Opinion
NO. 2015-CA-000965-WC
03-18-2016
DENTAL HEALTH ASSOCIATES, INC. APPELLANT v. CAROLYN ANN GILVIN; HON. WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Lyn Douglas Powers Louisville, Kentucky BRIEF FOR APPELLEE: McKinnley Morgan London, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-80638 OPINION
AFFIRMING BEFORE: COMBS, KRAMER AND STUMBO, JUDGES. COMBS, JUDGE: Dental Health Associates, Inc., petitions for our review of an opinion of the Workers' Compensation Board that affirmed a decision of the Administrative Law Judge (The ALJ). The ALJ awarded Carolyn Ann Gilvin permanent, total disability benefits. Dental Health Associates contends that the Board erred by concluding that the ALJ had conducted a proper analysis of the evidence before awarding benefits. It also argues that in assessing the evidence, the Board committed an error so flagrant as to cause gross injustice. Western Baptist Hosp. v. Kelly, 827 S.W.2d 685 (Ky. 1992). After our review, we affirm.
Gilvin filed a first report of injury with the Department of Workers' Claims on July 1, 2013. She alleged that she suffered bilateral carpal tunnel syndrome as a result of her work with Dental Health Associates.
On January 15, 2014, the ALJ awarded Gilvin permanent, total disability benefits. Following that initial decision, Dental Health Associates appealed to the Board on three separate occasions. The Board rendered an opinion remanding on April 25, 2014, and another on October 17, 2014. Finally, on May 22, 2015, the Board rendered an opinion affirming the decision of the ALJ to award permanent, total disability benefits. This appeal followed.
On appeal, Dental Health Associates first contends that the Board erred by concluding that the ALJ's analysis of the evidence was legally sufficient. It argues that the ALJ failed to consider pertinent evidence from Gilvin's treating physicians indicating that she was capable of returning to full-duty employment following her successful recovery from the work-related injury. Next, the employer contends that the Board made a glaring error in its evaluation of the evidence so flagrant that a gross injustice has occurred. Western Baptist Hospital, supra. We disagree with both of these assertions.
Upon our review of a decision of the Workers' Compensation Board, we may reverse only where the Board has overlooked or misconstrued controlling law or so flagrantly erred in evaluating the evidence that it has caused gross injustice. Id. In this case, we must determine whether the Board erred in affirming the ALJ's conclusion that Gilvin was permanently and totally disabled by her work-related injury.
Dental Health Associates contends that a proper analysis of the evidence does not support a finding of total occupational disability and an award of permanent total disability benefits. Dental Health Associates argues that it is impossible to discern from the opinion of the ALJ whether he considered and correctly understood the medical opinions submitted by the parties.
In evaluating this argument, the Board observed that before rendering an award, the ALJ is required to make an individualized determination of what an employee is capable of doing following recovery from a work-related injury. It noted that a legally sufficient analysis includes a consideration of several factors, including the employee's post-injury physical, emotional, intellectual, and vocational status as well as an opinion sufficient to inform the parties of the basis of his decision and to permit meaningful review. In evaluating the final findings of the ALJ, the Board concluded that he had undertaken a proper analysis of the evidence and that he sufficiently articulated the basis of his decision. The Board observed as follows:
The ALJ stated his reliance on Dr. [James] Owen's opinions as to Gilvin's physical capabilities, and Gilvin's testimony concerning her ongoing pain. The ALJ discussed Gilvin's age, her education, and her prior work history. Clearly, he was most persuaded by Gilvin's own assessment of her ability to work consistently and reliably. Thus, we cannot conclude the ALJ has failed to sufficiently articulate the basis of his decision or failed to conduct the requisite analysis pursuant to [IRA A. Watson Dep't. Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000)].
The Board did not err by concluding that the ALJ's analysis of the facts and the law were sufficient. The ALJ set forth facts sufficient to support the conclusions that he reached and to permit a meaningful review. See Shields v. Pittsburg and Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982). Additionally, his findings made it clear that the correct legal standard was applied. His recitation of the evidence included adequate reference to the relevant factors, and his findings included an explanation of his rationale for concluding that the claimant was permanently, totally disabled. There was no error.
Dental Health Associates also contends that the Board committed an error in assessing the evidence so flagrant as to cause gross injustice. It argues that evidence of Gilvin's post-operative improvement and level of functioning contradicts any conclusion that she is permanently, totally disabled. Dr. Margaret Napolitano and Dr. William O'Neil released Gilvin to return to full-duty work following her surgeries. However, Dr. Owen testified that Gilvin could not return to work. Additionally, Gilvin's own testimony regarding her physical limitations and her inability to continue working is competent evidence upon which the ALJ was entitled to rely. Hush v. Abrams, 584 S.W.2d 48 (Ky. 1979). The Board did not err in its evaluation of the evidence.
Therefore, we affirm the decision of the Workers' Compensation Board.
STUMBO, JUDGE, CONCURS.
KRAMER, JUDGE, DISSENTS, and will not file separate opinion. BRIEF FOR APPELLANT: Lyn Douglas Powers
Louisville, Kentucky BRIEF FOR APPELLEE: McKinnley Morgan
London, Kentucky