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Workers’
Compensation Board
OPINION
ENTERED: May 26, 2017
CLAIM NO. 201593236
PSC INDUSTRIES, INC. PETITIONER
VS. APPEAL FROM HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE
DERRICK BROWN
and HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
VACATING
AND REMANDING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
PSC
Industries, Inc. (“PSC”) appeals from the December 1, 2016, Opinion, Award, and
Order and the December 14, 2016, Order denying its petition for reconsideration
of Hon. Jeanie Owen Miller, Administrative Law Judge (“ALJ”). The ALJ awarded
Derrick Brown (“Brown”) permanent total disability (“PTD”) benefits and medical
benefits.
On appeal, PSC asserts the ALJ’s
award of PTD benefits is not supported by substantial evidence and requests
this Board remand the claim for entry of an award of permanent partial
disability (“PPD”) benefits. We vacate the ALJ’s award of PTD benefits and
remand for additional findings.
The Form
101 alleges on February 24, 2015, Brown sustained work-related injuries to his
neck and back when a tool box fell on him. At the time of his injuries, Brown
was working as a machinist.
The
September 15, 2016, Benefit Review Conference Order and Memorandum lists the
following contested issues: “benefits per KRS 342.730; unpaid or contested
medical expenses; and TTD.” Under “other” is “Plaintiff’s right to designate
113 doctor.”
Brown introduced
into evidence the March 8, 2016, Independent Medical Examination (“IME”) report
of Dr. Jules Barefoot. After receiving Brown’s medical history, performing a
physical examination, and conducting a medical record review, Dr. Barefoot set
forth the following diagnoses:
1.
Status
post anterior cervical discectomy and fusion with partial corpectomies and bone
arthrodesis with instrumentation at C6-7, 11/24/2015.
2.
Lumbar
spondylosis with moderately severe left and moderate right facet arthropathy at
L5-S1 with evidence of a right sided L% [sic] radiculopathy.
Regarding
maximum medical improvement (“MMI”), Dr. Barefoot opined as follows:
Mr. Brown does appear to be at his point of maximal
medical improvement if no further treatment is available.
As
he does continue to be symptomatic, particularly in his lumbar spine, I would
recommend ongoing treatment through Dr. Chou.
Dr. Barefoot assessed a 37% whole person
impairment rating pursuant to the 5th Edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment
(“AMA Guides”). He opined as follows:
Mr. Brown would not be able to return to his prior
position.
He does have ongoing significant restrictions in
mobility in his cervical and lumbar spine.
He is not able to work at heights safely.
He is not able to operate machinery with hand or
foot controls.
He would have marked difficulty using his arms above
shoulder level on a repetitive basis.
He would have marked difficulty with squatting,
kneeling, crouching and crawling.
He would have difficulty lifting and carrying more
than 10 pounds frequently.
I would apportion 100% of his current 37% whole
person impairment to work relatedness in regards to the injury he sustained at
work on February 24, 2015.
He
did not have any active conditions present in his cervical or lumbar spine
prior to that date.
PSC filed the
medical records of Dr. Rodney Chou. Importantly, these records indicate Brown
treated with Dr. Chou on June 9, 2016, three months after Dr. Barefoot’s March
8, 2016, IME. The June 9, 2016, record indicates Brown was present for a follow
up visit.[1]
Dr. Chou noted Brown presented with improved low back pain and neck pain. Brown
rated his pain a four out of ten. Under “recent interventions” is the
following: “He has been previously treated with physical therapy, NSAIDs, and
pain medication. The physical therapy was somewhat effective in relieving the
pain. The NSAIDS were ineffective. The pain medications were ineffective.” Dr.
Chou diagnosed cervical sprain, lumbar sprain, pain in limb, and displacement
of cervical intervertebral disc without myelopathy. The record indicates Dr.
Chou prescribed a “transdermal poly pharmaceutical cream to help with pain and
keep him off narcotics” and prescribed refills of Celebrex, Cyclobenzaprine,
and Neurontin. He opined Brown had reached MMI.
In a June
16, 2016, letter, Dr. Chou assessed a 25% whole person impairment rating in
accordance with the AMA Guides.
In the
December 1, 2016, Opinion, Award, and Order, concerning Brown’s entitlement to
PTD benefits, the ALJ determined as follows:
The Plaintiff
argues he is permanently and totally disabled as defined by the Act. The
Defendant/employer argues the plaintiff’s disability is partial if any. After
reviewing all of the evidence in this case, I find that Plaintiff now suffers from
a permanent total occupational disability. In making this finding I rely on [sic]
upon the testimony of the Plaintiff and the opinion of Dr. Barefoot and the records
of Dr. Chou.
It is undisputed
that Mr. Brown injured his cervical and lumbar spine as a result of his work
injury. The parties stipulated that he did not retain the physical capacity to
return to the same type of work he was performing at the time of the injury.
His impairment ratings vary from 25% from Dr. Chou to 37% from Dr. Barefoot. I
find Dr. Barefoot’s impairment rating more persuasive than Dr. Chou’s. This is
due to the obvious fact that despite ongoing, and unabated lumbar spine
symptoms, Dr. Chou placed no impairment on his lumbar spine. That is not
reasonable. The medical evidence is rather straightforward, with significant
permanent restrictions from both physicians. Again, Dr. Barefoot’s restrictions
are more convincing to this fact-finder because he considers not just the
cervical limitations but also the lumbar limitations.
Permanent total
disability is defined in KRS 342.0011(11)(c) as 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 an injury. Hill
vs. Sextet Mining Corp., 65 SW3d 503 (Ky. 2001). "Work" is
defined in KRS 342.0011(34) as providing services to another in return for remuneration
on a regular and sustained basis in a competitive economy. The statutory
definition does not require that a worker be rendered homebound by his injury,
but does mandate consideration of whether he will be able to work reliably and
whether his physical restrictions will interfere with his vocational capabilities.
Ira A. Watson Department Store vs. Hamilton, 34 SW2d 48 (Ky. 2000).
In determining
whether a worker is totally disabled, an Administrative Law Judge must consider
several factors including the worker's age, educational level, vocational
skills, medical restrictions, and the likelihood that he can resume some type
of "work" under normal employment conditions. Ira A. Watson
Department Store vs. Hamilton, supra.
In applying the
factors set out in Ira Watson, supra, it is apparent that
Plaintiff's vocational factors infer his total and permanent disability. Those
factors I have considered are: his age, 46, which is a middle-aged worker. His
educational level – 12th grade with no specialized or vocational training. Mr.
Brown’s work experience has been almost exclusively in labor-intensive jobs.
While the plaintiff has applied for unemployment benefits, he has not been able
to obtain employment. He has been willing to try to work at even minimum wage
jobs. I found Mr. Brown very credible and I find that he desires to return to
work, which I find admirable. The reality however is, that without additional
training, it is unlikely he will be able to return to regular and sustained
work. At the time of the injury he had the skills and ability to do labor type
of jobs. It is clear by the medical restrictions placed on Mr. Brown, that he
could not return to work at the present time to a job for which he has training
and experience, on a regular and sustained basis.
In its petition for reconsideration,
PSC requested an award of PPD benefits in lieu of PTD benefits.
In the January 5, 2017, Order denying
its petition for reconsideration, the ALJ responded as follows:
This matter
comes before the undersigned Administrative Law Judge (ALJ) upon the
defendant’s Petition for Reconsideration of the December 1, 2016, Opinion Order
and Award and plaintiff's Response thereto. For the reasons stated below, the
defendant’s Petition for Reconsideration is DENIED.
The defendant
avers the undersigned erred for two reasons. First, the defendant avers that
the undersigned’s [sic] erred in the interpretation of Dr. Barefoot’s
testimony. Essentially, the defendant states that Dr. Barefoot did not opine
that there is no employment that the plaintiff could perform. While it may be
true that no medical doctor stated specifically that Mr. Brown is totally and
permanently disabled, it must be noted that such a determination is not strictly
a medical determination, but must include all of the vocational factors outlined
in the case law interpreting the statute. I find no error in my inferences drawn
from, not only the medical proof, but also from the plaintiff’s work history, his
education and training, and his age.
The defendant
argues statistics from the US Bureau of Labor Statistics are evidence of Mr.
Brown's age not being a negative factor in his re-employment. It should be
noted that the defendant's proffered evidence is improperly cited - as it does
not appear in the record before the undersigned. More importantly, Mr. Brown's
age was considered and was only one of the factors discussed by the undersigned
in the Opinion Order and Award.
It must also be
noted the emphasis the undersigned placed upon the plaintiff’s vocational
rehabilitation and retraining. Certainly the plaintiff must attempt to rehabilitate
not only his physical condition, but he must be willing to rehabilitate and
retrain for employment that his physical limitations allow. The undersigned finds
no error in the application of the evidence in this case. Certainly, if the plaintiff
improves, the defendant shall be able to reopen this claim.
For all of the
above-stated reasons, as well as the findings in the Opinion Order and Award of
December 1, 2016, the defendant’s Petition for Reconsideration is DENIED. This
the 5th day of January, 2017.
As the
claimant in a workers’ compensation proceeding, Brown had the burden of proving
each of the essential elements of his cause of action, including entitlement to
PTD benefits. Snawder v. Stice,
576 S.W.2d 276 (Ky. App. 1979). Since Brown was successful in his burden, the
question on appeal is whether there is substantial evidence
of record to support 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).
In
rendering a decision, KRS 342.285 grants an ALJ as fact-finder the sole
discretion to determine the quality, character, and substance of evidence. Square D Co. v. Tipton, 862
S.W.2d 308 (Ky. 1993). An ALJ may draw reasonable inferences from the evidence, 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. Jackson v. General Refractories Co., 581 S.W.2d 10
(Ky. 1979); Caudill v. Maloney’s
Discount Stores, 560 S.W.2d 15 (Ky. 1977). In that regard, an
ALJ is vested with broad authority to decide questions involving causation. Dravo
Lime Co. v. Eakins, 156 S.W.3d 283 (Ky. 2003). Although a party may note
evidence that would have supported 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). Rather, it must be shown
there was no evidence of substantial
probative value to support the decision. Special Fund v. Francis, 708
S.W.2d 641 (Ky. 1986).
The function of the Board in reviewing an ALJ’s decision is limited to a
determination of whether the findings are so unreasonable under the evidence
that 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).
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 Department Store v. Hamilton, supra.
Additionally, 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). 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).
The AMA Guides define permanent impairment
as follows:
An impairment is considered permanent when it has
reached maximum medical improvement (“MMI”), meaning it is well stabilized and unlikely to change substantially in the
next year with or without medical treatment.
“MMI,” as
defined by the Supreme Court of Kentucky, “refers to the time at which a
worker’s condition stabilizes so that any impairment may
reasonably be viewed as being
permanent.” Tokico (USA), Inc. v. Kelly, 281 S.W.3d 771, 775-776 (Ky.
2009).
Clearly, the ALJ
relied upon the opinions and impairment rating of Dr. Barefoot in finding Brown
is entitled to PTD benefits. However, in Dr. Barefoot’s March 8, 2016, report,
regarding MMI, he opined Brown is at MMI “if no further treatment is
available.” Further, Dr. Barefoot opined that “as [Brown] does continue to be
symptomatic, particularly in his lumbar spine, [he] would recommend ongoing
treatment through Dr. Chou.” Significantly, the record indicates Brown received
treatment from Dr. Chou subsequent to Dr. Barefoot’s March 8, 2016, IME. Brown
saw Dr. Chou on June 9, 2016. Dr. Chou
performed an examination, prescribed refills of Celebrex, Cyclobenzaprine, and
Neurontin, and prescribed a new topical cream to help with pain. Consequently,
as Brown received treatment after Dr. Barefoot assessed his conditional
impairment rating, Dr. Barefoot’s impairment rating does not meet the
definition of “permanent” per the AMA Guides. Consequently, the ALJ’s award of PTD
benefits, as a matter of law, must be vacated.
On remand, the ALJ
must identify a permanent impairment
rating in conformity with the AMA Guides. In the alternative, should the
ALJ identify in the record a date of MMI that predates March 8, 2016, the date
upon which Dr. Barefoot assessed his 37% whole person impairment rating, the
ALJ is permitted to rely upon that MMI date in order to rehabilitate Dr.
Barefoot’s impairment rating. Only after making these essential additional
findings of fact can the ALJ analyze Brown’s ability to perform any type of
work anew. However, if the ALJ is unable to identify a permanent impairment rating in the record or an MMI date that
predates the date upon which Dr. Barefoot assessed a 37% impairment rating, or
should the ALJ identify a permanent impairment rating assessed in accordance
with the AMA Guides and chose not to rely upon it, the ALJ may not award
income benefits and the ALJ’s modified award should only reflect an award of
medical benefits.
PSC did not
specifically raise the issue of Dr. Barefoot’s impairment rating on appeal as
grounds for contesting the ALJ’s award of PTD benefits. However, this Board
is permitted to sua sponte reach
issues even if unpreserved and is charged with ensuring all awards are in
conformity with Chapter 342. KRS 342.285(2)(c); KRS 342.285(3); George
Humfleet Mobile Homes v. Christman, 125 S.W.3d 288 (Ky. 2004). All
arguments made by PSC on appeal challenging the ALJ’s award of PTD benefits are
rendered moot by this decision. Since we are vacating the finding of permanent
total disability and the award of PTD benefits and remanding the claim for
findings critical to the issue of permanent total disability, a decision as to
whether substantial evidence supports the ALJ’s conclusion Brown will unlikely be
able to return to regular and sustained work is premature.
Accordingly, the ALJ’s finding of
permanent total disability and the award of PTD benefits are VACATED. This claim is REMANDED to the ALJ for additional
findings and entry of an amended Opinion, Award, and Order consistent with the
views expressed herein.
ALVEY, CHAIRMAN, CONCURS.
RECHTER, MEMBER, DISSENTS WITHOUT
SEPARATE OPINION.
COUNSEL FOR PETITIONER:
HON MELANIE GABBARD
505 WELLINGTON WAY STE 225
LEXINGTON KY 40503
COUNSEL FOR RESPONDENT:
HON SCOTT JUSTICE
111 W WASHINGTON ST STE 100
LOUISVILLE KY 40202
ADMINISTRATIVE LAW JUDGE:
HON JEANIE OWEN MILLER
657 CHAMBERLIN AVE
FRANKFORT KY 40601
