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Colwell v. Ky. River Dist. Health

Commonwealth of Kentucky Court of Appeals
Jan 16, 2015
NO. 2014-CA-000458-WC (Ky. Ct. App. Jan. 16, 2015)

Opinion

NO. 2014-CA-000458-WC

01-16-2015

DONALD COLWELL APPELLANT v. KENTUCKY RIVER DISTRICT HEALTH; HON. WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

BRIEF FOR APPELLANT: McKinnley Morgan London, Kentucky BRIEF FOR APPELLEE: Jeffrey Damron Sarah K. McGuire James M. Kennedy Pikeville, Kentucky


NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-64841
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS, AND VANMETER, JUDGES. CAPERTON, JUDGE: The Appellant, Donald Colwell, appeals the February 12, 2014, opinion of the Kentucky Workers' Compensation Board vacating in part and remanding the September 4, 2013, opinion and order of the Administrative Law Judge ("ALJ"), wherein the ALJ had previously granted an award of permanent total disability as a result of injuries sustained during his employment with Appellee, Kentucky River District Health ("KRDH"). On appeal, Colwell urges this Court to reverse the Board, and reinstate the award of the ALJ, based upon the argument that he is in fact permanently totally disabled as that term is defined by the Kentucky Workers' Compensation Act. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.

Judge Caperton authored this opinion prior to Judge Debra Lambert being sworn in on January 5, 2015, as Judge of Division 1, Third Appellate District. Release of this opinion was delayed by administrative handling.

Colwell had been employed by KRDH for nearly twenty years at the time of his second injury in this matter. Colwell performed maintenance and janitorial work, and his job involved sweeping, mopping, taking out the trash, dusting, and cleaning windows. Colwell testified that he was the only janitorial worker at KRDH. While Colwell testified that his job could involve heavy lifting such as moving office furniture to clean, lifting computer or copy paper, lifting supplies or lifting furniture to set up new offices, the job description filed below indicated that the job was classified as light duty, with frequent lifting and carrying of one to ten pounds. Colwell was in charge of the maintenance and janitorial work for a two-story building, and also for a separate five-room building. Prior to working for KRDH, Colwell had performed car detailing and maintenance for a small auto dealer. Colwell had performed that job for more than twenty years. He also previously provided contract labor work at a blacktop factory.

Colwell sustained two injuries during the course of his employment at KRDH which are the subject of the instant matter. The first injury occurred on Friday, October 7, 2011, as he was carrying a large box up some stairs. Colwell lost his balance and stepped backwards, at which time he felt back pain. There were no witnesses to that incident, and Colwell continued working the remaining several hours on his shift. Colwell reported that incident to his employer the following Monday, and sought medical treatment from his family physician, Dr. George Chaney.

Following this first injury, Colwell underwent physical therapy, and received treatment with pain medication, and underwent an MRI at Whitesburg Appalachian Regional Hospital. Colwell was seen by Dr. James Bean on November 28, 2011, at which time Dr. Bean's diagnosis was lumbar sprain. Dr. Bean recommended physical therapy. Colwell was released by Dr. Bean to return to work without restriction in December 2011. According to Colwell, he did not feel that he was ready to return to work at that time and, therefore, used sick and vacation time for an additional two months. Colwell initially claimed that he limited himself to no lifting over twenty or thirty pounds, and that he slowed down on the job. Colwell states that he missed work occasionally due to back pain, and that he did not feel completely healed after his original injury. He was not receiving any ongoing treatment at that time.

Concerning his second injury, Colwell testified that on October 29, 2012, he was lifting a crate of copy paper when he felt a sharp pain in his back. There were no witnesses to that injury. Colwell told his supervisor, Ms. Johnson, that he had reinjured his back and needed to go to the doctor. He returned to Dr. Chaney, who ordered another MRI, which was performed at his office. Colwell was also evaluated by Dr. Bean, who diagnosed a lumbar sprain injury with preexistent degenerative lumbar disc disease at L3-L4 and L4-L5. Colwell underwent additional physical therapy. Dr. Bean stated that surgery was not feasible, and placed Colwell at maximum medical improvement effective January 28, 2013. Dr. Bean assessed a five-percent impairment rating under the AMA Guidelines to Permanent Impairment, 5th Edition, and released Colwell to return to work with permanent restrictions of light work, lifting no greater than twenty pounds, and no repetitive bending, stooping or twisting. However, Colwell did not return to work, and indicated that he chose to retire based on his belief that his employer did not have any type of light-duty work available. Colwell conceded that he did not have a conversation with any supervisor about attempting to return to work.

In addition to the medical treatment he received following his injuries, Colwell underwent an independent medical evaluation with Dr. James Owen. Dr. Owen diagnosed persistent low back pain associated with dysmetria and muscle spasm, and found Colwell's MRI to be positive for degenerative disc disease and bulging disc with no evidence of radiculopathy. Dr. Owen found that fifty percent of Colwell's diagnosis resulted from his 2011 work injuries, and that because of the 2012 injury, the diagnosis was brought into a disabling reality in its entirety. Dr. Owens assessed a seven-percent whole person impairment rating, and opined that Colwell did not retain the physical capacity to return to the type of work performed at the time of his injuries. Dr. Owen assigned restrictions of no lifting, handling, or carrying objects weighing more than twenty pounds, and avoidance of activity which required recurrent bending, squatting, or stooping.

Colwell also underwent a functional capacity evaluation ("FCE") with Rick Pounds on July 1, 2013, the report which he filed into evidence below. Therein, Pounds stated his opinion that Colwell could return to work with initial lifting restrictions of thirty pounds, though he believed that Colwell would gain strength as he resumed activity. Pounds opined that Colwell could safely work at that level.

Dr. Ralph Crystal also performed a vocational evaluation of Colwell, and his report was submitted into evidence below. After evaluating Colwell, Dr. Crystal opined that Colwell retained the ability to enter a wide range of jobs at present, and is not disabled from employment. Dr. Crystal found that Colwell did not have a complete and permanent inability to perform any type of work because of his injuries. Dr. Crystal found that even with the restrictions assigned by Dr. Bean, there were several jobs in the manufacturing, clerical, clerk, sales, retail, and service industries that Colwell could perform.

Following the submission of evidence and hearing below, the ALJ ultimately found Colwell to be permanently totally disabled as a result of his work injury. In so finding, the ALJ stated that:

In the present case I considered the severity of the plaintiff's work injuries, his age, his work history, his education, and the credible and convincing testimony of the plaintiff, as summarized above in detail, and the specific medical opinions of Dr. Owen and Dr. Bean, as summarized in detail above, both of which described the plaintiff's physical limitations and occupational disability. Based upon all of those factors, I make the factual determination that the plaintiff cannot find work consistently under regular work circumstances and work dependably. I, therefore, make the factual determination that he is permanently and totally disabled.
Opinion and Order of the Administrative Law Judge, September 4, 2013.

KRDH petitioned for reconsideration, requesting that the ALJ provide further analysis regarding the determination of permanent total disability. That petition was denied in an order dated October 15, 2013. KRDH then appealed to the Board, again asserting that the ALJ failed to provide sufficient justification for the award of permanent total disability benefits.

Following a review of the record, the arguments of the parties, and the applicable law, the Board determined that the findings of the ALJ were insufficient to permit meaningful appellate review. The Board determined that the ALJ failed to identify the particular portions of Colwell's testimony which he found to be persuasive and, instead, only summarized Colwell's testimony in the opinion. Reading the summary of Colwell's testimony along with the ALJ's findings of fact, the Board concluded that it was unable to discern the basis of the ALJ's decision, and that pursuant to Kentucky Revised Statutes (KRS) 342.0011(b)(11)(c) and (34), the ALJ was required to make an individualized determination of what the worker is and is not able to do.

While noting that the ALJ identified Colwell's post-injury status by referring to the reports of Drs. Owen and Bean, the Board nevertheless found that the ALJ's opinion was devoid of any discussion as to Colwell's emotional, intellectual, or vocational status, and how those factors contribute to what the ALJ found was Colwell's state of permanent total disability. The Board acknowledged that the opinions of the doctors upon which the ALJ relied contained restrictions, but found that the ALJ did not discuss how those restrictions would prevent Colwell from performing his pre-injury work, nor was there discussion of Colwell's ability to be trained for and perform other jobs. Accordingly, the Board vacated the opinion and order of the ALJ, and remanded this matter for additional findings of fact. It is from that opinion that Colwell now appeals to this Court.

Prior to addressing the arguments of the parties on appeal, we note that when reviewing a decision of the Board, we will affirm the Board absent a finding that the Board has misconstrued or overlooked controlling law, or has so flagrantly erred in evaluating the evidence that gross injustice has occurred. Western Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky. 1992). With this in mind, we now turn to the arguments of the parties.

On appeal, Colwell argues that the Board erred in remanding this matter to the ALJ for additional findings of fact, as the ALJ clearly indicated in his opinion that he relied upon the opinions of Drs. Owen and Bean, as well as on applicable statutory and case law. Colwell argues that the ALJ adequately considered the severity of his work injuries, his age, work history, and education, as well as Colwell's own testimony in making his findings of fact and rendering a decision below. Thus, Colwell asserts that the ALJ was within his discretion to draw reasonable inferences from the evidence, and that the Board was usurping the ALJ's role as fact-finder by reweighing the evidence and remanding this matter.

In response, KRDH argues that the Board permissibly found that the ALJ made insufficient findings of fact. KRDH asserts that although the ALJ indicates that he found the opinion of Dr. Owen to be persuasive, the ALJ failed to adequately discuss the conflicting evidence, or to point to which portions of Dr. Owen's medical testimony he found persuasive. KRDH further asserts that the ALJ failed to make an individualized determination of what type of work Colwell would and would not be able to do, in contravention of applicable law. Upon review of the record, the arguments of the parties, and the applicable law, we agree.

KRS 342.275 clearly requires that the ALJ include in an award, order, or decision a statement of the findings of fact, rulings of law, and any other matters pertinent to the issue at hand. Certainly, we have repeatedly held that parties are entitled to findings of fact sufficient to inform them of the basis for the ALJ's decision and to allow for meaningful review. Kentland Elkhorn Coal Corp. v. Yates, 743 S.W.2d 47 (Ky. App. 1998).

Our review of the opinion of the ALJ indicates that he "found very persuasive the medical opinions of Dr. Owen," but fails to explain why such is the case. This Court is in agreement with the Board that such conclusory findings do not adequately summarize or weigh the conflicting evidence at issue, nor provide a sufficient basis for all parties to understand the ALJ's decision, or to reasonably apprise the parties of the basis for the decision, as the law of this Commonwealth requires. See Big Sandy Community Action Program v. Chafins, 502 S.W.2d 526 (Ky. 1973).

Below, the Board was unable to discern the basis of the ALJ's decision. As the Board correctly noted, the ALJ was required, pursuant to KRS 342.0011(b)(11)(c) and (34), to make an individualized determination of what the worker is and is not able to do. This analysis necessarily includes a consideration of factors such as the worker's post-injury physical, emotional, intellectual, and vocational status, and how those factors interact. Ira A. Watson, 34 S.W.3d 48, 51 (Ky. 2000). Finding the ALJ's opinion to be lacking in such findings, we are in agreement with the Board that the opinion and order of the ALJ was properly vacated, and that remand is appropriate for further findings of fact.

In so finding, we are not making a determination that the ALJ was not free to rely upon the medical opinions of Dr. Owen, nor that the ALJ is without the discretion to determine which evidence he finds most credible. See KRS 342.285, Paramount Foods v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Certainly, 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). Though this is true, our law is also clear that the ALJ must clearly indicate the factual basis for the findings made, and must indicate which portions of the record support the conclusions drawn. While this Court may affirm the opinion of a circuit court on any grounds, even if that court reached the right conclusion for an incorrect reason, the same is not true of the Board and its authority to affirm the findings of an ALJ. Accordingly, we believe that the Board appropriately reversed the ALJ, and we affirm.
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Wherefore for the foregoing reasons, we hereby affirm the February 12, 2014, opinion of the Kentucky Workers' Compensation Board, vacating in part and remanding the September 4, 2013, opinion and order of the Administrative Law Judge.

ALL CONCUR. BRIEF FOR APPELLANT: McKinnley Morgan
London, Kentucky
BRIEF FOR APPELLEE: Jeffrey Damron
Sarah K. McGuire
James M. Kennedy
Pikeville, Kentucky


Summaries of

Colwell v. Ky. River Dist. Health

Commonwealth of Kentucky Court of Appeals
Jan 16, 2015
NO. 2014-CA-000458-WC (Ky. Ct. App. Jan. 16, 2015)
Case details for

Colwell v. Ky. River Dist. Health

Case Details

Full title:DONALD COLWELL APPELLANT v. KENTUCKY RIVER DISTRICT HEALTH; HON. WILLIAM…

Court:Commonwealth of Kentucky Court of Appeals

Date published: Jan 16, 2015

Citations

NO. 2014-CA-000458-WC (Ky. Ct. App. Jan. 16, 2015)