Opinion
NO. 2015-CA-000821-WC
01-15-2016
RIVER VIEW COAL COMPANY, LLC APPELLANT v. ANGELA WHITLOCK; WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Brandy B. Hassman Lexington, Kentucky BRIEF FOR APPELLEE: Lucius Hawes Hopkinsville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-13-92232 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; DIXON AND KRAMER, JUDGES. DIXON, JUDGE: River View Coal Company seeks review of a Workers' Compensation Board decision affirming in part, vacating in part, and remanding an Administrative Law Judge's award of permanent total disability benefits for a back injury sustained by Angela Whitlock. We affirm.
Whitlock was born August 21, 1971. She has a ninth grade education, received her GED, and she obtained a certificate in early childhood development. In 2012, Whitlock sustained injuries on four different occasions while working as an underground coal miner. On March 4, 2013, Whitlock was working underground when a rock fell and hit her lower back. Whitlock sought treatment with Dr. Debra Wallace at Methodist Family Practice, and an MRI showed mild disc bulges in the lumbar spine with an annular tear and nominal protrusion at L4-5. Whitlock described her symptoms as low back pain with radiating tingling and numbness through both legs. Dr. Wallace diagnosed persistent low back pain. Whitlock last worked for River View on July 11, 2013.
In February 2012, she hurt her left leg, but did not require medical treatment. On May 9, she fell on a piece of equipment and scraped her knee. On May 18, a rock fell on her, fracturing her right hip. On December 18, a cable hit her in the face, fracturing her nose. --------
Whitlock sought workers' compensation benefits for her injuries. Whitlock provided deposition testimony, testified at the final hearing, and introduced the medical report of Dr. Charles Barlow, an orthopedic surgeon. Dr. Barlow conducted a physical examination of Whitlock and reviewed her medical records. Dr. Barlow diagnosed Whitlock with a bulging disc, transitional vertebra at the L5 sacral level and bilateral radiculopathy, which he attributed to the March 2013 work injury. Dr. Barlow assessed Whitlock's impairment at 6% for her back injury. Dr. Barlow concluded Whitlock's lumbar and radiating pain would increase if she returned to mining work and assigned permanent restrictions as to bending, lifting, and pushing.
River View contested a number of issues, including work-relatedness/causation and permanent total disability. River View submitted the IME report of Dr. Thomas M. Huhn, an emergency medicine specialist. Dr. Huhn examined Whitlock and reviewed her medical records. Dr. Huhn disagreed with Dr. Barlow's findings, concluding that Whitlock did not sustain an impairment-ratable lumbar injury. In Dr. Huhn's opinion, Whitlock was physically able to return to her former employment as an underground miner without restrictions.
The ALJ rendered an initial opinion and award in favor of Whitlock that failed to set forth the ALJ's reasoning and supporting evidence; consequently, the ALJ issued a subsequent opinion on reconsideration that thoroughly addressed the lay and medical testimony. The ALJ ultimately concluded that Whitlock suffered a work-related back injury, which rendered her permanently and totally disabled. The ALJ relied on Dr. Barlow's opinion that Whitlock's back pain with bilateral radiculopathy was caused by being struck in the back by a falling rock while working inside the mine. The ALJ also accepted Dr. Barlow's 6% impairment rating. As to total disability, the ALJ relied on Whitlock's testimony and the permanent restrictions imposed by Dr. Barlow. The ALJ analyzed the evidence in light of the factors established in Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 51 (Ky. 2000), and the ALJ concluded Whitlock was permanently totally disabled.
River View appealed the ALJ's decision to the Board. In its opinion, the Board affirmed the ALJ's award of permanent total disability benefits for Whitlock's back injury. The Board concluded the ALJ failed to properly address a psychological injury claim filed by Whitlock and erroneously calculated temporary total disability benefits; consequently the Board vacated the opinion as to those issues and remanded the case to the ALJ. 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, River View challenges the sufficiency of the evidence supporting the ALJ's decision regarding total disability. River View points out pieces of evidence that, in its opinion, the ALJ failed to consider: 1) Whitlock worked at her sister's restaurant in the months prior to the final hearing; 2) Whitlock had specialized training as a preschool instructional aide; 3) Dr. Huhn's opinion that Whitlock could return to work; and 4) Whitlock's anxiety, rather than a work injury, was the basis for her refusal to return to work as a miner.
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, in Hamilton, supra, noted several factors relevant to an ALJ's determination of whether a claimant is partially or totally disabled. Those factors include:
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.Hamilton, 34 S.W.3d at 51.
Whitlock testified that, since the March 2013 injury, she had chronic low back pain that radiated to both legs. She asserted that the pain kept her awake most nights and that she relied on prescription medicine throughout the day for pain management. Whitlock acknowledged that a situation with a co-worker made her anxious prior to her last day of work at the mine; however, she clearly testified that she stopped working at River View because she was living in constant pain. Whitlock stated that her permanent medical restrictions as to lifting and bending precluded her from returning to work either as a coal miner or as a preschool teacher's aide. Whitlock likewise believed she was not physically able to work at any of her prior jobs. Whitlock noted that she had submitted job applications for retail and clerical work, but she expressed doubt that she would be able to maintain any employment because of her chronic pain. Whitlock also explained that, although she had worked a few hours per week at her sister's restaurant in the months prior to the hearing, she could not perform that type of physical work on a regular basis. Dr. Hughes conducted an examination of Whitlock and concluded she sustained a work-related back injury that resulted in low back pain with radiculopathy. Dr. Hughes assigned permanent work restrictions and opined that if Whitlock attempted to return to underground mining, her lumbar and radiating pain would increase.
Despite River View's argument to the contrary, the ALJ did not fail to consider all of the evidence; rather, the ALJ weighed the conflicting evidence and found the medical opinion of Dr. Barlow and Whitlock's lay testimony to be the most credible. We reiterate that 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. Further, 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).
The ALJ considered Whitlock's age, vocational skills, her compelling testimony, and the permanent restrictions imposed by Dr. Barlow to conclude she could not return to any regular employment in a competitive job market. The ALJ clearly analyzed the evidence in light of the factors established in Hamilton and determined Whitlock was permanently and totally disabled. Although River View cites "evidence which would have supported a conclusion contrary to the ALJ's decision, such evidence is not an adequate basis for reversal on appeal." Hamilton, 34 S.W.3d at 52.
The ALJ's opinion indicates he properly weighed the conflicting evidence, made factual findings, and reached the legal conclusion that Whitlock was permanently totally disabled. See Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 61-62 (Ky. 2012). After fully considering all of the issues raised by River View, we conclude the Board properly affirmed the portion of the ALJ's opinion awarding permanent total disability benefits for Whitlock's back injury
For the reasons stated herein, the decision of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Brandy B. Hassman
Lexington, Kentucky BRIEF FOR APPELLEE: Lucius Hawes
Hopkinsville, Kentucky