*/
Workers’
Compensation Board
OPINION
ENTERED: July 24, 2015
CLAIM NO. 201188659
SOMERSET-BURNSIDE GARAGE DOOR
& GLASS CO., INC. PETITIONER
VS. APPEAL FROM HON. OTTO
DANIEL WOLFF, IV,
ADMINISTRATIVE LAW JUDGE
LEE A. COOK
AMR EL-NAGGAR, M.D.
and HON. OTTO DANIEL WOLFF, IV,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Somerset-Burnside Garage Door & Glass Co.,
Inc. ("Somerset-Burnside") appeals from the January 20, 2015,
Opinion, Order, and Award and the February 27, 2015, Order ruling on its petition
for reconsideration of Hon. Otto Daniel Wolf, IV, Administrative Law Judge
("ALJ"). The ALJ awarded Lee A. Cook (“Cook”) permanent total
disability ("PTD") benefits and medical benefits.
The Form 101 alleges Cook sustained
injuries while in the employ of Somerset-Burnside to his low back and left leg
on April 14, 2011, in the following manner: "Plaintiff attempting to lift
a panel weighing approximately 100 pounds. As he was pulling the panel out, he
immediately felt severe pain and burning in the lower back and down the left leg."
By order dated June 17, 2014, Cook was permitted to amend his claim to include
a psychological injury. The Form 104, attached to the Form 101, indicates Cook
worked for Somerset-Burnside from 2003-2011.
On
appeal, Somerset-Burnside asserts the ALJ's finding of permanent total
disability was erroneous as a matter of law for two reasons; 1) the “consideration
of the issue of disability in the context of Cook's present situation was error;”
and 2) “the finding of permanent total
disability was based, in part, on erroneous assumptions regarding [Somerset-Burnside's]
rights upon reopening.”
The February 9, 2012, Benefit Review
Conference ("BRC") order lists the following contested issues:
benefits per KRS 342.730; injury as defined by the ACT; and TTD [handwritten:
"PPD & PTD"]. Under "other" is as follows:
"∆ filed MFD Dr. El-Naggar report MRI & pain management."
Cook’s November 17, 2011, deposition
was introduced. He testified he started working for Somerset-Burnside in
February 2003 and stopped on the date of injury. Somerset-Burnside engages in replacing
windows and garage doors and installing mirrors and glass. Regarding the
lifting requirements of his job, he testified:
A: It varies, you know. You could be lifting
10 to 100, you know, just lifting all kinds of weights.
Q: And what would- give me an example. What
would weigh 100 pounds?
A: You've got glass that- we had to install
glass, you know, pretty much about that heavy. We'd do doors, garage doors, you
know; for instance, 18 foot doors.
Cook had no problems performing his work
before the April 14, 2011, incident.
He described his physical symptoms at
the time of his deposition:
Q: What about your condition
now Lee, tell me about- I don't mean this instance, I mean just generally now-
do you still have the back pain?
A: Yes.
Q: How bad is it?
A: It's not better at all.
Q: If you put it on a scale
like you did before of 1 to 10, where is it on an average day?
A: Still 10. I mean it's
mainly a 10 all the time, yes.
Q: What about the pain in
your leg and the tingling, is that still there?
A: Yes.
Q: Is it better or worse, or
about the same?
A: About the same. It don't
[sic] get no [sic] better, don't [sic] get no [sic] worse. It never changes.
Q: What about- how does it
affect your ability to sit, stand and walk?
A: Just- it does. I mean it's painful. It's
basically affected a lot of things, you know. I've got a newborn kid and my
wife has to do it all, you know. It's hard on her, you know. It's hard on us
both.
At that time he was not taking any
medication.
Cook's goal was to return to work at
Somerset-Burnside. As to his current ability to return to work, he testified as
follows:
Q: Lee, in your present condition could you
go back and do the work that you've done at the garage door company?
A: Ain't [sic] no way.
Q: Can you sit, stand or walk for eight hours
without having to lay down?
A: No.
Cook quit high school after completing
the eleventh grade and has not obtained a GED.
Cook received temporary total
disability benefits from April 15, 2011, through July 14, 2011.
Cook also testified at the November
19, 2014, hearing. Concerning his pain and limitations, he testified:
A: Well, I'm still having the back pain in my
low back, but it's not as severe as it was before. I would give it about a
seven, as of right now- you know, dealing with the cold weather and all that
stuff.
Q: So, if you had to tell me- if it wasn't
cold weather, just on an average day for you where would your pain level be on a
scale of one to ten?
A: It's- it's according. Some days it's a five and then it goes
up to- like, an eight.
Q: So, it'll range...
A: It ranges, yes. It's according to how much
I do during the day to what part or how much it's...
Q: And then you were talking about the left
leg pain that's coming back. How would you describe the severity of that?
A: Well, it's like- it goes down my leg and
into my foot. And it feels like- you're pretty much stepping on needles is what
it feels like. Like, if I sit up too long or stand up too long, you know, it
worsens.
Q: Is the pain similar to what you had before
the surgery?
A: Yes, sir.
...
Q: As far as how frequently you have pain...
A: Pretty much all the time.
Q: Are you ever pain free?
A: No, sir.
Q: And the pain that- you said low back. I
mean, is it- can you give me, I guess, a location of the pain?
A: It's like right around my belt line right
there- like, as your belt goes across. That's about where it's at.
Q: And the left leg pain- where is it?
A: All the way- I mean, it does down through
the center of my leg down to my foot. And like I said, the foot is like- you
know, pretty much like you're stepping on pins or something.
Q: And as far as your low back condition and
your left leg, do you have problems in sitting, standing?
A: Yes, sir.
Q: And what problems- how long can you sit
before you have to get up and move around?
A: Around thirty minutes- twenty or thirty
minutes.
Q: And then what happens after twenty or
thirty minutes?
A: Then my leg starts worsening, and my foot.
Q: What about your back?
A: And my back, yes- it hurts all the time,
you know, my back does. Like I said, it just varies. Sometimes it's- you know,
worse than others....
...
Q: And what about standing, how long can you
stand before you have to...
A: Right around twenty minutes- maybe
twenty-five minutes or something like that.
Q: Do you have any problems in walking?
A: Yes, sir.
Q: What problems do you have?
A: Just the pain worsening.
Q: And if you could alternate these
positions, could you do that for eight hours, without having to lay down?
A: No, sir, there's no way.
Cook was taking anxiety medication at
the time of the hearing, but was not taking pain medication.
Concerning his psychological condition
and injury, Cook explained:
A: Well, sir, I worked for what, eight years,
and I always provided for my family. I was there for my boy. I was able to do
things with him that I cannot do with my daughter now- that's a three-year-old.
And you know, it has caused trouble between me and my wife- not really, it's
just that I get aggravated, you know, because I can't- I can't provide for my
family and I was used to doing that. And it is just about to kill me. I just
can't hardly take it. I've always- you know, all these other kids going out and
doing things and I ain't [sic] got the money to do it, because we're living on
my wife's money and that's it. And then we had to move in with my mother-in-law
and stuff, and that's actually killed me the worst. We've just now finally
gotten us a place on our own. It's just nothing to [sic] what we've had before.
We just live in a mobile home.
...
Q: I know you've
mentioned anger. You have some anger issues over this?
A: Yes, sir, honestly, I've got pretty bad
anger issues. I mean, I just get aggravated at something, you know, when I
can't do something. I just feel worthless. I mean, that's the honest truth, I
feel worthless. I mean....
Dr. El-Naggar performed L5-S1 fusion
surgery on September 1, 2012. In his December 8, 2011, deposition, Dr.
El-Naggar testified Cook was not yet at maximum medical improvement
("MMI").
A medical record of Dr. El-Naggar
dated January 31, 2013, indicates the following permanent restrictions:
"Pt. has permanent restrictions not to lift/push/pull more than 10 lbs.
and he should alternate sitting, standing, walking every 1 hour."
In his June 27, 2013, deposition, Dr.
El-Naggar testified he expects Cook to reach MMI one year after his surgery
which will be near September 1, 2013. Pursuant to the 5th Edition of
the American Medical Association, Guides to the Evaluation of Permanent
Impairment, ("AMA Guides"), he would expect Cook to have a
22% whole person impairment rating. He attributes Cook's injuries and the
resulting fusion surgery to the April 14, 2011, work injury. He confirmed the
permanent restrictions he previously imposed.
In a report dated February 27, 2014,
Dr. El-Naggar stated the 22% impairment rating, as expressed in the June 27,
2013, deposition, remains the same. He also stated his opinions regarding
permanent restrictions for Cook have not changed.
The psychological report of Dr. Dennis
Sprague was introduced by Cook. Dr. Sprague offered the following diagnoses:
Axis I: 323.83 Depressive disorder due to
another medical condition with mixed features.
393.84 Anxiety
disorder, due to medical condition
Axis II: Social disability
Intellectual developmental
disorder, mild to moderate
Axis III: Medical Sequelae as Medically
Diagnosed
Axis IV: Psychosocial Stressors:
unemployment, physical health problems, emotional factors, present life
circumstances
Axis V: 52 Highest Global Adaptive
Functioning past year
Dr. Sprague opined Cook's
psychological complaints are a direct result of his work-related injury and
assessed a 25% impairment rating pursuant to the 2nd Edition of the
American Medical Association, Guides to the Evaluation of Permanent
Impairment, ("AMA Guides, 2nd Ed.")
The April 23, 2014, psychological
report of Dr. Christy Hundley was introduced by Cook. Dr. Hundley set forth the
following diagnostic impressions:
309.28 Adjustment Disorder, with Mixed
Anxiety and Depressed Mood
V62.89 Borderline Intellectual Functioning
315.1 Specific Learning Disorder, with Impairment in
Mathematics, Mild
In this
report, Dr. Hundley opined as follows:
Mr. Cook did not express specific occupational interest during
the evaluation, and would likely benefit from opportunity for exploring
vocational interests. He appears exceedingly indecisive due to concerns about
chronic back pain and needs for accommodations in the workplace.
The January 20, 2015, Opinion, Order,
and Award, contains the following "Discussion and Determinations":
. . .
An
injured worker’s testimony concerning his condition is competent evidence and
has probative value. Caudill v. Maloney’s Discount Stores, 560
S.W.2d 1, (Ky., 1977)
An
ALJ may believe part of the evidence and disbelieve other parts of the evidence
whether it comes from the same witness or the same adversary part’s total
proof. Caudill, Supra.
Plaintiff
was observed and heard during his November 19, 2014 final hearing. Plaintiff appeared depressed, and slow to
answer questions. He appeared
overwrought with his work-related injury problems. He was credible. He was forthright. There is no apparent reason to question his
credibility, sincerity or forthrightness.
PHYSICAL
INJURY
Plaintiff
credibly testified that before his work injury he did not experience any low
back problems or symptoms of an injury.
There seems to be little dispute Plaintiff did sustain some type of low
back injury as a result of his April 14, 2011 work incident.
The
question to be determined is the extent and duration of Plaintiff’s
occupational disability resulting from his work injury. Plaintiff’s treating Orthopedic Surgeon Dr.
El-Naggar assessed a 22% WPI and Defendant’s Dr. Lester assessed a 20%
WPI. Both were calculated under the
Fifth Edition of the AMA Guidelines. Based upon the fact Dr. El-Naggar has been able to examine, monitor and treat
Plaintiff, including his opportunity to actually see inside Plaintiff’s lumbar
spine, the proof provided through Dr. El-Naggar carries greater weight on the
WPI issue, and, therefore, it is determined Plaintiff has sustained a 22% WPI
as a result of his April 14, 2011 work incident.
The
next question to be determined is whether Plaintiff sustained a psychological
injury as a result of his work incident.
The
general rule is that all of the injurious consequences flowing from a
work-related injury, and that are not attributable to an unrelated cause, are
compensable. Beech Creek Coal Co. v. Cox, 237 S.W.2d 56 (Ky., 1951). When there is substantial evidence indicating
an injured worker’s anxiety and/or depression are due to a work-related
physical injury, it can be deemed the psychological injury is a direct result
of the traumatic work incident, and is compensable. Coleman v. Amalie Enterprises Inc., 58 S.W.3d 459 (Ky. 2001).
There
is substantial persuasive proof indicating Plaintiff’s alleged psychological
condition is a result of his April 14, 2011 work incident and is compensable.
Though
Plaintiff’s Dr. Sprague finds a work-incident psychological injury, and
Defendant’s Dr. Shraberg does not find a work-incident related psychological
injury, the proof presented through Dr. Hundley’s report, an evaluation done
for the State Vocational Office, and not done at the request of either of the
parties, indicates “Mr. Cook would likely benefit from outpatient counseling
services for support related to his change in lifestyle following work-related
injury.” Dr. Hundley went on to note
Plaintiff would benefit from ongoing medication management for treatment of his
anxiety and depression. Dr. Hundley’s
unbiased input strongly suggests Plaintiff has a psychological component to his
work injury. This is also the input of
Plaintiff’s Dr. Sprague.
A
review of Dr. Shraberg’s June 2014 evaluation report reveals a circuitous
course of logic. Dr. Shraberg notes, “although
this man has a situational depression associated with his present absence from
the workforce,” and “from the vantage point of his stressor, it is primarily
situational,” but, he then goes on to represent Plaintiff does not have a
work-injury related psychological problem, which is it? This never ending circle of logic is akin to
the riddle “which came first the chicken or the egg?” Dr. Shraberg indicates Plaintiff does have
situational depression due to his absence from the workforce, but it cannot be
denied Plaintiff’s absence from the workforce is a consequence of his April 14,
2011 work injury. Is Plaintiff supposed
to perform the difficult task of returning to the workforce and thus eliminate
his stressor, or is he to let go of the stressor and then return to the
workforce? The stressors Plaintiff has
and his absence from the workforce are due to his April 14, 2011 work incident.
The
input of Drs. Hundley and Sprague indicate Plaintiff has sustained a
psychological injury as a result of his April 2014 work incident.
Having
determined Plaintiff has sustained a psychological work-injury, it is next
appropriate to ascertain what is Plaintiff’s psychological WPI. Only two WPI ratings have been provided -
Plaintiff’s Dr. Sprague’s 25% and Defendant’s Dr. Shraberg’s 0%. Having found
Plaintiff does have a psychological component to his work injury, it would seem
obvious that 0% does not accurately reflect Plaintiff’s psychological
impairment. The only percentage given,
that could be considered as accurately reflecting Plaintiff’s psychological
impairment, is Dr. Sprague’s 25%.
It
is determined Plaintiff has a 25% WPI pursuant to the psychological component
of his work injury.
Plaintiff
claims to be permanently totally occupationally disabled as a result of his
April 2011 work injury.
“Permanent
total disability” is defined in KRS 342.0011 (11) as being 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.
As
used in the definition of “permanent total disability,” the word “work” is
defined in KRS 342.0011 (34) as meaning, “providing services to another in
return for remuneration on a regular and sustained basis in a competitive
economy.
To
determine whether an injured worker’s occupational disability fits within the
above statutory definitions it is necessary to do an analysis as set forth in Ira A. Watson Department Store v. Hamilton,
34 S.W.3d 48 (Ky., 2000). Under Watson the injured worker’s status must
be considered using several certain factors - the workers age, education level,
vocational skills, post-injury medical restrictions, and the likelihood the
injured worker can resume some type of “work” under normal employment
conditions. The following analysis is
set forth.
AGE:
At the time of his injury Plaintiff was 27 years old. This age suggests Plaintiff is not
permanently totally occupationally disabled.
EDUCATION
LEVEL: Plaintiff’s formal education level is that he withdrew from the 10th
grade [sic] at Pulaski Central High School.
He explained he withdrew, “I couldn’t do it... I guess it was too
hard.” He reported receiving mostly D’s
and F’s during the years he was in school.
He was required to repeat the fourth grade. The results of several of the evaluations
done in the course of this litigation indicated Plaintiff has an IQ of 70, and
fell into the borderline range of intellectual functioning. The measurements indicated Plaintiff had a
learning disability in the areas of mathematical computation and reading. Plaintiff’s level of education, both formal
and measured, strongly suggests he is permanently totally occupationally
disabled.
VOCATIONAL
SKILLS: It appears the only vocational skill Plaintiff has is manual labor,
which, at least to this point of his life, is limited to the repair and
installation of garage doors and windows.
It is unlikely he will be able to use this skill due to the physical
consequences of his work injury.
Defendant’s Dr. Conte,
Vocational Consultant, indicated Plaintiff has the skill of driving, the skill
of performing mechanical and manual tasks, the skill of being a cashier, the
skill of being a security guard, etc.
Assuming these are realistic skills for Plaintiff to learn, he
presently, but for driving, has none of these skills. Plaintiff’s present lack
of transferable skills suggest Plaintiff is permanently totally occupationally
disabled.
POST-INJURY
MEDICAL RESTRICTIONS: Plaintiff has substantial post-injury medical
restrictions. As previously noted, in
his initial IME evaluation report, Defendant’s Dr. Lester, indicated he would
recommend permanent restrictions after reviewing the FCE, but in his December
30, 2013 follow up letter he forgot to do so.
A review of the FCE report indicates Plaintiff should be limited in
floor to waist lifting, restricted in hand grip, limiting provisions should be
made for sitting and standing postures, restrictions should be made for
ambulation, and certain types of standing positions. These are substantial restrictions for a
heavy manual duty laborer.
Even if Dr. Lester’s
anticipated restrictions were not considered, the restrictions imposed by
Plaintiff’s treating neurosurgeon, Dr. El-Naggar are significant. On June 24, 2012 Dr. El-Naggar gave the
ultimate restriction, “he cannot work.
He cannot go back to work, because even sedentary work can cause him to
have back pain. People who have discogenic
back pain, they have the worst pain when they sit because sitting puts pressure
on the disc almost about four times more than standing or walking. So sedentary work is out. Standing in one position causes back pain,
bending over causes pain so…” (Depo. p. 24-25).
Similarly,
as to Plaintiff’s psychological injury, Dr. Sprague indicated Plaintiff could
not return to work from a psychological perspective and should have ongoing
psychological counseling. Plaintiff's
medical records suggest he is permanently totally occupationally disabled.
LIKELIHOOD
OF RESUMING SOME TYPE OF WORK: At this time it is unlikely Plaintiff retains
the capacity to “work.” He has a
pitifully poor level of education, and demonstrated in standardized test
results a poor capacity to likely increase his level of education. His present vocational skill of heavy manual
labor is substantially compromised as a result of his work injuries. If he learns the skill or skills mentioned by
Dr. Conte, Plaintiff’s chances of being able to “work” would increase, but he
does not presently have those skills.
The physical restrictions set by Dr. El-Naggar substantially compromise
Plaintiff’s capacity to “work.”
Based
upon the findings of the Watson
analysis, it is determined Plaintiff is permanently totally occupationally
disabled.
It may have been noted
that the determination of Plaintiff’s occupational disability is made in the
context of Plaintiff’s present situation.
In the event Plaintiff is able to learn occupational skills, and/or
raise the level of his education, and/or lessen his work-injury related restrictions,
or in any way lessen his present level of occupational disability, then
Defendant, pursuant to KRS 342.125, should reopen this claim and obtain the
appropriate relief.
Somerset-Burnside filed a petition for
reconsideration asserting several errors including those it now asserts on
appeal. Except for amending the award to delete erroneous language concerning
the award of PTD benefits, the petition of reconsideration was denied by order
dated February 27, 2015.
Somerset-Burnside's first argument on
appeal is the ALJ erred by considering the issue of disability in the context
of Cook's present condition. We disagree.
The
Workers' Compensation Act defines permanent total disability
as “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).
In
the January 20, 2015, decision, the ALJ amply discussed the evidence which
persuaded him Cook is permanently totally disabled. The January 20, 2015,
Opinion, Order, and Award contains a thorough discussion of the pertinent
factors relevant to an analysis of permanent total disability including age,
education level, vocational skills, post-injury medical restrictions, and the
likelihood of Cook resuming some type of work. The ALJ's analysis spans
approximately five pages and is thorough and consistent with the law.
Significantly, Somerset-Burnside does not
argue substantial evidence does not support the ALJ's determination of
permanent total disability. Rather, Somerset-Burnside argues the ALJ's analysis
improperly focused on Cook's "present situation." Regarding the ALJ's
statement the determination of Cook's occupational disability is made in the
context of "Plaintiff's present situation," we note that an analysis
of permanent total disability is ultimately an analysis of a claimant's present
condition. Specifically, it is an analysis as to whether the claimant presently has a permanent disability
rating and a complete and permanent inability to perform any type of work as a
result of an injury according to the factors enunciated in the relevant case
law. KRS 342.0011(a)(c); See Ira
A. Watson Department Store v. Hamilton, supra. The ALJ's analysis is
in perfect harmony with the law.
Somerset-Burnside also argues the
ALJ's finding of permanent total disability is based upon a misinterpretation
of its rights on reopening. It argues as follows:
After confirming the determination of Cook's
occupational disability was made 'in the context of Plaintiff's present
situation,' the ALJ identified the following as opportunities for the employer
to "reopen this claim and obtain the appropriate relief:"
1. Cook is able to learn
occupational skills; and/or
2. Cook raises the level of
his education; and/or
3. Cook lessens his
work-injury related restrictions;
4. Or in any way lessens his
present level of occupational disability.
None of the opportunities cited to reduce a
permanent total disability award are provided by KRS 342.125(3).
The above-cited language regarding
reopening is included in the January 20, 2015, Opinion, Order, and Award.
However, this is of no consequence in light of the ALJ's comprehensive analysis
regarding Cook’s occupational status and entitlement to PTD benefits. The ALJ carried
out a thorough analysis pursuant to Ira A. Watson Department Store, supra.
Any language, even if partially or completely erroneous regarding Somerset-Burnside’s
right to reopen at a later date is superfluous.
Accordingly, the January 20, 2015, Opinion,
Order, and Award and the February 27, 2015, Order ruling on Somerset-Burnside's
petition for reconsideration are AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON CHRISTION HUTSON
P O BOX 995
PADUCAH KY 42002
COUNSEL
FOR RESPONDENT:
HON MARK D KNIGHT
P O BOX 49
SOMERSET KY 42502
RESPONDENT:
AMR EL-NAGGAR MD
75 HAIL KNOB ROAD
SOMERSET KY 42503
ADMINISTRATIVE
LAW JUDGE:
HON
OTTO D WOLFF IV
8120
DREAM ST
FLORENCE KY
41042
