Workers’
Compensation Board
OPINION ENTERED: January 13, 2017
CLAIM NO. 201476628
SIDNEY COAL COMPANY, INC. PETITIONER
VS. APPEAL FROM HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
GREELEY HURLEY, JR.
HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Sidney Coal Company, Inc.
(“Sidney Coal”) appeals from the May 16, 2016 Opinion, Award and Order and the
June 20, 2016 Order on Reconsideration rendered by Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ”) finding Greeley
Hurley, Jr. (“Hurley”) permanently totally disabled as a result of a June 16,
2012 work injury. On appeal, Sidney Coal
argues the finding of permanent total disability is not supported by
substantial evidence. We affirm.
Hurley testified by deposition on August 25, 2015 and at
the hearing held March 17, 2016. He is a
high school graduate with no specialized or vocational training. Hurley was employed as a roof bolter with Sidney
Coal. On June 16, 2012, he was hanging a
curtain in a mine when a rock fell, striking his head, left shoulder, and lower
left side of his back, driving him to the ground. Hurley estimated the rock weighed about 80
pounds. He sought immediate care at
Pikeville Medical Center, then was referred to Dr.
Stanley Tao.
Dr. Tao diagnosed rotator cuff
tendinitis, neck disorder/symptoms NOS, and impingement syndrome. He recommended physical therapy, medication,
activity modification, and injection therapy.
Dr. Tao administered injections that provided temporary relief. Subsequently, he performed shoulder surgery
on March 29, 2013 and again on July 15, 2014.
Dr. Tao’s final diagnoses were impingement syndrome, SLAP lesion, and
rotator tendinitis.
Medical records from Pikeville Medical
Center include an August 6, 2012 shoulder x-ray indicating no fracture or
dislocation. An NCV test on August 14,
2012 revealed a mild left ulnar neuropathy.
A nerve conduction study on November 28, 2012 showed normal EMG but was
suggestive of mild left ulnar neuropathy.
On April 10, 2014, an MRI of the left shoulder revealed no evidence of
focal rotator cuff tendon tear or retraction.
However, osteoarthritic changes of the acromioclavicular joint with mild
subacromial spurring with resultant mild mass effect
on the supraspinatus tendon at the level of the musculotendinous junction were
noted.
Dr. David Muffly
conducted an independent medical evaluation (“IME”) on April 16, 2015. Dr. Muffly
diagnosed a left shoulder labral tear, biceps tendon tear, and a cervical
strain with arousal of degenerative changes.
He noted Hurley had undergone two shoulder surgeries without
improvement. Dr. Muffly
opined Hurley does not retain the physical capacity to return to the type of
work he performed at the time of his injury.
He assigned restrictions of lifting a maximum of ten pounds overhead,
twenty-five pounds from waist to chest, and avoidance of frequent turning of
the neck and reaching or overhead work.
Dr. Muffly assigned a 5% impairment rating for
the cervical spine and 6% impairment rating for the left shoulder for a
combined 11% impairment rating pursuant to the American Medical Association, Guides
to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”).
Dr. Robert Walker performed an IME on
December 18, 2014. Dr. Walker diagnosed
a type IV labral tear from anterior to posterior (SLAP) of the left shoulder,
left shoulder impingement syndrome, and left biceps tendinopathy. Dr. Walker assigned a 6% impairment rating
for the shoulder condition pursuant to the AMA Guides. He restricted Hurley from using the left
upper extremity for overhead work and limited exertion to twenty to thirty-five
pounds occasionally, ten to twenty pounds frequently and negligible to ten pounds
on a constant basis. He opined Hurley
does not retain the physical capacity to return to the type of work he
performed at the time of his injury.
Dr. Leigh Ann Ford examined Hurley on
September 12, 2015. Dr. Ford diagnosed
major depressive disorder and post-traumatic stress disorder (“PTSD”). She assessed a 6% impairment rating for the
psychological condition pursuant to the AMA Guides. Dr. Ford did not assign restrictions for the
psychological condition, but noted the symptoms of PTSD and depression were
interfering with Hurley’s daily functioning.
Hurley’s prognosis depends largely on his willingness to maintain
treatment consisting of medication and counseling. Dr. Ford does not believe Hurley had an
active psychological impairment prior to the work injury.
Hurley also introduced medical records
from Mountain Comprehensive Care documenting treatment from July 1, 2014
through July 10, 2015. He was diagnosed
with chronic PTSD.
Sidney Coal filed the report of Dr.
Tim Allen, who conducted an independent psychiatric evaluation on February 22,
2016. Dr. Allen diagnosed malingering
and possible adjustment disorder with anxious mood. Hurley endorsed a wide range of complaints on
his questionnaire, during the interview, and on testing, which were
inconsistent with his injury or any resultant adjustment disorder. Dr. Allen invalidated all psychological
testing due to intentional feigning of cognitive, emotional, and physical
problems, and assigned a 0% impairment rating pursuant to the AMA Guides.
Dr. David Jenkinson performed an IME
on September 30, 2013 and September 8, 2015.
Dr. Jenkinson opined Hurley suffered no significant structural injury to
any body part as a result of the June 17, 2012 incident. He opined Hurley may have suffered a minor
sprain/strain or contusion, but his subsequent complaints and presentations are
consistent with self-limiting behavior/symptom exaggeration. Dr. Jenkinson recommended no further
treatment and opined Hurley can be released to return to his former occupation
without restriction. Dr. Jenkinson
assigned a 0% impairment rating for the cervical and left shoulder
conditions.
Hurley testified his resulting neck and shoulder conditions
would prevent him from performing the job he held at the time of his injury or
any other work. On cross examination, he
stated, “If it wasn’t for my back, I might be able to night watch or something
like that.” He continues to have pain in
his shoulder to his neck and constant neck pain. Hurley testified he needs to recline with his
feet propped up from two to four hours a day due to his neck and shoulder pain,
though in response to a leading question on re-direct examination, he indicated
his back pain also requires him to recline frequently. Sitting for more than thirty minutes or an
hour irritates his shoulder and neck.
The jarring from walking causes his shoulder to hurt. After the 2012 injury, Hurley could no longer
engage in activities such as hunting and driving “four wheelers.” Hurley drove to the hearing, but had to stop
several times due to shoulder, neck and back pain.
Hurley acknowledged he had continuing back pain following a
back injury in 1991. He was off work
from 1991 until 2003 because “it took a while for my back to heal up.” He continued to receive treatment for his
back until the time of the 2012 injury, but was under no restrictions. He passed a pre-employment physical in
2003.
After determining Hurley suffered work-related injuries to
his left shoulder and neck, the ALJ adopted Dr. Muffly’s
impairment rating of 11% and determined he did not have the physical capacity
to return to the type of employment he performed at the time of the
injury. The ALJ found the opinions of
Dr. Ford most persuasive regarding the psychological condition, and concluded
Hurley has a 6% impairment rating with no prior active impairment. After setting forth the definitions of total
disability and work, the ALJ made the following findings:
The ALJ found that the Plaintiff was credible in his testimony that he
must lie down in the floor during the day with his feet up for two to three
hours. The ALJ is also convinced by the
significant restrictions imposed by Dr. Muffly which
include 10 pounds maximum lifting overhead; 25 pounds from waist to chest; and
to avoid frequent turning of the neck and reaching or overhead work, that the
Plaintiff is precluded from performing any remotely physical work.
The Plaintiff appears to have worked only in coal mining since at least
1991 and before that worked in sand blasting and in timber for two to three
years according to a report contained in his prior claim file. The Plaintiff lacks the skills or experience
to find gainful employment that he could perform given his significant
restrictions. The ALJ therefore finds
that the Plaintiff, by virtue of his work injuries is not able to provide
services to another in return for remuneration on a regular and sustained basis
in a competitive economy. The ALJ
therefore finds that the Plaintiff is permanently and totally disabled. The Defendant will be responsible for medical
expenses related to the work injury.
Sidney Coal filed a petition for reconsideration making the
same arguments it raises on appeal. By
order dated June 20, 2016, the ALJ overruled the petition for reconsideration,
noting it failed to identify a patent error and re-argued the merits of the
case.
On appeal, Sidney Coal argues the finding of a permanent
total disability is unreasonable and is not supported by substantial evidence. It also contends the ALJ failed to consider or
adequately address its counter-arguments presented in its brief. Sidney Coal emphasizes Hurley testified he
might be able to do other jobs such as night watchman if not for his back
pain. It also posits Hurley’s back pain
is related to a prior injury, and he was symptomatic and continuously treated
prior to the subject work injury. Sidney
Coal contends the restrictions imposed by Drs. Walker and Muffly
would permit Hurley to perform light to medium work.
As the claimant in a workers’ compensation proceeding, Hurley had the burden of proving each of the essential
elements of his cause of action. Snawder v. Stice, 576 S.W.2d 276 (Ky.
App. 1979). Because he was successful in that burden, the question
on appeal is whether the ALJ’s determination is supported by substantial
evidence. 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).
The ALJ enjoys wide
ranging discretion in granting or denying an award of permanent
total disability benefits. Seventh Street Road Tobacco Warehouse v. Stillwell, 550
S.W.2d 469 (Ky. 1976); Colwell v. Dresser Instrument Div., 217 S.W.3d
213 (Ky. 2006). Permanent total
disability is the condition of an employee who, due to an injury, has a
permanent disability rating and has a complete and permanent inability to
perform any type of work as a result of the injury. KRS 342.0011(11)(c). In determining whether a worker is totally
disabled, the ALJ must consider several factors including the workers’ age,
educational level, vocational skills, medical restrictions, and the likelihood
he can resume some type of work under normal employment conditions. Ira A. Watson Dept. Store v. Hamilton,
34 S.W.3d 48 (Ky. 2000)
Based upon the medical
evidence and restrictions therein, as well as Hurley’s testimony, the ALJ could
reasonably conclude he was not capable of performing work on a regular and
sustained basis in a competitive economy.
KRS 342.0011(11)(c). Hurley testified to significant limitations of
his ability to sit or walk and indicated a need to frequently change positions,
including the need to recline to relieve his pain. The ALJ found Hurley’s testimony credible
regarding the need to recline. That
finding alone would preclude nearly all employment on a regular and sustained
basis. Hurley testified he can no longer
perform the mining work he performed since 1989 or other work he performed in
the past. A claimant’s own testimony as
to his condition has some probative value and is appropriate for consideration
by the ALJ. Hush v.
Abrams, 584 S.W.2d 48 (Ky. 1979).
Drs. Walker and Muffly imposed significant restrictions which the ALJ
determined would preclude “any remotely physical work” which is the only type
of work Hurley performed in the past.
Hurley’s speculation that, but for his back pain he might be able to
perform some other work, does not mandate a finding that he is capable of
performing some other work on a regular and sustained basis in a competitive
economy. Likewise, the fact Dr. Muffly’s restrictions, viewed in isolation, might permit
Hurley to perform some work is not determinative. Hurley’s testimony and the medical opinions
of Drs. Walker, Muffly, and Ford constitute the
requisite substantial evidence to support the ALJ’s decision. Based on this proof, the ALJ could reasonably
conclude the effects of the 2012 injury rendered Hurley incapable of performing
work on a regular and sustained basis in a competitive economy.
Furthermore, we
believe the ALJ sufficiently articulated his findings and conducted the
analysis required by Ira A. Watson.
The ALJ considered Hurley’s current physical
limitations in light of his past work experience and vocational skills. Although Sidney Coal has identified
evidence supporting a different conclusion, there was substantial evidence
supporting the ALJ’s determination.
Hurley was actively treating for back pain prior to the 2012 injury. However, there is no evidence his back pain
interfered with his ability to work prior to the 2012 injury. The ALJ acted within his discretion in
determining which evidence to rely upon, and it cannot be said the ALJ’s
conclusions are so unreasonable as to compel a different result. Ira A. Watson, id.
Accordingly, the May 16, 2016 Opinion, Award and Order and the June 20, 2016 Order on Reconsideration rendered by Hon. Jonathan R. Weatherby, Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON JEFFREY R SOUKUP
PO BOX 2150
LEXINGTON, KY 40588
COUNSEL
FOR RESPONDENT:
HON RANDY G CLARK
PO BOX 1529
PIKEVILLE, KY 41502
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R. WEATHERBY
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601