Opinion
NO. 2014-CA-001365-WC
03-20-2015
PERRY COUNTY COAL CORPORATION APPELLANT v. JERRY TAYLOR; HONORABLE EDWARD D. HAYS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Sarah K. McGuire James M. Kennedy Pikeville, Kentucky BRIEF FOR APPELLEE: Mc Kinnley Morgan London, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-01742
OPINION
AFFIRMING
BEFORE: DIXON, KRAMER, AND THOMPSON, JUDGES. DIXON, JUDGE: Perry County Coal Corporation seeks review of an opinion of the Workers' Compensation Board affirming an Administrative Law Judge's award of permanent total disability benefits to Jerry Taylor. We affirm.
Taylor worked as an underground coal miner for thirty-nine years. He was employed by Perry County from 2001 until September 7, 2012, when he left his job due to ongoing pain in his neck and low back. Taylor filed a claim for workers' compensation benefits alleging cumulative trauma injuries from repetitive use of his neck and back. Taylor submitted the report of his treating chiropractor, Dr. Morgan, and the IME report of Dr. Hughes. During his evaluation, Dr. Hughes reviewed x-rays, MRIs, and conducted a physical examination of Taylor. Dr. Hughes noted the imaging studies showed severe cervical stenosis and narrowing, bulge with spurring at L3-4 and L4-5, and spondylosisthesis at L5-S1 with posterior disc bulge. Dr. Hughes diagnosed neck pain without radiculopathy and lower back pain with right lumbar radiculopathy caused by cumulative trauma during his work as a coal miner. Dr. Hughes concluded Taylor lacked the physical capacity to return to that type of work and assigned restrictions as to bending, twisting, and lifting. Dr. Hughes assessed 15% whole person impairment, attributing 5% to the neck and 10% to the low back. Perry County submitted the IME report of Dr. Primm, who assessed no impairment and concluded Taylor's complaints were age-related degenerative changes not attributable to his work as a coal miner. Taylor testified that his work involved operating heavy equipment in the underground mines. In an eight or nine hour shift, Taylor typically sat "cramped up" at the controls of the machine using foot pedals and hand levers to run the equipment. Taylor described his job as "physical, heavy duty work." During his last four years of employment, Taylor experienced the gradual onset of neck and low back pain, radiating down his right leg, which became worse over time.
In a July 2013, opinion and award, the ALJ found that Taylor's injuries were dormant and aroused into disabling reality by his work as a coal miner. The ALJ awarded permanent total disability benefits based on 15% whole person impairment. On appeal, the Board vacated the ALJ's finding of dormant injuries, noting that there was no medical evidence indicating that Taylor's impairment was attributable to a dormant degenerative condition that became disabling. The Board remanded the claim to the ALJ for a determination on the issue of whether there was a cumulative trauma injury that manifested on Taylor's last date of employment. On remand, the ALJ amended his previous opinion to include specific findings, based on Dr. Hughes's report, that Taylor's neck and low back pain were the result of cumulative trauma sustained during his work as an underground coal miner.
Perry County again appealed, challenging the sufficiency of the evidence regarding causation, cumulative trauma, and total disability. In its opinion affirming, the Board concluded substantial evidence supported the ALJ's finding that Taylor suffered a work-related cumulative trauma injury to his neck and low back that resulted in permanent total disability. This petition for review followed.
The findings of an ALJ in favor of an injured worker will not be disturbed on appeal where the decision is supported by substantial evidence. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984). "The [ALJ], as the finder of fact, and not the reviewing court, has the authority to determine the quality, character and substance of the evidence presented . . . ." Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Furthermore, the ALJ is free "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). When this Court reviews a workers' compensation decision, our function is to correct the Board only where we believe "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).
As it did before the Board, Perry County challenges the sufficiency of the evidence supporting the ALJ's decision regarding causation, cumulative trauma, and total disability. Perry County opines that Dr. Hughes's report was unreliable and emphasizes that Dr. Primm attributed Taylor's complaints to age-related degenerative changes rather than his work as a coal miner.
KRS 342.0011(1) defines a compensable injury as being "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." The statute also defines "objective medical findings" as "information gained through direct observation and testing of the patient applying objective or standardized methods[.]" KRS 342.0011(33). In Staples, Inc. v. Konvelski, 56 S.W.3d 412, 415-16 (Ky. 2001), the Kentucky Supreme Court advised that, although the statute requires objective medical findings to prove a harmful change, such objective medical findings are not necessary to establish causation.
In this case, the ALJ weighed the conflicting medical opinions of Dr. Primm and Dr. Hughes. Following an examination, Dr. Primm, diagnosed neck and low back pain due to age-related degenerative changes and recommended aerobic exercise. Dr. Hughes reviewed diagnostic imaging, which showed severe cervical narrowing and bulging discs in the lumbar spine. In Dr. Hughes's physical examination, he observed that Taylor had diminished touch-sensation in his right toes, diminished right-side straight leg raise, and no lateral bend or extension of the lumbar spine. Dr. Hughes diagnosed neck pain and low back pain with radiculopathy resulting from cumulative trauma sustained during Taylor's employment as an underground miner, noting that Taylor's job required him to stoop, crouch, push, pull, twist, and bend. Further, Taylor's own testimony indicated that his job was physically demanding, noting that he sat "cramped up" at the controls of the machine using foot pedals and hand levers to run the equipment. According to Taylor, during his last four years of employment, he experienced the gradual onset of neck and low back pain, radiating down his right leg, becoming worse over time.
Although Perry County is dissatisfied with the ALJ's assessment of the evidence, the ALJ had "the authority to determine the quality, character and substance of the evidence[,]" Burkhardt, 695 S.W.2d at 419, and he was free "to believe part of the evidence and disbelieve other parts of the evidence . . . [.]" Caudill, 560 S.W.2d at 16. The ALJ weighed the conflicting evidence and found Dr. Hughes's medical opinion and Taylor's lay testimony to be the most credible; accordingly, we conclude sufficient substantial evidence supported the ALJ's finding of work-related cumulative trauma injuries to Taylor's neck and low back.
We now address the ALJ's finding of permanent total disability. 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[.]" In Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000), the Kentucky Supreme Court noted several factors relevant to an ALJ's determination of partial or total disability, including:
the worker's post-injury physical, emotional, intellectual, and vocational status and how those factors interact. It also includes a consideration of the likelihood that the particular worker would be able to find work consistently under normal employment conditions. A worker's ability to do so is affected by factors such as whether the individual will be able to work dependably and whether the worker's physical restrictions will interfere with vocational capabilities. The definition of 'work' clearly contemplates that a worker is not required to be homebound in order to be found to be totally occupationally disabled.Id. at 51.
In the case at bar, the ALJ considered Taylor's age, education, vocational skills, and post-injury medical restrictions. The ALJ concluded:
In the case at hand, it is noted that Plaintiff is 56 years of age, has only a 12th grade education, has a work history exclusively involved in underground coal mining, and has no specialized or vocational training or skills other than underground mining. Claimant testified that he is unable to return to any of the jobs he has held in the past. A finding of permanent total disability is supported by the opinions of Dr. Hughes, and specifically by the severe restrictions that he placed upon Claimant. It is unlikely that Mr. Taylor could obtain employment under such severe restrictions and it is certainly unlikely that he would be likely to obtain such employment on a regular basis in a competitive job market.
Our review indicates the ALJ sufficiently articulated his reasoning and the evidence supporting his finding of total disability. It is well-settled that "[a] worker's testimony is competent evidence of his physical condition and of his ability to perform various activities both before and after being injured." McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 860 (Ky. 2001). We conclude the ALJ's determination of permanent total disability was supported by substantial evidence.
The ALJ's opinion indicates he properly weighed the conflicting evidence, made factual findings, and reached the legal conclusion that Taylor was permanently totally disabled. See Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 61-62 (Ky. 2012). We are satisfied the Board did not overlook or misconstrue the applicable law, and the decision in Taylor's favor was supported by substantial evidence. After fully considering all of the issues raised by Perry County, we conclude the Board properly affirmed the ALJ's award.
For the reasons stated herein, we affirm the decision of the Workers' Compensation Board.
ALL CONCUR. BRIEF FOR APPELLANT: Sarah K. McGuire
James M. Kennedy
Pikeville, Kentucky
BRIEF FOR APPELLEE: Mc Kinnley Morgan
London, Kentucky