Opinion
NO. 2009-CA-002249-WC
03-07-2014
ILA NICKELL APPELLANT v. DIVERSICARE MANAGEMENT SERVICES; HON. CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Eric M. Lamb Louisville, Kentucky Grover Arnett Salyersville, Kentucky BRIEF FOR APPELLEE, DIVERSICARE MANAGEMENT SERVICES: Ronald J. Pohl E. Shane Branham Lexington, Kentucky
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-07-96867
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND STUMBO, JUDGES. ACREE, CHIEF JUDGE: Ila Nickell appeals from that portion of an order of the Workers' Compensation Board which affirmed the Administrative Law Judge's (ALJ) order awarding her benefits on the basis of a permanent partial disability rather than a permanent total disability. Specifically, Nickell claims she should have been adjudged permanently totally disabled because the ALJ impermissibly offset her twelve-percent impairment rating due to a preexisting injury. We affirm.
I. Background.
In 1989, Nickell was in a motor vehicle accident, after which she began experiencing back pain. She sought treatment and was diagnosed with lumbar disc disease and lumbar herniation. Doctors noted degenerative changes in Nickell's spine as early as 1991. Her treating physicians began prescribing her medications to manage the back pain shortly after the accident, and she continued using them in the ensuing years. Nickell renewed a prescription for one such medication only days before her first work-related injury. Treatment for Nickell's back problems was ongoing up to the time of the injuries which formed the basis of this appeal.
Nickell began employment as a nurse for Diversicare Management Services in 2001. Her duties required her to distribute medication, document patient medical information, move patients, and provide for their general care.
Nickell's first work-related injury occurred on June 9, 2006. While assisting a patient, she tripped over a bed crank and injured her back. An MRI revealed a new injury, lumbar spondylolisthesis. Treatment methods included physical therapy and medication to manage the pain; some of the medication had been prescribed to Nickell prior to this incident for her ongoing back difficulties. She returned to work ten days later with instructions not to lift more than ten pounds.
On January 30, 2007, Nickell was injured at work while positioning a patient so she could perform CPR. Following the injury, her back pain increased, and she was placed on light duty before ultimately ceasing employment.
Nickell filed a claim for Workers' Compensation benefits. Following an evidentiary hearing, the ALJ found the opinion of Dr. Scott Prince was the most credible evidence submitted and adopted his impairment assessment. In so doing, the ALJ concluded that Nickell was totally disabled due to all of her back injuries, resulting in a twelve-percent whole person impairment rating. However, the ALJ attributed eight percent of the impairment to her non-work-related 1989 motor vehicle accident. Her total compensable work-related impairment was assessed at four-percent permanent partial disability.
Following a series of motions to reconsider, the ALJ entered an order with additional findings of fact, but left the impairment assessment and award unchanged. The order was affirmed by the Board, and this appeal followed.
II. Standards of review.
Our review of questions of law which arise in a Workers' Compensation adjudication is de novo. Bowerman v. Black Equipment Co., 297 S.W.3d 858, 866 (Ky. App. 2009).
We are not permitted to disturb administrative findings of fact unless they are not supported by substantial evidence. Brown By and Through Brown v. Young Women's Christian Ass'n, 729 S.W.2d 190, 192 (Ky. App. 1987). Such evidence is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable [people]." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998) (citation omitted).
Assessment of the credibility of the witnesses and the persuasive weight of the evidence is entirely within the ALJ's authority:
KRS 342.285 designates the ALJ as finder of fact, and has been construed to mean that the factfinder has the sole discretion to determine the quality, character, weight, credibility, and substance of the evidence, and to draw reasonable inferences from the evidence. Moreover, 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.Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky. App. 2009) (citations omitted).
Kentucky Revised Statutes.
III. Discussion.
a. The ALJ did not misapply the applicable case law in excluding Nickell's non-work-related injury from his disability assessment.
Nickell first argues that Teledyne-Wirz v. Willhite permits an award of permanent total disability benefits even when a portion of the claimant's disability results from a preexisting, non-compensable injury. Teledyne-Wirz v. Willhite, 710 S.W.2d 858 (Ky. App. 1986); KRS 342.730(1)(a). She contends the Board erred by not mandating compensation on the basis of permanent total disability, in accordance with Teledyne.
Diversicare responds that the ALJ correctly declined to include Nickell's non-work impairment in assessing whether Nickell's disability was total or partial. The appellee maintains that in McNutt Construction/First General Services v. Scott, the Supreme Court recognized that Teledyne has been legislatively superseded by the mid-1990s amendments to KRS 342.0011 (defining injury) and KRS 342.730(1)(a) (defining assessment of total disability). McNutt Construction/First General Services v. Scott, 40 S.W.3d 854 (Ky. 2001). As a result, claims Diversicare, preexisting injuries may not be considered when determining whether a claimant's injury is total or partial, and the Board committed no error.
Nickell characterizes that portion of McNutt as dictum and urges us to reinstate the holding of Teledyne. We are not persuaded.
McNutt recognizes the following rule, "Consistent with the 1994 amendment to KRS 342.730(1)(a), which legislatively overruled the decision in Teledyne-Wirz v. Willhite . . . , the 1996 version of KRS 342.730(1)(a) provides that non[-]work-related impairment is not to be considered when determining whether a worker is totally disabled." Id. at 858. This passage contains interpretation of a statute and a clear statement that a previous opinion is no longer good law. It cannot be described as dictum, which is "by definition no part of the doctrine of the decision[.]" DICTUM, Black's Law Dictionary (9th ed. 2009) (quoting William M. Lile et al., Brief Making and the Use of Law Books 307 (3d ed. 1914)). The statement is binding on our analysis. SCR 1.030(8)(a).
Rules of the Supreme Court.
Nickell has not identified any reason the rule stated in McNutt should not be applied to her claim. The ALJ correctly excluded Nickell's preexisting, non-work-related injury from his assessment of whether her disability was total or partial.
b. The ALJ's finding that eight percent of Nickell's impairment was due to preexisting injuries was not clearly erroneous.
Nickell next argues the ALJ's finding of eight-percent impairment due to preexisting injuries was clearly erroneous. She claims, in support of this argument, that the ALJ was obligated to find that she suffered no previous impairment because she was able to perform her duties as a nurse without restriction until her 2006 injury. We disagree.
In assessing Nickell's preexisting injury at an impairment rate of eight percent, the ALJ relied wholly on the opinion of one of Nickell's own evaluating physicians, Dr. Scott Prince. The ALJ found Dr. Prince's assessment of Nickell to be the most thorough and accurate and, therefore, the most credible. The ALJ disregarded the opinions of the other treating and examining physicians which the parties had presented.
Dr. Prince determined that eight percent of Nickell's impairment was due to injuries which preexisted her first work injury. Nickell has identified no evidence which renders Dr. Prince's evaluation insubstantial or irrelevant, and the ALJ was permitted to rely upon it. Owens-Corning, 976 S.W.2d at 414. That Nickell has identified evidence which might support a contrary conclusion does not render this factual finding erroneous.
The Board's affirmation of the ALJ's finding of fact was proper.
c. We will not disturb the Board's finding that Nickell failed to preserve her apportionment argument.
Following entry of the ALJ's order, Nickell filed a series of motions to reconsider. In the third such motion, Nickell requested for the first time that the ALJ apportion the eight-percent preexisting injury assessment between that injury which directly resulted from the 1989 car accident and that which was the result of the aging process. The ALJ declined to do so.
The Board affirmed, finding Nickell had not preserved the error because she failed to timely raise the argument.
Nickell argues on appeal that she did preserve this argument because she raised it before entry of the ALJ's order in response to her first motion to reconsider, which supplemented the original order with additional findings of fact.
We will not consider this argument for preservation because she failed to cite any legal authority to support it. Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005). "It is not our function as an appellate court to research and construct a party's legal arguments, and we decline to do so here." Id. We will not disturb the Board's ruling as to preservation; however, we will review the substance of the apportionment argument for palpable error under CR 61.02.
Kentucky Rules of Civil Procedure.
d. The ALJ's failure to apportion the preexisting injury assessment between the result of the 1989 motor vehicle accident and the effects of aging was not palpable error or manifestly unjust.
Nickell argues the ALJ was required to allocate which portion of her preexisting injury was the result of her automobile accident and which was due to the normal process of aging. Absent this allocation, claims Nickell, the ALJ's order lacked an essential finding and must be reversed. Eaton Axle Corp. v. Nally, 688 W.W.2d 334, 337 (Ky. 985) (holding KRS 342.185 requires that the ALJ enter findings of fact on "all contested issues[.]").
Even if Nickell had timely raised this argument, we could not have concluded the apportionment of non-work-related injuries is an essential finding because a finding concerning apportionment would have had no effect on either the employer's obligations or the claimant's entitlement to benefits. A claimant is permitted to recover Workers' Compensation benefits only for "work-related traumatic event[s] . . . arising out of and in the course of employment[.]" See KRS 342.0011(1). Neither injury from an accident which predated the claimant's employment nor "the effects of the natural aging process" qualifies as a compensable injury. See id. Apportioning the two would have had no effect on Nickell's award. We will not require the ALJ to make findings which are irrelevant to the matters before him.
e. The ALJ made necessary findings of fact regarding the whole-man doctrine.
Nickell contends that the ALJ erroneously failed to enter findings addressing her argument that the whole-man doctrine applied to her injuries. Diversicare contends there was no error here because the ALJ did enter findings in response to Nickell's argument concerning the doctrine.
Presumably, Nickell's argument is that the doctrine should apply to prevent the disability resulting from the 1989 injury from being subtracted from the total percentage of disability following her two work-related injuries, rather than that calculation of her disability should somehow have been different based on the 2006 work-related injury which preexisted the 2007 work-related injury.
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According to the whole-man doctrine, where a claimant has suffered preexisting injury, if the subsequent, work-related injury independently causes total disability, the disability caused by the preexisting injury should not be deducted from assessment of the extent of the subsequent disability. See International Harvester Company v. Poff, 331 S.W.2d 712 (Ky. 1959). Where a claimant has argued application of the whole-man doctrine, the ALJ must enter findings which resolve whether the latter injury caused total disability independent of the previous injury. See id.; see also Eaton Axle Corp., 688 W.W.2d at 337.
In his original order, the ALJ found:
[Nickell] is not permanently and totally disabled solely as a result of the work injury. It is only in conjunction with the earlier, pre-existing, active impairment and occupational disability, which is a product of a non-work related motor vehicle accident, that [Nickell] is permanently and totally disabled. The [ALJ] finds that absent that earlier [motor vehicle accident, Nickell] would not be permanently and totally disabled.(Record on appeal, pp. 602-03). These findings were sufficient to answer any argument Nickell may have raised concerning application of the whole-man doctrine. The ALJ's findings of fact were not deficient in this respect.
f. The ALJ did not err when it limited payment of Nickell's award to 425 weeks.
Nickell argues that, because the ALJ found her to be permanently and totally disabled, she is entitled to have her award for income benefits paid for the remainder of her life rather than 425 weeks. Nickell fails to fully comprehend the ALJ's ruling. We set forth the ALJ's succinct statement of its ruling in the preceding section. We need not repeat it here except to reiterate that the ALJ found that Nickell's total disability was the product of the work-related incident and the non-worked-related 1989 car accident. For compensability purposes, the ALJ correctly concluded Nickell was only permanently partially disabled and therefore limited to permanent partial disability benefits. KRS 342.730(d) restricts the compensable period for a permanent partial disability to 425 weeks. Nickell is not entitled to the payment of benefits for the remainder of her life.
g. The ALJ correctly calculated Nickell's Permanent Partial Disability Award.
Nickell's next contention is that the ALJ erred in calculating her partial disability benefits award. Nickell proposes a new method of calculating disability awards in such cases as hers in which a preexisting active condition prevents a finding of a compensable permanent total disability. That proposed method would first calculate the employee's permanent partial disability benefits by multiplying the employee's average weekly wage by the entire assigned impairment rating (in this case, it is 12%), disregarding the relative percentages assigned to the work-related injury on the one hand and to the preexisting condition on the other, while taking into consideration any factors or multipliers identified in KRS 342.730(c) and (b). Under the proposed method, one would subtract from that benefit the amount of impairment attributed to the preexisting active condition (which in this case is 8%). Applying the factors and multipliers identified in KRS 342.730(c) and (b) before subtracting the preexisting impairment results in a large benefits award for the injured employee. Nickell claims that this method is consistent with the principle of fairness and equity, and avoids a windfall to the employer.
We agree with the Board that the method proposed by Nickell runs afoul of the plain language of KRS 342.730(b), which requires that, in calculating the employee's benefit award, the employee's average weekly wage must be multiplied by the impairment rating caused by the injury, not the entire impairment rating assigned. Thus, the impairment rating attributed to the preexisting condition must be subtracted from the employee's total impairment rating before permanent partial benefits are calculated. We must reject this proposed method and the argument wherein it is presented.
h. The ALJ's finding that Nickell had an eight-percent preexisting active impairment is not erroneous as a matter of law.
Finally, Nickell asserts, as a matter of law, that it is not proper for an ALJ to find an injured employee has a preexisting active impairment unless there are effects on the employee's activities of daily living. Nickell contends that because there was no such evidence, the ALJ's eight-percent preexisting active impairment finding is legally erroneous. Nickell cites no Kentucky authority in support of her contention. In any event, to qualify as a preexisting condition under Kentucky's Workers' Compensation scheme, the condition must be both symptomatic and impairment ratable. Finley v. DBM Technologies, 217 S.W.3d 26, 265 (Ky. 2007). While the condition's effect on the employee's daily living might certainly be relevant to the preexisting condition inquiry, there is nothing in Kentucky jurisprudence that requires such evidence before the fact-finder may conclude that a preexisting condition exists.
IV. Conclusion.
Nickell has raised no argument which merits reversal of the Board's affirmation of the ALJ's order assessing Nickell's work-related injuries as causing four-percent permanent partial disability. We affirm.
STUMBO, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Eric M. Lamb
Louisville, Kentucky
Grover Arnett
Salyersville, Kentucky
BRIEF FOR APPELLEE,
DIVERSICARE MANAGEMENT
SERVICES: Ronald J. Pohl
E. Shane Branham
Lexington, Kentucky