Opinion
NO. 2015-CA-000778-WC
02-12-2016
SLATER FORE CONSULTING, INC. APPELLANT v. LESLIE B. RIFE; HON. WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Carl M. Brashear Lexington, Kentucky BRIEF FOR APPELLEE: Christopher P. Evensen Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-70061 OPINION
AFFIRMING BEFORE: D. LAMBERT, JONES, AND THOMPSON, JUDGES. D. LAMBERT, JUDGE: In this appeal, Slater Fore Consulting, Inc. ("Slater") challenges the April 24, 2015 decision of the workers' compensation board (the "Board") to uphold the decision of Hon. William J. Rudloff, Administrative Law Judge ("ALJ") to award Leslie Rife ("Rife") permanent total disability ("PTD") and medical benefits. After review, we affirm.
I. BACKGROUND
In August 2010, Rife began delivering mining chemicals for Slater. His job required him to drive a tanker truck to various facilities in Kentucky and Georgia, load the truck with chemicals, haul the chemicals to Montana, and unload the chemicals at certain mining sites. He completed this route weekly.
During the loading and unloading process, Rife had to attach hoses two inches in diameter to the truck. On June 10, 2012, while unloading chemicals in Montana, Rife tripped over a hose and fell face-first on a steel beam. As a result, Rife suffered facial lacerations, a closed head injury, a cervical strain, and a knee contusion. He was treated in a hospital emergency room. Rife returned home to Tennessee the day after the incident. He experienced headaches and knee stiffness during the ride home.
Following his June 10, 2012 fall, Rife only completed one more delivery cycle. He continued to experience headaches and facial pain. Rife sought treatment from Dr. Derek Cooze, who referred him to Dr. Todd Abel, a surgeon.
On December 7, 2012, Dr. Abel surgically extended a cervical fusion that had been performed on Rife's neck in 2008. Rife developed a complication from this surgery in the form of a hematoma on his neck. Rife returned to surgery the next day, December 8, 2012, to remove the hematoma. Rife eventually recovered after spending a week in a coma.
While recovering in an intensive care unit, a nurse transferred Rife from his hospital bed to a nearby chair and left him without further supervision or assistance. When Rife attempted to return to his bed, he fell to the ground and injured his back.
After undergoing surgery for his back injury in June 2013, Rife continued to complain of neck pain, low-back pain, headaches, dizziness, cognitive impairment, and a ringing in his ears. Rife presented to several physicians in the ensuing months, and they provided conflicting diagnoses. Importantly for this appeal, Rife presented to Dr. Jules Barefoot on April 30, 2014, who confirmed the injuries. Dr. Barefoot determined that Rife was asymptomatic regarding his cervical spine prior to the June 10, 2012 incident, noting that he had not sought medical treatment for any back or neck pain in the six months preceding the incident and was able to work full time. Dr. Barefoot further opined that Rife's current injuries were caused by the fall on June 10, 2012, and the complications that arose as a result of the fall. Dr. Barefoot assigned Rife a 44 percent whole-person impairment rating and recommended that Rife be considered totally and permanently disabled.
Dr. Barefoot attributed 28 percent for Rife's current neck condition and deducted 10 percent for Rife's prior neck surgery. Dr. Barefoot apparently combined the resulting 18 percent impairment with an additional 32 percent impairment for Rife's lower back injury. --------
Rife filed a workers' compensation claim on May 22, 2014. Slater denied the claim. Following a benefit review conference in October 2014, a final hearing was held. The ALJ rendered its decision on November 19, 2014.
In its decision, the ALJ determined that Rife was credible. He also found Dr. Barefoot's testimony persuasive. The ALJ found that Rife sustained work-related injuries to his neck, back, and brain as a result of the June 10, 2012 incident and relied on Pond Creek Collieries Co. v. La Santos, 212 S.W.2d 530 (Ky. 1948), and Elizabethtown Sportswear v. Stice, 720 S.W.2d 732 (Ky. App. 1986), to support his finding that Rife had suffered a compensable injury during treatment of a work-related injury that was a natural consequence of the treatment.
Overall, the ALJ finally determined that Slater failed to carry its burden of proof as to whether Rife suffered from a preexisting active disability. The ALJ based this final determination on Dr. Barefoot's opinion that Rife's previous back condition had resolved following a 2008 cervical fusion and that Rife was not under any physical restrictions prior to his June 10, 2012 fall. The ALJ then awarded Rife PTD and medical benefits.
Slater filed a petition for reconsideration on November 26, 2014, and the ALJ confirmed his previous award. Slater then appealed to the Board arguing the ALJ improperly relied on its own assessment of Rife's credibility as well as Dr. Barefoot's findings. Slater also argued that the ALJ erred as a matter of law in applying both Pond Creek Collieries Co. and Stice, supra. Lastly, Slater argued that the ALJ should have adjusted its award to account for Rife's preexisting back condition. The Board rejected these arguments, and this appeal followed.
II. STANDARD OF REVIEW
In workers' compensation cases, "[t]he ALJ's findings of fact are entitled to considerable deference and will not be set aside unless the evidence compels a contrary finding." U.S. Bank Home Mortgage v. Schrecker, 455 S.W.3d 382, 384 (Ky. 2014). The ALJ also "has the sole authority to judge the weight to be afforded the testimony of a particular witness." Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). "However, the ALJ's and the Board's application of the law are reviewed de novo." Finley v. DBM Techs., 217 S.W.3d 261, 264 (Ky. App. 2007).
III. DISCUSSION
On appeal, Slater presents similar arguments as those it presented to the Board. First, Slater claims that Rife's current back condition is due to a preexisting back condition and not the June 10, 2012 fall. Second, Slater claims that the ALJ improperly determined that Rife's back condition was causally related to the June 10, 2012 fall. Finally, Slater claims that the ALJ erred by failing to attribute any part of Rife's disability to Rife's alleged preexisting condition. For the following reasons, we affirm the Board.
With respect to Slater's first argument, substantial evidence supports the ALJ's finding that Rife's current back condition is work-related. The ALJ relied on the testimony of Dr. Barefoot, who found that Rife's prior back troubles, which dated back to 2005, were resolved following the cervical fusion procedure Rife underwent in 2008. Though Dr. Barefoot acknowledged that Rife received a lumbar x-ray in 2011, he also noted that Rife was able to drive a truck cross- country for six months prior to his fall on June 10, 2012, without restrictions or medical treatment. The ALJ's reliance on this testimony rather than the testimonies of the other doctors is entirely permissible, and we will not disturb this finding.
As for Slater's second argument, the ALJ properly applied existing law. In Pond Creek Collieries Co., our former Court of Appeals held that an ultimate disability resulting from an injury sustained while undergoing medical treatment for a work-related injury is compensable under the Workers' Compensation Act, as long as the subsequent injury occurred at a time when the plaintiff could not be held accountable for his acts. The Court further explained that this holding effectuates the overall objective of the Workers' Compensation Act to compensate injured employees because the subsequent injury would be a direct and proximate result of the original injury. Id. at 532. Stice later solidified the Pond Creek Collieries Co. holding by awarding death benefits to an employee's widower after the employee suffered a fatal allergic reaction to the dye applied during a lumbar myelogram procedure, which was performed to treat the employee's work-related back injury.
Here, as we have already upheld the ALJ's determination that Rife sustained a work-related injury to his neck and back on June 10, 2012, there is no longer a dispute that Rife underwent cervical fusion surgery in December 2012 to treat his work-related injury. It is equally undisputed that Rife developed a neck hematoma during his December 2012 cervical fusion surgery, which had to be evacuated the next day. Thus, the only remaining issue under the Pond Creek Collieries Co. holding is whether Rife could be held accountable for falling while attempting to return to his hospital bed while recovering from a week-long coma. The ALJ answered this question in the negative, and we will not disturb that factual determination.
Regarding Slater's third and final argument on appeal that the ALJ should have reduced Rife's PTD benefits to account for a preexisting active impairment or disability, we find that the ALJ did not err. As the Board observed, the ALJ followed the framework supplied by Roberts Bros. Coal Co. v. Robinson, 113 S.W.3d 181 (Ky. 2003), and determined that an exclusion from a total disability award must be based on a preexisting disability. The Roberts Bros. Coal Co. case provides as follows:
Impairment and disability are not synonymous. We conclude, therefore, that an exclusion from a total disability award must be based upon pre-existing disability, while an exclusion from a partial disability award must be based upon pre-existing impairment. For that reason, if an individual is working without restrictions at the time a work-related injury is sustained, a finding of pre-existing impairment does not compel a finding of pre-existing disability with regard to an award that is made under KRS 342.730(1)(a).Id. at 183.
Here, the ALJ awarded Rife total disability benefits and found that Rife did not suffer from a preexisting disability. Rife testified that he was not subject to any restrictions before his work injury, and Dr. Barefoot reinforced this testimony with medical evidence. Accordingly, the ALJ properly supported his finding, even though Rife may have had a preexisting impairment. Therefore, we will not disturb the amount of the ALJ's award.
The Board's decision is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Carl M. Brashear
Lexington, Kentucky BRIEF FOR APPELLEE: Christopher P. Evensen
Louisville, Kentucky