Opinion
NO. 2019-CA-001729-WC
05-01-2020
ARMSTRONG COAL CO. APPELLANT v. JOHN DOWNING; HONORABLE GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Michael Thomas Kunjoo Donald J. Niehaus Lexington, Kentucky BRIEF FOR APPELLEE, JOHN DOWNING: Jerry P. Rhoads Madisonville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-15-69370 OPINION
AFFIRMING
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BEFORE: COMBS AND LAMBERT, JUDGES; BUCKINGHAM, SPECIAL JUDGE. LAMBERT, JUDGE: Armstrong Coal Co. has petitioned this Court for review of the decision of the Workers' Compensation Board (the Board) affirming the opinion of the Administrative Law Judge (ALJ) awarding John Downing permanent total disability benefits. 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.
Downing was born on October 31, 1953, and is currently 66 years old. He has a 7th grade education, but has very little reading or writing skills. He has never received a GED. Downing worked in the coal mining industry beginning in 1977, and he worked as an operator, truck driver, and dozer operator for various mining companies. Prior to that, he mowed grass, had a paper route, worked as a dishwasher and a carhop, ran a machine that molded tires, worked as an engine mechanic, and worked on an oil rig. He began his work for Armstrong Coal in 2008, where he worked in the wash plant and as a dozer operator. His last day of work was in September 2015, shortly after he sustained his work-related injury. He was then fired for failing a drug test, which Downing denied. His past medical history is notable for a work-related injury to his low back in 1985 for which he underwent surgery. He collects social security benefits, and he began receiving social security disability benefits in March 2016.
Downing was injured at work on September 2, 2015. His supervisor took him for a random drug test in a pick-up truck, and on the way back, he drove through a ditch. This caused Downing to be thrown around inside the truck and incur his injury. Downing was not wearing a seatbelt at the time, and there is some question as to whether it was in working condition. He sought treatment, and neurosurgeon Dr. Srinivasan Periyanayagam performed back surgery in August 2016 for a ruptured lumbar disc at L5-S1. Since that time, Downing spends his days walking and feeding his animals, cleaning the floors on his hands and knees (which he described as the most comfortable position he could be in), swimming in the lake on his property, and running errands once a week. He had been a state champion in archery but was no longer able to shoot due to pain.
Downing filed an application for resolution of injury claim on October 28, 2018, seeking benefits as a result of his injury. Armstrong Coal denied the claim in its entirety and filed a special answer alleging that Downing had committed a safety violation pursuant to Kentucky Revised Statutes (KRS) 342.165 and was voluntarily intoxicated pursuant to KRS 342.610(3). Armstrong Coal filed a Form SVE, noting that the alleged safety violation was Downing's intoxication and that this failure to obey the policy to not be intoxicated caused or contributed to his injury. It sought a 15% reduction in any weekly benefits Downing might be awarded. During the discovery period, both parties filed evidence in support of their respective positions.
The ALJ held a benefit review conference on March 13, 2019. Contested issues remained pursuant to KRS 342.730. They were work-related and causation, medical expenses, an exclusion for pre-existing active disability, temporary total disability benefits, and the existence of a safety violation. The ALJ then held a final hearing on March 28, 2019. At the hearing, Downing described the pain he had been experiencing: "I've got a dead nerve from the bottom part of my back all of the way down through my foot - right foot, toes, upper part of my foot, my ankle and my heel. It's just - I have no feeling in it but pain. I get a burst of pain and it will make me fall down." He continued to take medication for the pain, and he took a "nerve pill" to sleep. He testified that he walked with a cane: "I've spent a little time there at home trying to go without it, and I can walk around my yard without it, because it's so darn embarrassing falling down in public somewhere and I can't catch myself as good, and - and I just have to try."
Following the hearing, the parties filed briefs in support of their positions, and the ALJ rendered an opinion, order, and award on May 28, 2019. The ALJ first found that Downing's current back condition was related to his work injury:
In reaching this conclusion, the opinions of the treating surgeon, Dr. [Periyanayagam], are found most persuasive. Dr. [Periyanayagam] treated and followed plaintiff and is most familiar with his condition. Moreover, Dr. O'Brien's conclusions are not especially persuasive. He dismissed the idea plaintiff could have suffered any kind of new injury during the incident on September 2, 2015 based on the fact that plaintiff underwent a lumbar surgery in 1985 and had been seen three times for treatment of back symptoms in the 30
years between 1985 and this current alleged injury. In addition, Dr. O'Brien's conclusions are further undermined by the fact that Dr. [Periyanayagam] pointed out his surgery revealed a free fragment of disc which he attributed to the effects of the work injury and of which there is no evidence that this was caused or present prior to September 2, 2015.Next, the ALJ determined the extent of Downing's disability. He relied upon the 12% impairment rating assigned by Dr. O'Brien, which the physician based upon the DRE impairment rating model of the AMA Guides. The ALJ then considered whether Downing had the ability to return to gainful employment on a regular and sustained basis. After considering the restrictions recommended by Downing's treating surgeon, which included that he should not lift more than 10 pounds, perform repetitive bending, or work at heights, the ALJ concluded:
Given these restrictions, the fact that plaintiff has worked exclusively in the coal mining industry in heavy labor for the last almost 40 years and did not complete high school and testified he is almost illiterate, the ALJ does not believe plaintiff is [likely] to be able to return to any gainful employment on a regular and sustained basis.Therefore, the ALJ found that Downing was permanently and totally disabled.
As to whether there should be a carveout for a prior active condition, the ALJ considered this issue pursuant to Roberts Brothers Coal Co. v. Robinson, 113 S.W.3d 181 (Ky. 2003), which requires this to be decided in permanent total disability cases based upon disability rather than impairment. Finding that there was no active disability at the time of the work injury, the ALJ stated:
In this case, the ALJ finds it likely that plaintiff had a permanent impairment rating after his 1985 injury and surgery. However, nothing in the record indicates plaintiff was working under any restrictions, was receiving any medication or treatment for his lumbar condition, or was otherwise not able to perform the full functions of his heavy, manual labor and dozer operating activities at any time in the reasonably recent period of years prior to this work injury.
Finally, the ALJ rejected Armstrong Coal's safety violation argument. Armstrong Coal argued that Downing had violated KRS 342.165 because he was not wearing a seatbelt and failed a drug test immediately before the work incident. The ALJ found there was
a lack of substantial evidence of record establishing whether, and to what degree, any of plaintiff's injuries or restrictions were caused by either of these violations. Plaintiff was not driving the vehicle at the time of his injury, so there is no evidence establishing he would not have suffered the same injury had he been wearing a seatbelt, assuming an operational one was provided, or had he not had oxycodone in his system at the time of the injury.
The ALJ ultimately awarded Downing $670.19 per week beginning September 2, 2015, until he reached the age of 70, along with interest on past due amounts, and credited Armstrong Coal for amounts paid in temporary total disability (TTD) benefits. The ALJ also awarded Downing medical benefits. Armstrong Coal filed a petition for reconsideration, disputing the ALJ's conclusions that Downing was permanently and totally disabled, that a carveout for pre-existing active impairment was not warranted, and that Downing had not committed a safety violation. The ALJ denied the petition in an order entered July 1, 2019. Armstrong then appealed to the Board, which affirmed the ALJ's decisions in an opinion rendered October 18, 2019. This petition for review followed, in which Armstrong makes the same arguments.
This Court's review is premised on the Supreme Court of Kentucky's statement describing our role in reviewing workers' compensation actions. In Western Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky. 1992), the Supreme Court directed that this Court's function is to correct a decision of the Board only where we perceive that "the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Id. at 687-88.
The Supreme Court later addressed this standard in McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 860 (Ky. 2001), explaining:
KRS 342.285(2) provides that when reviewing the decision of an ALJ, the Board shall not reweigh the evidence and substitute its judgment for that of the ALJ with regard to a question of fact. The standard of review with regard to a judicial appeal of an administrative decision is limited to determining whether the decision was erroneous as a matter of law. See American Beauty Homes v. Louisville & Jefferson County Planning & Zoning Commission, Ky., 379 S.W.2d 450, 457 (1964). Where the ALJ determines that a worker has satisfied his
burden of proof with regard to a question of fact, the issue on appeal is whether substantial evidence supported the determination. Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 (1986). Substantial evidence has been defined as some evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable people. Smyzer v. B.F. Goodrich Chemical Co., Ky., 474 S.W.2d 367 (1971). Although a party may note evidence which would have supported a different conclusion than that which the ALJ reached, such evidence is not an adequate basis for reversal on appeal. McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46 (1974). The crux of the inquiry on appeal is whether the finding which was made is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law. Special Fund v. Francis, supra, at 643.And in Special Fund v. Francis, 708 S.W.2d at 643, the Supreme Court instructed:
If the fact-finder finds against the person with the burden of proof, his burden on appeal is infinitely greater. It is of no avail in such a case to show that there was some evidence of substance which would have justified a finding in his favor. He must show that the evidence was such that the finding against him was unreasonable because the finding cannot be labeled "clearly erroneous" if it reasonably could have been made.
It has long been held in Kentucky that the ALJ has the authority to decide the assessment of the credibility of witnesses and the persuasive weight of the evidence. KRS 342.285. The ALJ, not the Board, is empowered "to determine the quality, character and substance of evidence." American Greetings Corp. v. Bunch, 331 S.W.3d 600, 602 (Ky. 2010) (footnote omitted). The ALJ is also free to reject testimony, id., and "to believe part of the evidence and disbelieve other parts of the evidence[.]" Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). For these reasons, the Board "shall not substitute its judgment for that of the administrative law judge as to the weight of evidence on questions of fact[.]" KRS 342.285(2); see also FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 316 (Ky. 2007). And "if the physicians in a case genuinely express medically sound, but differing, opinions as to the severity of a claimant's injury, the ALJ has the discretion to choose which physician's opinion to believe." Jones v. Brasch-Barry General Contractors, 189 S.W.3d 149, 153 (Ky. App. 2006).
Our review of the Board's opinion satisfies us that it did not overlook or misconstrue any controlling statutes or precedent and did not commit any error in assessing the evidence when it affirmed the ALJ's rulings. Accordingly, we affirm the Board's opinion and adopt the following portion of the Board's analysis as our own:
We determine the ALJ performed the appropriate analysis and took into consideration the correct factors in determining Downing was permanently totally disabled. The ALJ first determined Downing sustained a work-related lumbar injury on September 2, 2015, warranting a 12% impairment rating, findings not challenged on appeal. The ALJ found persuasive the restrictions imposed by Downing's treating physician, Dr. Periyanayagam, consisting of no lifting over ten pounds, no repetitive bending, and no working at heights. The ALJ noted Downing has worked exclusively as a heavy laborer in the coal mining industry for nearly forty years. He also took into consideration Downing's limited education and the testimony regarding his ability [to]
read. We also note Dr. Periyanayagam opined Downing is unable to return to his full range of job duties at Armstrong or any type of comparable work. He further opined Downing is unable to return to work in the coalmines due to his pain and continuing need for medication. Similarly, Downing does not believe he is able to return to his previous position with Armstrong or any of his prior jobs in the coalmining industry due to his symptoms, limitations, and safety concerns regarding himself and others. The ALJ took into account Downing's age, education, and past work experience, along with his post-injury physical status. The ALJ performed the appropriate analysis in accordance with the direction of the Kentucky Supreme Court in City of Ashland v. Stumbo, [461 S.W.3d 392 (Ky. 2015),] and Ira A. Watson Department Store v. Hamilton, [34 S.W.3d 48 (Ky. 2000)]. The ALJ's determination is supported by Downing's testimony, along with the medical evidence, and will remain undisturbed.
We likewise find the ALJ did not err by refusing to carve out a percentage of the award of PTD benefits due to Downing's previous lumbar condition. In Roberts Brothers Coal Co. v. Robinson, 113 S.W.3d 181 (Ky. 2003), the Kentucky Supreme Court distinguished between pre-existing impairment and pre-existing disability. As noted by the ALJ, the Court held a finding a claimant had a pre-existing impairment was not synonymous with a finding of a pre-existing disability. Id. at 183. The Court explained an exclusion for pre-existing disability from a total disability award must be based upon a finding of occupational disability rather than existence of an impairment rating. Id.
It is undisputed Downing underwent lumbar surgery in the 1980s at the same level. Downing testified that after approximately five weeks of recovery, he returned to work in the coalmining industry unrestricted, and he continued to work until after the September 2, 2015 work accident. The ALJ acknowledged the medical
records indicate Downing complained of back pain on at least four occasions in 2011, 2013 and 2014. However, he relied upon the fact that Downing was neither working under any restrictions, nor receiving any medication or treatment for his lumbar condition at any time in the reasonably recent period of years prior to this work injury. He also emphasized there was no evidence indicating Downing was unable to perform the full functions of his work activities in the years prior to his work injury. The previous medical records relied upon by Armstrong do not mandate a finding of a pre-existing, active disability in accordance with Roberts Brothers Coal Co. v. Robinson, supra. The ALJ could reasonably conclude Downing did not have prior disability and his decision will not be disturbed.
The ALJ outlined the evidence he reviewed, and provided the basis for his determination that Downing is permanently totally disabled due to the lumbar injury. The ALJ properly analyzed the claim, and his decision falls squarely within his discretion. Downing's testimony and the medical evidence support the ALJ's determinations.
Finally, we find substantial evidence supports the ALJ's determination that Downing's award should not be reduced by 15% pursuant to KRS 342.165, and again, a contrary result is not compelled. The purpose of KRS 342.165 is to reduce the frequency of industrial accidents by penalizing those who intentionally fail to comply with known safety regulations. See Apex Mining v. Blankenship, 918 S.W.2d 225 (Ky. 1996). The burden is on the claimant to demonstrate an employer's intentional violation of a safety statute or regulations, and conversely, the burden is upon the employer to establish an employee's intentional violation. See Cabinet for Workforce Development v. Cummins, 950 S.W.2d 834 (Ky. 1997). KRS 342.165(1) provides:
. . . . If an accident is caused in any degree by the intentional failure of the employee to use any safety appliance furnished by the employer or to obey any lawful and reasonable order or administrative regulation of the commissioner or the employer for the safety of employees or the public, the compensation for which the employer would otherwise have been liable under this chapter shall be decreased fifteen percent (15%) in the amount of each payment.
The application of the safety penalty requires proof of a violation of a specific safety provision, whether state or federal. Second, evidence of "intent" to violate a specific safety provision must also be present. Finally, the violation must be a cause of the accident. Application of KRS 342.165 does not automatically flow from a showing of a violation of a specific safety regulation followed by a compensable injury. Burton v. Foster Wheeler Corp., 72 S.W.3d 925 (Ky. 2002).
Armstrong submitted little evidence on this issue. Armstrong did not cite to or provide the specific safety provision it alleged Downing violated regarding the seatbelt. Although Downing testified it was mandatory to wear seatbelts, he also believed the passenger's seatbelt was not functioning properly at the time of the accident. When asked if he believed that the lack of a seatbelt could have contributed to Downing's complaints, Dr. O'Brien testified, "Even the fact he wasn't wearing a seat belt, I still don't believe he sustained any type of musculoskeletal injury. But in a general sense, patients who are unrestrained, involved in motor vehicle incidents are exposed to more trauma than those who are restrained."
We acknowledge the positive drug screen for Oxycodone filed into the record. However, Dr. O'Brien did not provide any opinion addressing whether
Downing's alleged drug use resulted in his failure to wear his seatbelt. Rather, he was only asked whether individuals should operate heavy machinery while taking Oxycodone. He replied no since the medication affects cognition, ability to think and your physical capabilities. In addition, Dr. O'Brien answered this question in the context of Downing being prescribed Hydrocodone for two and [a] half years after the work injury, not in the context of the positive drug screen for Oxycodone immediately before [the] work incident. Therefore, we find the evidence relied upon by Armstrong neither establishes nor compels a finding of a safety violation committed by Downing pursuant to KRS 342.165(1).
For the foregoing reasons, the opinion of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Michael Thomas Kunjoo
Donald J. Niehaus
Lexington, Kentucky BRIEF FOR APPELLEE, JOHN
DOWNING: Jerry P. Rhoads
Madisonville, Kentucky