asserts even though Robinson testified he
did not believe he was capable of returning to gainful employment, “his
protestations did not ring true given the cold hard facts of this case.” It complains the ALJ relied upon Robinson’s
self-serving testimony regarding his history of performing manual labor
including lifting. Although Pike County
acknowledges the medical evidence demonstrates Robinson has right shoulder
limitations, his condition “is not prohibitive.” It posits that even though Robinson is
currently fifty-eight years old, he has a work history which reveals the
ability to keep a job and follow directions for an extended period of time
which are key requirements for employers such as Wal-Mart, Lowes, and McDonalds. Pike County contends there is an absence of
reliable evidence which supports the ALJ’s factual determination Robinson would
have a difficult time finding a regular full-time job.
It also notes Dr. Coughtry treated Robinson’s
low back for the last four years, and after his injury Robinson did not inform Dr.
Coughtry of a right shoulder problem.
Thus, Robinson’s lack of complaints cast doubt on the severity of the
shoulder problem. Pike County seeks reversal
of the ALJ’s decision asserting at most Robinson is entitled to an award of PPD
benefits based on a 5% impairment for his shoulder condition with enhancement
by the three multiplier.
Robinson, as the claimant in a
workers’ compensation proceeding, had the burden of proving each of the
essential elements of his cause of action, including causation. See KRS 342.0011(1); Snawder v. Stice,
576 S.W.2d 276 (
In rendering a decision, KRS 342.285
grants an ALJ as fact-finder the sole discretion to determine the quality,
character, and substance of evidence. Square D Co. v.
Tipton, 862 S.W.2d 308 (
The
function of the Board in reviewing an ALJ’s decision is limited to a determination
of whether the findings made are so unreasonable under the evidence that they
must be reversed as a matter of law. Ira
A. Watson Department Store v.
We find no merit in Pike County’s assertion the medical evidence
demonstrates Robinson did not sustain a cervical spine injury. Dr. Muffly’s report reveals Robinson had stiffness
in the cervical spine. He provided the range
of motion for flexion, extension, left rotation, right rotation, left lateral
bend, and right lateral bend. He noted
the MRI of October 30, 2012, showed moderate disc bulging at C5-6 with mild
neuroforaminal encroachment and mild bulging of C4-5. He reviewed the records of Drs. Nadar and Mann
as well as the treatment record of Dr. Coughtry covering the period from June
3, 2010, to January 29, 2011. Dr. Muffly
concluded Robinson’s cervical condition is due to the injury and fell within
DRE Category II. Accordingly, he
assessed a 5% impairment pursuant to the 5th Edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment
(“AMA Guides”).
The Form 107 completed by Dr. Nadar
reveals tenderness and limited range of motion of the cervical spine. He diagnosed cervical strain, finding as Dr.
Muffly did, that Robinson fell within DRE Category II. He too assessed a 5% impairment.
The opinions of Drs. Muffly and Nadar constitute substantial evidence
which support the ALJ’s determination Robinson sustained a work-related
cervical spine injury meriting a 5% impairment rating. Dr. Muffly’s report sets out objective medical
findings which support his conclusion and opinions. Similarly, Dr. Nadar’s Form 107 provides
objective medical findings which support his opinion Robinson sustained a
cervical spine injury. Consequently, the
ALJ’s determination Robinson sustained a cervical spine injury must be be
affirmed.
Similarly, we find no merit in Pike County’s argument Robinson does not
have a permanent impairment as a result of the right shoulder injury. Notably, Pike County’s argument relies solely
upon the opinions of Dr. Sheridan. Pike
County does not reference Dr. Bray’s report.
In his report, Dr. Bray concluded Robinson had a right rotator cuff tear
for which he received satisfactory surgical treatment. He expressed the opinion the rotator tear was
related to the November 2011 fall. Pursuant
to the AMA Guides, Dr. Bray assessed a 5% impairment rating. In doing so, Dr. Bray stated he agreed with
Dr. Muffly, who also assessed a 5% impairment rating for the right rotator cuff
tear. Their opinions are reinforced by
Dr. Nadar who assessed a 5% impairment rating due to a rotator cuff tear. Since the record amply supports the ALJ’s
finding of a work-related right shoulder injury meriting a 5% impairment rating,
it must also be affirmed.
Pike County’s argument that substantial evidence does not support a
finding Robinson is entitled to future medical treatment for the cervical spine
or right shoulder condition can be dispensed with in short order. Drs. Nadar and Muffly diagnosed a cervical
strain for which they assessed a 5% permanent impairment rating. They also assessed a 5% impairment rating for
the rotator cuff tear in the right shoulder.
Their opinions are supported by objective medical findings and
constitute substantial evidence supporting the ALJ’s determination Robinson
sustained a permanent cervical spine and right shoulder injuries. Thus, as a matter of law Robinson is entitled
to future medical benefits.
In FEI Installation, Inc. v.
Williams, 214 S.W.3d 313 (Ky. 2007), the Supreme Court instructed that KRS
342.020(1) does not require proof of an impairment rating to obtain future
medical benefits, and the absence of a functional impairment rating does not
necessarily preclude such an award.
Here, however, it is undisputed Robinson has a permanent functional
impairment rating as a result of his injury.
The Board has consistently held that a worker who has established a work-related
permanent impairment rating has also established a disability for purposes of
KRS 342.020 and is entitled to future medical benefits. We interpret the Court’s holding in FEI
Installation, Inc. v. Williams, supra, to mean that where there is
evidence of a permanent impairment rating in accordance with the AMA Guides,
as a matter of law, it is error for an ALJ to rule broad-spectrum and
prospectively that future medical care is unreasonable and unnecessary,
notwithstanding nonspecific expert medical testimony to the contrary. In such circumstances, pursuant to KRS
342.020(1), a general award of future medical benefits is mandated.
Since the ALJ found Robinson
sustained physical injuries to the cervical spine and right shoulder meriting
an impairment rating for each, Robinson, by statute, is entitled to medical
benefits for each work-related condition.
We find no merit in Pike County’s
assertion the ALJ erred in determining Robinson is permanently totally
disabled. Significantly, in its petition
for reconsideration, Pike County did not challenge the accuracy of the ALJ’s
findings or argue his analysis, as required by applicable case law, was
deficient or inadequate. On appeal, it
makes no such challenge.
In
Ira A. Watson Department Store v. Hamilton, supra, the Supreme
Court provided the factors to be considered by an ALJ in resolving the issue of
whether a worker is totally occupationally disabled as follows:
An analysis of the factors set forth in
KRS 342.0011(11)(b), (11)(c), and (34) clearly requires an individualized
determination of what the worker is and is not able to do after recovering from
the work injury. Consistent with Osborne
v. Johnson, supra, it necessarily
includes a consideration of factors such as the worker's post-injury physical,
emotional, intellectual, and vocational status and how those factors interact.
It also includes a consideration of the likelihood that the particular worker
would be able to find work consistently under normal employment conditions. A
worker's ability to do so is affected by factors such as whether the individual
will be able to work dependably and whether the worker's physical restrictions
will interfere with vocational capabilities. The definition of “work” clearly
contemplates that a worker is not required to be homebound in order to be found
to be totally occupationally disabled. See, Osborne v. Johnson, supra, at 803.
Although the Act underwent extensive revision in 1996, the ALJ remains
in the role of the fact-finder. KRS 342.285(1). It is among the functions of
the ALJ to translate the lay and medical evidence into a finding of
occupational disability. Although the ALJ must necessarily consider the
worker's medical condition when determining the extent of his occupational
disability at a particular point in time, the ALJ is not required to rely upon
the vocational opinions of either the medical experts or the vocational
experts. See, [citations omitted]. 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. [citation omitted].
KRS 342.285(2)
provides that the Board shall not reweigh the evidence and substitute its
judgment for that of the ALJ with regard to a question of fact. The standard of
review with regard to a judicial appeal of an administrative decision is
limited to determining whether the decision was erroneous as a matter of law.
[citation omitted]. Where the ALJ determines that a worker has satisfied his
burden of proof with regard to a question of fact, the issue on appeal is
whether substantial evidence supported the determination. [citation omitted].
Id.
at 51-52.
Shortly thereafter, the Supreme Court in McNutt Construction/First
General Services v. Scott, 40 S.W.3d 854 (Ky. 2001) further explained:
For that reason, we conclude that some of the
principles set forth in Osborne v.
Johnson, supra, remain viable
when determining whether a worker's occupational disability is partial or
total. See also, Ira A. Watson Department Store v. Hamilton, 34
S.W.3d 48 (Ky. 2000), in which we reached the same conclusion.
An analysis of the factors set forth in KRS
342.0011(11)(b), (11)(c), and (34) clearly requires an individualized determination
of what the worker is and is not able to do after recovering from the work
injury. Consistent with Osborne v.
Johnson, supra, it necessarily
includes a consideration of factors such as the worker's post-injury physical,
emotional, intellectual, and vocational status and how those factors interact.
It also includes a consideration of the likelihood that the particular worker
would be able to find work consistently under normal employment conditions. A
worker's ability to do so is affected by factors such as whether the individual
will be dependable and whether his physiological restrictions prohibit him from
using the skills which are within his individual vocational capabilities. The
definition of “work” clearly contemplates that a worker is not required to be
homebound in order to be found to be totally occupationally disabled. See, Osborne
v. Johnson, supra, at 803.
Id. at 860.
In
the May 19, 2014, Opinion and Order and in the June 13, 2014, Opinion and Order
on Reconsideration, the ALJ set forth the permanent physical restrictions
imposed by Drs. Nadar and Muffly. He
noted Robinson had a history of performing only manual labor which included
lifting, and he testified he could not return to his former jobs. He found this testimony credible. The ALJ also noted Robinson had worked on a
regular full-time basis as a custodian for seven years. After taking into consideration the
restrictions imposed, Robinson’s testimony, his age of fifty-eight, the fact he
had no specialized or vocational training, and had only performed manual labor jobs
which entailed lifting, the ALJ concluded Robinson was not physically capable
of returning to any former job and was therefore totally occupationally
disabled. Considering the severity of
the work injury, the work history, Robinson’s education, his testimony as to
his physical capabilities, and the medical evidence from Drs. Nadar and Muffly
regarding his restrictions, the ALJ concluded Robinson is permanently totally
disabled as defined by the statute and case law.
Although
not raised by Pike County, we find the ALJ conducted the appropriate analysis
as required by McNutt Construction/First General Services v. Scott, supra,
and Ira A. Watson Dept. Store v. Hamilton, supra. Further, the ALJ’s finding of total
occupational disability is supported by substantial evidence specifically the
opinions of Drs. Nadar and Muffly and Robinson’s testimony as to his physical
capabilities. The fact there was no
vocational evaluation is of no import as the ALJ is not required to rely upon
vocational opinions of either a medical expert or a vocational expert. Rather, a worker’s testimony is competent
evidence of his physical condition and ability to perform various activities
pre-injury and post-injury.
Further,
we cannot attribute any significance to the fact Robinson did not discuss with
Dr. Coughtry his right shoulder problem as that is the ALJ’s function, not ours. We note Robinson explained Dr. Coughtry was
not treating his shoulder and neck, only his back.
Finally, although not specifically
addressed by either party, we believe the ALJ adequately addressed the issue
raised in the BRC Order pertaining to the “Whole Man Theory.” In Garrett
Mining Co. v. Nye, 122 S.W.3d 513, 520 (Ky. 2003), the Supreme Court
explained that the “Whole Man Theory” applies: “[w]here [an employee] has had a
compensable disability, received his compensation and returned to work and then
receives a subsequent independent injury which incapacitates him, the prior
injury should not be deducted.” (quoting Cabe v. Skeens, 422
S.W.2d 884, 885 (Ky.1967)). The Supreme Court noted that “[t]he rule is
applied when the disability caused by the second injury is unrelated to and
unaffected by the disability caused by the previous injury.” Garrett
Mining Co. v. Nye at 520.
More recently, in Hill v. Sextet Mining Corp., supra, the Supreme
Court explained:
[A] worker who has sustained
both compensable and noncompensable disability is entitled to receive income
benefits for the full extent to which compensable, work-related harmful change
causes a complete inability to work. See International Harvester Co.
v. Poff, [331 S.W.2d 712 (Ky. 1959)]. Therefore, a worker with an
AMA impairment from a nonwork-related condition who sustains a work-related
injury may receive income benefits for total disability
if there is substantial evidence that the work-related harmful change, by
itself, is sufficient to cause an AMA impairment and to cause the worker to be
unable to perform any work.
Id.
at 508-509.
Here, we believe the
ALJ could reasonably conclude the neck and shoulder injuries Robinson sustained
approximately fifteen years after his last work injury on September 12, 1996, were
sufficient to cause total occupational disability. Robinson was able to work full-time from 2004
to 2011 without any restrictions performing heavy manual labor. In his deposition, Robinson described his job
duties with Pike County. In addition,
the job description filed by Pike County establishes Robinson was required to
do strenuous manual labor. He was
required to engage in sweeping, scrubbing, mopping, and waxing in various
locations of the school. He was also
required to wash windows and walls, pick up trash around the grounds, and in
the building sweep and clean walkways, entrances, dispose of trash, unpack and
pack, load and receive books and materials, and operate cleaning
equipment. The job description states
Robinson had to have the physical ability to perform heavy physical labor. There was no testimony Robinson was unable to
perform all these tasks prior to the November 2, 2011, work injury. Further,
the ALJ could reasonably conclude the restrictions of Drs. Nadar, Muffly, and
Bray would prohibit all the above activities.
In addition, in the
ALJ’s Opinion and Order and the Opinion and Order on Reconsideration ruling on
the petition for reconsideration, the ALJ implicitly, if not expressly,
concluded the effects of the subject injury prevented Robinson from returning
to the underground coal mines. Thus, we
believe consistent with the “Whole Man Theory,” the injury of November 2, 2011,
standing alone was severe enough and sufficient to cause Robinson to be totally
occupationally disabled.
Although not raised by Pike County,
we also note the ALJ addressed the issue of whether Robinson’s previous
occupational disabilities constitute an impairment as defined in Roberts
Bros. Coal Co. v. Robinson, 113 S.W.3d 181 (Ky. 2003). There, the Supreme Court pointed out as
follows:
In other words, KRS 342.730(1)(a)
requires the ALJ to determine the worker's disability, while KRS 342.730(1)(b)
requires the ALJ to determine the worker's impairment. Impairment and
disability are not synonymous. We conclude, therefore, that an exclusion from a
total disability award must be based upon pre-existing disability, while an
exclusion from a partial disability award must be based upon pre-existing
impairment. For that reason, if an individual is working without restrictions
at the time a work-related injury is sustained, a finding of pre-existing
impairment does not compel a finding of pre-existing disability with regard to
an award that is made under KRS 342.730(1)(a).
KRS
342.730(1)(a) specifies that nonwork-related
impairment “shall not be considered” when determining whether an individual is
totally disabled. Here, the ALJ determined that the claimant was totally
disabled as a result of his injury. Based upon a finding that 25% of his
impairment was due to the natural aging process, the ALJ concluded that the
award must be reduced by 25%. Contrary to what the employer would have us
believe, the exclusion was based solely upon impairment. Nowhere did the ALJ
specifically find that 25% of the claimant's ultimate disability was due to the
natural aging process. Furthermore, the finding that the claimant had no
pre-existing active disability precluded such an inference. It is apparent,
therefore, that the ALJ found work-related impairment, by itself, to be totally
disabling. For that reason, an award under KRS 342.730(1)(a) was appropriate
without regard to the fact that 25% of the claimant's impairment was
attributable to the natural aging process. Furthermore, since none of the
claimant's disability was active at the time of his injury, no exclusion for
prior, active disability was required.
Id.
at 183.
Here, the ALJ concluded although Robinson had pre-existing impairments
as determined by ALJ Cowden in the December 23, 1997, Opinion and Award, he did
not have a pre-existing disability with regard to an award pursuant to KRS
342.730(1)(a).
Because the ALJ’s decision is supported
by substantial evidence and he performed the requisite analysis pursuant to Ira
A. Watson Department Store v. Hamilton, supra, and McNutt Construction/First
General Services v. Scott,
supra, we are without authority to disturb his decision on appeal. Special Fund v. Francis, supra.
Accordingly, the Opinion and Order rendered May 19, 2014, and the Opinion and Order on Reconsideration rendered June 13, 2014, are AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON TODD KENNEDY
P O BOX 1079
PIKEVILLE KY 41502
COUNSEL
FOR RESPONDENT:
HON RANDY G CLARK
P O BOX 1529
PIKEVILLE KY 41502
ADMINISTRATIVE
LAW JUDGE:
HON WILLIAM J RUDLOFF
400 E MAIN ST STE 300
BOWLING GREEN KY 42101