Opinion
NO. 2018-CA-000734-WC
06-28-2019
SOUTHWIRE CO/KY ROD & CABLE APPELLANT v. SHONDESE FRAZIER; DR. SHILPI MITTAL; HON. JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE; AND THE WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Jeremy D. McGraw Louisville, Kentucky BRIEF FOR APPELLEE: Daniel Caslin Owensboro, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-11-73481 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: Southwire Co/Ky Rod & Cable (Southwire), appeals from an opinion and order affirming the decision of the Administrative Law Judge (ALJ) allowing the reopening of a workers' compensation claim by Shondese Frazier and subsequently finding him to be completely disabled and entitled to permanent total disability benefits. We affirm.
In 2012, Frazier filed a workers' compensation claim based on a head injury he received on September 23, 2011, when employed as a draw machine operator for Southwire. Frazier was injured when the rod he was spooling on the draw machine swung around at high speed and struck him on his forehead. The machine did not have a guard to prevent this type of injury.
Frazier alleged that as a result of being struck, he suffered a contusion to the forehead, chronic headache, post-concussive syndrome and psychological injury. In the opinion, award and order, entered on October 3, 2013, the ALJ found that Frazier had a 5% permanent impairment relative to the physical injuries and a 5% permanent impairment to the body as a whole based on the psychological component of the claim, for a total 10% permanent impairment, and found the three times multiplier to be applicable.
The ALJ ruled Frazier was not entitled to permanent total disability (PTD) benefits because Frazier failed to prove he had a complete and permanent inability to perform any type of work as a result of his work-related injury. The ALJ explained that none of Frazier's treating physicians opined he was totally disabled from all work but, instead, was capable of light work with restrictions.
Frazier was awarded permanent partial disability (PPD) benefits and temporary total disability (TTD) benefits. These awards were enhanced by 30% because the ALJ found that Southwire violated a federal regulation which required appropriate guarding of the type of machine Frazier was operating at the time of his injury, resulting in permanent partial disability benefits payable at a rate of $179.48 per week. Frazier was also awarded future medical care and a vocational rehabilitation evaluation. Southwire filed a petition for reconsideration, which was denied.
In Frazier's 2014 vocational evaluation, the evaluator noted that Frazier stated he was unable to work since his injury, was in constant pain, had to be in a dark and quiet room usually twice a day due to pain, could not tolerate noise, had to carry ear plugs all the time and must often wear sunglasses indoors due to bright lights. Frazier told the evaluator he was able to do short and simple chores at home. However, Frazier stated he usually had two to three days a month where the pain was so severe that he was unable to get out of bed.
On August 1, 2016, Frazier filed a motion to reopen. He argued that his condition requires significant and continuous medical treatment by a neurologist and treatment poorly controls his symptoms. He argued his condition is more symptomatic and disabling, his limitations have increased, he needs assistance with activities of daily living and is unable to undergo vocational rehabilitation. He argued, as a result, he is now totally occupationally disabled.
In Frazier's affidavit he stated that his headache condition has worsened and requires continuous medical treatment, explaining:
My migraine condition is gradually deteriorating. I had a cervical fusion in an attempt to reduce my head pain. It was not successful in doing that. Now just simple activities of daily living exacerbate my condition. Medications are not controlling my pain. I can perform virtually no housework. I now have difficulty bathing myself. When I take showers I often get light headed and I need assistance from my wife because I feel like I will fall.
I spend most of the day inside my house with the rooms darkened. Sunlight blinds me. I have to be covered up with hat and strong sunglasses or I can't go outside. As a result I avoid going out. Any temperature extreme leaves me immobile. Hot air or cold air makes my head pain intolerable.
I can't tolerate stress or noise any longer. I can't tolerate going to family gatherings because of noise associated with that. I cannot go to basketball games. I can't go to my son's football games. I can't do things with my grandkids with my symptoms.
I have not been able to work. I'm depressed and worried about my future. I've not been able to look for work or even consider retraining. I can no longer do these things. I'm a hermit as a result of my head condition. I'm convinced I am totally disabled from any substantial gainful employment.
Frazier's treating physician, Dr. Mittal, testified that Frazier continues to have chronic daily headaches without any improvement despite trials of several medications, with the headaches being a combination of migraine and post-traumatic headaches, which severely affects his quality of life. He opined "it seems he does have significant disability due to his headaches and is unable to perform his activities, even his routine activities of daily living, which makes it less likely that he would be able to carry on meaningful job related activities." In medical records from Dr. Mittal, it was noted that Frazier's headaches were likely intractable migraines. He opined that Frazier could sit and stand for as long as Frazier could tolerate it, but recommended that Frazier avoid temperature extremes and bright lights, and that he lie down in a dark, quiet room whenever he has headaches.
Southwire opposed Frazier's motion to reopen on the basis there was no indication that Frazier's condition had changed by way of a rating impairment. However, the ALJ granted Frazier's motion to reopen on the basis that Frazier's affidavit and the report from Dr. Mittal was sufficient to establish a prima facie case for reopening pursuant to Kentucky Revised Statutes (KRS) 342.125. Southwire's petition for reconsideration was denied.
Dr. Jackson testified in his deposition that Frazier was very compliant with trying physical therapy, cognitive therapy, and every class of medication other than opioids (which most people would have gone to after suffering chronic pain for seven years). He wanted to try a spinal cord nerve stimulator but could not get it approved. Dr. Jackson testified that Frazier's "level of ability to function has gone down and down." He reported that while Frazier is relatively resilient with his ability to cope, he could not work and participate in his life the way he wanted. Dr. Jackson testified that implantation of a spinal cord nerve stimulator could help and the technology behind it had improved in the past five years since when he had first recommended it for Frazier and it was refused as not being medically necessary. He testified that Frazier's symptoms and how the pain was distributed were consistent with the mechanism of his injury. He opined Frazier is trying to do the right thing and there were simply no other medications to try that might help him.
Frazier testified at his hearing that despite the increase in the dosage of his medications, he was not better but had to have them to function at all. He testified he has trouble concentrating for more than ten to fifteen minutes. He cannot stand longer than twenty to twenty-five minutes. He has to constantly change position. He cannot concentrate on a television show for more than ten to fifteen minutes. He has headaches every day. On a good day he might be able to do a little walking, a load of laundry, pick up or sweep, but on a bad day (which occur about two to three days a week), he can hardly get up from bed and needs to stay in the dark. During his original case he was able to do some vacuuming with earplugs, but he can no longer do it because it irritates his head. Since that time, his headaches have become more frequent and "shoot stronger," and he has to rest longer. While he continues applying for jobs (thirty to forty in the last three years), he received no interviews. Neck surgery did not improve his head pain. He believes he would be able to work if not for his headaches. He testified that he cannot go out to socialize and has trouble sitting through a church service. He testified he was approved for social security disability benefits.
Regina Frazier testified her husband's condition has worsened in the last two to three years. She testified he is unable to be intimate, he is frustrated with what he could not do, he has difficulty with heat and cold, and he has to wear sunglasses when he goes out.
The ALJ found Frazier now suffers from a permanent total disability, relying primarily upon the opinion of Dr. Jackson as persuasive medical proof that Frazier's impairment has worsened. He testified Frazier's "level of ability to function has gone down and down," and he has "reached the end of his ability to cope with [his headache condition] as effectively as he had in the past." The ALJ noted as significant that Dr. Jackson did not just rely on Frazier's discussion of his symptoms but testified: "his physical exam findings are very consistent with the reported mechanism of injury. He had some sensory deficit in those areas around what look like to be traumatic scarring from the area which was consistent" and "he has a lot of consistency in his story and what we're seeing in his symptoms based on that mechanism."
The ALJ found Frazier's testimony to be credible. She recounted Frazier testified that his headaches are now more frequent, intense, last longer and require more rest, and that medical records show Frazier's medications have increased over this time consistent with his testimony. The ALJ stated she believed Frazier's testimony about what he can do on good and bad days. The ALJ noted Frazier's attempts to apply for employment were consistent with the testimony and findings following the previous hearing that Frazier should be able to work. She found credible Frazier's testimony that he would be able to work if not for his post-traumatic headaches.
The ALJ found Frazier proved he is permanently totally disabled, explaining as follows:
The vocational factors the ALJ must consider are the plaintiff's age, now 45, which is now considered an older worker (especially considering the labor intensive work he is trained to do). Even ALJ Hays found 4 years ago that Mr. Frazier did not have the physical capacity to return to the same type of job he was performing at the time of the injury. This factor has only worsened in 4 years—from the standpoint that there is convincing evidence that his physical pain has kept him from functioning in any work environment on a regular and sustained basis.
Mr. Frazier's education remains at a high school level without specialized training or vocational skills—as he has not been able to participate in any rehabilitation as ordered by ALJ Hays. The pain level of the headaches would keep him from returning to a regular and sustained work day. As Dr. Jackson opined Mr. Frazier's ability to function has gone "down and down." It is important to note that this has not been brought about by any lack of effort on Mr. Frazier's part—as all the treating physicians have discussed that he is very compliant with medical instructions/treatment. He has not asked for opioids or other narcotic pain medicine. However, the medical treatment is only for "relief" and has not provided a "cure" or even an improvement of his symptoms.The ALJ awarded Frazier $938.56 dollars for PTD benefits based upon the maximum PTD for 2011 plus the 30% for the safety violation.
Southwire submitted a petition for reconsideration, which the ALJ only granted on the issue that Southwire would receive a credit for the PPD previously paid during the pendency of the reopening.
On appeal, the Workers' Compensation Board affirmed. In discussing the issues Southwire raised in its motion for reconsideration and on appeal, the Board noted the only issue properly identified by the parties upon reopening which was before it on appeal was whether there was a "worsening of condition/increase in occupational impairment." Nevertheless, the Board considered and rejected the other arguments Southwire raised.
The Board rejected Southwire's assertion that objective medical evidence was not presented by Frazier in his motion to reopen on the basis that Dr. Mittal's treatment record of Frazier showed that the medications "prescribed for Frazier's headaches had worsened necessitating a different treatment modality." The Board opined that pursuant to Gibbs v. Premier Scale Company/Indiana Scale Company, 50 S.W.3d 754, 761 (Ky. 2001), this constituted "information gained by direct observation and/or testing applying objective and standardized methods that demonstrate the existence of symptoms of such a change."
The Board rejected Southwire's argument that ALJ Hays's decision was res judicata as to Frazier's current impairment rating and rejected its argument that he could not be totally disabled given his current impairment rating. The Board noted that "[i]n a reopening seeking an award of permanent total disability benefits, as opposed to a reopening seeking increased PPD benefits, establishing a greater impairment rating is unnecessary." The Board opined that pursuant to Colwell v. Dresser Instrument Division, 217 S.W.3d 213, 218 (Ky. 2006), "Frazier was required 'to show only that a worsening of impairment due to the injury is permanent and causes [him] to be totally disabled.'" It also noted that this holding in Colwell was reaffirmed in LKLP CAC, Inc. v. Fleming, 520 S.W.3d 382, 387-88 (Ky. 2017).
The Board rejected Southwire's argument that substantial evidence did not support the ALJ's finding of total occupational disability. The Board noted Dr. Jackson's testimony that Frazier was very compliant and had tried every class of medication other than opioids. However, Dr. Jackson testified that despite such efforts, "[Frazier's] level of ability to function has gone down and down" and explained exactly what that entailed. The Board highlighted Dr. Jackson's testimony that his physical exam findings on Frazier were consistent with the report mechanism of the injury and Frazier's symptoms. Dr. Jackson's testimony constituted substantial evidence supporting the ALJ's determination that Frazier is now totally occupationally disabled. The Board also noted that the ALJ reasonably relied on Frazier's credible testimony, which also constituted substantial evidence.
Southwire appeals the Board's decision on the basis that the Board erred by: (1) affirming the reopening; (2) failing to address its res judicata argument; and (3) affirming the ALJ's determination that Frazier was 100% disabled.
In reviewing workers' compensation claims, we review de novo questions of law and the ALJ's interpretation and application of the law to the facts but defer to the ALJ's role as fact finder because the ALJ has the sole discretion to determine the facts and who to believe. Ford Motor Company v. Jobe, 544 S.W.3d 628, 631-32 (Ky. 2018).
KRS 342.285(2) and KRS 342.290 limit administrative and judicial review of an ALJ's decision to determining whether the ALJ acted without or in excess of his powers; whether the decision was procured by fraud; or whether the decision was erroneous as a matter of law. Legal errors would include whether the ALJ misapplied
Chapter 342 to the facts; made a clearly erroneous finding of fact; rendered an arbitrary or capricious decision; or committed an abuse of discretion.Abel Verdon Const. v. Rivera, 348 S.W.3d 749, 754 (Ky. 2011) (footnote citations and quotation marks omitted).
Southwire questions how Frazier's condition in which he was previously adjudged to be only 10% disabled can now justify a finding of complete disability where nothing has changed in his condition. Frazier moved to reopen pursuant to KRS 342.125(1)(d) on the basis that there is a "[c]hange of disability as shown by objective medical evidence of worsening or improvement of impairment due to a condition caused by the injury since the date of the award or order." Because there is objective medical evidence that Frazier's condition had worsened, the reopening was proper.
KRS 342.0011(33) defines "[o]bjective medical findings" as "information gained through direct observation and testing of the patient applying objective or standardized methods[.]" For a reopening, it is not enough to rely only on a patient's reported symptoms; objective measures must also show a worsening of the patient's condition. Gibbs, 50 S.W.3d at 762. See University of Kentucky Family Practice v. Leach, 237 S.W.3d 540, 544-45 (Ky. 2007) (applying Gibbs to determine objective medical findings were properly derived from "conclusions on physical examinations, diagnostic testing, and the use of standardized methods, including those for assessing the accuracy of the claimant's statements regarding the existence and progression of [the patient's] symptoms."); Staples, Inc. v. Konvelski, 56 S.W.3d 412, 416 (Ky. 2001) (applying Gibbs to determine that medical records were sufficient to establish objective medical findings where they contained information not only concerning the claimant's complaints of symptoms, but also "information concerning the direct observations of the physicians and the results of tests they performed.")
Dr. Jackson did not only rely on Frazier's reported symptoms in determining that his condition has worsened. Instead, he also relied upon objective measures that it has worsened, including: Frazier now requires larger doses of pain medication, his functionality has worsened, and his physical exam findings and symptoms are consistent with the mechanism of the injury. This is sufficient to satisfy Gibbs. We note that what Dr. Jackson described is also consistent with what Dr. Mittal described.
We disagree with Southwire that the Board failed to address its res judicata argument. This argument was fully explored, but Southwire is dissatisfied because the Board did not rule in its favor. The Board evaluated what the statutes and case law require for a reopening and determined that res judicata did not bar reopening under these circumstances.
When a statute expressly provides a mechanism for reopening under specified conditions, res judicata has no application when the specified conditions are met. Stambaugh v. Cedar Creek Mining Co., 488 S.W.2d 681, 682 (Ky. 1972). As explained in Colwell, 217 S.W.3d at 218:
If [objective medical] findings demonstrate that an injured worker suffers a greater loss, loss of use, or derangement of a body part, organ system, or organ function due to a condition caused by the injury, they demonstrate a worsening of impairment. A worsening of impairment may or may not warrant increasing the worker's permanent impairment rating under the Guides.See LKLP CAC Inc., 520 S.W.3d at 388 (reaffirming that "to show a change from a permanent partial disability to a permanent total disability on reopening, a claimant need only show an increase in impairment, i.e., additional loss of the use of body part, organ, etc."); Beale v. Rolley, 777 S.W.2d 921, 924 (Ky. 1989) (explaining a change in physical condition does not mean that a functional impairment rating has to change and is not a basis for denying a motion to reopen; an increase of pain and an inability to work can justify an increase in the degree of occupational disability even to the extent of determining that a worker is totally unemployable even though that worker's functional impairment stays the same).
Whether a worsening of impairment rises to the level of greater compensability is determined under KRS 342.730(1) and KRS 342.0011(11). . . . KRS 342.730(1)(a) and KRS 342.0011(11)(c) require a worker who was partially disabled at the time of the initial award and totally disabled at reopening to show only that a worsening of impairment due to the injury is permanent and causes the worker to be totally disabled.
The ALJ did not err in determining that Frazier is now 100% disabled because substantial evidence supported the ALJ's finding of total occupational disability.
Substantial evidence has been defined as some evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men. Although a party may note evidence which would have supported a conclusion contrary to the ALJ's decision, such evidence is not an adequate basis for reversal on appeal.Whittaker v. Rowland, 998 S.W.2d 479, 481-82 (Ky. 1999) (internal citation omitted). As discussed above, there was objective medical evidence to establish that Frazier's impairment has increased and this renders him totally disabled. As Dr. Jackson recounted, no treatment has been able to alleviate Frazier's pain or improve his condition; it has only grown worse over time, and Frazier is coping less well as time goes on. As Dr. Mittal recounted, Frazier cannot even perform basic tasks that are part of daily living.
Additionally, Frazier's own testimony is "competent evidence of his physical condition and of his ability to perform various activities both before and after being injured." Transportation Cabinet v. Poe, 69 S.W.3d 60, 64 (Ky. 2001). Frazier testified extensively about how his physical condition has worsened over time despite following all medical advice and having surgery, and this is supported by his wife's testimony. Frazier's worsened condition, along with his age, only having achieved a high school diploma, and only having experience in the types of employment which it was already determined he could not resume performing when partial permanent disability was found, all support the ALJ's conclusion that he is now wholly disabled. Because substantial evidence supported the ALJ's decision, we will not disturb it on appeal.
Accordingly, we affirm the Board's opinion and order affirming the decision of the ALJ allowing the reopening of Frazier's workers' compensation claim and subsequently finding him to be completely disabled and entitled to permanent total disability benefits.
ALL CONCUR. BRIEF FOR APPELLANT: Jeremy D. McGraw
Louisville, Kentucky BRIEF FOR APPELLEE: Daniel Caslin
Owensboro, Kentucky