Opinion
NO. 2013-CA-000600-WC NO. 2013-CA-000744-WC
03-14-2014
TAYLOR STUMBO APPELLANT v. CITY OF ASHLAND; HON. WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES AND CITY OF ASHLAND CROSS-APPELLANT v. TAYLOR STUMBO; HON. WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD CROSS-APPELLEES
BRIEFS FOR APPELLANT: John Earl Hunt Stanville, Kentucky BRIEF FOR APPELLEE CITY OF ASHLAND: Scott M. Guenther Covington, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-10-97308
CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-10-97308
OPINION
AFFIRMING APPEAL NO. 2013-CA-000600-WC
AND AFFIRMING CROSS-APPEAL NO. 2013-CA-000744-WC
BEFORE: ACREE, CHIEF JUDGE; COMBS AND TAYLOR, JUDGES. TAYLOR, JUDGE: Taylor Stumbo petitions and City of Ashland cross-petitions this Court to review a March 8, 2013, Opinion of the Workers' Compensation Board (Board) vacating and remanding the Administrative Law Judge's (ALJ) award of permanent total disability. We affirm Appeal No. 2013-CA-000600-WC and affirm Cross-Appeal No. 2013-CA-000744-WC.
Stumbo was employed by the City of Ashland (Ashland) as a waste operator. On February 1, 2010, Stumbo alleged that he suffered a work-related injury to his left knee when he stepped out of a dump truck and slipped on ice. Stumbo claimed to be totally disabled due to his left knee injury which included the development of deep vein thrombosis in his left leg and subsequent pulmonary embolus.
The ALJ found that the injury was work-related and resulted in Stumbo being permanently and totally disabled. Ashland then sought review with the Board. On March 8, 2013, the Board vacated and remanded the ALJ's award for additional findings of fact upon whether Stumbo was permanently and totally disabled. Our review follows.
To begin, when reviewing an opinion of the Board, we will "correct the Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in accessing the evidence so flagrant as to cause gross injustice." W. Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). And, we are mindful that as fact-finder, the ALJ possesses the sole authority to assess the weight and the credibility of the evidence.
We shall initially consider Appeal No. 2013-CA-000600-WC and then Cross-Appeal No. 2013-CA-000744-WC.
Appeal No. 2013-CA-000600-WC
Stumbo contends that the Board erred by vacating the ALJ's award of permanent total disability benefits and remanding for additional findings of fact. Stumbo alleges that the ALJ made sufficient findings of fact upon the issue of permanent total disability and that substantial evidence supported same. In particular, Stumbo asserts that the Board erred by concluding that the ALJ improperly relied upon Dr. Kevin Kulwicki's opinion assessing a 13 percent impairment rating under the Sixth Edition of the AMA Guides. We disagree.
In its March 8, 2013, opinion, the Board determined that the ALJ erred by relying upon Dr. Kulwicki's opinion as it was based upon the Sixth Edition of the AMA Guides, instead of the Fifth Edition of the AMA Guides as mandated by 803 Kentucky Administrative Regulations (KAR) 25:010E Section 1. In particular, the Board observed:
[T]he ALJ indicated he relied upon Drs. [David] Herr and [Andy] Nadar, as well as Stumbo's testimony. However, without additional explanation by the ALJ which Ashland requested in its petition for reconsideration and did not receive, this Board is unable to determine how the above-cited evidence supports the determination Stumbo is permanently totally disabled. Dr. Herr assigned a 5% impairment rating for Stumbo's left knee and 0% for the DVT complication following the left knee surgery. While Dr. Herr assigned certain restrictions, none pertained to Stumbo's ability to sit. Additionally, Dr. Nadar assigned a 3% impairment rating for the left knee, and his restrictions also did not encompass Stumbo's ability to sit.
Regarding Stumbo's testimony, the ALJ has simply stated he relied upon "the plaintiff's work injury, his age, [and] his work history." However, Stumbo's testimony establishes he was twenty-six years old at the time of the hearing and has 90 credit hours at Eastern Kentucky University towards a criminal justice major. He is able to fish, hunt, perform household chores, and spend his days with his friends. Stumbo is able to drive for two hours at a time before needing to take a break and has retail experience. There are times when Stumbo is pain-free. Significantly, Stumbo testified he would be able to work an eight-hour-a-day job as long as he could, in his discretion, periodically elevate his leg.
While an ALJ is not required to set forth the minute details of his reasoning in reaching a particular result, he must adequately set forth the basic facts upon which the ultimate conclusion was drawn so the parties are reasonably apprised of the basis of the decision. Big Sandy Community Action Program v. Chafins, 502 S.W.2d 526 (Ky. 1973). The parties are entitled to findings sufficient to inform them of the basis for the ALJ's decision to allow for meaningful appellate review. Kentland Elkhorn Coal v. Yates, 743 S.W.2d 47 (Ky. App. 1988); Shields v. Pittsburgh and Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982). The ALJ must articulate sufficient findings to apprise both the parties and this Board of the reasons for his ultimate
conclusions. Here, not only are there insufficient findings of fact, but Stumbo's testimony indicates that with accommodation, he is capable of gainful employment over an eight hour day. (Footnote omitted)
Upon review of the ALJ's opinion and award, we agree with the Board that the ALJ's opinion should be vacated and remanded for the ALJ to make additional findings of fact. As pointed out in the Board's opinion, the ALJ relied upon the expert testimony of Dr. Kulwicki even though he based his expert opinion as to impairment upon the Sixth Edition of the AMA Guides. Our Supreme Court has clearly held that the ALJ may not rely upon expert opinion that assigns an impairment rating by referring to an incorrect edition of the AMA Guides. George Humfleet Mobile Homes v. Christman, 125 S.W.3d 288 (Ky. 2004). As a consequence, the ALJ committed error by relying upon the impairment rating assigned by Dr. Kulwicki. Moreover, the ALJ's specific findings of fact as to Stumbo's total disability were scant, and in view of Ashland's request for more definite findings, we hold that the Board did not err by remanding to the ALJ for more definite findings of fact upon Stumbo's total disability.
Cross-Appeal No. 2013-CA-000744-WC
As to Ashland's claim that the evidence compels a finding that Stumbo is only partially disabled, we disagree. The ALJ, as fact-finder, is solely empowered to determine the weight and credibility of evidence. Here, the evidence is conflicting upon whether Stumbo is partially or totally disabled. We believe this question is properly within the province of the ALJ to determine upon remand.
In summary, we do not believe that the Board misconstrued controlling case law or statutes or erred in evaluating the evidence as to cause a gross injustice. See W. Baptist Hosp., 827 S.W.2d 685. Accordingly, we affirm the Board's opinion vacating and remanding the ALJ's opinion and award for more specific findings of fact upon Stumbo's total or partial disability. Upon remand, the ALJ may not consider the impairment rating rendered by Dr. Kulwicki, as it is based upon the Sixth Edition of the AMA Guides.
For the foregoing reasons, the opinion of the Workers' Compensation Board is affirmed in Appeal No. 2013-CA-000600-WC and Cross-Appeal No. 2013-CA-000744-WC.
ALL CONCUR. BRIEFS FOR APPELLANT: John Earl Hunt
Stanville, Kentucky
BRIEF FOR APPELLEE CITY OF
ASHLAND:
Scott M. Guenther
Covington, Kentucky