Workers’
Compensation Board
OPINION ENTERED: December 2, 2016
CLAIM NO. 200986745
JAMES MAYER PETITIONER
VS. APPEAL FROM HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE
FORD MOTOR COMPANY
HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. James
Mayer (“Mayer”) appeals from the July 7, 2016 Opinion and Award on Reopening
rendered by Hon. John B. Coleman, Administrative Law Judge (“ALJ”). On appeal, Mayer argues the evidence compels
a finding he is now permanently totally disabled. For the reasons set forth herein, we affirm.
Mayer was injured in a
lifting accident while employed at Ford Motor Company on August 25, 2008. He underwent a spinal fusion at L3-4 and
L4-5. He filed a workers’ compensation
claim and, on March 25, 2010, was awarded permanent partial disability benefits
based on a 28% whole person impairment rating.
Mayer returned to the same job he performed prior to the injury, and at
a greater wage.
Thereafter, Mayer began
to experience increased pain in his right lower extremity. He sought treatment for his lower back and,
after receiving several medical opinions, eventually was advised against
additional spinal surgery. Additionally,
he began to experience urinary incontinence and left ankle pain. Prior to his employment with Ford Motor
Company, Mayer injured his left ankle in a bicycle accident which required
surgery. He indicated the bicycle
accident injury did not impair his ability to work, though his left ankle had
never been “100%” since.
Mayer sought treatment
with Dr. George Quill for the left ankle condition, and fusion surgery was
performed in September, 2014. Dr. Quill
diagnosed Mayer with end-stage arthritis as a result of the fusion surgery
following his bicycle accident. He was
later diagnosed with CRPS, which Mayer attributes to the cast being placed too
tightly around his ankle.
Mayer continues to
suffer low back and lower right extremity pain.
His incontinence continues, and awakes him every hour during the
night. He testified his most significant
problem is his left ankle pain. He uses
a knee scooter, but suffers unrelenting pain daily.
Dr. Ellen Ballard
examined Mayer after his initial injury and assessed a 28% impairment rating
pursuant to the American Medical Association, Guides to the Evaluation of
Permanent Impairment, 5th Edition (“AMA Guides”). She examined Mayer again in April, 2015 and
opined he had developed adjacent level degeneration at the L2-L3 level, above
the area of the fusion. She assessed an
additional 5% impairment rating for this condition. Dr. Ballard further opined Mayer’s urologic
problem is caused by his work-related spinal condition, and added an additional
41% impairment for the incontinence.
However, she acknowledged this opinion had not been corroborated by any
urodynamic study. Finally, Dr. Ballard
concluded Mayer’s altered gait from his right lower extremity radiculopathy had
led to an aggravation of his left ankle condition. She opined Mayer could perform sedentary work
if he is able to change positions frequently.
Dr. Gregory Gleis evaluated Mayer on November 4, 2015 and submitted a
supplemental report on March 7, 2016.
Dr. Gleis opined Mayer’s lower back impairment
has actually improved since his initial injury.
He acknowledged Mayer had developed a new spinal condition at L2-L3, but
noted his current range of motion warrants a 27% impairment rating. Dr. Gleis does not
believe Mayer’s urological condition can be related to the lumbar condition in
the absence of urodynamic studies. Even
if the condition if causally related to the lumbar condition, Dr. Gleis disagreed with Dr. Ballard’s 41% impairment rating
and opined the condition warrants a 10% impairment rating. Finally, with regard to the left ankle
condition, Dr. Gleis opined Mayer’s post-surgical
arthritic condition has simply progressed and therefore is not causally related
to the work-related lumbar injury.
Moreover, he opined the left ankle condition did not cause
the right lower extremity altered gait.
The ALJ first addressed
the issue of causation of the urological and left ankle conditions. He noted Dr. Ballard’s opinion that Mayer
developed urological dysfunction as a result of the stenosis in his lumbar
spine, which caused nerve compression.
Dr. Gleis stated the cause cannot be pinpointed
objectively absent urodynamic studies.
The ALJ was ultimately more convinced by Dr. Ballard, and concluded the
urological condition is work-related.
Turning to the ankle
condition, the ALJ was most persuaded by Dr. Gleis’
opinion that it is unlikely Mayer’s lumbar injury and right lower extremity
altered gait caused the need for the left ankle surgery. The ALJ also noted Dr. Quill’s diagnosis of
end-state arthritis at the time of surgery.
Therefore, he concluded the left ankle condition is not work-related.
In light of Mayer’s
current physical condition, the ALJ then considered whether he is permanently
totally disabled. He explained:
While
Dr. Ballard has opined the plaintiff could not return to full duty employment,
his biggest hindrance at the current time is his left ankle condition which
causes him unrelenting pain and the need to use a knee scooter. The plaintiff has been diagnosed with RSD or
CRPS following his left ankle surgery.
The plaintiff did seek additional treatment for his lower back and right
lower extremity which are related to his work injury. However, according to Dr. Gleis,
those conditions would not prevent the plaintiff from performing other types of
work. In order to show entitlement to
permanent total disability, it is incumbent upon the plaintiff to show the
total disability is the result of the work injury. Here, I am not so
convinced as there are other conditions such as the left ankle which currently
prevent the plaintiff from performing the full time work. Therefore, it cannot be considered pursuant
to KRS 342.730 (1) (a). I further note
the plaintiff is only age 47 and has a college degree in accounting. When I consider the effects of the back
injury including the bladder dysfunction, I still must determine that he can
perform sedentary work duties.
Therefore, he is not entitled to permanent total disability benefits.
The ALJ awarded Mayer
permanent partial disability benefits based on an additional 5% impairment
rating for the lumbar injury. Relying on
Dr. Gleis’ opinion, he assigned a 10% impairment
rating for Mayer’s bladder condition.
The ALJ concluded Mayer lacks the capacity to return to his prior work, and
applied the three multiplier pursuant to KRS 342.730(1)(c).
On appeal, Mayer argues
the ALJ abused his discretion when he failed to find him permanently totally
disabled. At the outset, we note Mayer
did not file a petition for reconsideration before the ALJ. Therefore, any claim that the ALJ made
insufficient or even inaccurate findings of fact has been waived. Our review is limited solely to whether there
is substantial evidence to support the decision. Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985); Halls Hardwood
Floor Co. v. Stapleton, 16 S.W.3d 327 (Ky. App. 2000). For this reason, Mayer’s claim that the ALJ
did not sufficiently address Dr. Ballard’s limitations is unavailing.
In his decision, the
ALJ properly cited to Ira A. Watson Department Store v. Hamilton, 34
S.W.3d 48 (Ky. 2000) as the applicable law concerning permanent total disability. Furthermore, because he determined the left
ankle condition is not work-related, the ALJ correctly considered the effects
of only the bladder and increased lumbar conditions. Dr. Gleis
recommended Mayer alternate sitting and standing, walk no more than half a
mile, and avoid lifting over twenty pounds.
Dr. Ballard opined Mayer could perform sedentary work if he is able to
change positions frequently, and offered no restrictions relating specifically
to the bladder condition. As noted by
the ALJ, Mayer is relatively young at age 47, and has a college degree in
accounting.
These circumstances
provide sufficient evidentiary support for the ALJ’s determination Mayer is not
permanently totally disabled. Though
Mayer has identified evidence which would support an alternate conclusion, this
is insufficient to require reversal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky.
1974). Because the evidence does not
compel a different result, we are without authority to reverse the award. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App.
1984).
As such, the July 7,
2016 Opinion and Award on Reopening rendered by Hon. John B. Coleman,
Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON CHRISTOPHER HARRELL
2500 BARDSTOWN RD #4
LOUISVILLE, KY 40205
COUNSEL
FOR RESPONDENT:
HON PHILIP REVERMAN JR
400 W MARKET ST #2300
LOUISVILLE, KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON JOHN B. COLEMAN
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601