Opinion
NO. 2012-CA-001359-WC
05-24-2013
FOX KNOB COAL COMPANY, INC. APPELLANT v. MICHAEL C. GARRETT; DR. JOSE MANUEL ECHEVARRIA; ARH MEDICAL ASSOCIATES; HARLAN APPALACHIAN REGIONAL HOSPITAL; MOUNTAIN MEDICAL ENTERPRISES; DR. SYED M. RAZA; CUMBERLAND RIVER REGIONAL MEDICAL HOSPITAL; HONORABLE JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: James G. Fogle Louisville, Kentucky BRIEF FOR APPELLEE MICHAEL GARRETT: Otis Doan, Jr. Harlan, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-09-89842
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; THOMPSON AND VANMETER, JUDGES. VANMETER, JUDGE: Fox Knob Coal Company, Inc. ("Fox Knob") petitions for review of the opinion of the Workers' Compensation Board ("Board") which affirmed the opinion and award of the Administrative Law Judge ("ALJ") awarding permanent total disability ("PTD") benefits and medical benefits to Michael C. Garrett ("Garrett") for a work-related injury occurring on May 4, 2009. Upon review of the record and applicable law, we affirm.
Garrett began working for Fox Knob's predecessor in 1993. In 1995, Garrett sustained a low back injury, but did not file a workers' compensation claim. He underwent surgery, and returned to work eight weeks later. Garrett described his job duties after returning to work in 1995 as consisting of lifting buckets of drill bits and parts weighing up to thirty to forty pounds. His work as a blaster required lifting blasting material weighing up to fifty pounds. Garrett worked without restrictions after the 1995 injury and surgery. Garrett testified he had occasional flare-ups of back pain after the 1995 injury and surgery which required treatment. In 2008, he received lumbar injections to relieve an acute flare-up of his low back pain. He again sought treatment for back pain in March 2009, but missed no work. He was still taking medication for his back pain on May 4, 2009. Garrett's supervisor, Russell Miniard, could not recall Garrett missing any work due to low back pain prior to May 4, 2009, and had no complaints about Garrett's work performance.
Garrett was working for Fox Knob as a blaster on May 4, 2009, when he experienced an acute onset of low back pain as he twisted to turn while lifting a box of blasting caps. He fell to the ground and was unable to complete his shift. Garrett immediately reported the injury to Miniard and was taken to the hospital by ambulance. Garrett was treated by Dr. Phillip Tibbs, who performed low back surgery in September 2009. Garrett's condition did not improve after the surgery and he has not returned to work since May 4, 2009.
Numerous records detailing Garrett's medical treatment both before and after the May 4, 2009, injury were filed. Based on the lay and medical evidence presented, the ALJ determined that Garrett had sustained a work-related injury on May 4, 2009, which necessitated the surgery performed by Dr. Tibbs in September 2009. The ALJ found that Garrett suffered from a permanent total occupational disability and was unable to return to work in any capacity, including sedentary, on a regular basis. The ALJ found that despite previous difficulties with his back, Garrett did not suffer from a pre-existing disability prior to the May 4, 2009, injury, although he did suffer from a pre-existing impairment. Based on this finding, the ALJ declined to reduce his total disability award.
Fox Knob filed a petition for reconsideration, which the ALJ denied, except to correct a typographical error. The ALJ also denied Fox Knob's supplemental petitions for reconsideration. Fox Knob then appealed the ALJ's opinion and award to the Board, which affirmed. Fox Knob now petitions this court for review of the Board's opinion, alleging the same points of error raised before the Board.
The standard for reviewing a decision of the Board "is to correct the Board only where the Court perceives 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." W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). The ALJ is the finder of fact and "has the sole authority to determine the quality, character, and substance of the evidence." Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993) (citation omitted). Causation and the work-relatedness of a condition are factual questions to be determined by the ALJ and the ALJ is vested with broad authority to decide such matters. Dravo Lime Co. v. Eakins, 156 S.W.3d 283, 289 (Ky. 2005). Further, "[w]hen the decision of the fact-finder favors the person with the burden of proof, his only burden on appeal is to show that there was some evidence of substance to support the finding, meaning evidence which would permit a fact-finder to reasonably find as it did." Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). Though a party may point to evidence in the record that could support a different outcome, such proof is not an adequate basis for reversal. McCloud v. Beth-Elkhorn, Corp., 514 S.W.2d 46, 47 (Ky. 1974).
On appeal, Fox Knob first argues the ALJ erred by finding Garrett's complaints of injury constitute "objective medical findings" under the Workers' Compensation Act's ("Act") definition of compensable "injury." We disagree.
The Act defines "injury" as "any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings." KRS 342.0011(1). Further, "objective medical findings" is defined as "information gained through direct observation and testing of the patient applying objective or standardized methods[.]" KRS 342.0011(33). The Act requires a finding concerning the existence of an "injury" to be proven by objective medical findings, but a finding of causation is not so required. Staples, Inc. v. Konvelski, 56 S.W.3d 412, 415-16 (Ky. 2001); KRS 342.0011(1).
Kentucky Revised Statutes.
Fox Knob claims Garrett did not meet his burden of proving that he sustained a "harmful change in the human organism" on May 4, 2009, as evidenced by "objective medical findings" so as to establish the existence of a compensable injury. Particularly, Fox Knob argues the ALJ's findings that "1) Garrett was taken to the hospital in an ambulance and 2) until he was taken to the hospital in an ambulance, he was working full time, but, after the injury, he was unable to work" do not amount to "objective medical findings." Fox Knob maintains the ALJ erroneously relied on the unpublished case of Koroluk v. United Parcel Serv., 2006-SC-000946-WC, 2007 WL 4462307 (Ky. Dec. 20, 2007), in finding the existence of a compensable injury. While we agree that the ALJ's reliance on Koroluk is misplaced, the ALJ's finding of a work-related injury is nevertheless supported by "objective medical findings" and Fox Knob directs us to no authority requiring reversal of the ALJ's decision.
Fox Knob cites Cook v. Paducah Recapping Serv., 694 S.W.2d 684, 689 (Ky. 1985), for the notion that parties are entitled to have a claim decided by the ALJ upon the basis of a correct understanding of the law; however, the Court in that case held that a claimant is entitled to have a claim decided by the ALJ upon the basis of correct findings of fact. We do not appreciate how that case supports Fox Knob's argument that this matter should be reversed based on the ALJ's misapplication of Koroluk.
In its order on petition for reconsideration, the ALJ found that physician testimony established that Garrett sustained a work injury on May 4, 2009, primarily relying on the opinion and report of Dr. Tibbs. The ALJ referred to physician testimony establishing that Garrett's diagnosis was based on direct observation and test results, rather than Garrett's complaints alone. Accordingly, we find the evidence sufficient to support the ALJ's finding of a work-related injury as evidenced by "objective medical findings."
Neither party provided citations to the record with respect to the medical records they relied on, as required by Kentucky Rules of Civil Procedure 76.12(4)(c)(v). Since the parties did not observe this rule, we will not search the record for testimony. See Young v. Newsome, 462 S.W.2d 908, 910 (Ky. 1971). We will refrain from striking the briefs, though we have the discretion to do so, and instead choose to give little credence to the arguments by either party that are not supported by a conforming citation to the record. See Smith v. Smith, 235 S.W.3d 1, 5 (Ky. App. 2006). We further note the parties did not certify on appeal the medical records they discuss in their briefs.
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Next, Fox Knob claims the ALJ erred as a matter of law by relying on Dr. Tibbs' opinion concerning the issue of causation because his opinion was based on an incomplete medical history. Specifically, Fox Knob claims Dr. Tibbs was unaware of Garrett's pre-injury medical condition and therefore, his opinion lacks credibility and should be disregarded pursuant to Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004). We disagree.
In Cepero, the claimant alleged that he suffered a work-related knee injury. Id. at 840. Based on evidence from two physicians who opined that Cepero's knee condition was related to a work injury, the ALJ awarded Cepero benefits. Id. at 842. However, neither of those physicians was aware that Cepero had suffered a severe knee injury several years before. Id. at 843. In fact, Cepero failed to mention the prior knee injury to one physician, and expressly denied any prior knee injury to the other physician. Id. at 841. When presented with medical records documenting the prior injury, one of the physicians changed her opinion as to causation, and instead opined that Cepero's knee condition was "more likely than not" caused by the prior injury. Id.
The Board reversed the ALJ finding and held that the ALJ's conclusion on causation was not supported by substantial evidence. Id. at 842. Specifically, the Board held that the physicians' opinions upon which the ALJ relied to find causation were based upon inaccurate or incomplete information furnished by Cepero during their respective medical examinations. Id. The Kentucky Supreme Court affirmed, and quoted the Board's opinion as follows:
[I]n cases such as this, where it is irrefutable that a physician's history regarding work-related causation is corrupt due to it being substantially inaccurate or largely incomplete, any opinion generated by that physician on the issue of causation cannot constitute substantial evidence. Medical opinion predicated upon such erroneous or deficient information that is completely unsupported by any other credible evidence can never, in our view, be reasonably probable.Id. at 842 (emphasis added).
The facts in Cepero are distinguishable from the case at bar. In Cepero, the medical history provided by the claimant to various physicians was inconsistent, and his deposition testimony and testimony at the hearing before the ALJ were contradictory. In the present case, nothing indicates that Garrett attempted to conceal his previous back pain from any of the medical experts, and his testimony throughout the proceeding was not contradictory. In addition, as the Board notes, Dr. Tibbs specifically stated the cause of the need for the September 2009, surgery, and the impairment rating he imposed, was the May 4, 2009, work injury, rather than the 1995 injury and surgery. As the Board notes, since Dr. Tibbs was not deposed, or in any other manner subjected to cross-examination, his understanding as to the previous medical history is largely unknown. The Board concluded that Fox Knob failed to establish whether Dr. Tibbs was provided an erroneous medical history, or whether the medical history was concealed, and thereby failed to demonstrate a basis upon which to impeach or disregard his opinions pursuant to Cepero. Since Dr. Tibbs performed the September 2009, surgery, and expressly attributed Garrett's impairment to the May 4, 2009, injury, rather than the 1995 injury, the evidence implies that Dr. Tibbs was aware of the previous surgery. The ALJ was permitted to draw reasonable inferences from the evidence, and assess Dr. Tibbs' credibility. The weight to be attributed to his testimony was a matter for the ALJ to decide, within the broad scope of her discretion.
Next, Fox Knob argues the ALJ misunderstood the law with respect to apportionment of a disability award because of a pre-existing disability. We disagree.
The ALJ found Garrett was permanently and totally occupationally disabled, and while he suffered from a pre-existing active impairment prior to the May 4, 2009, injury, he did not suffer from a pre-existing active disability prior to that injury so as to require a reduction of his total disability award. The ALJ correctly held that an active impairment does not require a finding of an active disability, citing Roberts Bros. Coal Co. v. Robinson, 113 S.W.3d 181 (Ky. 2003) in support:
Impairment and disability are not synonymous. . . . 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.
The ALJ properly undertook the analysis of whether the pre-existing condition, which merited an impairment rating, caused a pre-existing disability. In order for there to be an exclusion from a total disability award under Robert Bros., it must be established that the pre-existing condition was symptomatic and restrictive, and affected Garrett's ability to work at his job immediately prior to the May 4, 2009, injury. Id. Here, the evidence did not show that Garrett could not perform his job prior to the May 4, 2009, injury, or was restricted in any fashion, until the May 4, 2009, injury. In fact, Miniard testified he could not recall Garrett having missed any work due to back pain prior to May 4, 2009, and that he had no complaints about Garrett's work performance.
The ALJ found Garrett suffered from a pre-existing active impairment and that he had received medical treatment for his back condition prior to May 4, 2009. The ALJ mentioned the report of Dr. Gregory Snider, who opined that he would have placed the same restrictions on Garrett prior to his May 4, 2009, injury that he did after that injury. That being said, Garrett was not restricted prior to May 4, 2009, and from all accounts was able to satisfactorily perform his job. Thus, we believe the ALJ correctly found that Garrett did not suffer from a pre-existing disability so as to require a reduction in his award of total disability benefits.
Lastly, Fox Knob claims the ALJ erred as a matter of law by refusing to address the issue of vocational rehabilitation benefits. We disagree.
KRS 342.710(3) states, in relevant part:
The administrative law judge on his or her own motion, or upon application of any party or carrier, after affording the parties an opportunity to be heard, may refer the employee to a qualified physician or facility for evaluation of the practicability of, need for, and kind of service, treatment, or training necessary and appropriate to render him or her fit for a remunerative occupation.(Emphasis added). In other words, an award of vocational rehabilitation benefits is permissive, not mandatory.
The issue of vocational rehabilitation benefits was not preserved at the Benefit Review Conference, nor was it raised at the hearing before the ALJ. In fact, no evidence was introduced regarding this issue. This issue was not raised until Fox Knob filed its supplemental petition for reconsideration.
The Board found that while KRS 342.710(3) allows for a motion for vocational rehabilitation benefits to be made at any time, a petition for reconsideration was not an appropriate vehicle for making such a motion. In considering a petition for reconsideration, the ALJ "shall be limited in the review to the correction of errors patently appearing upon the face of the award, order, or decision[.]" KRS 342.281. In addition, parties are to be afforded an opportunity to be heard before vocational rehabilitation benefits may be ordered. KRS 342.710(3). The latter requirement indicates that a petition for reconsideration is not the appropriate avenue for making such a motion, since at that time all of the evidence has been submitted to the ALJ for consideration. Fox Knob could have filed a motion for the ALJ to consider a vocational rehabilitation referral, and/or presented evidence during the hearing concerning this issue, but failed to do so. We agree with the Board that a petition for reconsideration is not the proper means by which to address the issue of vocational rehabilitation benefits when the issue was never raised previously.
Fox Knob's citation to OSF Int'l, Inc. v. Engleman, 2010-CA-001249-WC, 2011 WL 832171 (Ky. App. March 11, 2011), is unpersuasive. In Engleman, the ALJ sua sponte awarded vocational rehabilitation benefits without affording the parties an opportunity to be heard on the issue. Id. at *4. On appeal, this court remanded the matter with directions for the ALJ to take evidence on the issue of vocational rehabilitation training. Id. The holding in Engleman clearly does not apply to the present case, since the ALJ herein did not award vocational rehabilitation benefits at all. Instead, the ALJ noted that Garrett was unable to undergo any vocational training due to his physical and mental limitations. The ALJ found that he would be unable to return to any type of work on a regular and sustained basis. As a result, undertaking vocational rehabilitation training was not an option, and the ALJ properly awarded Garrett total disability benefits.
The opinion of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: James G. Fogle
Louisville, Kentucky
BRIEF FOR APPELLEE MICHAEL
GARRETT:
Otis Doan, Jr.
Harlan, Kentucky