Opinion
NO. 2019-CA-001241-WC
01-31-2020
ARMSTRONG COAL CO. APPELLANT v. RICHARD LOWTHER; HONORABLE STEPHANIE L. KINNEY, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Michael Thomas Kunjoo Donald J. Niehaus Lexington, Kentucky BRIEF FOR APPELLEE RICHARD LOWTHER: McKinnley Morgan London, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-18-01160 OPINION
AFFIRMING
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BEFORE: DIXON AND KRAMER, JUDGES; BUCKINGHAM, SPECIAL JUDGE. KRAMER, JUDGE: Armstrong Coal Co. appeals the decision of the Workers' Compensation Board, which affirmed an Administrative Law Judge's ("ALJ's") ruling that Richard Lowther is permanently and partially disabled as a result of cumulative trauma to the right wrist. After careful review, we affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
Lowther also alleged cumulative trauma injuries to his neck, low back, knees, and right shoulder. The ALJ found that Lowther failed to meet his burden of proof regarding those injuries. The ALJ also awarded Lowther permanent partial disability benefits for occupational hearing loss. Armstrong does not appeal that award.
Factual and Procedural History
Lowther began his employment with Armstrong in 2008 as a drilling and blasting pit foreman. He did not operate heavy machinery as part of his job duties and spent the majority of his working day in his truck. However, Lowther also lifted drill stems weighing approximately one hundred fifty pounds, two to five times per week. He also lifted five-gallon buckets of oil by himself on a daily basis and assisted mechanics on the job site. Lowther's prior work history was similar in that he had worked in the coal mining industry since approximately 1975, immediately after he graduated from high school. In 2009, Lowther developed changes and symptoms in his right wrist which necessitated a surgical fusion, but returned to his employment thereafter. His last day of employment with Armstrong was July 30, 2017, when he alleged that his cumulative injuries had manifested into disability. Lowther has not returned to any sort of employment since that time.
After a hearing, the ALJ ordered that Lowther shall receive permanent partial disability benefits ("PPD") for 425 weeks for his right wrist injury. The ALJ found a 16% permanent partial impairment rating for Lowther's right wrist based on the assessment by Dr. Thomas J. O'Brien, who performed an independent medical evaluation of Lowther on behalf of Armstrong. Of note, however, is that Dr. O'Brien opined that the permanent partial impairment of Lowther's right wrist was not due to cumulative trauma and was unrelated to his employment. Armstrong filed a petition for reconsideration, arguing that the ALJ's reliance on the report of Dr. John W. Gilbert was in error. The ALJ denied Armstrong's petition. Armstrong appealed to the Board, which affirmed the ALJ. This appeal followed.
In contrast, Dr. John W. Gilbert, who also performed a medical evaluation of Lowther, assessed permanent whole person impairment of Lowther at 34% and attributed 4% of that to "bilateral wrists and bilateral carpal tunnel syndrome."
Analysis
Although presented as three separate arguments, Armstrong's general contention on appeal is that the ALJ should have relied on Dr. O'Brien's opinion and completely disregarded that of Dr. Gilbert. Armstrong argues that Dr. Gilbert's medical report cannot be relied upon because he (1) failed to justify causation; (2) had a materially flawed understanding of Lowther's position with Armstrong; and (3) had an incomplete medical history regarding the right wrist.
Pursuant to KRS 342.285 the ALJ is the sole fact-finder in all workers' compensation claims. "KRS 342.285 designates the ALJ as finder of fact, and has been construed to mean that the factfinder has the sole discretion to determine the quality, character, weight, credibility, and substance of the evidence, and to draw reasonable inferences from the evidence." Bowerman v. Black Equipment Co., 297 S.W.3d 858, 866 (Ky. App. 2009). An ALJ abuses discretion when the decision is "arbitrary, unreasonable, unfair or unsupported by sound legal principles." Id. An ALJ may reject any testimony and believe or disbelieve any parts of the evidence. Caudill v. Moloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). "When the decision of the fact-finder favors the person with the burden of proof, his only burden on appeal is to show that there was some evidence of substance to support the finding, meaning evidence which would permit a fact-finder to reasonably find as it did." Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). "Substantial evidence means evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971). The existence of evidence that would have supported a different result is not a basis for reversal on appeal. See McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).
Kentucky Revised Statute.
With regard to Armstrong's first argument, the ALJ as fact-finder has the authority to discern whether a causal nexus exists between a claimant's injury and his work activities. Dravo Lime Co. Inc. v. Eakins, 156 S.W.3d 283, 289 (Ky. 2005). To discern causation in cumulative trauma claims, the ALJ must determine whether "the nature and duration of the work probably aggravated a degenerative . . . condition to the degree that it culminated in an active physical impairment sooner than would have been the case had the work been less strenuous[.]" Haycraft v. Corhart Refractories Co., 544 S.W.2d 222, 225 (Ky. 1976). To that end, the ALJ may consider any properly admitted evidence. Dravo Lime Co., 156 S.W.3d at 289.
Further,
[m]edical causation must be proved to a reasonable medical probability with expert medical testimony but KRS 342.0011(1) does not require it to be proved with objective medical findings. Staples, Inc. v. Konvelski, Ky., 56 S.W.3d 412, 415 (2001); Dupree v. Kentucky Department of Mines and Minerals, Ky., 835 S.W.2d 887 (1992). It is the quality and substance of a physician's testimony, not the use of particular "magic words," that determines whether it rises to the level of reasonable medical probability, i.e., to the level necessary to prove a particular medical fact. Turner v. Commonwealth, Ky., 5 S.W.3d 119, 122-23 (1999). Where there is conflicting medical testimony concerning the cause of a harmful change, it is for the ALJ to weigh the evidence and
decide which opinion is the most credible and reliable.Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615, 621 (Ky. 2004).
Using Form 107 from the Kentucky Department of Workers' Claims, Dr. Gilbert checked "Yes" in response to the question of whether Lowther's job duties were the cause of his impairment. For his part, Dr. O'Brien opined that "Mr. Lowther's work as a supervisory foreman and doing office work and driving a truck would not have played a causal role in either causing or aggravating his degenerative wrist arthritis." Armstrong argues that only Dr. O'Brien's medical opinion should have been considered by the ALJ. We disagree. The ALJ discerned causation from all of the medical evidence admitted, including the reports of Dr. Gilbert and Dr. O'Brien. This is demonstrated by the ALJ's finding that
[Lowther] has complained of right wrist symptoms for years. He sought treatment with Dr. Boles who obtained right wrist x-rays that showed arthritis and underwent surgery to treat radio scaphoid arthritis. Even Dr. O'Brien noted Plaintiff had significant wrist arthritis in 2009. [Lowther's] development of right wrist symptoms and degenerative changes occurred after he began working for [Armstrong]. It is clear from reviewing the record that [Lowther] has significant degenerative changes to his right wrist. This ALJ finds [Lowther's] work activities with [Armstrong] aggravated his right wrist degenerative changes into a symptomatic and debilitating reality, which necessitated a right wrist fusion. Thus, this ALJ finds [Lowther] sustained a cumulative trauma injury to his right wrist as a result of
his employment with [Armstrong]. In making this finding, the ALJ relies on Dr. Gilbert's opinions.
The ALJ can "believe part of the evidence and disbelieve other parts of the evidence whether it came from the same witness or the same adversary party's total proof." Caudill, 560 S.W.2d at 16. Where conflicting medical evidence is concerned, the question of who to believe is one exclusively for the fact-finder. Yocom v. Gentry, 535 S.W.2d 850, 851 (Ky. 1976). Both physicians performed physical examinations of Lowther and provided impairment ratings; both physicians reviewed his employment and medical histories; however, they gave conflicting opinions regarding causation. Dr. Gilbert's opinion provides a sufficient evidentiary foundation to support the ALJ's decision regarding causation of Lowther's right wrist injury. Accordingly, Armstrong's first argument must fail.
The physicians also disagreed regarding work restrictions. Dr. O'Brien believed that Lowther required no activity restrictions while Dr. Gilbert believed that "he should avoid any heavy lifting over 10 to 20 pounds. He should avoid unprotected heights or hazardous situations. He should avoid vibratory equipment. He would be unable to [do] any type of stooping, crawling, crouching, or operating heavy equipment. He is occupationally disabled."
For its second argument, Armstrong asserts that the ALJ's reliance on Dr. Gilbert's report was erroneous because Dr. Gilbert had a flawed understanding of the duties performed by Lowther in his position as foreman. In describing Lowther's work history, Dr. Gilbert noted that Lowther is "[a] 60-year-old white male with 42 years in surface mining mostly as a blaster, doing heavy manual labor, operating bulldozers, drills with cumulative trauma." Armstrong made the same argument in its appeal to the Board, to no avail. The Board specifically noted that
[Armstrong] emphasized deficiencies in Dr. Gilbert's analysis. However, none of these arguments rise to the level at which Dr. Gilbert's opinion would be rendered unreliable. Dr. Gilbert did not specifically state Lowther's current job duties in detail; rather, he generally referenced heavy manual labor. The ALJ explained, in the Order on Reconsideration, her understanding of what constitutes manual labor. She cited Lowther's testimony regarding the operation of his work truck on rough terrain and the regular lifting he was required to do. Though Dr. Gilbert's description of Lowther's job duties is certainly less detailed than Dr. O'Brien's, we cannot conclude it is wholly inaccurate.
We agree with the Board, but further note that careful reading of the ALJ's opinion and order demonstrates that she did not rely solely, if at all, on Dr. Gilbert's description of Lowther's job duties. Rather, the ALJ found that
[Lowther's] last job with [Armstrong] was drilling and blasting pit foreman. The physical requirements including inspecting/walking the pit, determining what the prior shift drillers had done, inspecting wall height by climbing a berm, and reviewing reports. [Lowther] drove his truck to the pits. The terrain or roads [Lowther] drove one [sic] were limestone or gravel and was an extremely rough terrain. [Lowther] testified it was difficult getting into his truck from the pit. [Lowther] would get the oil for his drills and drill stems for rock drills. The drill stems were approximately 150 pounds and he would lift two to five per week. The oil came in
five gallon buckets. [Lowther] would lift these all by himself. [Lowther] assisted with mechanics.
The ALJ also found that Lowther did not operate heavy machinery and "spent approximately 90% of his time in his truck with the windows up and down." The record before us shows that the ALJ considered all evidence of record regarding Lowther's job duties with Armstrong, including, but not limited to, Lowther's live and deposition testimony, and Dr. O'Brien's report. Thus, Armstrong's second argument must fail.
Finally, Armstrong argues Dr. Gilbert had an incomplete medical history regarding Lowther's right wrist and, therefore, the ALJ's reliance on Dr. Gilbert's report was erroneous. We disagree. Armstrong asserts that "the most significant portion of the medical history that Dr. Gilbert did not have was the fact that Lowther underwent bilateral carpal tunnel releases in the 1980s." However, this assertion is contradicted by the record. Dr. Gilbert's report states Lowther had "bilateral carpal tunnel surgery in Maysville by Dr. Smith." Although there are inconsistencies in the record before us regarding the exact date and location of Lowther's carpal tunnel surgeries, the record clearly demonstrates that Dr. Gilbert and the ALJ considered Lowther's prior carpal tunnel surgeries. The ALJ found that Lowther "previously underwent bilateral carpal tunnel releases in 1996 and 1997." Regardless of when the carpal tunnel surgeries occurred, Dr. Gilbert was aware of them. Armstrong's contention that Dr. Gilbert did not have a complete and accurate medical history for Lowther is simply not borne out by the record before us. Thus, Armstrong's third argument must fail.
Form 105 signed by Lowther on March 20, 2018, states that the carpal tunnel surgeries occurred in 1998 and were performed by Dr. David Schmidt in Nashville, Tennessee. Dr. Gilbert noted that the surgeries occurred in Maysville and were performed by a Dr. Smith. Finally, Dr. O'Brien noted that Lowther "underwent a bilateral carpal tunnel release procedure carried out by Dr. Schmidt in Nashville in the late 1980s." --------
Conclusion
The record before us shows that the ALJ considered all evidence admitted, believing some of Dr. Gilbert's medical report and disregarding other parts, as per the discretion afforded the ALJ under well-settled Kentucky law. Accordingly, we AFFIRM the Board.
ALL CONCUR. BRIEF FOR APPELLANT: Michael Thomas Kunjoo
Donald J. Niehaus
Lexington, Kentucky BRIEF FOR APPELLEE
RICHARD LOWTHER: McKinnley Morgan
London, Kentucky