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Workers’
Compensation Board
OPINION
ENTERED: June 10, 2016
CLAIM NO. 201358420
MANCHESTER MEMORIAL HOSPITAL PETITIONER
VS. APPEAL FROM HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE
STEVE SMITH
HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART
VACATING
IN PART
AND
REMANDING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Manchester Memorial Hospital
(“MMH”) appeals from the September 28, 2015 Opinion, Award and Order and the
October 29, 2015 Order on Reconsideration rendered by Hon. Chris Davis, Administrative
Law Judge (“ALJ”). The ALJ determined
Steve Smith (“Smith”) suffered a work-related injury to his left upper
extremity resulting in a 7% whole person impairment rating, and awarded
temporary total disability and permanent partial disability benefits. On appeal, MMH argues there is insufficient
evidence to support the award of temporary total disability (“TTD”) benefits or
permanent partial disability benefits based on a 7% impairment rating. For the reasons explained in this opinion, we
must remand this claim to the ALJ for further analysis of Smith’s entitlement
to TTD benefits.
Smith worked as a
housekeeping aid and maintenance worker at MMH.
At his deposition, he testified he injured his left shoulder on October
28, 2013 when he was moving a table. He
experienced a pop in his shoulder. At
the formal hearing, he testified he had finished moving the furniture and was
taking the trash to the dumpster when he experienced the pop.
Over the next several
days, Smith’s pain worsened and he eventually visited the emergency room, where
he was administered an injection. He was
referred to Medical Associates of Southeast Kentucky and was seen by Karen
Cheek, APRN, who noted limited range of left shoulder motion due to pain. Nurse Cheek prescribed medication and
physical therapy. He returned to work at
light duty, though he missed two weeks of work in December, 2013 due to the
work-related injury. At a follow-up
appointment on January 21, 2014, he was examined for lumbago and a muscle
strain. He was released to return to
work without restrictions on January 25, 2014.
Smith eventually
returned to full duty until August 20, 2014.
On that day, he was throwing trash overhead and his left shoulder popped
again, which sent a sharp, severe pain down his arm and through his back. Smith treated again at the emergency room,
and followed up with Nurse Cheek. X-rays
revealed reduced acromiohumeral space.
Nurse Cheek restricted Smith to light duty work. An MR arthrogram was conducted on December 9,
2014 which was negative. The source of
Smith’s pain was not identified.
Dr. Jeffrey Uzzle
conducted an independent medical examination (“IME”) on August 3, 2014, before
Smith’s second injury. He reviewed
medical records and conducted a physical examination. Smith reported pain and stiffness in his left
shoulder. Dr. Uzzle noted mild
tenderness and limitation in the left shoulder, and mildly positive left
shoulder impingement signs. He diagnosed
left shoulder impingement and rotator cuff tendonitis, which he attributed to
the 2013 work-related injury.
Referencing the American Medical Association, Guides to the
Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”),
Dr. Uzzle assigned a 4% whole person impairment rating and recommended
restrictions against lifting over 25 pounds with the left shoulder.
Dr. Phillip Corbett
conducted an IME on August 7, 2014, also before Smith’s second injury. Dr. Corbett noted x-rays of the left shoulder
showed slight narrowing of the subacromial space with significant bilateral AC
joint arthrosis. Physical examination
was limited by Smith’s pain, though Dr. Corbett noted a pop with range of
motion testing. Dr. Corbett diagnosed
possible glenoid labrum tear and AC arthrosis, and recommended an MR arthrogram
for a more certain diagnosis.
On April 24, 2015, Dr.
Corbett reviewed additional records, including the December 9, 2014 MR
arthrogram. He found no evidence of a
rotator cuff or labral tear. Rather, he
believed Smith suffered from normal, age-related degenerative changes. He did not believe Smith sustained a
work-related injury on October 28, 2013 or August 20, 2014.
Dr. Patrice Beliveau
examined Smith on March 16, 2015. He
reported pain in his left shoulder. Dr.
Beliveau noted full active and passive range of motion in the left arm, and
tenderness to palpitation. Dr.
Beliveau’s review of x-rays showed no evidence of fracture or dislocation. She diagnosed left pectoralis strain.
Dr. Arthur Hughes
conducted an IME on June 24, 2015. On physical
examination, Smith exhibited limited range of left shoulder motion and normal
upper extremity strength. He diagnosed
left shoulder pain and limitation of motion, and believed the work-related
injuries caused Smith’s complaints. He
assigned a 7% impairment rating pursuant to the AMA Guides. He did not believe Smith was at maximum
medical improvement (“MMI”), but if he did not receive further treatment, he
was at MMI. He restricted Smith from
lifting with the left arm or performing above-shoulder work.
Relying on the opinions
of Drs. Uzzle and Hughes, the ALJ determined Smith suffered a work-related
injury. He relied on Dr. Hughes’ opinion
to award permanent partial disability benefits based on a 7% impairment rating.
The ALJ awarded TTD benefits from October 29, 2013 through March 16, 2015, the
date at which Dr. Beliveau placed Smith at MMI.
He also determined Smith was working light duty during this period.
MMH petitioned for
reconsideration, raising the same arguments it makes herein. The petition was denied. On appeal, MMH argues Smith was not entitled
to TTD benefits from October 29, 2013 through December 2, 2013 because he was
working full duty. It also challenges
the award of benefits from December 16, 2013 through January 24, 2014 when
Smith was working light duty. Finally,
MMH asserts Smith was again working full duty from January 26, 2014 through
August 20, 2014, and therefore was not entitled to TTD benefits.
Until MMI is achieved,
an employee is entitled to a continuation of TTD benefits so long as he remains
disabled from his customary work or the work he was performing at the time of
the injury. In Central Kentucky Steel
v. Wise, 19 S.W.3d 657, 659 (Ky. 2000), the Kentucky Supreme Court further
explained that “[i]t would not be reasonable to terminate the benefits of an
employee when he is released to perform minimal work but not the type that is
customary or that he was performing at the time of his injury.” To be entitled to receive TTD, an injured
worker must prove both that he is unable to return to his customary, pre-injury
employment and that he has not reached MMI from his work-related injury.
The ALJ rendered his
decision prior to the Kentucky Supreme Court’s recent decision in Trane
Commercial Systems v. Tipton, 481 S.W.3d 800 (Ky. 2016). In Tipton, the Court clarified when TTD is appropriate in cases where the employee
returns to modified duty:
As
we have previously held, “[i]t would not be reasonable to terminate the
benefits of an employee when he is released to perform minimal work but not the
type [of work] that is customary or that he was performing at the time of his
injury.” Central Kentucky Steel v. Wise, 19 S.W.3d at 659. However, it
is also not reasonable, and it does not further the purpose for paying income
benefits, to pay TTD benefits to an injured employee who has returned to
employment simply because the work differs from what she performed at the time
of injury. Therefore, absent extraordinary circumstances, an award of TTD
benefits is inappropriate if an injured employee has been released to return to
customary employment, i.e. work within her physical restrictions and for which
she has the experience, training, and education; and the employee has actually
returned to employment. We do not attempt to foresee what extraordinary
circumstances might justify an award of TTD benefits to an employee who has
returned to employment under those circumstances; however, in making any such
award, an ALJ must take into consideration the purpose for paying income
benefits and set forth specific evidence-based reasons why an award of TTD
benefits in addition to the employee's wages would forward that purpose.
Though MMH has only
argued on appeal that the award of TTD benefits is not based on substantial
evidence, we believe the more prudent resolution is to remand this claim for
additional findings of fact. The ALJ is
requested to examine Smith’s entitlement to TTD benefits during his periods of
light duty work, employing the analysis set forth in Tipton. This analysis includes a comparison of
Smith’s pre-injury duties and his light duty work, and whether his light duty
work constitutes customary work; that is, work within his physical restrictions
and for which he has the experience, training, and education.
MMH also argues the ALJ
erred in relying upon Dr. Hughes’ impairment rating. It argues the ALJ improperly ignored the
diagnostic MR arthrogram and the opinions of Drs. Beliveau and Corbett. Though the ALJ acknowledged and summarized
the MR arthrogram results, MMH asserts he was obligated to more thoroughly
discuss how the study impacted his final conclusion.
As the fact-finder, the ALJ
has the sole authority to determine the weight, credibility and substance of
the evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ has the discretion to determine all
reasonable inferences to be drawn from the evidence. Miller v. East Kentucky
Beverage/ Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General
Refractories Co., 581 S.W.2d 10 (Ky. 1979). The ALJ may reject
any testimony and believe or disbelieve various parts of the evidence,
regardless of whether it comes from the same witness or the same adversary
party’s total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky.
2000). Although a party may note evidence supporting a different outcome
than reached by an ALJ, such proof is not an adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp., 514
S.W.2d 46 (Ky. 1974). The Board, as an
appellate tribunal, may not usurp the ALJ's role as fact-finder by
superimposing its own appraisals as to the weight and credibility to be
afforded the evidence or by noting reasonable inferences that otherwise could have been drawn from the
record. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky.
1999). In order to reverse the decision of the
ALJ, 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).
Dr. Hughes’ opinion
constitutes substantial evidence upon which the ALJ was free to rely. Dr. Hughes reviewed the MR arthrogram and
noted the negative results in his report.
Relying on his physical examination, he reached the conclusion Smith
suffered a work-related injury resulting in a 7% impairment rating. He cited the sections of the AMA Guides
which he referenced in reaching his conclusion.
The ALJ was entitled to rely upon this evidence, and this Board is
without authority to re-weigh the proof to reach a contrary result.
For the foregoing
reasons, the September 28, 2015 Opinion, Award and Order and the October 29,
2015 Order on Reconsideration rendered by Hon. Chris Davis, Administrative Law
Judge, is hereby AFFIRMED IN PART,
VACATED IN PART, and REMANDED. The
award of temporary total disability benefits is vacated and this claim is
remanded for further findings of fact consistent with this opinion.
ALVEY, CHAIRMAN, CONCURS.
STIVERS, MEMBER, NOT SITTING.
COUNSEL
FOR PETITIONER:
HON WHITNEY MOBLEY
333 W VINE ST #1100
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON MCKINNLEY MORGAN
921 S MAIN ST
LONDON, KY 40741
ADMINISTRATIVE
LAW JUDGE:
HON CHRIS DAVIS
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
