Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: March 27, 2015
CLAIM NOS. 201400496 & 201400495
MCCOY ELKHORN COAL CORP PETITIONER
VS. APPEAL FROM HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
DONALD LOWE
HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART
AND
REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. McCoy Elkhorn Coal Corporation
(“McCoy”) appeals from the September 17, 2014 Opinion and Award and the
November 4, 2014 Order on Petition for Reconsideration rendered by Hon.
Jonathan R. Weatherby, Administrative Law Judge (“ALJ”). The ALJ awarded Donald Lowe (“Lowe”) permanent
total disability benefits and medical benefits for cumulative trauma injuries
to his neck, back, bilateral shoulders, upper extremities, and bilateral hips.[1] McCoy argues the ALJ erred in finding timely
notice was given of Lowe’s spine injury, erred in finding an injury as defined
by the Workers Compensation Act (the “Act”), and erred in awarding permanent
total disability benefits. For the
reasons set forth herein, we affirm in part and remand for further fact finding.
Lowe was born August 1,
1961 and is a high school graduate and certified electrician. He worked in the coal mining industry,
performing a variety of jobs, from 1979 until September, 2013. The ownership of the mine changed numerous
times over the 34 years, but Lowe remained an employee with no changes. For the final nine months of his employment
he worked as a belt examiner, which required him to inspect and service all the
belts going into the mine. For the preceding
three years, he worked as a safety tech, which involved enforcing safety
regulations, investigating violations, and accompanying injured employees to
the hospital. Prior to his role as a
safety tech, he performed manual labor in the mines. He worked in coal seams 28 to 42 inches high,
and was required to crawl or duck walk.
Lowe was laid off work
on September 4, 2013. He filed a Form
101 on February 28, 2014, alleging cumulative trauma injuries to his neck,
back, hips, left and right upper extremities, and left and right lower
extremities. He attached a medical statement
from Dr. Dale Williams, a chiropractor, dated October 24, 2013. Dr. Williams diagnosed cerviclagia with
widespread moderate/severe degeneration throughout the cervical spine. He also diagnosed shoulder and mid back pain,
lumbalgia with moderate degeneration throughout the lumbar spine, and
radiculitis in both lower extremities.
He opined these conditions are “consistent with the occupational hazard
of the mining industry with 34+ years as a coal miner.”
McCoy introduced the
medical records of Dr. Paul Maynard from 2002 through 2013. In 2002, Lowe reported severe back pain and
was prescribed pain medication. He next
complained of back pain on October 8, 2013.
Lowe followed up with Dr. Maynard on October 29, 2013 and November 26,
2014, and both times reported his back pain had worsened. Lowe testified Dr. Maynard restricted him
from heavy lifting during the last nine months of his employment, although
there is no indication of such restriction in the medical records.
Following his layoff,
Lowe also began seeing Dr. Sujata Gutti, a neurologist. A nerve conduction study of both legs was
performed on November 21, 2013. Dr.
Gutti concluded the findings are consistent with bilateral tibial neuritis,
with no evidence of radiculopathy. A
lumbar MRI was performed on December 4, 2013.
The report of the scan indicates Lowe’s “disc spaces are normal in
height. There is slight desiccation of
the disk material between L3 and S1. No
herniated disks are seen. The spinal
canal is normal in caliber.”
Dr. Arthur Hughes
performed an independent medical evaluation (“IME”) on March 27, 2014 at Lowe’s
request. Dr. Hughes performed a physical
examination and reviewed medical records including diagnostic studies. He diagnosed neck pain with radicular symptoms,
bilateral ulnar neuropathy, right shoulder pain with restricted range of
motion, left shoulder pain with restricted range of motion, lower back pain
with radicular symptoms, and bilateral hip pain. He determined Lowe’s complaints were caused
by his work. He assessed a 37% whole
person impairment rating pursuant to the American Medical Association, Guides
to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”). Dr. Hughes further opined Lowe does not
retain the physical capacity to return to the type of work performed at the
time of the injury. In a supplemental
questionnaire, Dr. Hughes stated Lowe had no pre-existing active disability
prior to being employed by his most recent employer. Rather, Lowe’s disability was brought about
because of his most recent employment.
Dr. Daniel Primm
performed an IME on May 16, 2014 at McCoy’s request. Dr. Primm conducted a physical examination
and medical records review. He diagnosed
chronic complaints of neck and back pain, mechanical in nature, with no
evidence of significant pathology. He
interpreted the MRI scan as normal for a person of Lowe’s age. He found no evidence of harmful trauma to the
neck, back or shoulders, and assessed no impairment rating pursuant to the AMA Guides.
Lowe testified he
visited his family physician, Dr. Baretta Casey, for back pain. He could not recall exactly when he visited
Dr. Casey, but estimated it was more than ten years prior. He recalled she prescribed him arthritis
medication and pain medication for his back pain. According to Lowe, Dr. Casey told him his
back pain was due to “working, overexposure.”
As to his current
symptoms, Lowe testified he has throbbing pain in his neck, which has gradually
worsened over time. It runs from his
neck through his shoulders and into his arms.
He has lower back pain that shoots into his legs and hips. He continues to treat with Dr. Gutti for his
back, hip and leg pain. In the months
leading up to the layoff, he was unable to perform all of his duties and relied
on coworkers for assistance. He did not
believe he is physically capable of returning to his prior employment.
The ALJ was most
persuaded by Dr. Hughes’ opinion, and relied thereon to find Lowe had suffered
work-related injuries as defined by KRS Chapter 342. He adopted Dr. Hughes’ 37% whole person
impairment rating resulting from cumulative trauma to the neck, bilateral
shoulders, upper extremities, back, and bilateral hips. The ALJ then determined Lowe is permanently
totally disabled.
Relying on Lowe’s
testimony concerning his treatment with Dr. Casey for back pain over ten years
ago, McCoy raised a notice and statute of limitations argument. In the Opinion and Award, the ALJ noted Lowe
provided written notice on February 25, 2014 and filed his claim on February
28, 2014. He then concluded due and
timely notice was provided. In the Order
denying McCoy’s petition for reconsideration, the ALJ elaborated:
[McCoy]
argues that because [Lowe] testified that he was told by his primary care
physician approximately ten years prior that he had arthritis that was probably
work related. The Supreme Court of
Kentucky addressed a similar issue in KenAmerican Resources, Inc. v. Warren,
2014 WL 2810960 (Ky. 2014), wherein the Plaintiff was told by a physician that
he had developed an injury due to years of hitting his head on the mine ceiling
but was not restricted from work and actually kept working. Likewise in this case, [Lowe] was told that
he had arthritis that was probably related to work but was not taken off work
and continued working for up to ten years.
The ALJ finds
that [Lowe] in this case actually has a stronger case than the one in KenAmerican
Resources, supra. [Lowe] testified
to a general reference that he had arthritis that is probably related to
work. The ALJ finds that this testimony
does not establish that he was diagnosed with a harmful change to the human
organism giving rise to the need for the giving of notice or triggering the
tolling of the statute of limitations.
McCoy appeals, raising
two issues. It argues the ALJ erred in
finding Lowe provided timely notice of his spine claim, and that the statute of
limitations should apply. It also
challenges the findings an injury occurred, and Lowe is permanently totally
disabled.
In a cumulative trauma
injury claim, notice and filing requirements are triggered by the date the
injury manifests itself. A cumulative
trauma injury manifests when the worker is informed by a physician that he has
an injury and it is work-related. Hill
v. Sextet Mining Corp., 65 S.W.3d 503, 507 (Ky. 2001). McCoy argues Lowe’s conversation with Dr.
Casey triggered the notice and filing requirements, because he testified Dr.
Casey informed him his arthritis and resulting back pain are work-related at least
ten years ago. Its argument on appeal
also implies the ALJ rejected this testimony because Dr. Casey was not an IME
physician.
There is no indication
the ALJ rejected Lowe’s testimony simply because Dr. Casey was not an IME
physician. Rather, he did not believe
Lowe’s “general reference” to Dr. Casey’s statement constituted conclusive
proof of “manifestation.” Indeed, no
records from Dr. Casey were introduced, and no physician who has recently
treated Lowe diagnosed arthritis.
Instead, the ALJ determined Lowe’s cumulative trauma injury manifested
on the date of the examination by Dr. Hughes, March 27, 2014.
The ALJ is the fact-finder,
and has the authority to determine the weight of the evidence. Square D Company v. Tipton, 862 S.W.2d
308 (Ky. 1993). Here, the ALJ did not
believe Lowe’s testimony was sufficient to establish he had been informed of an
injury and that it was work-related.
Because the inferences drawn from this evidence are reasonable, the ALJ
did not abuse his discretion. Ira A. Watson Department Store v. Hamilton,
34 S.W.3d 48 (Ky. 2000).
McCoy next argues the
ALJ erred in finding an injury as defined by the Act. It points to the fact Lowe only began
treating for his cumulative trauma injuries after he was laid off. It also attacks the sufficiency of Dr.
Hughes’ report, arguing his opinion is based solely on subjective
findings. McCoy further argues the ALJ’s
findings of fact on this issue are insufficient, because he did not assign a
specific impairment rating for each injured body part.
Because Lowe
successfully established he suffered cumulative trauma injuries, 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).
Dr. Hughes’ opinion
constitutes the requisite substantial evidence to support the ALJ’s
determination Lowe suffered cumulative trauma injuries to his neck, bilateral
shoulders, upper extremities, back, and hips.
Dr. Hughes conducted a physical examination, including range of motion
testing, and reviewed diagnostic studies, including the MRI, nerve conduction
study, and x-rays. Objective medical
findings, as required by KRS 342.0011(33), includes “information gained through
direct observation and testing of the patient applying objective or
standardized methods.”
McCoy attacks several
aspects of Dr. Hughes’ report, including his method of range of motion testing,
his identification of diagnostic studies upon which he relied, and his reliance
on Lowe’s subjective complaints of pain. It also argues Dr. Hughes failed to
adequately explain why Lowe’s range of motion testing was abnormal, and why any
spine changes are not simply age-related.
However, McCoy’s challenge to Dr. Hughes’ report goes to the weight of
the evidence, not the sufficiency. The
ALJ was more persuaded by Dr. Hughes than Dr. Primm, and stated his reason for
rejecting Dr. Primm’s report. McCoy has
identified legitimate reasons why the ALJ might have chosen to reject Dr.
Hughes’ report. However, such is not an
adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp.,
514 S.W.2d 46 (Ky. 1974). Rather, it must be shown there was no evidence of
substantial probative value to support the decision. Special Fund v. Francis, 708 S.W.2d
641 (Ky. 1986). Combined with Lowe’s
testimony, which the ALJ found “extremely credible”, Dr. Hughes’ report is
substantial evidence supporting the ALJ’s conclusion Lowe suffered cumulative
trauma injuries.
McCoy also
argues the ALJ erred by failing to assign a specific impairment rating for each
individual body part included in the cumulative trauma injury. After stating his reliance on Dr. Hughes’
opinion, the ALJ found Lowe
has a 37% whole person impairment as a result of cumulative trauma
including neck pain with radicular symptoms, right ulnar neuropathy, left ulnar
neuropathy, right shoulder pain and restricted range of motion, left shoulder
pain and restricted range of motion, lower back pain with radicular symptoms,
right hip pain, and left hip pain.
The ALJ also explained why he rejected Dr. Primm’s report,
and adopted Dr. Hughes’ opinion. Given
that these were the only two IME reports submitted, the ALJ may have intended
to adopt Dr. Hughes’ report in total, including the individual impairment
ratings used to reach a whole person impairment of 37%. However,
this Board has no fact-finding authority and, therefore, may not speculate as
to the ALJ’s intentions. Therefore, we
must remand this matter and request the ALJ to assign a specific impairment
rating to each cumulative trauma injury.
Though the assignment of specific impairment ratings may not affect
Wireman’s current award, it is necessary in the event of future litigation of
this claim.
Finally, McCoy argues
the evidence is insufficient to establish Lowe is permanently totally disabled. The Workers' Compensation Act states that 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.” KRS 342.0011(11)(c). The factors that an ALJ must consider in
determining whether an individual claimant is
permanently and totally occupationally disabled are set forth in Ira A.
Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky.2000).
They include: the worker's post-injury physical, emotional, intellectual, and vocational status and how those factors
interact; a consideration of the likelihood that the particular worker would be
able to find work consistently under normal employment conditions; whether the
individual will be able to work dependably; and whether the worker's physical
restrictions will interfere with vocational capabilities. Id. “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.” McNutt
Construction/First General Services v. Scott, 40 S.W.3d
854, 860 (Ky.2001).
The ALJ stated he
considered Lowe’s advanced age, and the fact he had worked as a coal miner
since the age of 17. He noted the
restrictions recommended by Dr. Hughes, including no repetitive bending,
twisting of the neck or back, no use of the arms above shoulder level, and no
tasks involving repetitive hand use.
Additionally, the ALJ referenced Lowe’s testimony that, in the months
leading up to his layoff, he was unable to fully perform his duties as a belt
examiner and relied on colleagues to assist him. He missed several days of work prior to his
layoff, and doubted he would have been physically able to continue working much
longer, regardless of the layoff.
Finally, the ALJ considered Lowe’s “limited work history”, which is
confined solely to work at the coal mine.
Based on these factors,
the ALJ concluded Lowe will be unable to provide work on a regular and
sustained basis in a competitive economy.
The ALJ articulated substantial evidence, outlined above, which supports
this conclusion. Special Fund v. Francis,
708 S.W.2d 641 (Ky. 1986). McCoy
has identified other circumstances, such as Lowe’s experience as a safety tech
which is a non-physical position, which might direct a different result. Furthermore, while Lowe was working until the
time of his layoff, as McCoy emphasizes, he testified he was unable to perform
all of his duties without assistance.
McCoy has simply noted evidence supporting a different outcome than
reached by an ALJ and such is not an adequate basis to reverse on appeal. McCloud
v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). Because the ALJ
identified substantial evidence supporting the conclusion Lowe is permanently
totally disabled, the award of benefits will not be disturbed.
For the
foregoing reasons, the September 17,
2014 Opinion and Award and the November 4, 2014 Order on Petition for
Reconsideration rendered by Hon. Jonathan R. Weatherby, Administrative Law
Jude, are hereby AFFIRMED IN PART AND
REMANDED for further fact finding.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON TERRI SMITH WALTER
PO BOX 1167
PIKEVILLE, KY 41502
COUNSEL
FOR RESPONDENT:
HON MCKINNLEY MORGAN
921 SOUTH MAIN ST
LONDON, KY 40741
ADMINISTRATIVE
LAW JUDGE:
HON. JONATHAN R. WEATHERBY
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
[1] Lowe also filed a claim for hearing
loss which does not relate to the issues on appeal, and therefore will not be
discussed.