Opinion
NO. 2014-CA-001586-WC NO. 2014-CA-001700-WC
06-19-2015
GALLMAR CONTRACTING APPELLANT v. JAMES L. NEWTON; DR. DANESH MAZLOOMDOOST; DR. GERALD EICHORN; HON. WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES AND JAMES L. NEWTON CROSS-APPELLANT v. GALLMAR CONTRACTING; DR. DANESH MAZLOOMDOOST; DR. GERALD EICHORN; HON. WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD CROSS-APPELLEES
BRIEFS FOR APPELLANT/CROSS- APPELLEE GALLMAR CONTRACTING: Ronald J. Pohl Brandon L. Rosen Lexington, Kentucky BRIEFS FOR APPELLEE/CROSS- APPELLANT JAMES NEWTON: James Newton, pro se Lexington, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-96662
CROSS-PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-96662
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
BEFORE: J. LAMBERT, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: James Newton, pro se, appeals and Gallmar Contracting cross-appeals. from an opinion of the Workers Compensation Board (hereinafter referred to as "Board") which affirmed in part, vacated in part, and remanded an opinion of William Rudloff, an administrative law judge (hereinafter referred to as "ALJ"). After reviewing the briefs, the record, and the law, we must affirm the issues raised by Newton and reverse and remand the issue raised by Gallmar.
Newton was working for Gallmar on January 27, 2012, when he was injured in a work-related fall. Newton's primary injuries were to his back and shoulder. Newton alleges that these injuries later caused numbness and tingling in his extremities and almost constant pain in his back. Newton went to multiple doctors for his complaints and the medical records for these doctors were entered into the record. Newton also underwent three independent medical examinations ("IME").
A final hearing was held before the ALJ in February of 2014. After the hearing, the ALJ rendered an opinion in which he determined that Newton's injuries were not permanent. The ALJ awarded Newton temporary total disability ("TTD") benefits from January 28, 2012, to March 27, 2012. The ALJ declined to award him permanent disability benefits. The ALJ found that Newton had suffered a cervical strain and lumbar strain as a result of his work-related injury, but that there was not any permanent impairment.
Mr. Newton then brought an appeal before the Board. The Board affirmed the decision not to award permanent disability benefits, but vacated the award of TTD benefits. The Board remanded the case to the ALJ in order for him to reexamine the TTD benefits, finding that the ALJ did not make sufficient findings of fact to support his determination. This appeal and cross-appeal followed.
On appeal to this Court, Newton argues that he is entitled to permanent disability benefits.
The claimant in a workman's compensation case has the burden of proof and the risk of persuading the board in his favor. . . . If the board finds against a claimant who had the burden of proof and the risk of persuasion, the court upon review is confined to determining whether or not the total evidence was so strong as to compel a finding in claimant's favor.Snawder v. Stice, 576 S.W.2d 276, 279 -280 (Ky. App. 1979) (citations omitted). "Although a party may note evidence which would have supported a conclusion contrary to the ALJ's decision, such evidence is not an adequate basis for reversal on appeal." Whittaker v. Rowland, 998 S.W.2d 479, 482 (Ky. 1999) (citation omitted). "KRS [Kentucky Revised Statutes] 342.285 designates the ALJ as the finder of fact. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985), explains that the fact-finder has the sole authority to judge the weight, credibility, substance, and inferences to be drawn from the evidence." Ak Steel Corp. v. Adkins, 253 S.W.3d 59, 64 (Ky. 2008).
Here, three IME reports were entered into evidence. Those IME reports were written by Drs. Frank Burke, Gregory Snider, and Daniel Primm. The report of Dr. Burke stated that Newton had sustained permanent injury and indicated Newton should be given an 11% whole person impairment rating. The reports of Dr. Snider and Dr. Primm stated that Newton did not suffer a permanent injury.
The ALJ found the IME report of Dr. Snider the most persuasive. Dr. Snider's report indicated that he physically examined Newton and took his medical history. Dr. Snider diagnosed Newton with a cervical strain and lumbar strain and indicated he believed Newton had reached maximum medical improvement and would not need any further medical treatment. Dr. Snider also believed Newton could return to work as a carpenter without any specific restrictions.
This Court has reviewed the evidence in the record and believes that substantial evidence exists to support the ALJ's decision. Not only did Dr. Snider believe Newton's injuries were not permanent, but the IME of Dr. Primm also concurred with this belief. In addition, medical records submitted to the ALJ indicate that Newton returned to work in March of 2012 without any work restrictions. Finally, other medical records indicated that surgery would not be necessary and that Newton would recover after some physical therapy. Based on this evidence, we cannot say that the total evidence was so strong as to compel a finding in Newton's favor. We therefore affirm the determination that Newton is not entitled to permanent disability benefits.
Newton also claims that his trial counsel was ineffective because he failed to submit all of Newton's medical records to the ALJ. Even if this is the case, we can only review the evidence contained in the record before us. --------
As for Gallmar's appeal, it argues that the Board should not have vacated and remanded the TTD issue. We agree.
Temporary total disability is defined in KRS 342.0011(11)(a) as "the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment[.]" "TTD is payable under KRS 342.0011(11)(a) during periods when a worker has not reached [maximum medical improvement] from the effects of an injury and has not reached a level of improvement that would permit a return to customary employment. Both factors must be present throughout an awarded period of TTD." Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 60 -61 (Ky. 2012).
In the case at hand, the ALJ relied on a report from Dr. Timothy Wilson, Newton's orthopedic surgeon, dated March 26, 2012, to make the determination that Newton's TTD benefits should end on March 27, 2012. That note stated that Newton could return to work "without restriction."
KRS 342.285(1) states:
An award or order of the administrative law judge as provided in KRS 342.275, if petition for reconsideration is not filed as provided for in KRS 342.281, shall be conclusive and binding as to all questions of fact, but"[A] party must preserve their right to contest an ALJ's factual findings through a petition for reconsideration." Uninsured Employers' Fund v. Stanford, 399 S.W.3d 26, 31 (Ky. 2013) (citing KRS 342.281; Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985)).
either party may in accordance with administrative regulations promulgated by the commissioner appeal to the Workers' Compensation Board for the review of the order or award.
The ALJ found that the note from Dr. Wilson indicated Newton could return to his customary level of employment on March 27, 2012. Newton did not file a petition for reconsideration; therefore, this finding of fact is conclusive and determinative of the TTD issue. The Board should not have vacated the TTD issue because it had not been preserved for review.
For the foregoing reasons we affirm the decision regarding the lack of permanent disability benefits and reverse the Board's decision regarding the TTD benefits. We therefore remand this case to the Board and direct that it reinstate the ALJ's TTD award.
ALL CONCUR. BRIEFS FOR APPELLANT/CROSS-
APPELLEE GALLMAR
CONTRACTING:
Ronald J. Pohl
Brandon L. Rosen
Lexington, Kentucky
BRIEFS FOR APPELLEE/CROSS-
APPELLANT JAMES NEWTON:
James Newton, pro se
Lexington, Kentucky