Opinion
NO. 2013-CA-000238-WC
04-04-2014
AISIN AUTOMOTIVE CASTING, LLC. APPELLANT v. CRAIG MILLER; HONORABLE WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Donald C. Walton III Louisville, Kentucky BRIEF FOR APPELLEE CRAIG MILLER: McKinnley Morgan London, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-11-68516
OPINION
AFFIRMING
BEFORE: MOORE, THOMPSON, AND VANMETER, JUDGES. VANMETER, JUDGE: Aisin Automotive Casting, Inc. ("Aisin") petitions this court for review of a decision of the Workers' Compensation Board ("Board") affirming the opinion of the Administrative Law Judge ("ALJ") awarding Craig Miller certain permanent partial disability ("PPD") benefits and medical benefits for a work-related injury. For the following reasons, we affirm.
Miller has worked for Aisin since January 2004. In October 2010, he began having pain in his wrist and went to see Dr. Khan, who advised Miller that his condition, bilateral carpal tunnel syndrome, was a result of cumulative trauma caused by long-term repetitive movements at his job. Dr. Khan recommended surgery. Miller underwent carpal tunnel surgical release with Dr. Burgess on November 10, 2011 for his right hand and December 1, 2011 for the left hand. Dr. Burgess testified that full recovery from carpal tunnel release usually takes between 6 and 24 months, and he ultimately found Miller to be at maximum medical improvement ("MMI") on May 9, 2012.
Dr. Madden evaluated Miller on February 2, 2012. Dr. Madden reviewed Miller's treatment records, conducted a physical examination, and determined that Miller's carpal tunnel release had not been successful. As the ALJ described in his opinion and order:
Dr. Madden opined that the plaintiff had no active pre-existing condition. The plaintiff described the duties of his regular job. Dr. Madden found that the plaintiff did not retain the physical capacity to perform his pre-injury job. He agreed with Dr. Burgess' restrictions. Dr. Madden opined that the plaintiff would never regain the ability to return to his pre-injury job without a return of the problem. He felt that the plaintiff had not reached maximum medical improvement as defined by the Guides, but he stated that his impairment rating was based on the results of the failed surgeries. He stated that the plaintiff could therefore be found at MMI.Dr. Madden stated that based on the failed surgeries, a 35% whole person impairment rating was appropriate.
Thereafter, Drs. Dubin and Gabriel conducted independent medical evaluations of Miller. Dr. Dubin assessed a 36% whole person impairment rating. Dr. Gabriel opined that Miller was not at MMI, and also recommended additional surgery. However, Dr. Gabriel also opined that if Miller underwent no additional surgery, he would assign him a 6% whole person impairment rating.
Dr. Gabriel later supplemented his opinion and assigned a whole person impairment of 13%.
The ALJ found, in an opinion and order entered July 2, 2012, that Dr. Madden's 35% whole person impairment rating was appropriate. The ALJ interpreted Dr. Madden's testimony to mean that a person whose carpal tunnel release had failed could reach MMI prior to the usual 6-24 month recovery period. Aisin appealed, and the Board affirmed the ALJ's decision. This appeal follows.
Aisin's sole argument is that no physician who treated Miller found him to be at MMI until May 9, 2012, and therefore, the ALJ improperly adopted an impairment rating assigned before that date.
The well-established standard of review for the appellate courts of a workers' compensation decision "is to correct the [Workers' Compensation] Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." E.g., W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992); Butler's Fleet Serv. v. Martin, 173 S.W.3d 628, 631 (Ky. App. 2005); Wal-Mart v. Southers, 152 S.W.3d 242, 245 (Ky. App. 2004). See also Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986) (if the fact-finder finds in favor of the person having the burden of proof, the burden on appeal is only to show that some substantial evidence supported the decision); cf. Gray v. Trimmaster, 173 S.W.3d 236, 241 (Ky. 2005) (if the ALJ finds against the party having the burden of proof, the appellant must "show that the ALJ misapplied the law or that the evidence in her favor was so overwhelming that it compelled a favorable finding[]").
Aisin argues that no doctor found Miller to be at MMI until May 9, 2012 and, therefore, no whole person impairment rating before that date is appropriate. Aisin cites Brooks v. Univ. of Louisville Hosp., 33 S.W.3d 526, 530 (Ky. 2000), and Colwell v. Dresser Instrument Div., 217 S.W.3d 213, 217 (Ky. 2006), for the proposition that an impairment rating is considered to be permanent only when an individual has reached MMI for that injury or condition.
While we agree with Aisin that MMI must be reached before a whole person impairment rating can be assigned, Aisin has failed to show that the ALJ's inference drawn from Dr. Madden's testimony was not supported by substantial evidence. "When one of two reasonable inferences may be drawn from the evidence, the finders of fact may choose." Jackson v. Gen. Refractories Co., 581 S.W.2d 10, 11 (Ky. 1979). From the evidence presented below, reasonably one could infer that Miller had not reached MMI, or that Miller had reached MMI for an individual who suffered a failed carpal tunnel surgical release.
The ALJ duly considered the opinions of Miller's treating physicians in making its decision, including the opinions that did not place Miller at MMI. While a party may point to evidence that would have supported an alternate outcome, this is not a sufficient basis for reversal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 47 (Ky. 1974). An ALJ has "sole discretion to determine the quality, character, and substance of evidence." Gaines Gentry Thoroughbreds/Fayette Farms v. Mandujano, 366 S.W.3d 456, 461 (Ky. 2012). The ALJ in this case chose to follow Dr. Madden's opinion because his evaluation of Miller was the most thorough. We agree with the Board that the ALJ was reasonable to interpret Dr. Madden's opinion to be that under Miller's circumstances, he had reached MMI and an assigned impairment rating of 35% was appropriate.
The opinion of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Donald C. Walton III
Louisville, Kentucky
BRIEF FOR APPELLEE
CRAIG MILLER:
McKinnley Morgan
London, Kentucky