Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: May 8, 2015
CLAIM NO. 201260802
STAR*TEL
SYSTEMS, INC. PETITIONER
VS. APPEAL FROM HON. J. GREGORY ALLEN,
ADMINISTRATIVE LAW JUDGE
NEAL T. PUCKETT
HON. J. GREGORY ALLEN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Star*Tel Systems
(“Star*Tel”) appeals from the October 2, 2014 Opinion, Order and Award and the
November 3, 2014 Order on Defendant’s Petition for Reconsideration rendered by
Hon. J. Gregory Allen, Administrative Law Judge (“ALJ”). The ALJ determined Neal Puckett is
permanently totally disabled following a work-related motor vehicle
accident. Star*Tel appeals this
determination, arguing the ALJ applied an incorrect legal standard. For the reasons set forth herein, we affirm.
Puckett began his employment with
Star*Tel in 1989 as a service manager.
On December 4, 2012, he was involved in a motor vehicle accident while
on a service call. He was knocked
unconscious and taken to the emergency room by ambulance. He was diagnosed with acute chronic low back
pain and neck pain. On December 11,
2012, Puckett visited the Family Care Center.
He complained of back pain, neck pain, and severe bilateral shoulder
pain. Puckett indicated the accident
caused the neck and shoulder pain, and aggravated his chronic low back
pain.
Eventually, Puckett treated with Dr.
Jeffrey Been, who diagnosed left shoulder impingement, AC arthrosis and rotator
cuff tear. On March 28, 2013, Dr. Been
performed a left shoulder arthroscopic subacromial decompression, distal
clavicle resection, and mini-open rotator cuff repair. At his last recorded visit with Dr. Been, he
restricted Puckett from lifting more than 10 pounds with his left arm.
Just before the surgery, on March 11,
2013, Puckett also began complaining to Dr. Been of pain in his right forearm
and elbow, particularly when gripping.
He was referred to Dr. David Tate, who diagnosed a tear of the lateral
collateral ligament of the elbow with hematoma.
Dr. Tate recommended surgery for the elbow ligament tear. In a June 7, 2013 office note, he reported
Puckett had cubital tunnel syndrome, and restricted him from lifting more than
two pounds with his right arm. He also
recommended Puckett avoid ladders and the use of power tools. Dr. Tate opined Puckett’s elbow condition is
related to the motor vehicle accident.
Puckett also treated with Dr. Mitchell
Campbell for low back pain from January 31, 2013 through March 7, 2013. Dr. Campbell noted Puckett had undergone a
laminectomy thirty years prior, with increasing back pain, right leg pain and
numbness radiating into his leg. Dr. Campbell
recommended pain management, which was not approved by workers’ compensation.
Dr. Robert Jacob evaluated Puckett on
November 5, 2013 and recorded complaints of left shoulder pain, bilateral arm
and hand pain, right elbow pain, low back pain, and bilateral leg pain. Dr. Jacob noted Puckett complained of low
back, shoulder and neck pain in his medical visits immediately following the
motor vehicle accident. He likewise noted
Puckett’s complaints of back pain prior to the accident, and the fact he first
complained of elbow pain several months later.
For these reasons, Dr. Jacob concluded the low back and elbow injuries
were not related to the accident and assigned no impairment. He assigned a 3% impairment rating pursuant
to the American Medical Association, Guides to the Evaluation of Permanent
Impairment, 5th Edition (“AMA Guides”) for the left
rotator cuff injury, and placed Puckett at maximum medical improvement.
Dr. Jules Barefoot examined Puckett
and prepared a report dated October 17, 2013.
Dr. Barefoot diagnosed Puckett with status post left rotator cuff
repair, ligament tear in the right elbow, right ulnar neuropathy, and evidence
of right L5 radiculopathy. He assessed a 13% whole person impairment pursuant to the AMA Guides for
the left shoulder injury, 8% for the right elbow injury, and 30% for the lumbar
spine injury. Dr. Barefoot noted
Puckett’s history of low back pain pre-dating the accident, and attributed 10%
of the impairment rating for the lumbar spine to a pre-existing condition. Dr. Barefoot opined Puckett would have
difficulty performing any overhead work with his left arm, repetitive grasping,
or lifting and carrying with either hand.
He also believed Puckett would have difficulty standing and walking for
extended periods of time. Dr. Barefoot
recommended he avoid working on ladders and uneven ground.
William Ellis conducted a vocational
evaluation on June 16, 2014 and noted Puckett’s continued complaints of
pain. He opined Puckett’s concentration
would be affected by this pain and by medication taken for relief. He concluded Puckett is 100% occupationally
disabled due to decreased stamina and reliability.
Dr. Luca Conte conducted a vocational
evaluation on June 17, 2014. Dr. Conte
noted Puckett’s history of low back pain and prior right shoulder
injuries. He likewise noted Puckett was
working under lifting restrictions similar to those recommended by Dr.
Been. Therefore, Dr. Conte concluded he
would continue to be able to perform his previous work. He also noted Puckett’s transferable skills,
gained through his experience performing supervisory and clerical tasks at
Star*Tel. Thus, he opined Puckett would
be able to perform work in the light and sedentary categories.
Puckett testified by deposition and at
the final hearing. He acknowledged he
suffered low back pain prior to the motor vehicle accident, and had previously
taken narcotic pain medication for the condition. He also had undergone back surgeries in 1984
and 1985, and had a permanent 10 pound lifting restriction as a result. Following a right shoulder surgery in 2010,
he was permanently restricted from repetitive motion and lifting more than 10
pounds overhead. Puckett explained he
suffers considerable pain in his low back, left shoulder, and neck. His right elbow and arm are weak. He did not believe he could return to his
work at Star*Tel because it involved work on ladders and overhead work. In addition to general pain, he has
difficulty gripping and grasping.
Puckett filed a Form 101 alleging
injuries to his left shoulder, left arm and wrist/hand, right elbow and low
back. The parties stipulated Puckett’s
left shoulder injury, and the ALJ determined he retains a 3%
whole person impairment for that injury.
The ALJ further determined Puckett sustained a work-related right elbow
injury, resulting in an 8% whole person
impairment. Finally, the ALJ concluded
Puckett sustained a temporary exacerbation of his pre-existing low back
condition, resulting in no permanent impairment.
Considering the issue of permanent
total disability, the ALJ first correctly cited the applicable law. He then explained:
Puckett argues [he] is totally disabled pointing to
the findings of Dr. Barefoot while defendant argues [Puckett is] only 3%
disabled and is certainly not totally disabled pointing to a plethora of other
jobs and abilities the [Puckett] retains at the sedentary duty level.
….
Here, [Puckett’s] date of birth is January 12, 1957,
making him 55 years old on the date of injury.
The parties stipulated he had a 12th grade education but also
holds numerous certificates in the telecommunications field.
As for
restrictions, the defendant refers to a 10 lb. lifting restriction placed on
[Puckett] after his low back surgical procedure in the 80s. However, the ALJ was unable to locate any
filing of the exact restrictions from that injury in the record. Moreover, that restriction was arguab[ly] for
[Puckett’s] low back condition and did not affect his left shoulder or right
elbow. Clearly [Puckett] now has a 10
lb. lifting restriction on his left shoulder and two pound lifting restriction
on the right upper extremity in addition to any lifting restriction for his
lumbar spine.
The ALJ
has also considered the vocational evaluations of Luca Conte and William
Ellis. While defendant argues the Conte
evaluation would permit [Puckett] to return to light to sedentary duties, Mr.
Ellis finds [Puckett] to be unable to return to any type of work on a regular
basis. The ALJ does not rely exclusively
on either report [but] does take the contents and opinions under consideration.
After
reviewing the entirety of the medical and lay evidence, the ALJ finds [Puckett]
has carried his burden of demonstrating permanent total disability. In reaching this determination, the ALJ notes
the Kentucky legislature, in KRS 342.730(1)(c)3,
professed a recognition of public policy by declaring that advancing age and
limited education has an impact on employee’s post-injury earning
capacity. In certain situations, calculations
are modified by additional factors when a claimant reaches 50 years of age or
has less than 12 years of education at the time of the accident. While these criteria are used when
considering permanent, partial disability, the ALJ believes consideration of
the criteria as policy is equally applicable when analyzing a claim for
permanent total disability. Here,
[Puckett] was 55 years old on the date of injury and had a 12th
grade education by virtue of a GED.
While he has numerous certificates in the telecommunications field,
those are offset to substantial degree by the severe restrictions of Dr. Been
to the left shoulder and Dr. Tate for the right elbow. If [Puckett] was laboring under a 10 lb.
lifting restriction for his lumbar spine before the accident herein, it is
clear that additional restrictions of use of his upper extremities are
devastating to his ability to perform work in a regular and sustained
basis. Therefore, the ALJ finds
[Puckett] is permanently totally disabled.
Star*Tel petitioned the ALJ for
reconsideration, arguing the finding Puckett is permanently totally disabled is
unsupported by the evidence. It asserted
the ALJ had not considered Puckett’s transferable skills in reaching his ultimate
conclusion. It did not request additional
factual findings by the ALJ. The ALJ
denied the petition as a request to reach a different conclusion.
Star*Tel now appeals. It first argues the finding of permanent
total disability is not supported by the appropriate legal analysis. It claims the ALJ erroneously focused on
Puckett’s age and education, without considering his vocational status and his
prior experience in sedentary positions.
Star*Tel next asserts the ALJ did not state sufficient findings of fact
to properly apprise the parties of the basis of his decision.
We conclude the ALJ conducted the
appropriate analysis in determining Puckett is permanently totally
disabled. KRS 342.0011(11)(c) defines permanent total disability as a “complete and
permanent inability to perform any type of work as a result of an injury.” The Kentucky Supreme Court,
in Ira A. Watson Dep’t Store v. Hamilton, 34. S.W.3d 48, 51 (Ky.
2000), explained the ALJ must conduct an individualized determination of what a
worker is and is not capable of doing after a work injury. “[T]his necessarily includes a consideration
of factors such as the worker’s
post-injury physical, emotional, intellectual, and vocational status and how
those factors interact.” Id. (emphasis added). Because the Court used the term “such as”, we
do not read this factors as a list of required considerations. Rather, the emphasis is that the ALJ must
conduct an individualized determination of permanent disability, and the Court
has offered factors which might be taken into consideration by the ALJ.
In Puckett’s case, the ALJ offered an
extremely thorough recitation of the evidence, and detailed analysis of
Puckett’s condition. In considering
whether Puckett is permanently disabled, the ALJ was persuaded by his current
pain complaints, his age, and his relatively limited education. He acknowledged Dr. Conte’s opinion Puckett
could transfer skills to a sedentary job, but explained why he was persuaded by
Dr. Ellis’ opinion he could not work reliably due to pain. Thus, we conclude the ALJ properly conducted
an individualized determination of Puckett’s ability to perform work in a
competitive economy, in accordance with Ira A. Watson. We disagree with Star*Tel that the ALJ
improperly focused solely on Puckett’s age and education. Rather, the ALJ was simply most persuaded by
these factors, and therefore placed emphasis on them in his analysis.
Star*Tel
has emphasized evidence in the record which would support a different
conclusion than reached by the ALJ. This
is insufficient to warrant reversal of an award. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky.
1974). There
is proof of substantial probative value to support the decision, and therefore
we will not disturb the award. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). Because Star*Tel did not specifically request
additional findings of fact in its petition for reconsideration, it may not now
complain the ALJ’s analysis is insufficient.
Nonetheless, for the reasons already discussed herein, we conclude the
ALJ has adequately articulated his reasoning and provided an analysis
sufficient to apprise the parties of the basis of his reasoning. Cornett v. Corbin
Materials, Inc., 807 S.W.2d 56 (Ky. 1991).
Accordingly,
for the reasons set forth herein, the October 2, 2014 Opinion, Order and Award
and the November 3, 2014 Order on Defendant’s Petition for Reconsideration of
Hon. J. Gregory Allen, Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON R CHRISTION HUTSON
PO BOX 995
PADUCAH, KY 42002
COUNSEL
FOR RESPONDENT:
HON AUDREY HAYDON
PO BOX 1155
BARDSTOWN, KY 40004
ADMINISTRATIVE
LAW JUDGE:
HON. J. GREGORY ALLEN
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601