THE BUDD COMPANY v. KURT TOLES; SPECIAL FUND; HON. ROGER RIGGS, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED: April 17, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 97-CA-1530-WC
THE BUDD COMPANY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
NO. WC-95-018026
KURT TOLES;
SPECIAL FUND;
HON. ROGER RIGGS,
ADMINISTRATIVE LAW JUDGE; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
* * * * *
BEFORE:
GUIDUGLI, KNOX and MILLER, Judges.
GUIDUGLI, JUDGE.
The Budd Company (Budd) appeals from an
opinion of the Workers' Compensation Board (the Board) entered
May 30, 1997, which affirmed an opinion and award entered
January 6, 1997, by the Administrative Law Judge (ALJ) finding
appellee, Kurt Toles (Toles) to be 100% disabled.
We affirm.
As the Board's opinion sets forth an excellent summary
of the facts and evidence presented to the ALJ, we adopt the
following portion of the Board's opinion as our own:
Petitioner, The Budd Company ("Budd"), appeals from an opinion
and award rendered by the Hon. Roger D. Riggs, Administrative Law
Judge ("ALJ"), on January 6, 1997 and from an order ruling on a
petition for reconsideration dated February 3, 1997. The ALJ
awarded respondent, Kurt Toles ("Toles"), total occupational
disability benefits apportioned 50/50 between Budd and the
Special Fund as a result of an injury he sustained on April 24,
1995. Toles was 30 years of age at the time of the injury, had
completed the tenth grade, and had also obtained a GED. He has
specialized training in asbestos abatement. He served in the
United States Navy from 1982 until 1987 and then had a varied
work career that included being an auto body painter, a warehouse
manager, an usher, a driver's helper for UPS, a sample custodian
for various asbestos abatement companies, and his work with Budd.
He began working for Budd in March of 1995, operating a forklift.
On April 24 of that year, while operating a forklift on the floor
of a tractor trailer, the floor of the trailer collapsed, with
the forklift dropping to the ground. Toles hit his head and was
knocked from his seat. He was taken to a treatment room at the
plant and then transported to Shelbyville Hospital where he was
x-rayed and released later that night, having been given some
pain medicines. After his release, he was referred to the family
physician center for physical therapy. He returned to work at
Budd two days after his injury on restricted duty doing basically
administrative work He worked for about an hour and a half and
then was released to go home as he could barely move. He went
back to the doctor and by that point, he testified his back had
started developing serious pains. He subsequently tried to
return to work seven to ten different times. About a month after
the accident, he began seeing Dr. Kraweic. By this time, he had
also developed a condition in his chest known as lymphoma. While
under Dr. Kraweic's treatment, he proceeded with physical therapy
for a couple of weeks and then attempted to return to work on a
two hour basis with the goal of working himself back to a full
eight-hour day. By mid-October of 1995, Toles was back to
working an eight-hour day at Budd, still on restricted light duty
work. He subsequently on two separate occasions had to return to
the emergency room because of incidents at work and by January of
1996, Dr. Kraweic indicated he would not be able to return to
Budd. Toles had had a few problems with his back prior to going
to work for Budd, missing a total of two to three days of work
for back problems. He last worked for Budd on October 10, 1995
when his back seized up and subsequently received a letter from
Budd on February 12, 1996 stating that Dr. Kraweic, after viewing
a videotape of various jobs available at Budd, indicated he felt
Toles was incapable physically of handling any of those jobs and
that Budd, therefore, had little choice but to accept his
voluntary termination of employment. A few months later, he
began working part time for an environmental company doing
sedentary work, viewing asbestos fibers through a microscope. At
the administrative hearing, he testified he is no longer able to
continue doing that job because of inability to bend over the
microscope and that he had only worked a total of three hours
during the month of October 1996. He has been unsuccessful in
finding any other job.
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The medical evidence in Toles' case
consists of depositions from Drs. Kraweic,
Charles Hargadon, and James Templin, together
with a report from Dr. Templin. Toles first
came under Dr. Kraweic's care on May 5, 1995
when Kraweic saw him for follow-up emergency
room evaluation. That first evaluation
concerned a nonwork-related abnormality of
his mediastinum that had shown up on a chest
x-ray performed when he visited the emergency
room after the forklift incident. He
referred Toles to another physician to
address the abnormality and saw Toles again
on May 16, 1995 to discuss his back pain. He
subsequently ordered a CT scan of the back
and saw Toles again on June 26, 1995. After
examining him, he noted a tenderness of his
left paraspinal muscular insertions with no
neurological deficits nor abnormal deep
tendon reflexes. At that point, Dr. Kraweic
thought Toles mostly had a musculoigamentous
injury and recommended physical
therapy-initially. The CT scan which he
ordered showed moderate posterior and central
focal bulging and/or herniation of the L5-S1
disk. In his opinion, Toles' back condition
resulted from his injury at Budd. A
subsequent MRI showed narrowing of the spinal
cord at L3 and L4 and degenerative changes at
L5-S1. Dr. Kraweic also opined that Toles
was suffering from depression due to his
inability to perform work. Dr. Kraweic
testified that he viewed a videotape showing
a number of different jobs at Budd and, after
reviewing it, did not feel Toles was able to
return to work at Budd. He stated that
Toles' depression stemmed from his injury and
from the stress subsequent to an inability to
perform work, together with monetary
stresses. He prescribed Prozac for the
depression and testified that in his opinion
Toles continued to require treatment with
Prozac.
Dr. Templin first saw Toles on March 22, 1996 and at that time
recommended outpatient physical therapy with consideration for
work hardening or a pain management program. At that time, he
did not assess any permanent impairment based upon Toles' low
back condition, but on July 20, 1996, prepared a Form 107
providing an impairment rating. In evaluating Toles' condition,
he reviewed an MRI scan dated October 7, 1995 showing
degenerative disk disease at three levels with no evidence of
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nerve root entrapment, impingement, or spinal stenosis. Dr.
Templin arrived at a diagnosis of chronic low back pain syndrome
and degenerative lumbar disk disease, both of which were caused
by or aroused by Toles' April 24, 1995 injury. Using the AMA
guidelines, he would assign a 9 percent whole body impairment to
Toles' condition but, in considering the nature of Toles' usual
occupation, he felt the occupational implications were greater
than that impairment rating, stating:
Unfortunately, Mr. Toles is unable
to return to activities requiring
frequent bending, stooping, kneeling,
lifting from floor level or lifting
items weighing greater than 20 pounds
or carrying items weighing items
greater than 25 pounds or repetitive
lifting items greater than 30 pounds or
carrying items weighing greater than 25
pounds for any extended distance or
prolonged time.
Dr. Hargadon examined Toles on April 24,
1995 receiving a history of the work-related
injury and subsequent medical treatment.
Examination of Toles' lumbar spine
demonstrated he had 40 degrees of flexion, 20
degrees of extension, and 40 degrees of
lateral bending bilaterally. His
neurological exam was negative. At the time
of that initial examination, Dr. hargadon did
not feel Toles was at maximum medical
improvement, and he suggested Toles start an
outside walking program. He saw Toles again
for reevaluation on July 24, 1996.
Examination of the lumbar spine demonstrated
60 degrees of flexion, 30 degrees of
extension, and 30 degrees of lateral bending
bilaterally. Neurological exam was again
negative, and lumbar x-rays were essentially
within normal limits. There was no
appreciable disk space narrowing or
suggestion of compression fracture. Dr.
Hargadon confirmed that Toles' flexion and
extension were within normal limits and that
the neurological exam indicated he did not
have a herniated disk or any radiculopathy.
Using the AMA guidelines, Dr. Hargadon would
assess a 5 percent permanent partial
impairment to the body as a whole in that
Toles' back pain had exceeded one year of
duration. When asked about Toles' taking
Valium based upon a prescription from Dr.
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Templin, Dr. hargadon indicated that was a
poor choice and that Valium was very
addicting and a dependent drug which should
only be used short term. When asked what
physical restrictions he would recommend for
Toles, he stated:
This man had what I feel is a
significant injury, which is a vertical
compression of the spine. Even though
there were no major diagnostic findings
other than the degenerative disc
referred on the MRI, these people tend
to be symptomatic for long periods of
time period.
When I last saw him, he was working
in quality control, and he was working
anywhere from zero up to 20 hours per
week, and quality control in most cases
is a relatively easy job, and I would
think he could work full time in that
capacity.
When asked what weight restrictions he
would recommend, Dr. Hargadon stated that he
thought for the near term, at least, Toles
should be on light duty status, which meant
lifting 20 pounds occasionally, 10 pounds
frequently but that may change with time.
When asked about therapy, Dr. Hargadon
testified that his experience with the
Cardinal Hill Pain Center where Dr. Templin
worked and where Toles as to receive therapy
was very negative and that he had seen very
few people improve. On cross-examination,
Dr. hargadon acknowledged that it was his
impression that Toles could not do the types
of jobs reviewed on a tape from Budd and that
specifically he could not drive a forklift
causing of the bending and turning in that
forklift drivers spend a large portion of the
day looking over their shoulder, which is
something people with a chronic lumbar
problem have a difficult time doing. When
asked if he felt the occupational
implications of Toles' injury exceeded the 5
percent impairment rating he assigned, Dr.
Hargadon acknowledged that it did.
The contested issues listed in the
prehearing order and memorandum dated October
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11, 1996 consisted of extent and duration,
continued medical treatment, vocational
rehabilitation, and compensability of
psychiatric treatment.
In finding Toles totally disabled, the ALJ stated:
Based upon the evidence from all of
the physicians in this case, and also
the very credible testimony of Mr.
toles, it is determined that as to
october 11, 1995 the plaintiff became
100% occupationally disabled under the
guidelines of Osborne v. Johnson, Ky.,
432 S.W.2d 800 (1968). The
restrictions placed upon Mr. Toles by
all of the physicians, the opinion of
Dr. Hargadon as to the severity of his
injury and the sincere and unsuccessful
effort on the part of Mr. Toles to
return to gainful employment present a
convincing picture of a man who is no
longer able to return to any type of
work for which he has training, skill
or experience.
He then ordered Toles to be referred to
the rehabilitation branch of the Department
of Workers Claims for the provision of
rehabilitation services pursuant to KRS
342.710, noting that Toles was unable to
perform work for which he had previous
training or experience. In finding the
psychiatric treatment Toles was receiving
compensable, the ALJ noted that his treating
physician had recognized a state of
depression on behalf of Toles "because of his
financial problems and the resulting stress
placed upon him," then noted that at that
point in time, Toles had received no
psychiatric treatment, nor had any been
proposed. He, however, awarded whatever
psychiatric treatment was reasonable and
necessary to address the depression "which is
resultant from the work-related injury." He
also authorized Toles to recover from Budd
medical expenses incurred for the cure and
relief of the effects of his injury for so
long as he remained disabled.
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The Board affirmed the ALJ's opinion and award, and this appeal
followed.
Budd contends that the trial court erred in finding
Toles to be 100% occupationally disabled.
Budd argues that the
record contains no evidence that Toles is unable to perform any
type of work or that work which he is able to perform is not
available in the local area pursuant to Osborne v. Johnson, Ky.,
432 S.W.2d 800 (1968).
Budd points to the fact that Toles never
testified that he was unable to perform any work and the fact
that each doctor testified that Toles was able to perform
sedentary work in support of its argument.
Budd also contends
that pursuant to Commonwealth of Kentucky v. Workers'
Compensation Board, Ky. App., 627 S.W.2d 540 (1985), the ALJ is
not permitted to ignore uncontroverted testimony that Toles is
able to perform sedentary work.
When a claimant successfully bears his burden of proof
and risk of persuasion before the trier of fact, the question
before the reviewing body is whether the decision is supported by
substantial evidence.
Wolf Creek Colleries v. Crum, Ky. App.,
673 S.W.2d 735, 736 (1984).
The ALJ is solely responsible for
determining weight and credibility of the evidence presented.
Caudill v. Maloney's Discount Stores, Ky., 560 S.W.2d 15, ___
(1977).
As the finder of fact the ALJ is vested with the power
to decide which evidence to believe and may believe or disbelieve
evidence from the same witness.
Codell Construction Co. v.
Dixon, Ky., 478 S.W.2d 703 (1972).
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The fact that the evidence
may also support a different conclusion than the one reached by
the ALJ does not entitle an appellant to a reversal.
Beth-Elkhorn Corp., Ky., 514 S.W.2d 46 (1974).
McCloud v.
In determining an
occupational disability rating,t he ALJ is permitted to consider
the claimant's testimony as to his ability to work.
Hush v.
Abrams, Ky., 584 S.W.2d 48 ___ (1979).
We believe the decision of the ALJ is supported by
substantial evidence.
All the doctors agree that there are no
jobs at Budd which Toles would be able to perform.
Dr. Hargadon
testified that "with regard to what activities he could tolerate,
it would have to be something that is at bench height and a job
that does not require any work above shoulder level or repetitive
lifting below knee lever or any repetitious pivoting from side to
side."
While Dr. Hargadon did indicate that Toles should be able
to work full time at his position with QAS, he further indicated
that Toles should be restricted to light duty status.
Dr.
hargadon agreed that the occupational limitations stemming from
his back problems exceed the 5% impairment rating he assigned.
Dr. Templin indicated in his Form 107 that Toles' occupational
limitation was greater than the 9% impairment rating he assigned
because "unfortunately Mr. Toles is unable to return to
activities requiring frequent bending, stooping, kneeling,
lifting from floor level or lifting items weighing greater than
20 pounds or carrying items weighing greater than 25 pounds or
repetitively lifting items weighing greater than 30 pounds or
carrying items weighing greater than 25 pounds for any extended
-8-
distance or prolonged time."
Dr. Kraweic testified that Toles is
limited as to what he can do even though he has not yet placed
any limitations on what he can do.
Toles testified that while he did return to part-time
work at QAS as a slide reader, he had difficulty bending over the
microscope.
He agree that his work at QAS was sedentary, but
testified that he was unable to lean over the microscope.
Toles
stated at the hearing that he was still employed at QAS, but had
only worked a total of three hours in the month preceding the
hearing.
He also stated that he had contacted several
environmental firms in the Lexington area and filled out numerous
applications in grocery stores and gas stations but had no luck
in obtaining employment within his restrictions.
Thus, although
the doctors feel Toles may be able to perform sedentary work, his
experiences with sedentary work at Budd and QAS show otherwise.
Because Toles cannot perform sedentary work and because he had
been unable to find a job within his restrictions, the ALJ did
not err in finding Toles to be 100% occupationally disabled.
In
the event Toles' condition improves to the point that sedentary
work is possible or he is able to find a job which accommodates
his restrictions, Budd can file for reopening on the issue of
Toles' occupational disability.
Budd also argues that the ALJ erred in finding Toles'
treatment for depression to be compensable under the Act.
Budd
maintains that Toles must show that his depression has resulted
in some amount occupational disability in order to be
-9-
compensable.
We disagree.
An employer is liable for all
"injurious consequences flowing from the original injury, and not
attributable to an independent, intervening cause."
Beech Creek
Coal Co. v. Cox, Ky., 237 S.W.2d 56 (1995), citing 58 Am.Jur.,
Workmen's Compensation, ยง 198, page 706.
Dr. Kraweic testified
that Toles' depression stems from his injury, inability to work,
and financial problems.
Thus, the ALJ did not err in finding
Toles' depression to be compensable under the act.
Finally, Budd argues that the ALJ erred in holding that
medical expenses incurred for treatment by Dr. Templin and at
Cardinal Hill were compensable.
We agree with the Board that
Budd failed to properly preserve this issue for review.
As the
Board stated, "The compensability of Dr. Templin's medical
services was not listed in the prehearing order as a contested
issue."
We agree with the Board that listing "continued medical
treatment" under contested issues in the prehearing order does
not preserve any issues regarding the compensability of treatment
rendered by a specific medical provider or facility.
Having considered the parties' arguments on appeal, the
opinion of the Board is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, KURT
TOLES:
Stuart E. Alexander, III
Sandra F. Keene
Louisville, KY
C. Randall Raine
Lexington, KY
BRIEF FOR APPELLEE, SPECIAL
FUND:
David W. Barr
Labor Cabinet
Louisville, KY
-11-
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