DAVID DEBERRY v. BJ's RESTAURANT; HON. ZARING P. ROBERTSON, ADMINISTRATIVE LAW JUDGE; SPECIAL FUND; AND WORKERS' COMPENSATION BOARD
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RENDERED: May 28, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001595-WC
DAVID DEBERRY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 95-39220
BJ’s RESTAURANT; HON. ZARING P.
ROBERTSON, ADMINISTRATIVE LAW JUDGE;
SPECIAL FUND; AND WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFRIMING
** ** ** ** **
BEFORE: DYCHE, JOHNSON AND KNOPF, JUDGES.
JOHNSON, JUDGE: David Deberry (Deberry) petitions for review of a
Workers’ Compensation Board (Board) opinion rendered on June 6,
1997, affirming the Administrative Law Judge’s (ALJ) award of 30%
permanent partial occupational disability.
Deberry contends that
the award was contrary to the evidence and that the ALJ erred in
not granting his motion to amend his application to add a claim
of psychiatric disability.
We affirm.
At the time of his work injury on October 3, 1995,
Deberry had worked as a cook for fifteen years and had worked as
a cook at BJ’s Restaurant, Inc. (BJ’s) since 1988.
Deberry
injured his back when he lifted a garbage can to pour the garbage
into a dumpster.1
Deberry reported the injury that evening; and
the next morning when Deberry got out of the bed, he experienced
severe pain in his legs and back and sought medical treatment.
Deberry first saw Dr. Steven Sanders (Dr. Sanders), a
neurosurgeon, on October 23, 1995, for low back pain which
radiated into his right leg.
Dr. Sanders diagnosed a disc
herniation at L5-S1 and performed lumbar surgery.
After the
surgery Deberry initially experienced some improvement, but the
improvement eventually gave way to left leg pain.
Dr. Sanders
last saw Deberry on February 23, 1996, and stated that a postsurgical MRI showed Deberry’s back to be normal.
Dr. Sanders
concluded from that visit that while Deberry had not yet reached
maximum medical improvement, he would be expected to do so within
the next two months.
Dr. Sanders did not place any restrictions
on Deberry’s physical activities and gave Deberry a 10%
functional impairment rating.
At Deberry’s request,2 Dr. Sanders
referred him to another physician, an orthopedic surgeon named
Dr. Gary McAllister (Dr. McAllister), whose office was located
closer to Deberry’s home.
1
There is conflicting testimony regarding whether Deberry
unloaded supply trucks as part of his work assignment and the
weight of the garbage that was in the can Deberry lifted.
Deberry claims it weighed over 200 pounds and another worker
testified that it could not have weighed over 75 pounds.
2
Deberry claims that he changed from Dr. Sanders to Dr.
McAllister because Dr. Sanders wanted to treat him by injecting
steroids into his back to provide some relief. Deberry rejected
that form of treatment.
-2-
In March 1996, Deberry saw Dr. McAllister, who
determined that Deberry suffered from a “nerve root adhesion.”
While Dr. McAllister did read in Dr. Sanders’ notes where scar
tissue had formed at the surgical site, he never viewed the postsurgery MRI.
Dr. McAllister gave Deberry a 24% functional
impairment rating and restricted him to lifting no more than 10
pounds and sitting or standing for no more than three hours at a
time.
Dr. McAllister became Deberry’s treating physician.
On May 15, 1996, Dr. Charles Hargadon (Dr. Hargadon),
an orthopedic surgeon, evaluated Deberry and expressed the
opinion that Deberry had magnified his symptoms.
Dr. Hargadon
noted that scar formation at that surgical site was normal.
Dr.
Hargadon determined that Deberry had reached maximum medical
improvement, that he was capable of working as a cook and that he
could perform work which required lifting up to 35 pounds
occasionally and lifting 20 pounds regularly.
On June 17, 1996, Deberry filed a claim with the
Department of Workers’ Claims, claiming severely degenerative
fibrocartilage in intervertebral disc L5-S1.
On July 18, 1996, a
scheduling order was entered which stated that the pre-hearing
conference was to be held on November 15, 1996, and that the
period of proof taking began as of the date of that order.
On
August 5, 1996, Deberry filed a motion seeking an extension of
time through September 19, 1996, for the purpose of taking the
deposition of Dr. McAllister.
By an order dated September 12,
1996, this extension was granted.
-3-
On October 23, 1996, Deberry filed another motion for
an extension of time to the date of the pre-hearing conference,
November 15, 1996, for the purpose of submitting a report from
psychiatrist Dr. Arnold Ludwig (Dr. Ludwig).
extension of time.
BJ’s opposed the
On November 4, 1996, Deberry filed another
motion for an extension of time in which to depose Norman E.
Hankins, Ed.d (Dr. Hankins), a vocational rehabilitation expert
on November 7, 1996.3
On November 11, 1996, Deberry filed a
“motion to amend claim to add psychological disability.”
On
November 14, 1996, BJ’s filed an “objection and motion to strike”
the testimony of Drs. Ludwig and Hankins.
BJ’s argued that the
time for proof had ended and that no formal cause of action for
psychological disability existed since Deberry had not pled a
claim for psychological disability, and therefore, Dr. Ludwig’s
psychiatric testimony should be stricken from the record.
BJ’s
objected to Dr. Hankins’ testimony on the grounds that proof time
had expired and that it was not rebuttal testimony.
At the
November 15, 1996 pre-hearing conference, the ALJ overruled
Deberry’s motion to amend his claim and to introduce evidence
from Dr. Ludwig as untimely, but ruled that Dr. Hankins’
testimony would be admitted into evidence.
3
Hankins evaluated Deberry and determined that he read and
performed arithmetic on a fourth grade level. Hankins indicated
that Deberry was totally disabled and based that finding upon
testimony from Dr. McAllister and psychiatric records which had
not been admitted into evidence. However, he did not view Drs.
Sanders’ or Hargadon’s testimony.
-4-
The hearing was held on December 2, 1996, and the only
contested issues were the extent and duration of disability.4
Deberry testified regarding how his injury occurred, to what
extent he was injured, and how badly he wanted to return to
work.5
Deberry testified that he considered himself totally and
permanently disabled, while BJ’s contended that Deberry had
exaggerated his symptoms.
In his opinion dated January 31, 1997,
the ALJ stated as follows:
This Administrative Law Judge certainly
attaches more weight to the evidence from the
latter two physicians, but I am not convinced
that the plaintiff’s medical impairment
rating represents his true occupational
disability. Dr. McAllister had no objective
basis for his suspected diagnosis of the
plaintiff’s problem, and his impairment
rating seemed to be an attempt to inflate the
value of the plaintiff’s claim. The
restrictions suggested by Dr. McAllister are
likewise based upon subjective symptoms. On
the other hand, it is undeniable that the
plaintiff suffered a significant back injury,
requiring surgery. Dr. Hargadon was aware of
the plaintiff’s tendency to exaggerate, yet
still recommended limitations. The Moses
family testimony describing the requirements
of the plaintiff’s former job is rejected as
self-serving, and the undersigned finds it
likely that the plaintiff assisted with
stocking supplies and other heavy chores in
the restaurant, which are beyond his current
capabilities. However, this Administrative
4
It was stipulated between the parties that any award would
be apportioned 50% to BJ’s and 50% to the Special Fund.
5
At the hearing, Deberry was cross-examined about statements
made in his deposition: “I ain’t going back to work, and I don’t
see, you know, why I should suffer through this pain and crap and
try to work around.” Deberry stated that “I kind of remember,
you know, saying that I would like—that I want to go back to work
but I can’t go back to work, you know. . . . If I could go back
to work I’d go back to work. I like working. I enjoy it. I
liked the people I worked for, you know. I can’t go back to
work.”
-5-
Law Judge is convinced that the plaintiff is
physically able to return to work as a cook,
so long as his restrictions are accommodated.
Considering the factors delineated in KRS
342.0011(11) [as effective at the time of the
plaintiff’s injury], I conclude that the
plaintiff is 30% occupationally disabled.
Deberry appealed the ALJ’s decision to the Board and
argued that he had met his burden of proving complete and total
disability and that the ALJ “has incorrectly assessed the medical
evidence presented in this claim, specifically by not giving
greater weight to the treating physicians’ opinions. . . .”
Deberry also alleged that the ALJ erred as a matter of law in
refusing Deberry’s request to amend his claim to include
psychiatric disability because denying the amendment created
piecemeal litigation and Deberry had a right to have each injury
claim litigated.
BJ’s argued that the ALJ had broad discretion
in making the award and that the ALJ’s decision was supported by
the evidence.
BJ’s also argued that the ALJ had broad discretion
regarding the taking of proof and that the ALJ had not abused
that discretion in denying Deberry’s motion to amend his claim.
The Board in a well reasoned opinion determined that
Deberry’s evidence did not compel a different result and that the
ALJ had not abused his discretion in refusing to allow Deberry to
amend his claim.
This petition for review followed.
We agree
with the Board and adopt portions of its opinion as our own as
follows:
DeBerry, having the burden of proof before
the ALJ, must establish on appeal that the
evidence compelled a contrary result.
Special Fund vs. Francis, Ky., 708 SW2d 641
(1986). Compelling evidence is evidence
which is so overwhelming that no reasonable
-6-
person could be failed to be persuaded by it.
Reo Mechanical vs. Barnes, Ky.App., 691 SW2d
224 (1985). When there is conflicting
evidence, it is the ALJ who has the sole
right and authority to resolve the conflict
and determine weight and credibility. Pruitt
vs. Bugg Brothers, Ky., 547 SW2d 123 (1977);
and Smyzer vs. B. F. Goodrich Chemical Co.,
Ky., 474 SW2d 367 (1971). Although there may
be evidence which would support the
conclusion sought by the appealing party, so
long as the decision of the ALJ is supported
by other evidence of record, it may not be
disturbed on appeal. McCloud vs. BethElkhorn Corp., Ky. 514 SW2d 46 (1974).
Finally, neither vocational testimony nor
the fact that an individual is a treating
physician requires any special deference on
the part of the ALJ. Eaton Axle Corp. vs.
Nally, Ky., 688 SW2d 334 (1985); and Yocom
vs. Emerson Electric, Ky.App., 584 SW2d 744
(1979).
The evidence presented to the ALJ herein
would have supported a multitude of results.
One of the results that it would and does
support is a finding of 30% occupational
disability. Occupational disability is
uniquely a factual finding on the part of the
ALJ after taking into consideration all of
the relevant factors as contained in KRS
342.0011(11) and no single factor is
determinative. Seventh Street Road Tobacco
Warehouse vs. Stillwell, Ky., 550 SW2d 469
(1976). Here, the ALJ specifically concluded
that the more credible testimony came from
Dr. Hargadon and that within the restrictions
of Dr. Hargadon DeBerry possessed the
physiological capability of returning to
active gainful employment, including
employment that he had performed in the past.
The evidence of Dr. Hargadon is evidence of
substance and it supports the ALJ’s
conclusion.
DeBerry also challenges the ALJ’s decision
to prohibit the amendment of his claim.
Subsequent to the rendering of the ALJ’s
decision, DeBerry filed a separate Form 101
alleging occupational disability as a result
of a psychological injury. Although the
parties make reference to that filing, any
issues concerning it are not now before us.
-7-
The sole question we must answer relates to
the propriety of the ALJ’s refusal to permit
at a very late date the amendment of this
claim. The controlling and presentation of
proof is within the unique discretion of the
ALJ. Searcy vs. Three Point Coal Co., 280
Ky. 683, 134 SW2d 228 (1939). Such
discretion is not without its limits however.
The failure of a party to assert a potential
claim may have long term ramifications,
particularly upon reopening. Slone vs. Jason
Coal Co., Ky., 902 SW2d 820 (1995). However,
although piecemeal litigation is disfavored
in workers’ compensation law, it is not
prohibited for cases occurring before
December 12, 1996. See Woodbridge INOAC,
Inc. vs. Downs, Ky.App., 864 SW2d 306 (1993).
In our opinion, the question frequently
must be based upon what might be considered
fundamental fairness and the exercise of
reasonable diligence in asserting a claim.
Here, we have Dr. McAllister testifying in
September of 1996 that he has been
prescribing antidepressant medications and
has recognized psychological symptomatology
since he began caring for DeBerry in March
1996. We have DeBerry himself asserting that
sometime prior to his motion for extension of
time filed in October of 1996 he had
previously been scheduled to be seen by Dr.
Ludwig, but he himself was unable to keep
that appointment. Within that context, it is
not until November 11, 1996[,] that DeBerry
moved to amend his claim. Based upon this
chronology of events, it is apparent that
DeBerry, at the earliest, knew of a potential
psychological condition arguable related to
his back injury in the Spring of 1996 even
before the initial filing of this claim and,
at the every [sic] latest, on September 16,
1996[,] when Dr. McAllister testified and,
yet, no effort was made to amend the claim
until November 11. Our statutory provisions
are designed for expeditious resolution of
workers’ compensation claims. New evidence
does occur during the prosecution of a claim,
but failure to act upon that evidence cannot,
in our opinion, be a sound basis to challenge
either the reasonableness or the fairness of
an ALJ’s control in the taking of proof.
Under these circumstances, we believe the ALJ
was well within his authority and within the
-8-
spirit of the Kentucky Workers’ Compensation
Act in overruling DeBerry’s motion.
Accordingly, we conclude that the Board did not err in
affirming the ALJ’s disability award and the denial of Deberry’s
motion to amend his claim.
The Board did not “overlook[] or
misconstrue[] controlling statutes or precedent, or commit[] an
error in assessing the evidence so flagrant as to cause gross
injustice."
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d
685, 687-688 (1992).
For the foregoing reasons, we affirm the
opinion of the Board.
ALL CONCUR.
BRIEF FOR APPELLANT, DEBERRY:
BRIEF FOR APPELLEE, BJ’S:
Hon. Ronald C. Cox
Harlan, KY
Hon. Steven R. Armstrong
Lexington, KY
BRIEF FOR APPELLEE, SPECIAL
FUND:
Hon. Joel D. Zakem
Louisville, KY
-9-
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