Opinion
NO. 2014-CA-000184-WC
07-18-2014
KRISTI LAIN HELTON APPELLANT v. SLEEP INN; HON. WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Ronald C. Cox Harlan, Kentucky BRIEF FOR APPELLEE: Guillermo A. Carlos James B. Cooper Lexington, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-96126
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
BEFORE: JONES, STUMBO, AND THOMPSON, JUDGES. JONES, JUDGE: This is an appeal from the Workers' Compensation Board's ("Board") decision to reverse the Administrative Law Judge's ("ALJ") Opinion and Order awarding total permanent disability benefits to the Appellant, Kristi Lain Helton. On appeal, Helton maintains that the Board usurped its authority by substituting its factual findings for those made by the ALJ. For the reasons more fully explained below, we affirm in part, reverse in part, and remand.
I. BACKGROUND
The Appellee, Sleep Inn, hired Helton as a housekeeper in 2010. In 2011, Sleep Inn promoted Helton to the position of housekeeper/supervisor. Her primary work duties included supervising five housekeepers and inspecting cleaned rooms, although sometimes she assisted in cleaning. On February 2, 2012, while working at Sleep Inn, Helton injured her lower back when she slipped and fell in a shower.
On February 11, 2013, Helton filed a Form 101 Application for Resolution of Injury Claim with the Department of Workers' Claims seeking benefits for her work-related back injury. Helton's claim was assigned to an ALJ. Following discovery, the ALJ conducted a Benefit Review Conference ("BRC") on July 10, 2013. At the BRC, the parties stipulated to jurisdiction under the Act; an employment relationship between Helton and Sleep Inn; the date of injury (February 2, 2012); notice; Helton's date of birth (January 16, 1980); Helton's education level (high school graduate); Helton's average weekly wage ($231.89); Helton's vocational training (CNA); the duration and rate of temporary total disability benefits Sleep Inn paid Helton (total paid $5,234.32); and the total amount of medical expenses Sleep Inn paid on Helton's behalf ($9,323.51). However, the parties were unable to agree on Helton's entitlement to permanent disability benefits under Kentucky Revised Statutes (KRS) 342.730 or whether Helton was entitled to certain medical expenses. Specifically, Sleep Inn contested that Helton was entitled to permanent total disability benefits ("PTD"). These issues were marked as contested and left for the ALJ to determine following a final evidentiary hearing.
The ALJ conducted a final hearing on July 26, 2013, at which Helton was the only witness. In addition to Helton's testimony, the parties relied on the evidence they had previously filed of record, which included Helton's deposition testimony; various treatment-related medical records; and medical reports from Drs. James Bean, Robert Hoskins, Daniel Primm, and Ring Tsai.
The ALJ rendered an Opinion and Order on July 30, 2013. Therein, the ALJ found Helton's work-related injury resulted in a 5% permanent impairment rating under the AMA Guides, 5th Edition. The ALJ then found that Helton's impairment had rendered her totally and permanently occupationally disabled. With respect to the contested medical expenses, the ALJ found that Helton was "entitled to recover for her work-related medical bills and expenses, both past and future, including the prescription medications ordered for the plaintiff at Tri-State Medical Clinic." Based on his findings, the ALJ awarded Helton medical benefits and PTD benefits at the rate of $154.60 per week beginning on February 2, 2012, and continuing for the duration of her disability.
As noted in the award, pursuant to KRS 342.730(4), the benefits under the Act terminate as of the date on which the plaintiff qualifies for normal old age Social Security retirement benefits.
Sleep Inn timely petitioned the ALJ for reconsideration. Therein, Sleep Inn argued that the PTD award failed to sufficiently set forth the basis for the award and requested the ALJ to issue "more specific findings as they related to the basis for an award of permanent and total disability benefits." Sleep Inn also argued that the ALJ erred in awarding continued narcotic pain medication because no medical doctor opined that such medication was reasonable and necessary to treat Helton's work-related injuries. The ALJ denied the petition by order rendered September 5, 2013.
Sleep Inn appealed to the Board. On January 8, 2014, the Board entered an opinion reversing in part and remanding to the ALJ. The Board concluded that while the evidence demonstrated that Helton sustained a permanent impairment, no evidence supported the ALJ's finding that Helton is totally disabled. The Board also concluded that while Helton is entitled to medical benefits under the Act, the ALJ had "failed to offer a reasonable explanation for his rejection of the seemingly unanimous opinion of every physician who squarely addressed" the necessity of continued prescription narcotic pain medication. On remand, the Board indicated that the ALJ "may reconsider the evidence and, at his discretion award other benefits to which Helton may be entitled."
This appeal followed.
II. STANDARD OF REVIEW
Pursuant to KRS 342.285, the ALJ is the sole finder of fact in workers' compensation claims. Our courts have construed this authority to mean that the ALJ has the sole discretion to determine the quality, character, weight, credibility, and substance of the evidence, and to draw reasonable inferences from that evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985); McCloud v. Beth-Elkhorn Corporation, 514 S.W.2d 46, 47 (Ky. 1974). Moreover, an ALJ has sole discretion to decide whom and what to believe, and may 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. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
On review, neither the Board nor the appellate court can substitute its judgment for that of the ALJ as to the weight of evidence on questions of fact. Shields v. Pittsburgh & Midway Coal Mining Co., 634 S.W.2d 440, 441 (Ky. App. 1982). In short, the reviewing body cannot second-guess or disturb discretionary decisions of an ALJ unless those decisions amount to an abuse of discretion. Medley v. Board of Education, Shelby County, 168 S.W.3d 398, 406 (Ky. App. 2004). Discretion is abused only when an ALJ's decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001). To demonstrate an abuse of discretion, "[a] party who appeals a finding that favors the party with the burden of proof must show that no substantial evidence supported the finding, i.e., that the finding was unreasonable under the evidence." Abel Verdon Const. v. Rivera, 348 S.W.3d 749, 754 (Ky. 2011).
III. ANALYSIS
A. Total Permanent Disability Award
The Workers' Compensation Act states that a permanent total disability "means 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." KRS 342.0011(11)(c). The factors that an ALJ must consider in determining whether an individual claimant is permanently and totally occupationally disabled are set forth in Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). They include: the worker's post-injury physical, emotional, intellectual, and vocational status and how those factors interact; a consideration of the likelihood that the particular worker would be able to find work consistently under normal employment conditions; whether the individual will be able to work dependably; and whether the worker's physical restrictions will interfere with vocational capabilities. Id. "An analysis of the factors set forth in KRS 342.0011(11)(b), (11)(c), and (34) clearly requires an individualized determination of what the worker is and is not able to do after recovering from the work injury." McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 860 (Ky. 2001).
While an ALJ must rely on medical proof to find that the worker sustained a permanent disability rating, the ALJ is not required to base his conclusion that the claimant cannot perform any work on expert opinions. Commonwealth Transp. Cabinet v. Guffey, 42 S.W.3d 618, 621 (Ky. 2001). In certain cases, lay testimony, even if just that of the claimant, may be sufficient to support an award of PTD. Id.
In determining that Helton's work injury rendered her permanently and totally occupationally disabled, the ALJ stated in his Opinion and Order that he considered: "the severity of the plaintiff's work injuries, her age, her work history, her education, and the specific medical evidence from both Dr. Hoskins and Dr. Bean regarding her permanent impairment and occupational disability." He went on to state that based on "all those factors, I make the factual determination that the plaintiff cannot find work consistently under regular work circumstances and work dependably."
In denying Sleep Inn's petition for reconsideration, the ALJ further explained his decision to award PTD benefits as follows:
The plaintiff was awarded permanent total disability benefits based upon her specific testimony that she was working for the defendant as a housekeeper, which required her to regularly clean rooms and move furniture. She sustained a serious injury while working on February 2, 2012. She testified that she has constant pain in her back and that her activities of daily living cause her pain. She stated that with her physical restrictions she cannot return to her job with the defendant. She takes prescription pain medication ordered by her treating physician. Dr. Hoskins stated in his report that Mrs. Helton does not retain the physical capacity to return to the type of work which she performed at the time of her work injuries. Dr. Hoskins placed upon her specific physical restrictions as follows: No lifting over 25 pounds, no lifting over 15 below waist level, no prolonged or repetitive work, no continuous sitting over 2 hours, no continuous standing or walking over 2 hours, no prolonged or repetitive stopping, crouching or heavy
pushing, pulling or carrying and no activity that involves sustained posturing of the lumbosacral spine at extremes of motion or repetitive movements into extremes of lumbosacral motion. Dr. Bean had Mrs. Helton undergo a functional capacity examination, which concluded that she functioned at the sedentary level and could sit constantly, stand or walk about occasionally, and lift up to 10 pounds routinely, but not continuously or repetitively. All of the above evidence led me to make the factual determination that the plaintiff is permanently and totally disabled. (Emphasis added).
At the outset, we note that the ALJ confuses factual findings with legal conclusions. The ALJ's determination that Helton is permanently and totally disabled is not a factual finding; in this context it is the ultimate legal conclusion. In the first instance, the validity of that ultimate conclusion rises or falls on whether the ALJ actually rendered findings with respect to the basic factual prerequisites necessary to support his ultimate conclusion. A bare conclusion "unaccompanied by a finding of any basic facts which support the ultimate finding often renders appellate review impossible." City of Beechwood Village v. Council of and City of St. Matthews, 574 S.W.2d 322, 324 (Ky. App. 1978)(citing Sims v. Angel, 513 S.W.2d 176 (Ky. 1974)). This is so because "[t]he reviewing court has no way to determine whether the ultimate finding was made arbitrarily if it does not have before it the facts upon which the finding was based." Id. Moreover, "we do not assume that the basic findings are implicit in the ultimate finding." Chemetron Corp v. McKinley, 574 S.W.2d 332, 334 (Ky. App. 1978).
Two basic factual findings are necessary to support the ultimate conclusion that an employee is permanently and totally occupationally disabled: 1) the worker has a permanent disability rating; and 2) the worker will not be able to earn an income by providing services on a regular and sustained basis in a competitive economy.
Like the Board, we have no trouble concluding that the ALJ made a factual determination regarding the first element. On page seven of the ALJ's opinion, he plainly states that Helton sustained "a 5% permanent whole person impairment . . . as a result of her work injuries on February 2, 2012." The ALJ further indicated that he relied on Dr. Bean's medical opinion in making this factual determination. Dr. Bean's report supports the ALJ's factual finding of a 5% permanent impairment rating. Therefore, we agree with the Board that substantial evidence exists to support this finding by the ALJ.
The second element is far more problematic. While the medical evidence supports the ALJ's findings regarding Helton's limitations, none of the expert opinions indicate that Helton cannot perform any work. This fact in and of itself is not fatal to Helton's claim; lay testimony can be sufficient to establish the second element. The larger question here is whether such evidence exists in this case and whether the ALJ actually considered the relevant factors to determine that Helton will not be able to earn an income by providing services on a regular and sustained basis in a competitive economy.
Helton testified regarding her work history, her current abilities, and her pain. As related to her ability to perform work, Helton definitively testified at both her deposition and the final hearing that she did not believe she could return to her prior position. However, she did not provide any testimony affirmatively indicating that she does not believe that she cannot return to any type of regular and continuous employment. Helton did testify that after sitting and/or standing continuously for twenty to thirty minutes, she needed to change positions. But, she also testified in her deposition that her prior job as a telemarketer allowed her to sit or stand as necessary.
No evidence or testimony was presented regarding the availability or lack thereof of jobs that would accommodate Helton's restrictions/limitations. Moreover, Helton offered no opinion regarding whether her pain medication affected her ability to concentrate or otherwise function.
Most problematic, however, is that while the ALJ accurately cited the relevant considerations in assessing whether an individual is likely to be able to return to some type of regular and sustained employment, the ALJ's opinion is devoid of any analysis to support that he actually considered those factors in combination with one another to reach a reasoned factual determination. The only place the ALJ mentions Helton's age, 33 at the time, is in the section of his opinion denoting the stipulated facts. He does not indicate that he considered how her relatively young age would affect her ability to return to employment. The same is true with respect to Helton's educational level, high school graduate; specialized training, CNA; and work history, some prior sedentary employment. Moreover, there is no indication that the ALJ considered the availability of work in a competitive economy that could accommodate Helton's limitations. From the face of the ALJ's opinion, we can ascertain only that he considered Helton's subjective pain and the limitations placed upon her by the various medical experts (none of whom opined that she was totally disabled).
Citing Big Sandy Community Action Program v. Chaffins, 502 S.W.2d 526, 531 (Ky. 1973), Helton argues that the ALJ "is not required to engage in a detailed explanation of the minutia of his reasoning in reaching a particular result." Chaffins was rendered under the old compensation structure where the Board (the fact-finder at the time) was not required to issue formal opinions. See Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 61-62 (Ky. 2012). Our modern day compensation structure requires ALJs to render formal opinions that contain findings of fact and conclusions of law. Id. Our Supreme Court has been clear that under the current statutory scheme, an ALJ's opinion must: 1) summarize conflicting evidence; 2) weigh that evidence to make findings of fact; and 3) determine the legal significance of those findings. Id. If an ALJ's opinion does not do all three, neither the Board nor the reviewing appellate courts can "determine in the summary manner contemplated by KRS 342.285(2) whether the finding is supported by substantial evidence and reasonable." Id.
This is not to say that an ALJ is required to provide a detailed factual analysis of every disputed issue. Certainly, there are some cases where an ALJ is entitled to simply identify what evidence he relied upon and state that he considered that evidence more credible and convincing than the competing evidence in the record. An example would be where the medical experts offered competing impairment ratings. In this case, however, neither the evidence nor the standard of assessment is so straightforward. Helton did not testify that she could not perform any work. She testified only that she could not perform her past duties. Thus, even though the ALJ found Helton credible, that determination alone does not establish her inability to perform work. Moreover, the applicable standard requires a consideration of a number of varied factors and how those factors relate to one another.
From the ALJ's original opinion and order on reconsideration, we can ascertain only that he considered Helton's post-injury physical condition and her inability to return to her immediate past employment. There is no indication that the ALJ actually considered Helton's age, educational background, work history, emotional status, intellectual abilities and/or vocational status. Moreover, the ALJ made no findings with respect to the likelihood that Helton would be able to find work consistently under normal employment conditions; whether she would be able to work dependably; and whether and how Helton's physical restrictions would interfere with her existing vocational capabilities.
The ALJ receives the evidence directly and, therefore, is in a superior position to judge its credibility and weight. If inferences must be drawn from the evidence to support the ALJ's conclusions, the ALJ is the only person who is properly positioned to draw them. From our position, we are limited to assessing whether the inferences actually drawn by the ALJ are reasonable and supported by the evidence.
The ALJ's opinion does not contain sufficient analysis for us to meaningfully review his legal conclusion that Helton is permanently and totally disabled. The ALJ tells us that he considered some of the relevant factors. Yet, we do not know in what way he did so. We are left simply to speculate regarding the weight the ALJ placed on any individual factor and what inferences he may have drawn from the evidence he cited to support his ultimate legal conclusion. To affirm or reverse the ALJ, we would have to weigh the evidence and make determinations not established by the ALJ regarding its significance and the inferences to be drawn from it. This is neither our role nor the Board's role.
Yet, this is precisely what the Board did in this case. The Board reviewed the evidence, particularly that related to Helton's work history and restrictions, and found that she could perform sedentary work despite her restrictions. The Board, however, like the ALJ, failed to consider the likelihood that Helton would be able to find work consistently under normal employment conditions and whether, given her testimony regarding her pain and need to change position frequently (which the ALJ found credible), she would be able to perform this work dependably. Even if the Board had made "findings" with respect to this element, it would have been improper for it to do so where the ALJ failed to do so in the first instance. See White v. Great Clips, 259 S.W.3d 501, 504 (Ky. App. 2008) (citing Finley v. DBM Technologies, 217 S.W.3d 261, 266 (Ky. App. 2007)).
Rather than weighing the evidence and making basic factual determinations that the ALJ failed to make, the Board should have vacated the ALJ's award and remanded the claim. The Board should have then instructed the ALJ to weigh all the factors set forth in Ira A. Watson Department Store and make a finding regarding whether Helton would be able to find work consistently under normal employment conditions and whether she would be able to perform said work dependably. Transportation Cabinet v. Poe, 69 S.W.3d 60, 63 -64 (Ky. 2001). Likewise, the Board should have instructed the ALJ that he must identify the evidence that he considered and include in his opinion any inferences he drew from that evidence.
Accordingly, we must reverse the Board's opinion with respect to its conclusion on the PTD element and remand with instructions for it to direct the ALJ to render findings of fact supported by an appropriate analysis regarding whether Helton will be able to provide services to another for pay on a regular and sustained basis in a competitive economy.
B. Reasonableness and Necessity of Prescription Pain Medication
"KRS 342.020(1) requires the employer of one determined to have incurred a work-related disability to pay for any reasonable and necessary medical treatment for relief whether or not the treatment has any curative effect." National Pizza Co. v. Curry, 802 S.W.2d 949, 951 (Ky. App. 1991). Sleep Inn does not contest Helton's right to receive any future medical care with respect to her work-related disability. Rather, its medical dispute is limited to whether prescription pain medication is reasonable and necessary to treat Helton's injuries. As the complaining party, Sleep Inn bore the burden of proof on this element.
To this end, Sleep Inn points to evidence from Drs. Bean, Primm, and Tsai indicating that Helton should be weaned off her narcotic pain medications. Dr. Hoskins did not address the need for such medication. Helton testified that the pain medication does not help her. The ALJ stated that he determined that the medications were reasonable and necessary based on Helton's medical records from Tri-State Clinic. We have reviewed those records. They contain only notations indicating that the physician prescribed the medications to Helton. A prescription, standing alone, is not sufficient evidence that a particular medication is reasonable and necessary to treat a particular condition. Physicians often prescribe drugs, devices and procedures that are not "reasonably necessary," but the patient desires nonetheless. Some statement of opinion by a physician must accompany a prescription if it is to be relied on as a medical opinion of reasonableness and necessity under the Act.
Having reviewed the evidence, we do not believe that the Board erred in reversing the ALJ's opinion regarding the prescription pain medications.
IV. CONCLUSION
For the reasons set forth above, we affirm in part, reverse in part, and remand for additional findings of fact as set forth above.
ALL CONCUR BRIEF FOR APPELLANT: Ronald C. Cox
Harlan, Kentucky
BRIEF FOR APPELLEE: Guillermo A. Carlos
James B. Cooper
Lexington, Kentucky