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Workers’
Compensation Board
OPINION
ENTERED: April 15, 2016
CLAIM NO. 201500502 & 201500501
BLEDSOE COAL COMPANY PETITIONER
VS. APPEAL FROM HON. CHRIS
DAVIS,
ADMINISTRATIVE LAW JUDGE
BOBBY STRUNK
and HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
VACATING
IN PART AND REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Bledsoe Coal Company (“Bledsoe”) seeks review of the November 19, 2015,
Opinion, Award, and Order of Hon. Chris Davis, Administrative Law Judge (“ALJ”)
finding Bobby Strunk (“Strunk”) sustained work-related cumulative trauma
injuries to his low back and both shoulders and awarding permanent partial
disability (“PPD”) benefits and medical benefits. The ALJ also awarded medical benefits for
Strunk’s work-related hearing loss but no income benefits. Bledsoe also appeals from the December 29,
2015, Order overruling its petition for reconsideration.
In the Form 101, Strunk alleged cumulative trauma injuries
to his neck, back, and both lower extremities, and left shoulder manifesting on
March 7, 2014.[1] In the Form 103, Strunk alleged work-related
hearing loss manifesting on March 7, 2014.
In an order dated May 20, 2014, the ALJ sustained Strunk’s motion to
consolidate the claims.
After summarizing the lay and medical evidence, in the
November 19, 2015, decision, the ALJ entered the following findings of fact and
conclusions of law regarding Strunk’s alleged cumulative trauma injuries:
The Plaintiff’s claim arises as a result of
cumulative trauma. Factually and legally it could not have gotten any worse
after he left his employment. No
recommended or disputed medical treatment is before me and no additional,
non-diagnostic treatment has been recommended. As such he was at MMI as of his
last date worked and no additional TTD will be award [sic].
The above analysis makes moot any credit for short and
long term disability.
I find the Plaintiff entirely credible and
accurate. As such although he did not seek on-going and extensive medical
treatment for his shoulders and back prior to March 7, 2014 he did have pain
and limitations. He was also not aware
it was work-related.
Following his last date at work he has been treated
by Dr. Williams and examined by Dr. Hughes.
Both physicians feel that the Plaintiff has work-related cumulative
trauma injuries aroused into disabling reality by the Plaintiff’s work.
Dr. Lyon does not dispute that the Plaintiff has
harmful changes to his shoulders and back.
He does think they are normal age related changes and they do not
warrant an impairment rating in any case.
I believe and so find that the Plaintiff’s work did
cause his dormant condition to be aroused into disabling reality, for the
shoulders and his low back. He worked as
an underground coalminer for thirty-nine years.
I can’t expertly say that normal men his age (58) don’t have these
problems but I am not persuaded by Dr. Lyon’s opinion that it is “normal”.
In reliance on Dr. Hughes the Plaintiff
has a 13% impairment rating.
Because Strunk ceased work due to breathing
problems, the ALJ concluded Strunk is not permanently totally disabled and
precluded from returning to his job due to his cumulative trauma injuries, reasoning
as follows:
The Plaintiff left work because of co-morbid
breathing problems. From a physical standpoint he was able to do all of his
required tasks up to that point. His CWP claim is not waived but it [sic] also
not part of these findings. In any case
it would not combine with this claim to cause a total disability award. Purely
for the physical conditions the Plaintiff retains the capacity to return to the
type of work done on the date of injury.
Based on this analysis he is not totally
disabled from the work injury.
Strunk was awarded PPD benefits based
on the 13% impairment rating assessed by Dr. Arthur Hughes.
Bledsoe filed a petition for
reconsideration raising the same arguments it does on appeal. In the December 29, 2015, Order, overruling
the petition for reconsideration, the ALJ stated:
1. The evidence as
summarized in the Opinion is accurate and not disputed.
2. If any clerical errors occurred in
which I stated that Dr. Lyon found a right shoulder condition, but stated it
was not work-related, are merely that, clerical errors [footnote omitted], and
do not alter the overall analysis. They do not alter the fact that substantial
evidence of record exists, from Dr. Hughes, exists [sic] to support the
Opinion.
3. Based on the foregoing the Petition
for Reconsideration is OVERRULED.
On appeal, Bledsoe asserts a
four-prong argument. First, it contends
the ALJ did not properly consider Strunk’s testimony that he did not suffer
right shoulder problems. Bledsoe notes
the summary of the evidence in the November 2015, opinion, references Strunk’s
complaints of back, left shoulder, and neck pain but no complaints of right
shoulder pain. Bledsoe contends the
ALJ’s summary of the evidence is an accurate representation of Strunk’s
deposition and hearing testimony. It
asserts since the ALJ found Strunk’s testimony credible, no impairment should
have been awarded for the right shoulder injury as Strunk admitted his pain or
other problems were confined to his left shoulder.
Second, Bledsoe asserts the ALJ did
not properly characterize Dr. J. Rick Lyon’s opinions regarding the right
shoulder. It observes the ALJ correctly summarized
Dr. Lyon’s independent medical evaluation (“IME”) report as reflecting Strunk
reported left shoulder pain, left arm pain to the elbow, neck and upper back
pain, low back pain, left knee pain, and crepitance. Importantly, the ALJ’s summary contains no
mention of right shoulder pain. However,
in his findings of fact, the ALJ incorrectly stated Dr. Lyon’s does not dispute
Strunk had harmful changes to his shoulders and back. Bledsoe maintains Dr. Lyon noted Strunk
exhibited signs of myofascial pain in the left shoulder and back but he registered
nothing concerning Strunk’s right shoulder.
Bledsoe maintains the June 4, 2015, IME report and June 30, 2015,
supplemental IME report, are completely devoid of references to right shoulder
pain or limitations during his examination.
Bledsoe notes in his December 29, 2015, Order ruling on the petition for
reconsideration, the ALJ stated any misstatement concerning Dr. Lyon’s opinions
was a clerical error which suggests the ALJ agreed Dr. Lyon did not find Strunk
had any harmful change to his right shoulder.
Third, Bledsoe argues the ALJ did not properly consider the
opinion of Dr. Dale Williams in analyzing Strunk’s right shoulder injury claim. It again notes the ALJ correctly summarized
Dr. Williams’ findings. However, Dr.
Williams’ records do not reference right shoulder complaints or a diagnosis of
a right shoulder condition. Bledsoe
maintains Dr. Williams’ treatment records are consistent with Strunk’s
testimony and Dr. Lyon’s findings. Yet,
neither the ALJ’s decision nor his order ruling on the petition for
reconsideration provide any insight as to whether he considered or gave any
weight to the opinions and findings of Dr. Williams with respect to Strunk’s
right shoulder claim.
Finally, Bledsoe contends Dr. Hughes’ IME report does not
constitute substantial evidence supporting an award for right shoulder impairment. It contends the April 22, 2015, IME of Dr.
Hughes is the only mention in the record concerning reported pain in or
limitation of the right shoulder. Bledsoe
notes Dr. Hughes’ impairment ratings for both shoulders are the same. Bledsoe observes Dr. Hughes assigned an
impairment rating despite the fact Dr. Lyon, Dr. Williams, and Strunk reported
no issues with pain or limitations in the right shoulder. Bledsoe posits the ALJ apparently attributed
considerable weight to Dr. Hughes’ opinions, but provided no explanation for
his reliance upon Dr. Hughes in the face of contrary evidence in the record. Bledsoe also notes that in the order ruling
on the petition for reconsideration, the ALJ seems to indicate Dr. Hughes’
report is the only evidence upon which he relied in concluding Strunk sustained
a compensable right shoulder injury.
Bledsoe maintains the Board’s holding
in Go Hire Empl. Dev., Inc. v. Miller, Claim No. 2012-79265, rendered
January 31, 2014, is applicable arguing as
follows:[2]
It is important to note that, in Go Hire, the plaintiff’s formal
hearing testimony was in contrast to her deposition testimony. While the
plaintiff had denied any CTS symptoms during her deposition, she apparently
changed her testimony at the formal hearing, where she did complain of CTS
symptoms upon direct examination. In its Opinion, this Board suggested that the
IME report of Dr. Hughes together
with the plaintiff’s testimony from the formal hearing might have presented
substantial evidence sufficient to support an award of CTS. In the case at bar,
however, the only evidence which
could have supported the ALJ’s decision is the IME report of Dr. Hughes alone.
Unlike in Go Hire, the Respondent has maintained throughout this case
that he was not claiming any injury with respect to his right shoulder. In
fact, during re-direct examination by his own attorney at the formal hearing,
Respondent unequivocally testified that he only had issues with his left
shoulder, not his right. Thus, this case is distinguishable from Go Hire
in that sufficient reasonsing [sic] exists for a total reversal of the ALJ’s
award for Respondent’s alleged right shoulder injury, as there is no
substantial evidence in the record to support the decision, even on
remand.
Bledsoe seeks reversal of the ALJ’s
award of PPD benefits and medical benefits for Strunk’s cumulative trauma right
shoulder injury.
We decline Bledsoe’s request to
reverse the award for the right shoulder injury. However, because the ALJ’s findings are
contradictory and inaccurate indicating the ALJ did not have a correct
understanding of the evidence relating to the cumulative trauma right shoulder
injury, we vacate the award of income benefits and medical benefits and remand.
In his Form 101, Strunk did not allege a right shoulder
injury. Notably, the records of Dr.
Williams attached to the Form 101 reflect the reason for the initial visit of
November 24, 2014, was “back, shoulder, and knee.” In his medical statement of October 3, 2014,
Dr. Williams noted as follows:
Findings upon examination: Low back
pain down bilateral legs/knees and left shoulder pain. Neck pain. Breathing
problems.
Diagnosis: Cervicalgia with moderate
degeneration. Lumbalgia with moderate degeneration. Knee pain. Left shoulder
pain. Breathing problems.
Dr. Williams responded to the
question “[i]n your medical opinion, has the Patient’s previous employment
caused or contributed to the aforementioned condition(s)? If so, please
explain,” as follows:
Mr. Strunk is a 57 year old male with
39 years in the mining industry, which was all underground. He suffers from
cervicalgia, lumbalgia, moderate degeneration in both regions of the cervical
and lumbar spine, knee and left shoulder pain. He took off work 3/7/14 for
respiratory problems. Mr. Strunk has widespread moderate degeneration. These
findings are consistent with an accumulation damage condition and the
occupational hazards of the mining industry.
On June 22, 2015, when Strunk
introduced in evidence Dr. Hughes’ Form 107 dated April 22, 2015, he also filed
a motion to amend his Form 101 to allege a right shoulder injury. The motion asserted Dr. Hughes examined Strunk
on April 22, 2015, and opined he suffered a cumulative trauma injury to the
right shoulder and assigned an impairment rating. Therefore, Strunk sought to amend his Form
101 to include a cumulative trauma right shoulder injury.
Significantly, after his examination
by Dr. Hughes, on June 15, 2015, Strunk was deposed by Bledsoe. During his deposition, when asked to identify
the body parts he alleged were injured, Strunk provided the following testimony:
Q: You’ve made a claim for cumulative
trauma. Can you tell me what body parts that you’re claiming that you have
issues with as a result of your employment at Bledsoe?
A: My knees.
Q: Both knees?
A: Yeah. My back. My shoulder.
Q: Which shoulder?
A: The left. My neck. And that’s –
that’s about it.
Q: Do you have any problems with your
right shoulder?
A: Not – not like the – not like the
left.
Q: Okay. Do you have any issues with
your legs at all? Besides you knees, any issues with your legs?
A: My right hip hurts when I …
Q: Your right hip?
A: Yeah.
Q: Hurts when you do what?
A: When I stand on my right leg.
Q: Do you have any problem with your
feet or ankles?
A: They – they hurt.
Q: They hurt?
A: Yeah.
Q: Okay. Your feet or your ankles?
A: My ankles.
Q: Your ankles. What about your hands
or your arms?
A: My left arm. And then these fingers.
Q: And you’re referring to the last
three fingers on –
A: No. These. All four of these.
Q: Okay. All four of your fingers, not
your thumb, on your right hand?
A: Yeah.
Q: Okay. What kind of problems do you
have with them?
A: They go numb.
Q: And that’s on the right, for the
record?
A: Yeah.
Q: Have you seen a doctor for carpal
tunnel or anything like that?
A: No.
Strunk provided a fairly in depth
explanation of how each body part had been adversely affected by the cumulative
trauma he experienced while at work. When
asked specifically about his right shoulder problems, Strunk provided the
following testimony:
Q: Okay. Now, you said that you don’t
really have trouble in your right shoulder –
A: Yeah.
Q: -- right? Just in your left
shoulder?
A: Yeah.
Q: But you have some issues with your
right hand. Correct?
A: Yeah. Yeah.
The June 4, 2015, report of Dr. Lyon
reflects he received complaints from Strunk regarding the left shoulder, left
arm, neck, and upper back, low back, and left knee. His report does not reflect Strunk voiced any
right shoulder symptoms or problems.
In the same vein, within Dr. Lyon’s summary of the medical
records he reviewed, including those of Dr. Williams and Dr. John Jones,
Strunk’s treating physician, there is no notation that Strunk experienced right
shoulder problems or symptoms.
In a subsequent letter of June 30, 2015, Dr. Lyon noted
Bledsoe informed him Strunk intended to amend his Form 101 to assert a claim
for the injury to the right shoulder. He
noted that in his examination, performed on June 14, 2015, there were no
objective findings to support an impairment rating for the right shoulder.
At the hearing, on direct examination Strunk was asked to address
the physical problems arising from his employment at Bledsoe:
Q: Okay. That’s what I am getting ready
to ask you. Now, I know you had some problems, health-wise, other than what
we’re here on today, correct?
A: Yes.
Q: You were taken off from work, it
appears, back in 2014, I believe, …
A: March 7th.
Q: … by a physician because you had
some problems with your heart.
A: Breathing and my heart.
Q: All right. And, I understand you had
some procedures to correct those problems.
A: Yeah.
Q:
Bobby, even without those problems, were you experiencing other
difficulties trying to maintain your employment with your last years …
A: Yes.
Q: … at Bledsoe?
A: Yes.
Q: What were those problems you were
suffering …
A: My back – my back and knees and my
shoulders and I just couldn’t – I just couldn’t bend. I can’t – I couldn’t get
down – if you had to get down and bend over to walk in fifty inches of coal,
that ain’t – you know, that’s your height, and there’s a lot of times you would
have to crawl and I couldn’t do that. I mean, it got to where I couldn’t do it.
My knee would – it would swell up at times and my back would hurt me so bad,
you know, I couldn’t – I had to – the whole time I’m always around, I have to
lean up on something or stand up, you know, because I hurt so bad in my back.
Q: Is the back the worst problem you’ve
got?
A: No, my breathing. It’s my breathing
and my – my knees, my shoulders and my back and my neck.
Q: So, you’ve got all of those
problems?
A: Yeah. I mean, I hurt
twenty-four/seven, I mean.
Q: Now, you and I sat down after we had
you evaluated for your claim and we went over Dr. Williams’ – Dale Williams’
findings and we went through the information we had on hearing loss and things
of that nature and you directed me to write a letter to your employer, Bledsoe
Coal, on March the 30th and tell them about your problems and give
them notice of your claim?
A: Yeah.
Later during the hearing, the following exchange took place
between Strunk and counsel for both parties:
Q: Okay.
A: …medicines.
Q: That’s okay. That’s okay. I just
wanted to make sure there was nothing new.
A: No.
Q: Okay. Now, when you were telling the
Judge about your shoulders, you were pointing – you were holding your left
shoulder. Is that …
A: Yeah.
Q: … right?
A: Yeah.
Q: And, during your deposition, you
told me that the left shoulder is, really, the one that gives you trouble.
A: Yeah, it hurts. It – it hurts more
than the right.
Q: And, you said that, really, with
your right, the pain that you had was in your hand. Is that still right?
A: Yeah, my – my fingers – my fingers
go numb every – every time I lay down. All – both – it was just one hand and,
now, it’s both hands. They go numb right on the end of my tips of my fingers
and I have to do this to wake them up, I mean, seems like to wake them up. I
don’t know. I mean, …
Q: Okay. But, really, it’s your left
shoulder that you have the trouble …
A: Yeah.
Q: … out of, right?
A: Yeah.
[text omitted]
RE-DIRECT EXAMINATION BY MR. MORGAN:
Q: I think we’ve got it was the left
shoulder that is your problem, correct.
A: Yeah, the left shoulder.
In all claims, the ALJ must provide a
sufficient basis to support his
determination. Cornett v. Corbin Materials, Inc., 807 S.W.2d 56
(Ky. 1991). Parties are entitled to findings sufficient to inform them of
the basis for the ALJ’s decision to allow
for meaningful review. Kentland Elkhorn Coal Corp. v. Yates, 743
S.W.2d 47 (Ky. App. 1988); Shields v. Pittsburgh and
Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982). This Board is
cognizant of the fact an ALJ is not
required to engage in a detailed discussion of the facts or
set forth the minute details of his reasoning in reaching a
particular result. The only requirement is the
decision must adequately set forth the
basic facts upon which the ultimate conclusion was drawn so
the parties are reasonably apprised of the
basis of the decision. Big Sandy Community Action
Program v. Chafins, 502 S.W.2d 526 (Ky. 1973).
In determining the cumulative trauma injuries sustained by Strunk, the
ALJ made the specific finding Strunk was entirely credible and accurate. He also noted Drs. Williams and Hughes felt
Strunk had work-related cumulative trauma injuries aroused into disabling
reality by his work. However, the ALJ
misunderstood the opinions expressed by Dr. Lyon as evidenced by his finding Dr.
Lyon did not dispute Strunk had experienced harmful changes to his shoulders
and back. To the contrary, Dr. Lyon did
not receive any complaints from Strunk concerning his right shoulder. This finding by the ALJ is not a clerical
error as characterized in the December 29, 2015, Order ruling on the petition
for reconsideration. Rather, it is a fundamental misunderstanding of the
evidence. Without providing the specific
medical evidence which served as the basis for his finding, the ALJ stated he
believed Strunk’s work caused his dormant condition to be aroused into
disabling reality for both the shoulders and low back. Relying upon Dr. Hughes, the ALJ found Strunk
had a 13% impairment rating.
The ALJ’s opinion does not demonstrate
he had an accurate grasp of Strunk’s testimony and the opinions of Drs.
Williams and Lyon. In fact, finding
Strunk was a credible and accurate witness, without further explanation, predominately
supports a determination he did not sustain a right shoulder injury.
After finding Strunk’s testimony was
credible and accurate, the ALJ noted Strunk had been treated by Dr. Williams
and examined by Dr. Hughes, and both felt Strunk had work-related cumulative
trauma injuries aroused into disabling reality by Strunk’s work. The problem with this finding is that upon
examination, Dr. Williams did not find or diagnose right shoulder problems. Consequently, Dr. Williams’ report does not
support the ALJ’s finding of a right shoulder injury. In addition, the ALJ incorrectly stated Dr.
Lyon had found harmful changes in both shoulders. Even though Dr. Hughes diagnosed a right
shoulder problem for which he assessed a 4% impairment rating, the fact remains
the ALJ’s summary of the evidence is not in concert with his findings of fact
concerning the opinions expressed in the reports of Drs. Williams and Lyon and
Strunk’s testimony.
In the December 29, 2015, decision, the
ALJ stated substantial evidence in the record exists from Dr. Hughes to support
the opinion. That statement in and of
itself is not sufficient to explain why he relied upon Dr. Hughes in the face
of evidence from Strunk, Dr. Williams, and Dr. Lyon which completely
contradicts Dr. Hughes’ opinions. Just
as important, the December 29, 2015, order does not address the issues raised
by Bledsoe in its petition for reconsideration.
Bledsoe was entitled to additional findings of fact addressing these
legitimate issues.
Thus, we believe the claim should be
remanded to the ALJ for further explanation as to why he found Strunk sustained
a right shoulder injury in spite of Dr. Williams’ medical report and Strunk’s deposition
and hearing testimony given after Dr. Hughes’ examination.
In Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 61, 62 (Ky. 2012),
the Supreme Court directed as follows:
Mindful
that Chapter 342 and the Kentucky Constitution require review of decisions in
post–1987 workers' compensation claims by the Board, the Court of Appeals, and
the Supreme Court, [footnote omitted] when requested, we conclude that KRS
342.275(2) and KRS 342.285
contemplate an opinion that summarizes the conflicting evidence concerning
disputed facts; weighs that evidence to make findings of fact; and determines
the legal significance of those findings. Only
when an opinion summarizes the conflicting evidence accurately and states the
evidentiary basis for the ALJ's finding [footnote omitted] does it enable the
Board and reviewing courts to determine in the summary manner contemplated by KRS
342.285(2) whether the finding is supported by substantial evidence
and reasonable. [footnote omitted]
In the case sub judice, the
ALJ did not discuss the conflicting evidence in the form of Strunk’s testimony
and the report of Dr. Williams indicating Strunk did not sustain a cumulative
trauma right shoulder injury. Further,
his finding as to Dr. Lyon’s opinion regarding the condition of Strunk’s
shoulders is not a clerical error, but a misunderstanding of Dr. Lyon’s
opinion. Because we believe the ALJ did
not have an accurate understanding of Strunk’s testimony and all the medical
evidence, the award of income and medical benefits must be vacated.
On remand, the ALJ must specifically
address Strunk’s testimony, provided after he was seen by Dr. Hughes, and the
report of Dr. Williams and provide the evidentiary basis for his finding concerning
the alleged right shoulder injury in order for this Board and any reviewing
court to determine whether the ALJ’s finding of a right shoulder cumulative
trauma injury is supported by an accurate understanding of the evidence and is reasonable.
We decline to remand for a finding of
no injury to the right shoulder, as we believe substantial evidence may exist in
the record which supports a finding of a work-related right shoulder injury and
an award of PPD benefits and medical benefits.
However, based on the text of the ALJ’s November 19, 2015, decision and
his December 29, 2015, Order, we do not believe the ALJ complied with the
Supreme Court’s directive in Arnold v. Toyota Motor Mfg., supra.
The dissent points to Bledsoe’s
failure to request remand for further findings of fact and its failure to
request further findings in its petition for reconsideration. The dissent mistakenly asserts Bledsoe’s sole
argument on appeal is that there is insufficient evidence to support an award
for the right shoulder injury and reversal is required. As such, the review should be limited as to
whether the award is supported by substantial evidence. To the contrary, in addition to arguing Dr.
Hughes’ report cannot constitute substantial evidence, Bledsoe also contends
the ALJ did not properly consider Strunk’s testimony and did not accurately
characterize the opinions of Dr. Lyon and Dr. Williams regarding the right
shoulder. Clearly, Bledsoe is not just
contending there is insufficient evidence to support an award for the right
shoulder injury. Bledsoe’s first three
arguments are that it is entitled to a decision based on a correct
understanding of the evidence.
All parties to a workers’
compensation dispute are entitled to findings of fact based upon a correct
understanding of the evidence submitted during adjudication of the claim. Where it is demonstrated the fact-finder may
have held an erroneous understanding of relevant evidence in reaching a
decision, the courts have authorized remand to the ALJ for further
findings. See Cook v. Paducah Recapping Service, 694 S.W.2d 684 (Ky.
1985); Whitaker v. Peabody Coal Company, 788 S.W.2d 269 (Ky. 1990).
That scenario exists in the case sub judice. This is not just a question of whether
substantial evidence supports the award.
Rather, the core issue is whether the ALJ had an accurate understanding
of the evidence in reaching his decision.
The dissent does not take issue with the fact the ALJ mischaracterized
Dr. Lyon’s opinion regarding the right shoulder and Dr. Williams did not state
Strunk experienced a work-related cumulative trauma injury to the right
shoulder. In reaching a decision, the
ALJ mischaracterized Dr. Lyon’s opinion and apparently misunderstood the extent
of the injuries found by Dr. Williams. Immediately
following the ALJ’s finding Strunk is entirely credible and accurate, the
summary of the opinions of Dr. Williams and Dr. Hughes and the
mischaracterization of Dr. Lyon’s opinion regarding Strunk’s shoulders, without
citing to any evidence, the ALJ found Strunk’s work caused dormant conditions
to be aroused into disabling reality for the shoulders and low back. The ALJ then stated he relied upon the
impairment rating assessed by Dr. Hughes.
Thus, we are left to conclude based on the three paragraphs immediately
preceding his finding of work-related injuries to the shoulders and low back,
the ALJ relied upon Strunk’s entire testimony and the opinions of Drs.
Williams, Hughes, and Lyon in finding a compensable right shoulder injury.
Herein lies the problem, as most, if not all, of Strunk’s testimony and the
opinions of Drs. Williams and Lyon are not evidence supporting a finding of a
right shoulder injury, a fact the ALJ failed to perceive.
As noted by the dissent, although the
petition for reconsideration did not request additional findings, the ALJ
addressed one assertion of error. The
ALJ did not choose to address the other errors brought to his attention in the
petition for reconsideration. The
petition for reconsideration raised legitimate issues which should have been
addressed by the ALJ.
As noted in the dissent, Strunk vaguely identifies a right shoulder
problem. The relevant portions of
Strunk’s testimony are set out within this opinion. During his deposition,
Strunk only identified a left shoulder injury.
He was specifically asked about a right shoulder injury and testified
his problems with the right shoulder were not like the left. What cannot be lost is the fact Dr. Hughes
assessed the same impairment for both shoulders even though Strunk indicated
his left shoulder condition is much worse than the right. This claim is not being remanded with
directions to dismiss the claim for the right shoulder injury. This is in part
due to Strunk’s deposition testimony and hearing testimony vaguely referencing
problems with “[his] shoulders.”
The dissent characterizes the opinion
as a hypertechnical review of every response of a witness. The opinion does not contain a hypertechnical
review of the testimony. Rather, it sets
forth the actual testimony of Strunk.
The problem is not with inconsistent responses by Strunk, but inaccurate
findings by the ALJ. There is testimony
provided by Strunk which cannot in any way support a finding of an injury to
the right shoulder. The most significant
statement came from Strunk’s attorney who indicated “we’ve got it that the left
shoulder is your problem,” with which Strunk whole heartedly agreed.
There are not inconsistencies within
Strunk’s testimony. Strunk consistently
testified to having little or no right shoulder problems. Notably, the ALJ found Strunk’s testimony
entirely credible and accurate. Strunk
never identified a single right shoulder symptom which is consistent with what
he told Dr. Williams, his doctor, and Dr. Lyon, Bledsoe’s evaluating
doctor. This is what the ALJ failed to
grasp and address in his opinion and subsequent order ruling on Bledsoe’s
petition for reconsideration pointing out these facts. Consequently, there are inaccurate
and thus inadequate findings regarding the evidence. When that occurs the ALJ should be required
to address those inaccuracies particularly when they are fundamental to
resolving a contested issue.
In summary, Bledsoe requested the ALJ to
address obvious inaccuracies within his opinion not inconsistencies. In addressing the inaccuracies the ALJ merely
referenced a clerical error with regard to the opinion of Dr. Lyon. The ALJ did not, in a sufficient manner,
delve into the issues raised regarding his failure to accurately set forth findings
concerning the lay and medical testimony pertaining to the alleged right
shoulder injury. When the ALJ’s findings
and order demonstrate he did not have a correct understanding of the evidence
the claim must be remanded to the ALJ for further findings as directed herein.
Accordingly, the November 19, 2015, Opinion, Award, and Order and the
December 29, 2015, Order ruling on the petition for reconsideration finding
Strunk has a 13% impairment rating and awarding PPD benefits and medical
benefits are VACATED. This claim is REMANDED for entry of an amended opinion and order determining
whether Strunk sustained a compensable right shoulder injury. We emphasize the finding of compensable low
back and left shoulder injuries shall remain unaltered.
ALVEY, CHAIRMAN, CONCURS.
RECHTER, MEMBER, DISSENTS AND FILES A SEPARATE OPINION.
RECHTER,
MEMBER. I respectfully dissent. On appeal, Bledsoe has not requested this
claim be remanded for further findings of fact.
Nor did it request further findings of fact in its petition for
reconsideration before the ALJ. It
argues only that there is not sufficient evidence to support an award
for a right shoulder injury, and asks the award be reversed. As such, review by this Board should be
limited solely to the question of whether the award is supported by
substantial evidence.
Dr. Hughes’ medical
opinion constitutes the requisite substantial evidence to support the award. Furthermore, I disagree with Bledsoe’s
assertion Strunk denied any injury to his right shoulder. At the final hearing, he testified his right
shoulder condition was not as bad as his left shoulder, and stated he had
problems with his “shoulders”. In one
instance, upon a leading question during a brief redirect, did Strunk agree
when asked if “we’ve got it was the left shoulder that is your problem”.
On appeal, Bledsoe
vigorously asserts the ALJ’s determination Strunk was credible is in complete conflict
with his response to this leading question.
I do not believe it is the function of this Board to engage in a
hypertechnical review of every response of a witness. Witnesses often give inconsistent responses
to inartfully worded, leading questions from attorneys, and cannot be expected
to always express themselves carefully.
That is why we afford the ALJ, who is physically present and able to
assess the totality of a witness’ responses and demeanor, wide discretion in
assessing the witness’ credibility.
Strunk amended his
application to include a claim for a right shoulder injury. Bledsoe opposed the motion to amend, but has
not appealed the ALJ’s decision to grant it.
Strunk submitted Dr. Hughes’ report which assessed an impairment rating
for the right shoulder. In his brief to
the ALJ, he requested an award for his right shoulder condition. Bledsoe had ample opportunity to argue
against an award for a right shoulder condition or to request further findings
of fact regarding the award. It chose
instead to challenge only the sufficiency of the evidence supporting the award.
If any inconsistencies exist in the ALJ’s opinion regarding the reports of Drs.
Williams or Lyon, they go to the sufficiency of the ALJ’s findings of fact, not
the sufficiency of the evidence supporting the award. The award is supported by Dr. Hughes’
opinion, and should be affirmed.
COUNSEL FOR PETITIONER:
HON TIMOTHY FELD
HON MORGAN FITZHUGH
333 W VINE ST STE 300
LEXINGTON KY 40507
COUNSEL
FOR RESPONDENT:
|
HON MCKINNLEY MORGAN 921 S MAIN ST |
ADMINISTRATIVE
LAW JUDGE:
HON
CHRIS DAVIS
320
WHITTINGTON PKWY
DWC
SUITE 2ND FL
LOUISVILLE
KY 40222
[1] During the proceedings, Strunk filed a
motion to amend his Form 101 to include a right shoulder injury which was sustained
by order dated July 13, 2015.
[2] In Miller v. Go Hire Employment
Development, Inc., 473 S.W.3d, 621 (Ky. 2015), rendered October 9, 2015,
the Court of Appeals affirmed in part and reversed in part, the Board’s
decision.
