Opinion
NO. 2012-CA-000930-WC
02-01-2013
RIVERSIDE CEMETERY APPELLANT v. CURTIS JOSLIN; HONORABLE CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Paul R. Boggs III Fort Mitchell, Kentucky BRIEF FOR APPELLEE: Brandon N. Voelker Cold Spring, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-10-00107
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND VANMETER, JUDGES. VANMETER, JUDGE: Riverside Cemetery ("Riverside) petitions for the review of an opinion of the Workers' Compensation Board ("Board") affirming an opinion, award, and order of an Administrative Law Judge ("ALJ") which awarded Curtis Joslin temporary total disability ("TTD") benefits, permanent total disability ("PTD") benefits, and medical benefits. Finding no error, we affirm.
On February 4, 2010, Joslin filed a Form 101 alleging he sustained a work-related injury to his back and left leg while employed by Riverside. A benefit review conference was held on July 15, 2010 and a formal hearing was held on July 29, 2010.
Joslin testified by deposition on May 10, 2010 and again at the formal hearing. Joslin was born in 1966. He completed the 9th grade, but lacks any further education or formal vocational training. His work experience has been as a factory worker, general laborer, and butcher. While employed at Riverside, Joslin managed a cemetery, which involved manual labor such as mowing, digging graves, and setting stones. Joslin alleged he was injured on January 7, 2007 when he slipped and fell on a piece of wet plywood he was using to assist in digging a grave. Following the slip, Joslin claimed to experience low back and left leg pain. Joslin testified that he notified Kevin Wolfe, the secretary/treasurer of the cemetery and also his boss, of the injury the following day.
Joslin was seen at St. Elizabeth Medical Center on January 13, 2007 for lumbosacral pain shooting into his left leg with numbness and tingling. There, he reported injuring himself two days prior while working. He was instructed to get bed rest and not to bend or lift over 20 pounds. Joslin was also treated at Patient First Physicians Group on January 31, 2007 for back pain running down his left leg that caused his foot to fall asleep.
Bradley Skidmore, M.D., examined Joslin on February 15, 2007. An MRI showed a moderate degree of multi-leveled disc desiccation with associated degenerative end plates. Joslin returned on March 15, 2007 with continued pain in his back and left leg. He was given epidural injections and released with restrictions to not lift over ten pounds. Dr. Skidmore again saw Joslin on April 5, 2007 and Joslin reported his numbness and pain was increasing. In May 2007, Joslin had limited range of thoracic and lumbosacral spine motion. In July 2007, Dr. Skidmore restricted Joslin from working for four weeks. Finally, on August 24, 2007, Dr. Skidmore noted improvement in Joslin's condition. On June 15, 2010, Dr. Skidmore assigned Joslin a 6% work-related impairment rating.
Thomas A. Bender, M.D., conducted an independent medical examination of Joslin on July 2, 2010. Joslin reported back pain, radicular irritability to the right leg and occasionally to the left leg, upper buttocks pain, and thigh pain. After reviewing Joslin's medical records, Dr. Bender noted that prior to the work injury, Joslin had mechanical low back pain and was receiving narcotic analgesics. Dr. Bender noted that Joslin's pattern of symptoms was bizarre, but did find reduced mobility of his spine. Dr. Bender diagnosed Joslin with lumbar spine disability, which he opined was pre-existing and active prior to the work accident.
Robert Noelker, Ph.D., and David L. Roebker, Ph.D., both performed independent psychological evaluations of Joslin. Dr. Noelker found Joslin to have memory impairment, to be illiterate, and to have an IQ of 53. Dr. Roebker found Joslin's IQ to be in the 57th percentile. Dr. Roebker diagnosed Joslin as having an anxiety disorder, mild mental disability, and psycho-social stressors.
This case has been appealed to the Board three times. In the original September 24, 2010, opinion and order, the ALJ dismissed Joslin's claim on the grounds that he failed to provide due and timely notice of his injury to Riverside. The ALJ stated:
[T]he Plaintiff suffers from type of diminished mental capacity, when compared to the adult population at large. Further, if the medical records, the Plaintiff's testimony, and the Plaintiff's pleadings are reviewed in total, several different possible dates of work-related injuries could exist. The Plaintiff alleged only one on his Form 101. A post-hearing motion to amend his complaint to include a new date of injury was overruled as untimely.Joslin appealed to the Board, which reversed the ALJ's order on the basis that the record demonstrated that Joslin had provided notice to Riverside on January 8, 2007, and no evidence demonstrated otherwise. The Board remanded the matter to the ALJ to address whether a work-related injury occurred, as well as other contested issues, such as the extent and duration of the alleged injury.
It is also clear, from the Plaintiff's testimony that he has testified to several contradictory statements regarding the giving of notice. At one time he testified that he provided notice within three of our days of the accident. On another occasion he testified that he provided notice the day of the accident. At yet another point he attempts to change the date of the accident. Still other dates are contained within medical records, only one example of is when, on January 13, 2007, he alleged being injured two days earlier.
In addition to different possible dates of injury for this accident the Plaintiff, according to his testimony, the testimony of his wife and the medical records, at least two different other dates of injury, with distinct mechanisms of injury. One occurred on 2006 and another occurred on February 14, 2007. Indeed, in reviewing the record as a whole it would not be unreasonable to infer that the Plaintiff had or is alleging even more different dates of injury.
The undersigned has carefully and repeatedly reviewed all of the Plaintiff's testimony on this matter, taken into account his diminished capacity, and considered the existence of medical records which would imply some work injury took place at some point. However, having done all of this, the undersigned is not convinced that the Plaintiff gave timely notice or even if he gave notice at all prior to the filing of his Form 101.
Joslin then moved for a new benefit review conference, which the ALJ denied. On remand, in an June 27, 2011, order, the ALJ found, in part, as follows:
The undersigned, in his prior opinion, noted the various possible other dates of injury for the Plaintiff because adequate notice is inextricably tied to the date of injury. The Board, in finding that the date of injury is January 7, 2007, as a precursor to finding that notice the next day was adequate, has also made a binding finding that the date of injury is January 7, 2007, for all relevant purposes. . . .The ALJ awarded TTD, PTD, and additional medical benefits to Joslin. Riverside appealed to the Board, which vacated and remanded the matter to the ALJ on the basis that the ALJ mistakenly attributed the Board with making a factual finding that Joslin was injured on January 7, 2007.
The undersigned notes, in reaching this conclusion, that I have never doubted that the Plaintiff hurt his back at work, I simply believed that he should either have alleged a cumulative trauma injury and/or that if he had a traumatic injury that it initially occurred at an earlier, or possibly later date, or, possibly, on January 7, 2007.
On remand, the ALJ found Joslin to have injured his back at work on January 7, 2007 and awarded TTD, PTD, and additional medical benefits. The ALJ adopted all other findings from the June 27, 2011, order. Riverside appealed to the Board, which affirmed the award. Riverside then petitioned for our review of the Board's opinion.
The standard for reviewing a decision of the Board "is to correct the Board only where the Court perceives 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." W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). The ALJ is the finder of fact and "has the sole authority to determine the quality, character, and substance of the evidence." Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993) (citation omitted). The party who appeals an award favoring the party with the burden of proof "must show that no substantial evidence supported the finding, i.e., that it was unreasonable under the evidence." Kroger v. Ligon, 338 S.W.3d 269, 273 (Ky. 2011) (citations omitted).
Riverside first argues that the ALJ's finding that Joslin was injured on January 7, 2007 was not supported by the evidence and was inconsistent with prior awards. We disagree.
Joslin testified at the benefit review conference that he was injured on January 7, 2007 when he slipped and fell on wet plywood while working for Riverside. Though the medical records demonstrate that Joslin gave inconsistent accounts of the time and manner of his injury, the records consistently indicate that Joslin was involved in a work-related injury at some point in January 2007. The ALJ attributed any inconsistencies to Riverside's failure to respond upon being notified of the injury and to Joslin's mental deficiencies. We find no inconsistencies between the ALJ's three orders in this claim. In the initial September 24, 2010, opinion and order, the ALJ found that Joslin had suffered a work-related injury, but did not reach a conclusion on the date of injury since it denied the claim for lack of notice. On appeal, the Board determined that the evidence demonstrated that Joslin notified Riverside of a work-related injury occurring on January 7, 2007. In error, the ALJ interpreted this opinion to have made a factual finding that a work-related injury occurred on January 7. Again on remand, the ALJ determined that substantial evidence existed to support a finding that Joslin suffered a work-related injury on January 7. The ALJ was permitted to do so, and the Board did not err by affirming this factual finding.
Riverside also argues the evidence did not support the ALJ's finding that Joslin was permanently and totally disabled. We disagree.
A "permanent total disability" refers to "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[.]" KRS 342.0011(11)(c). Under the workers' compensation statutes, "work" is defined as "providing services to another in return for remuneration on a regular and sustained basis in a competitive economy[.]" KRS 342.0011(34). Although the standard for permanent total disability is codified in KRS 342.0011(11)(c), courts have held the factors set forth in Osborne v. Johnson, 432 S.W.2d 800 (Ky. 1968) to still be relevant. See Hill v. Sextet Mining Corp., 65 S.W.3d 503, 508 (Ky. 2001); Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 51 (Ky. 2000). Those factors include a consideration of the
Kentucky Revised Statutes.
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. (citation omitted).
In the case before us, the ALJ adopted Dr. Skidmore's opinion that Joslin suffered a 6% impairment rating due to the work injury. Dr. Skidmore reported that as of August 24, 2007, Joslin was no longer experiencing radicular pain in his legs, but continued to express discomfort when he bent over, and continued to have pain in the paraspinous muscles in the area above his left hip. Joslin testified he did not believe he was able to return to work at Riverside. He stated he still experienced numbness and pain in his back, stiffness in his leg, and had difficulty walking or sitting for long periods of time. Based on these symptoms, as well as Dr. Skidmore's 6% impairment rating, the ALJ determined that Joslin was unable to perform the same manual labor tasks required of him by Riverside. The ALJ further concluded that based on the medical records of Drs. Noelker and Roebker, Joslin's mental deficiencies and lack of any formal education after ninth grade prevented him from obtaining any work not requiring similar physical labor. This finding is supported by substantial evidence on record, and thus, the Board did not err by affirming.
Next, Riverside argues the ALJ erred by awarding TTD benefits to Joslin for the period of July 20, 2007 through August 24, 2007 because no evidence supported the finding that Joslin did not work during that time. We disagree.
Dr. Skidmore's medical report indicates he ordered Joslin to not work for a period of four weeks following an examination in July 2007. Edith Joslin, Joslin's wife, testified that during those four weeks she and Jim Kimble, a board member at Riverside, took over mowing, weed-eating, and grave digging during this four week period. The ALJ found Joslin to have missed four weeks of work due to his work-related injury and ordered TTD benefits during that time. This finding is supported by Dr. Skidmore's medical report and Edith's testimony. As a result, the Board did not err by affirming the ALJ on this issue.
Finally, Riverside argues that the ALJ erred by tolling the statute of limitations for Joslin's claim. We disagree.
KRS 342.270(1) requires that an application for resolution of a workers' compensation claim be filed within two years of the work-related injury, or within two years after cessation of voluntary payments, if any were made. The limitations period may be tolled when an employer fails to satisfy its statutory notification requirements. See H.E. Neumann Co. v. Lee, 975 S.W.2d 917, 921 (Ky. 1998). An employer must notify the Board commissioner of the termination or failure to make income benefit payments, if payable, so that the commissioner may advise the employee, in writing, of the right to prosecute a claim. KRS 342.040(1).
Here, Joslin was injured on January 7, 2007; he notified Riverside the following day. Joslin first missed work due to his injury during the period from July 20, 2007 through August 24, 2007. The ALJ found that Riverside was notified Joslin was missing work due to the January 7, 2007, injury. The record indicates Riverside did not pay Joslin TTD benefits during this time, but continued to pay his regular salary during the four weeks he missed, because his wife performed the work. Riverside did not notify the commissioner of the injury or its refusal to pay TTD benefits. As a result, Joslin was never notified of his right to timely file a potential claim. Based on this, the ALJ concluded the statute of limitations was not applicable, and Riverside's noncompliance with the statutory notification requirement precluded Riverside from asserting the defense. This conclusion complies with KRS 342.040(1) and H.E. Neumann Co. Allowing Riverside to assert a statute of limitations defense would be inequitable since Joslin was not notified by the Board of his right to file a claim due to Riverside's noncompliance with the notification statute. As such, the ALJ was permitted to deny Riverside's statute of limitations defense, and the Board did not err by affirming.
The Workers' Compensation Board opinion is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Paul R. Boggs III
Fort Mitchell, Kentucky
BRIEF FOR APPELLEE: Brandon N. Voelker
Cold Spring, Kentucky