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Commonwealth of Kentucky 

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