Opinion
NO. 2012-CA-001548-WC
03-22-2013
CASTELLINI COMPANY. APPELLANT v. JOSHUA CROSS; R. SCOTT BORDERS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: David Black Roxanne L. Ingles Cincinnati, Ohio BRIEF FOR APPELLEE JOSHUA CROSS: Danielle J. Ravencraft Louisville, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-09-77799
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND STUMBO, JUDGES. COMBS, JUDGE: Castellini Company petitions for review of an opinion of the Workers' Compensation Board that affirmed the decision of the Administrative Law Judge (the ALJ) awarding Joshua Cross temporary total disability benefits, permanent partial disability benefits, medical benefits, and vocational rehabilitation benefits for a work-related back injury. Castellini contends that the Board erred by holding that substantial evidence supported the decision of the ALJ to award permanent partial disability benefits to Cross based upon a 24% impairment rating. It also argues that the decision to award Cross vocational rehabilitation benefits was not supported by the evidence and that both the ALJ and the Board erred in their assessment of Cross's entitlement to temporary total disability payments. We disagree with these contentions. And so, we affirm.
The parties agree that Cross suffered a work-related back injury on July 6, 2009, and that he gave proper notice of the injury to his employer, Castellini Company, a distributor of fresh produce. Cross was released to return to work on July 1, 2010. He worked a light-duty position through September 8, 2010. According to Cross, he began to suffer with unbearable back pain radiating into his right leg after he finished his shift that day, and he has not returned to work of any sort. Castellini paid temporary total disability income benefits from July 7, 2009, through July 1, 2010, and again from September 30, 2010, through June 23, 2011. In a deposition given November 14, 2011, Cross testified that he continues to suffer with intermittent pain in his lower back and down the entirety of his right leg and throughout his right foot.
On August 15, 2011, Cross filed an Application for Resolution of Injury Claim. He indicated that he suffered with lumbar disc protrusions and lumbar radiculopathy as a result of the work-related injury. Cross submitted extensive progress notes of Dr. John B. Kelly, noting that his treatment with Dr. Kelly was ongoing. Dr. Kelly's subsequent notes indicated that Cross reached maximum medical improvement on September 8, 2011. Dr. Kelly assigned to him a 24% whole person permanent partial impairment rating attributable solely to the work-related injury suffered on July 6, 2009. He also imposed permanent work restrictions that included lifting of no more than 25 pounds and no pushing or pulling of more than 50 pounds.
On September 19, 2011, Castellini Company filed the medical report of Dr. David C. Randolph. Following his physical evaluation of Cross and a review of Cross's medical history and records, Dr. Randolph reported that Cross suffered with degenerative disc disease and degenerative osteoarthritis that were not work related. Dr. Randolph reported that the disc protrusions at L4-L5 and L5-S1 were likely work related and essentially confirmed the permanent restrictions identified by Dr. Kelly. With respect to the need for additional medical treatment, Dr. Randolph indicated as follows:
No. He is already been the recipient of more medical treatment than can be reasonably explained. He is not a surgical candidate and not a candidate for any other form of intervention.Dr. Randolph indicated that Cross did not "have any evidence of radiculopathy" and assigned to him a 6% whole person impairment rating.
It is my opinion, however, that he would significantly benefit by assuming responsibility for his own health care. Discontinuing tobacco use and losing weight as well as participating in a daily home exercise program and returning to the highest level of activity possible. No other forms of intervention have been shown to be of any lasting benefit or value in this population.
An evidentiary hearing was conducted before the ALJ on February 1, 2012. After analyzing the evidence, the ALJ concluded that Cross was entitled to additional temporary total disability benefits from September 9, 2010, through September 29, 2010, and from June 24, 2011, through September 8, 2011. The ALJ also determined that the impairment rating assigned by Dr. Kelly was the more appropriate of the two. He specifically rejected the impairment rating assigned by Dr. Randolph, noting that he:
seems to contradict himself when he states that Mr. Cross suffered from disc herniation/protrusions at multi levels that were caused by the work-related injury yet attempts to limit his assessment of functional impairment by using the DRE model stating that he only found one level to be symptomatic on physical examination.Opinion, Order, and Award at 17-18. (Emphasis added.) The ALJ awarded permanent benefits consistent with Dr. Kelly's assessment.
With respect to an award of vocational rehabilitation benefits, the ALJ observed as follows:
Mr. Cross testified that he has worked primarily as a laborer since leaving high school. He has worked in a machine shop operating machines for both his father and his brother, and has worked unloading trucks at Kohl's Department Store and since October 2005 for Castellini Company. These jobs have required him to be capable of lifting over 50 pounds on occasion and to work on his feet most of the day. The parties have stipulated that Mr. Cross does not retain the physical capacity to return to this type of work. In addition, it appears it would be difficult, if not impossible, based on the restrictions assessed him by Dr. Kelly for Mr. Cross to be capable of returning to any of the prior jobs [sic] which he had previous training or experience.Opinion, Order, and Award at 18-19. The Administrative Law Judge concluded that Cross was entitled to vocational rehabilitation benefits at the expense of Castellini.
Castellini did not file a petition for reconsideration. On appeal, the Workers' Compensation Board affirmed the ALJ's opinion, order, and award in an opinion entered August 8, 2012. This petition for review followed.
Castellini contends that the Board erred by affirming the ALJ's decision because it claims that there is no evidence to support a 24% impairment rating. It also contends that the Board erred by concluding that Cross was entitled to vocational rehabilitation benefits and to receive additional periods of temporary total disability benefits. We address each of these contentions.
Castellini argues first that the Board erred by failing to reverse the decision of the ALJ by claiming that Dr. Kelly failed to use the proper method to determine Cross's impairment rating. Castellini contends that Dr. Kelly's method was unreliable since it did not differentiate or apportion the limited range of motion attributable solely to Cross's obesity rather than to his back injury.
The ALJ has the sole discretion to determine the quality, character, and substance of the evidence and may reject any testimony and believe or disbelieve various parts of the evidence regardless of whether it comes from the same witness or from the same party's proof. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky.1985). Where the party with the burden of proof and risk of persuasion is successful before the ALJ, the question on appeal is whether there was some evidence of substance to support the finding in his favor. Special Fund v. Francis, 708 S.W.2d 641 (Ky.1986). The Board is charged with deciding whether the ALJ's finding "is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law." Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 (Ky.2000); Kentucky Revised Statute[s] (KRS) 342.285. When reviewing the Board's decision, we reverse "only where it has overlooked or misconstrued controlling statutes or precedents, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-688 (Ky.1992).
In this case, the Board carefully evaluated the evidence and considered the controlling law. The Board correctly observed as follows:
The totality of the medical evidence reveals nothing more than conflicting evidence in the appropriate method to be used in determining the impairment rating. Since the ALJ has authority to pick and choose, he was free to rely on Dr. Kelly's impairment rating as more credible and this Board is not authorized to disturb that choice on appeal.Opinion at 20 - 21. The Board did not overlook or misconstrue controlling law or so flagrantly err in evaluating the evidence that it has caused gross injustice by affirming the ALJ on this point. Its opinion cannot be reversed on this basis.
There was agreement Cross has sustained a physical injury. Dr. Kelly explained his reasons for opining Cross had a 24% impairment as a result of the work injury. Further, the ALJ considered the opinions of Dr. Randolph and sufficiently explained why he chose to disregard his opinion and rely on the opinions of Dr. Kelly. Since the decision of the ALJ is supported by substantial evidence, it will not be disturbed on appeal.
Castellini next argues that the Board's decision must be reversed since it erred in assessing the evidence related to the ALJ's award of vocational rehabilitation benefits. KRS 342.710(3) provides that a claimant is entitled to vocational rehabilitation benefits "[w]hen as a result of the injury he or she is unable to perform work for which he or she has previous training or experience...."
The parties agree that Cross cannot return to the work that he was accustomed to performing. However, Castellini contends that Cross "has chosen to maintain a state of poor health that perpetuates his inability to engage in the type of work he did in the past." Brief at 10. It argues that Cross's lifestyle choices "limited his physical capabilities and created difficulty in obtaining employment" and contends that Cross is employable without any further education or training.
The ALJ determined that Cross was entitled to vocational rehabilitation benefits since he had only worked manual labor jobs and did not have additional experience or training that would reasonably enable him to participate in the workforce. He also noted that while Cross had been successful in his efforts to lose weight before he re-injured his back, his current physical condition made regular, strenuous exercise impossible. Castellini's disagreement with the ALJ's decision on this basis is both inappropriate and erroneous.
Finally, Castellini contends that the Board erred by affirming the ALJ's temporary total disability award. Castellini paid temporary total disability income benefits from July 7, 2009, through July 1, 2010, and again from September 30, 2010, through June 23, 2011. After analyzing the evidence, the ALJ concluded that Cross was entitled to additional temporary total disability income benefits from September 9, 2010, through September 29, 2010, and from June 24, 2011, through September 8, 2011.
KRS 342.0011(11)(a) defines temporary total disability as "the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment." A two-part analysis must be undertaken before an award of benefits can be made. The ALJ must determine whether maximum medical improvement has been reached and whether the employee has reached a level of improvement that permits a return to employment. See Megellan Behavioral Health v. Helms, 140 S.W.3d 579 (Ky. App. 2004).
Castellini contends that the ALJ erred first by awarding temporary total disability income benefits from the period of September 9, 2010, through September 29, 2010. While Cross did not return to work following his report of excruciating pain at the end of his work day on September 8, 2010, he did not see a doctor for his condition until September 29. Because of that delay, Castellini argues that Cross cannot be entitled to temporary total disability benefits for the period. We disagree.
The Board was satisfied that the ALJ properly relied on the evidence pertaining to Cross's entitlement to temporary total disability benefits. It observed as follows:
The medical reports of Dr. Kelly provide substantial evidence supporting the ALJ's finding. Cross testified he had a recurrence of pain radiating into his leg on September 8, 2010 and could not get an appointment with Dr. Kelly until September 29, 2010. The ALJ found Cross's testimony credible concerning the issue of the appropriate period of TTD benefits. The evidence was sufficient to commence an additional period of TTD benefits on September 8, 2010, the date Cross ceased working, rather than September 30, 2010, the day after he returned to Dr. Kelly for treatment. The ALJ was well within his role as fact-finder in choosing to rely on Dr. Kelly's opinion Cross reached [maximum medical improvement] on September 8, 2011, with regard to the recurrence of the problem. Dr. Kelly's opinion is substantial evidence supporting the ALJ's determination. Having reviewed the evidence and the arguments of the parties, and based on Cross's testimony and the medical reports of Dr. Kelly, we conclude there is substantial evidence to support the ALJ's finding that Cross is entitled to TTD benefits for the disputed period.
The ALJ had been persuaded by Dr. Kelly's report indicating that Cross did not reach maximum medical improvement until September 8, 2011, following the incident of September 8, 2010. The Board properly concluded that Cross was entitled to an award of temporary total disability benefits from June 24, 2011, through September 8, 2011. The Board did not err either in its application of the law on this point or in its assessment of the evidence.
We affirm the opinion of the Workers' Compensation Board.
ALL CONCUR. BRIEF FOR APPELLANT: David Black
Roxanne L. Ingles
Cincinnati, Ohio
BRIEF FOR APPELLEE JOSHUA
CROSS:
Danielle J. Ravencraft
Louisville, Kentucky