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Workers’
Compensation Board
OPINION
ENTERED: August 12, 2016
CLAIM NO. 201501721
LEXINGTON FAYETTE URBAN
COUNTY GOVERNMENT PETITIONER
VS. APPEAL FROM HON. JOHN
B. COLEMAN,
ADMINISTRATIVE LAW JUDGE
DONNIE JENT and
HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Lexington
Fayette Urban County Government (“LFUCG”) seeks review of the Opinion and Award
rendered May 5, 2016 by Hon. John B. Coleman, Administrative Law Judge (“ALJ”)
awarding Donnie Jent (“Jent”) temporary total disability (“TTD”) benefits, permanent
partial disability (“PPD”) benefits, and medical benefits for a work-related low
back injury on November 1, 2013, when he stepped from a truck he used in
performing recycling activities. LFUCG
also appeals from the May 27, 2016 order denying its petition for
reconsideration.
On appeal, LFUCG argues
the award of TTD and PPD benefits is not supported by substantial
evidence. Because the ALJ’s decision is
supported by substantial evidence, we affirm.
Jent filed a Form 101 on
October 28, 2015, alleging he injured his low back when he stepped out of a
truck and experienced a pop in his left knee on November 1, 2015. The claim was subsequently amended to assert
the injury actually occurred on November 1, 2013. Jent’s work history indicates he has worked
as a waste management route driver, concrete mixer driver, and as a lumber and
building materials delivery driver.
Jent testified by
deposition on January 26, 2016, and the hearing held on March 30, 2016. He is employed as a recycling truck driver
for LFUCG. Jent is a resident of
Winchester, Kentucky, and is a high school graduate with no specialized or
vocational training.
On November 1, 2013,
Jent stopped at a residence to pick up cardboard to put into the back of the
recycling truck. As he stepped down, he
experienced a pop and pain in his left knee.
He first treated with Dr. D’Angelo (no first name provided), at
Bluegrass Orthopedics in Lexington, Kentucky.
After Jent advised he also had pain in the low
back going into his left leg, Dr. D’Angelo ordered an MRI. Jent was eventually referred for treatment to
Dr. Harry Lockstadt, who also works for Bluegrass Orthopedics.
Jent continued to work
for LFUCG, with assistance, until August 2015.
He experienced an additional work event on August 14, 2015. On that morning he was advised he would no
longer have an assistant for his route.
He worked for approximately four hours, and stopped at a resident’s
house to dispose of four large cardboard boxes.
He placed these into the back of the truck. When he got back into the driver’s seat, he
experienced pain from his back through the left leg which ran into his left big
toe. He treated with Dr. Lockstadt and
was taken off work. Dr. Lockstadt
administered epidural injections and restricted Jent from work from August 15,
2015 through February 28, 2016. Dr.
Lockstadt recommended low back surgery which Jent declined. He allowed Jent to return to full duty work
on February 29, 2016, despite continued complaints of low back and left leg
pain.
When Jent returned to
work on February 29, 2016, he was provided an assistant. He stated the job is much easier to perform
with a helper. His current problem
consists of pain in the left hip to a few inches above the left knee. He takes only over-the-counter Aleve.
In support of his
claim, Jent filed the Form 107-I report of Dr. James Owen who performed an
examination on January 15, 2015. Dr.
Owen incorrectly stated Jent had sustained a low back injury on November 1, 2014
when he felt something pop in his left leg and knee area. Dr. Owen diagnosed persistent L5-S1
non-verifiable radicular symptoms with a positive MRI caused by the work
injury. He assessed a 10% impairment
rating pursuant to the American Medical Association, Guides
to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”),
despite determining Jent had not reached maximum medical improvement
(“MMI”). He additionally stated Jent
retains the capacity to return to the job performed on the date of injury. Finally, he restricted Jent from lifting,
handling, or carrying greater than twenty pounds. He also stated Jent should avoid recurrent
bending, squatting or stooping.
Dr. Owen testified by
deposition on March 21, 2016. He saw
Jent on only one occasion, the January 2015 examination. He stated he had assessed a category III
rather than II impairment because he did not believe the refusal of additional
injections by the workers’ compensation insurer was appropriate. He did not believe Jent had reached MMI at
the time of his evaluation because of Dr. Lockstadt’s
recommended treatment. He stated Jent
was working at the time of his examination.
He was unaware of Jent’s August 2015 incident.
Jent also filed Dr. Lockstadt’s February 15, 2016 treatment record. Dr. Lockstadt noted Jent complained of SI
joint pain, left buttock pain, and low back pain. He stated Jent was slowly recovering from an
L5-S1 disk injury. Dr. Lockstadt stated
Jent could return to regular duty work on December 29, 2016. The parties agreed this was a typographical
error, and should have reflected February 29, 2016.
LFUCG filed the October
16, 2015 and November 10, 2015 reports of Dr. Henry Tutt. Dr. Tutt examined Jent at LFUCG’s request on October 16, 2015. He noted Jent complained of left leg pain and
tingling in both legs, left greater than right.
He stated on August 13, 2015, Jent got out of his truck to pick up
cardboard boxes, and loaded them for recycling.
He experienced immediate low back pain shooting into his left leg which
worsened throughout the day. Dr. Tutt
noted Jent initially complained of left knee pain, not low back and left leg
pain. He stated he could not determine a
diagnosis, but noted Jent’s complaints were
non-dermatomal. He stated the
musculoskeletal and neurological examinations were normal.
On November 10, 2015,
Dr. Tutt noted he had reviewed testing, and determined Jent had a transient
lumbar myofascial injury with persisting complaints which are inexplicable and
non-correlative with the imaging studies.
He stated Jent did not sustain an injury on August 13, 2015. The MRI performed on October 20, 2015 was
identical to the one performed on February 11, 2014. He stated Jent would have reached MMI six to
eight weeks after the August 2015 event.
He stated Jent did not qualify for an impairment rating.
Dr. Rick Lyon examined Jent at LFUCG’s request on January 28, 2016. He diagnosed lumbar spine pain and a disk
bulge at L5-S1. He stated there were no
objective findings of radiculopathy, but Jent complained of radicular symptoms
occurring up to three times per day. He
stated Jent had reached MMI from the August 14, 2015 incident. He assessed a 5% impairment rating pursuant
to the AMA Guides for the November 1, 2013 injury, with no additional
impairment for the August 2015 incident.
Dr. Lyon recommended Jent return to medium duty work, and he should
avoid repetitive bending, stooping or squatting.
A benefit review
conference (“BRC”) was held on March 9, 2016.
The BRC order and memorandum reflects the issues to be decided included
benefits per KRS 342.730 and TTD benefits.
At the hearing the parties also agreed overpayment of TTD benefits was
preserved as an issue.
The ALJ rendered a
decision on May 5, 2016, finding Jent sustained a work injury on November 1,
2013. He awarded TTD benefits from August 14, 2015 through February 28, 2016 at
the rate of $431.48 per week. PPD benefits
were awarded based upon the 5% impairment rating assessed by Dr. Lyon, which
equated to a 3.25% disability after application of the statutory factors
pursuant to KRS 342.730. The ALJ granted
LFUCG credit for benefits paid, and awarded medical benefits pursuant to KRS
342.730.
LFUCG subsequently
filed a petition for reconsideration arguing the ALJ should have dismissed the
claim. It also argued February 29, 2016
could not be relied upon as the date Jent reached MMI. The ALJ denied the petition for reconsideration
in an order issued May 27, 2016, explaining why he relied upon the 5%
impairment rating assessed by Dr. Lyon, and why he determined February 29, 2016
was the appropriate MMI date.
On appeal, LFUCG argues
the ALJ’s award of TTD and PPD benefits is not supported by the evidence.
As the claimant in a
workers’ compensation proceeding, Jent had the burden of proving each of the
essential elements of his cause of action. See
KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since Jent was successful in his burden, 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).
As
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 that 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 function of the Board in reviewing
an ALJ’s decision is limited to determining whether the findings made are so
unreasonable under the evidence they must be reversed as a matter of law. Ira A. Watson Department
Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). The Board, as an appellate tribunal, may not
usurp the ALJ's role as fact-finder by superimposing its own appraisals as to
weight and credibility or by noting other conclusions or reasonable inferences
that otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). So long as the ALJ’s ruling with regard to an
issue is supported by substantial evidence, it may not be disturbed on appeal.
Special
Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
Here, the ALJ provided
a sufficient explanation for his reliance upon the impairment rating assessed
by Dr. Lyon in finding Jent’s injury resulted in a 5% impairment rating which
he deemed appropriate. It is noted Dr.
Lyon’s opinion was filed as evidence by LFUCG and clearly supports the ALJ’s
determination. The ALJ’s reliance upon
this impairment rating falls squarely within his discretion, and constitutes
substantial evidence supporting his award of PPD benefits, and therefore, that
determination will not be disturbed.
Regarding the award of TTD benefits, again we
find no error. Since Dr. Lockstadt did
not allow Jent to return to work until February 29, 2016, it was not
unreasonable for the ALJ to conclude he did not reach MMI until that date. There is no question Jent was entitled to a
period of TTD after the August 2015 incident.
Dr. Tutt established Jent reached MMI six to eight weeks after the
August 2015 incident. Dr. Lyon noted
Jent had reached MMI by the time of his examination in January 2016. LFUCG even argues a period of TTD through
November 16, 2015 was appropriate. The
question is not if Jent is entitled to such award, but the duration of the benefit
period. Again, it was reasonable for the
ALJ to rely upon Dr. Lockstadt’s opinion in
determining February 29, 2016 as the date Jent reached MMI, and the end date
for the payment of TTD benefits. Again,
because the ALJ’s determination regarding the appropriate period of TTD
benefits is supported by the record, his decision will not be disturbed.
Accordingly, the
opinion and award rendered May 5, 2016, and the May 27, 2016 order on
reconsideration by Hon. John B. Coleman, Administrative Law Judge, are AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON STEVEN D GOODRUM
HON IAN M GODFREY
771 CORPORATE DR, STE 101
LEXINGTON, KY 40503
COUNSEL
FOR RESPONDENT:
HON TANNER H SHULTZ
333 WEST VINE ST, STE 1200
LEXINGTON, KY 40507
ADMINISTRATIVE
LAW JUDGE:
HON JOHN B COLEMAN
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
