Opinion
NO. 2012-CA-000794-WC
02-15-2013
GARY MITCHELL. APPELLANT v. FRASURE CREEK MINING, AS INSURED BY KEMI; HON. CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Thomas W. Moak Prestonburg, Kentucky BRIEF FOR APPELLEE: James G. Fogle Louisville, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-11-00295
OPINION
AFFIRMING
BEFORE: CLAYTON, KELLER AND MAZE, JUDGES. MAZE, JUDGE: Gary Mitchell petitions for review of an opinion of the Workers' Compensation Board (Board) which affirmed in part and reversed in part an Administrative Law Judge's (ALJ) award of total disability benefits based on the combined effects of two work-related injuries. Mitchell argues that the Board improperly substituted its judgment for the ALJ in finding that he became totally disabled only after the second injury, and thus was entitled to benefits for permanent partial disability from the date of the first injury until the date of second injury. We conclude that Mitchell's return to work after the first injury, the medical evidence of record, and applicable case law compels the Board's conclusion. Hence, we affirm the Board.
For purposes of this petition for review, the following facts are relevant: Mitchell began working for Frasure Creek Mining (Frasure) on October 3, 2005, driving a water truck and later worked driving a rock dump truck. Mitchell indicated he worked fifty-five to sixty-three hours per week. Mitchell testified that on July 30, 2009, he was driving a truck loaded with rocks when it hit a large rock submerged in a mud puddle on the roadway, causing the truck to jump and come back down slamming him down into his seat. He experienced an onset of pain as well as a chilling or numbness in his neck and low back. He notified his co-workers and also told his supervisor that his neck was tingling and that he had back pain. A grader was brought to the location but it could not move the rock. A dozer was then driven over the rock to break it.
Mitchell sought medical treatment after his shift ended, and he saw a chiropractor the next day. However, he did not fill out an accident report at that time and his initial treatment was paid through his general insurance. He testified that "the bosses don't want to fill these papers out, these accident reports, because it takes money away from their maintenance fees that they get." But Mitchell admitted that his immediate supervisor later told him he should have filled out an accident report. Mitchell stated he missed "a couple of days" from work then returned to driving a rock truck, although he continued to have pain.
On November 4, 2009, Mitchell was driving the rock truck when his left hand went numb. He was treated at Baptist Central Hospital and was diagnosed with a transient ischemic attack, which Mitchell described as a mini-stroke. Mitchell returned to his regular work duties on November 16, 2009.
On August 9, 2010, Mitchell was driving the rock truck when the bed slammed down hard. The person who operated the truck during the prior shift reported the same issue. He told his supervisors about the problem, but was told to continue driving the truck. He testified that these malfunctions occurred again on August 17, 2010. He stated that each incident caused increased pain in his neck and back. Mitchell stated that his employer told him he needed to be examined by a company doctor, but no appointment was scheduled. Mitchell has not worked since August 23, 2010.
Mitchell filed a Form 101 Application for Resolution of Injury Claim on February 25, 2011, alleging a work-related injury to his neck and shoulder on July 30, 2009 and additional injury to his neck and back occurring on or about August 9, 2010. The claim proceeded before the ALJ, who issued an Opinion, Order and Award on September 16, 2011.
After considering all of the testimony and medical evidence, the ALJ concluded that Mitchell had suffered two permanent work-related injuries, on July 30, 2009 and August 9, 2010, respectively. The ALJ accepted the diagnosis and impairment assessment reported by Dr. Ira Potter. Dr. Potter diagnosed cervical sprain/strain, cephalgia, multi-level cervical degenerative disc disease, C-5-C6 and C6-C7 disc bulges, lumbosacral sprain/strain, right lumbosacral radiculitis, multi-level lumbar degenerative disc disease, and L5-S1 facet joint osteoarthritis. Dr. Potter assigned a 7 percent impairment rating due to restricted cervical motion and a 6 percent impairment rating due to lumbar complaints. Combined, these conditions produced a 13 percent impairment rating. Dr. Potter stated the impairment was caused by the July 2009 and August 2010 incidents being superimposed upon pre-existing, dormant, and non-disabling degenerative changes of the cervical and lumbar spine. He concluded Mitchell could not return to the type of work he was performing at the time of his injuries. He also concluded Mitchell did not have an active impairment prior to these work injury events.
There was considerable dispute whether the first injury actually occurred on July 30, 2009. Mitchell emphatically remembered that the injury occurred on that date, but Frasure presented evidence that Mitchell was off-work on that day. However, the ALJ noted found that the discrepancy was not controlling. Since there was evidence that Mitchell went for medical and chiropractic treatments on July 30, 2009, and described the injury to his medical providers at that time, the ALJ found that the first injury occurred "on or about July 30, 2009." The Board did not disturb this finding and the issue is not presented in this petition for review.
Based on these findings, the ALJ concluded that Mitchell lacks the capacity to return to the type of work which he performed prior to the July 30, 2009, injury. The ALJ acknowledged that Mitchell continued to perform the same type of work after the early injury, but found that Mitchell did so "out of financial necessity and that as his condition did not improve, combined with the effect of the second injury, that he reached the conclusion that he could not go on and I agree with that conclusion." Consequently, the ALJ determined that Mitchell is permanently totally disabled as a result of both injuries and made an award of lifetime benefits accordingly. The ALJ apportioned 50 percent of the award to Kentucky Employer's Mutual Insurance (KEMI), which was Frasure's worker's compensation carrier on July 30, 2009, and 50 percent to Rockwood Insurance Company, which was Frasure's carrier on August 9, 2010.
KEMI filed a petition for reconsideration of the award, arguing, among other things that the ALJ clearly erred by holding it liable for 50 percent of Mitchell's lifetime benefits arising from the July 30, 2009, work injury. KEMI also argued that since the last injury occurred when Frasure was insured by Rockwood, Rockwood must be held liable for all medical expenses. Finally, KEMI argued the ALJ should make further findings substantiating his conclusions. The ALJ denied KEMI's petition for reconsideration on October 31, 2011.
KEMI and Rockwood both appealed the opinion and award to the Board. However, Rockwood settled its liability with Mitchell prior to the Board's decision. In an opinion entered on April 13, 2012, the Board affirmed on most issues, but reversed the finding that Mitchell was totally occupationally disabled as a result of the July 30, 2009, injury. Since Mitchell returned to his prior work following that incident, the Board concluded that the evidence compelled a finding of only permanent partial disability. Consequently, the Board remanded the matter to the ALJ to calculate the weekly amount of benefits for the award for permanent partial disability attributable to the 2009 injury, and the appropriate multiplier, if any.
In this petition for review, Mitchell argues that the Board improperly substituted its judgment for the ALJ's finding. He correctly notes that the ALJ has the sole authority to judge the weight, credibility, substance and inferences to be drawn from the evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Where the evidence is conflicting, the ALJ has the sole authority to believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same party's total proof. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). So long as any evidence of substance supports the ALJ's opinion, it cannot be said the evidence compels a different result. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
But while Mitchell frames the controlling issue as an issue of fact, we agree with the Board that the current case involves only an application of law to the ALJ's factual findings. In such cases, the function of this Court's review is to correct the Board only where the Court perceives that 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. Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). We find no such error.
The facts presented in the current case are virtually indistinguishable from those in Fleming v. Windchy, 953 S.W.2d 604 (Ky. 1997), and its follow-up, Whittaker v. Fleming, 25 S.W.3d 460 (Ky. 2000). In Fleming v. Windchy, the worker was rendered totally disabled by the partially disabling back injuries which occurred in 1990 and 1991. The two injuries were sustained in different employments. As in the present case, the ALJ found the worker was totally disabled due to the combined effects of the two work-related injuries and a pre-existing condition. The ALJ awarded lifetime benefits to the worker. After excluding the non-compensable portion of the disability, the ALJ equally apportioned the compensable portion of the benefits between the two employers.
On appeal, the Kentucky Supreme Court agreed that the worker was entitled to lifetime benefits for total disability arising from the combined effects of the two work-related injuries. However, the Court emphasized that the worker "is not entitled to benefits for total disability until such time as he becomes totally disabled. Likewise, a defendant may not be held liable for any additional occupational effect which results from the fact that a subsequent disabling injury is superimposed upon the injury for which the defendant is liable." Id. at 607. The Court explained that the distinction is significant because awards for partial disability are payable at a lower maximum rate and for a shorter duration than awards for total disability.
Permanent, partial occupational disability is compensable for 425 weeks, at the rate of 66 2/3 percent of the worker's average weekly wage multiplied by the percent of occupational disability, and limited to 75 percent of the state's average weekly wage. KRS 342.730(1)(b). Whereas, permanent, total disability is compensable for life (so long as the worker remains totally disabled), at the rate of 66 2/3 percent of the worker's average weekly wage, and is limited to 100 percent of the state's average
weekly wage. KRS 342.730(1)(a); Stovall v. Williams, 675 S.W.2d 6 (Ky. App. 1984). In Teledyne-Wirz v. Willhite, 710 S.W.2d 858 (Ky. App. 1986), the court determined that the whole of the worker's disability, including any noncompensable, prior, active disability, was to be considered when determining whether benefits for a compensable disability should be awarded pursuant to KRS 342.730(1)(a) or (b). Id. at 859. Hence, before the decision in [Campbell v. Sextet Mining Co., 912 S.W.2d 25 (Ky. 1995)], a worker who was receiving (or entitled to receive) benefits for a partially disabling injury at the time he was rendered totally disabled by a subsequent injury was awarded lifetime benefits pursuant to KRS 342.730(1)(a), but only for the percentage of disability directly attributable to the last injury. In Mr. Campbell's case, despite the fact that he had become totally, occupationally disabled, the lifetime award would have been only for a 10 percent occupational disability. In the instant case, the lifetime award would be only for a 42 percent occupational disability, despite the fact that the final injury rendered claimant totally, occupationally disabled.
Id. at 606-607.
Consequently, the Court held that the worker was only entitled to benefits for the 1990 injury at the rate and duration for permanent partial disability. Id. at 607-608. The Court further set out the method for apportioning such awards. The Supreme Court employed the same analysis in a companion case, Spurlin v. Brooks, 952 S.W.2d 687 (Ky. 1997).
Following remand of the matter in Fleming, the case returned to the Supreme Court in Whittaker v. Fleming, supra. In that case, the Court clarified its directions for apportioning the awards for permanent partial disability and for total disability, noting
that claimant became totally disabled as a result of the 1991 injury. He is entitled to an award of total disability as of the date of the 1991 injury. A 16 percent prior, active disability must be excluded for the pre-1990 injuries, leaving 84 percent of an award for permanent, total disability as a result of the 1991 injury. Apportionment of the 1991 award is controlled by KRS 342.1202; therefore, liability for the 84 percent award must be borne equally by Trojan and the Special Fund. Trojan and the Special Fund are entitled to a credit against the 1991 award to the extent that benefits payable pursuant to the 1990 partial disability award against Sun Glo and the Special Fund overlap the period of total disability.Id. at 463.
Mitchell argues that his situation is distinguishable from the facts in the Fleming cases because the ALJ in his case specifically found that he became totally disabled as a result of the 2009 injury and only returned to his previous employment out of financial necessity. Mitchell points out that he had lingering neck problems following the 2009 injury which interfered with the performance of his work-duties, as evidenced by his significant history of absenteeism and his ongoing-treatment for neck and back problems prior to August 2010. He also aruges that this conclusion was supported by testimony of Dr. Potter and by Dr. Christopher Stephens.
However, the ALJ in Fleming v. Windchy also found that the earlier injury was totally disabling, notwithstanding the fact that the worker returned to his prior employment on a trial basis and had substantial difficulties performing his duties after that time. 953 S.W.2d at 605. Despite this factual finding, the Supreme Court held that the evidence compelled a determination that the worker did not become totally disabled until the later injury. Furthermore, the evidence in the current case supports this conclusion. Dr. Potter and Dr. Stephens each attributed Mitchell's impairment to the combined effects of the 2009 and 2010 injuries. Dr. Potter stated the impairment was caused by the July 2009 and August 2010 incidents being superimposed upon pre-existing, dormant, and non-disabling degenerative changes about the cervical and lumbar spines. And while Dr. Stephens did not believe that the 2010 injury caused a worsening of the cervical condition, he did state that any of Mitchell's complaints about the lumbar spine would be due to the 2010 injury.
Considering this evidence, which the ALJ accepted, the record compels a conclusion that Mitchell did not become totally disabled until the August 2010 injury. Therefore, the Board correctly reversed the ALJ's award based on the rule set out in Whittaker v. Fleming, Fleming v. Windchy, and Spurlin v. Brooks. In accord with this authority, the Board properly remanded the matter to the ALJ for a finding that the 2009 injury resulted in permanent partial disability, and to calculate the weekly amount of benefits attributable to that injury and the appropriate multiplier, if any.
Accordingly, the April 13, 2012, Opinion of the Workers' Compensation Board is affirmed and this matter is remanded to the ALJ for additional findings and an award as set out in the Board's opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Thomas W. Moak
Prestonburg, Kentucky
BRIEF FOR APPELLEE: James G. Fogle
Louisville, Kentucky