Opinion
NO. 2012-CA-001232-WC
04-12-2013
HARDY CORPORATION APPELLANT v. TIMOTHY BERCIK; HONORABLE R. SCOTT BORDERS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Jo Alice Van Nagell Lexington, Kentucky NO BRIEF FILED FOR APPELLEE.
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-08-84391
OPINION
AFFIRMING
BEFORE: CLAYTON, STUMBO, AND THOMPSON, JUDGES. CLAYTON, JUDGE: This is an appeal from a decision of the Workers' Compensation Board ("Board") affirming a decision of the Administrative Law Judge ("ALJ") that the claimant, Timothy Bercik, suffered permanent total disability. Based upon the following, we will affirm the decision of the Board.
BACKGROUND INFORMATION
Bercik began working for the appellant, Hardy Corporation ("Hardy"), in August 2005, as a journeyman sheet metal mechanic. His job for Hardy was installing commercial air conditioning units. Bercik asserted that he was injured on November 17, 2006, when he stepped across a puddle and twisted his left knee in loose gravel causing him to fall to the ground. Bercik stated he reported the incident to his supervisor the next day and continued to perform his normal job duties. Bercik went to his family physician, Dr. Robert H. Lee, as well as the emergency room at Gateway Medical Center for treatment shortly after his accident.
In December 2006, Bercik was referred to Dr. Cooper Beazley, an orthopedic surgeon in Tennessee. Bercik stated that he paid for this treatment because the workers' compensation insurer would not. He testified that his left knee pain progressively worsened and his knee would occasionally buckle. He continued his work on the project until it was completed in February of 2007. Bercik testified that he injured his knee three additional times during the project.
Bercik returned on May 4, 2007, to Dr. Lee, who noted that he had undergone an MRI with a finding of a torn anterior cruciate ligament. On January 17, 2008, Bercik reported back and neck pain as a result of a motor vehicle accident. Dr. Lee noted Bercik had undergone a left anterior cruciate ligament and meniscus repair by Dr. John Stanton on December 26, 2007.
Bercik saw Dr. Stanton in October 2007. Bercik began receiving workers' compensation benefits for his injuries after surgery on his knee in November 2007. He contends that following the surgery, his knee continued to buckle. Bercik also received treatment with Dr. William Beauchamp, an orthopedist in Tennessee, who ordered an MRI and referred him for additional physical therapy. Dr. Beauchamp stated that he believed additional surgery may be needed as there were still tears in Bercik's knee. Bercik stated he was receiving treatment with Dr. David Moore, who performed surgery in July 2010. Bercik also stated the surgery was successful and that his knee no longer buckles. He did not believe he was capable of returning to work and applied for Social Security disability benefits.
On December 14, 2010, Dr. Lee treated Bercik, who reported that for the prior two nights he had to crawl under his house with a clearance of about 18 inches in order to wrap the pipes to keep them from freezing. Bercik reported that he had been having severe back pain since that time. Bercik also reported his knee was doing better since surgery and it did not buckle anymore. Bercik's testimony at the hearing was that he did not feel he was physically capable of returning to his job at Hardy. He stated he was not able to climb ladders, work with his arms, carry heavy loads, or balance. He stated he could only perform a "half squat" and, after doing so, he could not walk the next day. Bercik indicated he was still undergoing physical therapy in an attempt to strengthen his leg. He was currently taking over-the-counter medication and no longer used narcotic pain medication. Bercik testified he had not worked since February 27, 2007, and, despite looking for work, he had been unable to find any work he could perform. Bercik stated he could only stand for 15 minutes before he needed to sit down. He stated he had looked for medium, light, and sedentary work.
Bercik applied to the Tennessee Department of Vocational Rehabilitation in an attempt to find work, but stated that he had been unsuccessful in this attempt. He also asserted that he was having no success finding work that would utilize his emergency medical skills.
At the hearing, Bercik submitted records from the Tennessee Department of Human Services Division of Rehabilitation Services consisting of his individualized plan for employment. The form listed Bercik's specific employment outcome as "office worker" and had a projected August 2011 achievement of the employment outcome.
Bercik submitted the medical report of Dr. Frederic Huffnagel who performed a physical evaluation on him on May 22, 2009. Huffnagel gave a history of the November 17, 2006 work injury and opined that Bercik had a significant injury to his left knee, leaving him with atrophy involving the quadricep and loss of motion of the knee. Dr. Huffnagel concluded that the condition was directly due to a twisting injury occurring in the course of Bercik's employment, and that he was at maximum medical improvement and would be limited in his ability to stand, walk, twist or crouch. Dr. Huffnagel also concluded that Bercik could only perform sedentary work. In a supplemental report dated July 1, 2009, Dr. Huffnagel opined that Bercik had an 8% functional impairment rating to his body as a whole pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th edition ("AMA Guides").
Bercik also submitted medical reports of Dr. Beauchamp. On February 4, 2009, Dr. Beauchamp diagnosed chronic mechanical low back pain with degenerative disc disease, radiculopathy, and left leg gross atrophy of musculature. Dr. Beauchamp noted in his reports that Bercik had reported his knee continued to give him pain and that the ACL appeared to be grossly intact. However, there was some involvement of the meniscal structures which Dr. Beauchamp concluded may have represented a recurrent tear versus a remnant from a previous surgery.
Hardy submitted Bercik's medical records from Centerstone Community Health Care Centers. Beginning September 17, 2008, Bercik was seen for psychiatric counseling as a result of his difficulty with completing daily routines due to symptoms of depression. Bercik gave a history of his 2006 work injury and stated that he was having anxiety over financial issues. He reported his depression had started two years prior, which was after his father had become ill. Bercik had left his job and family in order to care for his ailing father. Bercik also noted that his chronic knee problems and inability to work were causing him to be depressed.
Bercik was diagnosed with major depressive disorder, recurrent, moderate. His most current stressor appeared to be financial issues. His medical report set forth that he was unwilling to try medications and on December 3, 2008, Bercik's case manager noted "client is not very realistic because he is waiting for a $35 an hour job. He refuses to take anything less."
Hardy also submitted the report of Dr. Gregory Gleis, who evaluated Bercik on June 3, 2009. Dr. Gleis received a history of the November 17, 2006 work injury to the left knee and assigned a 7% functional impairment rating pursuant to the AMA Guides for the knee injury. Dr. Gleis also stated that Bercik did not have the physical capacity to return to the type of work he had been performing at the time of his injury and recommended that he be seen by an orthopedic surgeon with expertise in ACL reconstruction failure with continued symptoms. Dr. Gleis concluded that Bercik may require another surgery.
Both Bercik and Hardy submitted medical reports from Dr. Moore, an orthopedic surgeon. Dr. Moore initially saw Bercik on November 13, 2007. Dr. Moore diagnosed Bercik with a complete disruption of the ACL with a large posterior horn medial meniscus tear. He stated the condition was causally related to Bercik's work and recommended an ACL reconstruction in conjunction with a medial meniscectomy.
Dr. Moore noted that Bercik had undergone an ACL reconstruction in November 2007, and, postoperatively, had persistent and severe quadricep atrophy of his left knee. He recommended that Bercik receive additional physical therapy. On February 11, 2010, Bercik stated his knee felt like it was giving way on several occasions. Dr. Moore felt this symptom was the result of persistent severe quadriceps atrophy and stated that Bercik could return to work with the restrictions of no stooping, squatting, bending, or prolonged standing.
Dr. Moore performed surgery on Bercik's left knee on July 23, 2010. The surgery consisted of a partial medial meniscectomy, partial lateral meniscectomy, chondroplasty, trochlea patella left knee, chondroplasty medial femoral condyle, and chondroplasty lateral femoral condyle. Dr. Moore indicated at this point, Bercik could return to work with restrictions of no stooping, squatting, bending, or prolonged standing. On September 21, 2010, Dr. Moore allowed Bercik to return to work without restrictions since he had reached maximum medical improvement.
Shortly thereafter, on November 18, 2010, Dr. Moore concluded Bercik could return to work with restrictions of limited kneeling, climbing, squatting, stooping, bending, or unprotected heights pending a functional capacity evaluation, and in an October 7, 2010 letter, Dr. Moore indicated Bercik had a 7% functional impairment rating pursuant to the 5th edition of the AMA Guides.
Hardy submitted a May 11, 2011 letter from Dr. Moore indicating Bercik had completed a functional capacity evaluation and was capable of performing work in the medium category.
After reviewing the above evidence, the ALJ determined Bercik had not met his burden of proving his bilateral foot, lumbar, and psychiatric conditions were causally related to the November 17, 2006 work-related incident and dismissed Bercik's claim for benefits resulting from those conditions. However, the ALJ concluded that Bercik had a 7% functional impairment rating for his knee as a result of the work injury. The ALJ then found as follows:
Mr. Bercik argues that as a result of his work-related left knee injury, the bad outcome he received as a result of his two surgeries, and his current residuals, that he is permanently and totally occupationally disabled. The Defendant Employer argues that Mr. Bercik only suffers from a permanent partial disability benefits [sic] yet concedes that he is entitled to application of the three-time statutory multiplier based on his lacking of the functional capacity to return to the type of work he was performing at the time of his injury.
The Board affirmed the ALJ's findings and Hardy then brought this appeal.
STANDARD OF REVIEW
As a reviewing court in workers' compensation cases, our function is to correct the Board when we believe it "has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
"It has long been the rule that the claimant bears the burden of proof and the risk of nonpersuasion before the fact-finder with regard to every element of a workers' compensation claim." Magic Coal Co. v. Fox, 19 S.W. 3d 88, 96 (Ky. 2000). We recognize that it is within the broad discretion of the ALJ "to believe part of the evidence and disbelieve other parts of the evidence whether it came 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). With this standard in mind, we examine the merits of Hardy's appeal.
DISCUSSION
Hardy first contends that the ALJ's finding that Bercik had a permanent total disability was not supported by substantial evidence and is erroneous. It argues that no physician has stated either at the hearing or in medical reports that Bercik is permanently and totally disabled. Hardy also contends that Dr. Moore, Bercik's treating physician and the only one to examine him after his surgery, assessed restrictions within which Bercik could find and obtain gainful employment.
Kentucky Revised Statutes (KRS) 342.0011(11)(c) defines permanent total disability as:
the condition of an employee who, due to an injury, has a permanent disability rating and has a complete and permanent inability to perform any type of work as a result of an injury.The Kentucky Supreme Court has determined that when considering whether or not an individual is permanently and totally disabled, the factors set forth in the case of Osborne v. Johnson, 432 S.W.2d. 800 (Ky. 1968), must be considered. When making a determination as to whether a claimant is capable of performing any work, medical assessments are only one of the many elements to be considered. The claimant's own testimony regarding his or her health, vocational evidence, and medical evidence may also be considered by the ALJ. Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d. 48 (Ky. 2000).
In this case, Bercik testified on his own behalf in addition to providing medical evidence regarding his condition. In upholding the ALJ's decision, the Board held as follows:
The undersigned Administrative Law Judge had the opportunity to observe Mr. Bercik at the final hearing and found him to be a very credible individual. It was readily apparent that Mr. Bercik suffers from severe residuals as a result of his two knee surgeries and has had difficulty in rehabilitating his left leg and rebuilding his muscles that have severely atrophied.
Mr. Bercik has attempted to rehabilitate himself by availing himself to the benefits of the Tennessee Department of Vocational Rehabilitation, but been unsuccessful in finding employment within the restrictions assessed him. Mr. Bercik clearly cannot return to his work performing commercial heat and air-conditioning installation, and [sic] occupation he has performed for the past 25 years, based upon the condition of his left knee and the restrictions placed upon him by his treating physicians. In addition, the fact that he went from 2007 until 2010 before he underwent the appropriate surgery to repair his left knee condition clearly had a detrimental impact on his recovery and caused the severe atrophy in his left leg that he has admirably been trying to rehabilitate.
The Administrative Law Judge is cognizant of the fact that the plaintiff underwent a functional capacity evaluation that reflected that he was capable of performing medium work. However, Mr. Bercik testified quite credibly that he has been continuously seeking medium type work, with the assistance of the Tennessee Department of Vocational Rehabilitation, but has not been successful.
Therefore, in this specific instance, the Administrative Law Judge finds it [sic] when you compare the principles in the case of Osborne vs. Johnson, Supra., to Mr. Bercik's current situation, that [he] is permanently and totally occupationally disabled and has been so since February 27, 2007.
We conclude that the ALJ had substantial evidence upon which to base his decision and that the Board did not err in upholding his decision.
Next, Hardy asserts that the opinion, order and award was arbitrary or capricious and was characterized by an abuse of discretion or a clearly unwarranted exercise of discretion in this case. It argues that it was an abuse of discretion to award permanant total disability to Bercik given the uncontroverted medical proof in this case. It contends that Bercik is clearly capable of returning to gainful employment based upon the medical evidence and that no reasonable person could be persuaded otherwise.
As set forth above, however, there was evidence upon which the ALJ could base his decision. There was the evidence set forth in Bercik's own testimony. This testimony is a valid and sufficient basis for the ALJ to render a decision in favor of Bercik and we affirm the Board's decision.
ALL CONCUR. BRIEF FOR APPELLANT: Jo Alice Van Nagell
Lexington, Kentucky
NO BRIEF FILED FOR APPELLEE.