Opinion
NO. 2019-CA-000923-WC
01-31-2020
ROBERT BROOKS APPELLANT v. VALIANT MANAGEMENT & HOLDINGS, LLC; HON. JOHN H. MCCRACKEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: John Warren Spies Louisville, Kentucky BRIEF FOR APPELLEE: H. Douglas Jones Florence, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-17-99736 OPINION
AFFIRMING
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BEFORE: CALDWELL, DIXON, AND MAZE, JUDGES. MAZE, JUDGE: Robert Brooks petitions for review of a May 17, 2019, opinion by the Workers' Compensation Board (Board) which vacated and remanded an opinion and award by the administrative law judge (ALJ). We agree with the Board that the ALJ exceeded his authority by modifying Brooks' award on a petition for reconsideration. Hence, we affirm the decision of the Board.
The relevant facts of this matter are not in dispute. Brooks began working for Valiant Management and Holdings, LLC (Valiant) in February 2014. He alleges he sustained injuries on December 27, 2016, when his left heel caught in a turnstile as he was leaving the parking lot at work. He attempted to catch himself but fell to his knees. Brooks sought medical treatment on the date of the accident and returned to work the next day. He later missed a period of work due to his complaints. Brooks received temporary total disability (TTD) benefits while he was off work and his medical bills have been paid.
Brooks filed his claim on May 8, 2018, alleging that he sustained injuries to his back, both shoulders, both wrists, and left foot as a result of the fall at work. In support of his claim, Brooks filed a March 27, 2018, report from his treating physician, Dr. Jules Barefoot. Dr. Barefoot diagnosed Brooks with a left shoulder full thickness tear of the left shoulder tendon, right shoulder supraspinatus and infraspinatus tendon tears, lumbar degenerative disk disease with non-verifiable radicular complaints, and a history of previous left rotator cuff tears. He stated Brooks reached maximum medical improvement (MMI) on January 4, 2018. Dr. Barefoot determined the December 27, 2016, incident caused a harmful change to human organism and that Brooks had no active impairable ratable condition prior to the work accident. Pursuant to the 5th edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (AMA Guides), Dr. Barefoot assessed Brooks with an 18% impairment rating. Of this rating, he attributed 8% to the lumbar condition, 8% to the right shoulder, and 4% to the left shoulder. He also restricted Brooks from working above shoulder level, indicated that Brooks is unable to squat, kneel, crouch and bend, and noted he must be able to sit and rest intermittently. Dr. Barefoot also stated it is unsafe for Brooks to climb ladders or scaffolding. Dr. Barefoot released Brooks to return to work at Valiant with these restrictions. Brooks also filed treatment records from the Louisville Orthopaedic Clinic and U.S. Healthworks.
In response to the claim, Valiant filed medical records ranging from 2001 to 2008 relating to Brooks' treatment prior to the work-related injury. Valiant also filed the report of Dr. Ellen Ballard, who evaluated Brooks at Valiant's request. Dr. Ballard noted Brooks' previous right-hand problems, and that he had eventually returned to work a few years prior to the work incident. Dr. Ballard noted that Brooks had normal shoulder range of motion during his physical examination, despite his complaints of pain. Dr. Ballard concluded that the fall at work resulted in only a temporary exacerbation of Brooks' pre-existing active problems. Dr. Ballard also determined that Brooks reached MMI in May 2017, and could return to work with no restrictions. Consequently, Dr. Ballard assigned no impairment rating based on the work injury but concluded that he may have some impairment from the pre-existing conditions to his shoulder, right hand, left hand, feet, neck, and back.
After considering the evidence, the ALJ rendered an opinion, award, and order on November 19, 2018, dismissing Brooks' claim for TTD and permanent partial disability (PPD) benefits. In pertinent part, the ALJ stated:
The medical records reveal extensive treatment, over many years, to Mr. Brooks' neck, shoulders bilaterally, right elbow, feet and low back. The ALJ does not understand why Mr. Brooks failed to disclose his prior neck, low back and feet treatment to Dr. Barefoot. However, that failure, and his persistent denials of prior neck and low back treatment, seriously undermined his credibility in his claims.
The ALJ also relied upon Dr. Ballard in determining that Brooks reached MMI on May 31, 2017. The ALJ also relied upon Dr. Ballard's conclusion that Brooks sustained only temporary injuries which were merely exacerbations of pre-existing conditions. Consequently, the ALJ awarded Brooks' medical expenses from December 27, 2016, to May 31, 2017, but found that his claims for bilateral shoulder and low back surgeries were not compensable.
Brooks filed a petition for reconsideration, noting a misstatement in the ALJ's recitation of Dr. Ballard's assessment of impairment for his shoulders. Brooks also requested additional findings on several other issues. In an order entered on December 21, 2018, the ALJ granted the petition in part, holding:
Mr. Brooks asserts that Dr. Ballard did not state he had a prior active 14% impairment to the shoulders. Mr. Brooks is correct that the 14% mentioned by Dr. Ballard applies to the upper extremity, and not specifically the shoulders. Dr. Ballard stated that Mr. Brooks had pre-existing problems with his shoulders and she could not calculate the impairment with the information provided. The ALJ on page 14 of the Opinion, Award and Order stated that he relied on Dr. Ballard to find that Mr. Brooks had a prior active 14% impairment in his shoulders. In rereading Dr. Ballard's report, the ALJ finds that his prior statement is incorrect to the extent that a 14% impairment was assigned by Dr. Ballard to the shoulders. The 14% was assigned by Dr. Ballard to the upper extremities.
The ALJ concluded that the factual error amounted to a patent error justifying reconsideration. While the error did not affect the ALJ's prior decision as it related to Brooks' claims for injuries to other body parts, the ALJ reversed his decision as it related to the left and right shoulder. The ALJ awarded TTD benefits from April 10, 2017, through August 8, 2017. He additionally awarded PPD benefits based upon a 12% impairment rating. Of this rating, the ALJ attributed 4% to the left shoulder and 8% to the right shoulder, based on the assessment by Dr. Barefoot. Valiant was given credit for TTD payments made from April 10, 2017, through December 10, 2017.
On appeal, the Board reversed, finding that the ALJ exceeded his authority by reconsidering the merits of the claim rather than merely correcting patent errors when he ruled on the petition for reconsideration. The Board acknowledged that the ALJ may have misstated Dr. Ballard's assessment of a 14% pre-existing active impairment. However, the Board concluded that this error could not warrant the ALJ's reconsideration of Dr. Barefoot's credibility. Consequently, the Board set aside the ALJ's order on reconsideration and remanded for reinstatement of the November 19, 2018, opinion, order and award. Brooks now petitions for review of the order.
The sole issue before this Court is whether the ALJ exceeded his authority by granting Brooks' petition for reconsideration. Under KRS 342.281, the ALJ may correct errors "patently appearing" upon the face of the award in a petition for rehearing. Additionally, the ALJ is permitted to make additional findings of fact upon unresolved factual issues. Wells v. Ford, 714 S.W.2d 481 (Ky. 1986). However, KRS 342.281 provides a clear statutory limitation upon the authority of an ALJ, and the ALJ does not have authority to reconsider the merits of a claim or to change factual findings when ruling upon a petition for reconsideration. Beth-Elkhorn Corp. v. Nash, 470 S.W.2d 329 (Ky. 1971); Wells v. Beth-Elkhorn Coal Corp., 708 S.W.2d 104 (Ky. App. 1985).
Kentucky Revised Statutes. --------
Brooks argues that the ALJ's misstatement of Dr. Ballard's testimony was a patent error subject to correction under KRS 342.281. We agree. However, KRS 342.281 expressly prohibits the fact-finder from reconsidering or revisiting the merits of an opinion, order or award. Beth-Elkhorn v. Nash, 470 S.W.2d at 330. In this case, we must agree with the Board that the ALJ improperly re-weighed the evidence to reach a different conclusion on reconsideration.
The ALJ was authorized to correct his recitation of Dr. Ballard's report. But despite the ALJ's inaccurate recitation of Dr. Ballard's conclusions regarding the impairment to Brooks' shoulders, a complete review of Dr. Ballard's report demonstrates that she found Brooks sustained no impairment rating due to the December 27, 2016, fall. Consequently, the ALJ's correction of the error did not justify the ALJ's reassessment of the credibility of Dr. Barefoot's findings. Consequently, the Board properly set aside the ALJ's order and remanded for reinstatement of the original opinion and award.
Accordingly, we affirm the May 17, 2019, opinion by the Workers' Compensation Board vacating the ALJ's order on reconsideration and remanding for reinstatement of the original opinion and award.
ALL CONCUR. BRIEF FOR APPELLANT: John Warren Spies
Louisville, Kentucky BRIEF FOR APPELLEE: H. Douglas Jones
Florence, Kentucky