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Commonwealth of Kentucky 

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