TORIE MINING, INC. v. STEVEN KIDD; DENIS S. KLINE, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: DECEMBER 3, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-000637-WC
TORIE MINING, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS’ COMPENSATION BOARD
NO. 97-85465
v.
STEVEN KIDD;
DENIS S. KLINE,
Administrative Law Judge;
and WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, SCHRODER and HUDDLESTON, Judges.
HUDDLESTON, Judge: Following an injury at work, Steven Kidd sought
workers’ compensation benefits.
The Administrative Law Judge who
heard Kidd’s claim found that while he may be able to do light
jobs, he is unemployable due to his physiological and psychological
restrictions.
The Workers’ Compensation Board affirmed the ALJ’s
award of total occupational disability.
Kidd worked as a scoop operator for Torie Mining, Inc.
While working with a roof bolter, his gloved hand became tangled in
the machinery, twisting his arm.
The twisting caused a compound
fracture of the right arm, torn tendons and a broken wrist.
Kidd had multiple surgeries following the accident and
underwent physical therapy.
The independent medical examiner who
evaluated Kidd observed that despite an “excellent” effort at
recovery, he was “still markedly limited in the ability to use the
right upper extremity.”
The ALJ found that Kidd’s main impediment was a fear of
re-injury.
The psychological evidence indicated that because of
his injuries, Kidd suffered from depression, post traumatic stress
disorder and anxiety disorder.
An occupational rehabilitation
consultant who evaluated Kidd determined that he was basically
unemployable.
The Board affirmed the ALJ’s award of total occupational
disability.
Torie Mining argued that the ALJ erred by awarding
Kidd
occupation
total
disability
benefits
suggested that he could do light jobs.
as
some
evidence
The Board observed that the
1996 changes to the Workers’ Compensation Act divided disability
into “temporary total disability,” “permanent partial disability”
and “permanent total disability" and that under the Act, the fact
finder has much broader discretion when assessing permanent total
disability.
The Board determined that “[t]he evidence . . . as
analyzed by the ALJ does support the ALJ’s conclusion that the
medical, lay and vocational testimony support the inability of this
individual at this time to be competitive for work . . . .”
As
we
find
that
the
Board’s
well-written
expresses our view of this matter, we adopt it as our own:
-2-
opinion
LOVAN, MEMBER.
Torie Mining, Inc. ("Torie"), appeals
from the decision of Hon. Denis S. Kline, Administrative
Law Judge ("ALJ"), awarding Steven Kidd ("Kidd") a total
occupational disability.
On January, 15, 1997, Kidd was working for Torie and
had been hired primarily as scoop operator.
On that
date, he was assisting with the roof bolter when his
glove became entangled in part of the roof bolting
machinery.
was
Unable to disentangle himself, his right arm
twisted,
resulting
in
a
significant
compound
fracture, tearing of tendons and breaking his wrist.
He
has not worked since the incident.
Temporary total disability benefits and medical
benefits
were
treatment.
paid
and
Kidd
continues
to
undergo
His work has primarily consisted of manual
labor in the coal mining industry.
He testified that he
continues to experience problems with his right upper
extremity and has developed psychological difficulties in
the form of depression, nightmares, difficulty sleeping,
and flashbacks to the incident.
He has an ongoing fear
that his right arm will in some way be reinjured.
does
not
believe
that
he
presently
Kidd
possesses
the
capability of returning to any of the work that he has
performed in the past and is unaware of any work that he
has the physical or mental capabilities to perform at
this time.
He experiences difficulty relating to his
family
other
and
individuals
-3-
and
tends
to
keep
to
himself.
He
finds
it
difficult
to
cope
with
his
inability to work and expresses a desire to better
himself.
He is presently receiving Social Security
disability.
Although three issues were presented to the ALJ, the
only issue to be addressed by us on appeal relates to the
ALJ’s
finding
Kidd
presently
permanently,
totally
occupationally disabled.
The medical evidence concerning Kidd’s physiological
condition came from Dr. Christopher Prevel, a physician
at the University of Kentucky Medical Center, and Dr.
Thomas Harter, who examined Kidd at the request of Torie.
Dr. Prevel took over the care of Kidd when his initial
treating physician left the University.
Dr. Prevel
assigned a 46% functional impairment to the body as a
whole as a result of the injury. While he indicated that
in
his
opinion
Kidd
had
reached
maximum
medical
improvement, he continued to exhibit loss of strength and
range of motion in his elbow, wrist, and hand.
He did
not believe Kidd had the physical capability of returning
to any of his prior employment, although he acknowledged
there may be some light sedentary activities in which
Kidd could engage.
He strongly encouraged Kidd to
participate in vocational rehabilitation.
Dr. Harter also noted that there was significant
limitation of motion and strength in the hand, wrist and
elbow of the right upper extremity.
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He assigned a 34%
functional impairment.
This assessment of impairment
only considered limitation of motion to a small degree
and he believed that if one were to use a range of motion
assessment, the impairment could certainly be greater.
His evidence was not significantly different from that of
Dr. Prevel in that he did not believe it was likely that
Kidd possessed the physical capability of returning to
the mining industry, although he did believe he had the
physical capacity to engage in sedentary labor.
Psychological
testimony
was
presented
from
Dr.
Robert Granacher and Dr. William Weitzel.
Dr. Granacher
assessed
a
a
25%
impairment
psychiatric impairment.
based
upon
Class
III
He was of the opinion that the
psychiatric disorder developed as a direct result of the
injury and believed that it was important that Kidd
participate
in
pharmacological
psychiatric
treatment.
treatment,
He
noted
including
Kidd
had
preoccupation with pain and resulting depression.
a
He
believed it would be appropriate for Kidd to be directed
to
a
pain
physicians".
center
staffed
by
"knowledgeable
pain
He further indicated that individuals with
"complex injures [sic] of this type often end up with a
psychiatric disorder". He believed that treatment of the
condition was paramount before Kidd could be expected to
be fully functional.
Dr. Weitzel assessed a 15% functional impairment,
one-half of which was due directly to the injury and the
-5-
remainder to the arousal of a pre-existing condition. He
diagnosed depression anxiety and evidence of resolving
symptomatology from post-traumatic stress disorder.
believed
the
post-traumatic
stress
disorder
He
should
respond to treatment but that Kidd "needs immediate
attention to the way he is dealing with his right upper
extremity injury and he needs to be fully informed of
what is possible and what his long term limitations will
be".
Dr. Weitzel did not believe Kidd was receiving the
type
of
guidance
that
he
needed.
Kidd
exhibited
recurrent and intrusive recollections of the injury and
experienced occasional nightmares.
Vocational testimony was presented by Dr. Ralph
Crystal and Joe Woolwine. Dr. Crystal found Kidd to have
a reading ability at the middle of the 10th grade,
spelling at the end of the 4th grade and math at the end
of the 3rd grade.
He believed there were jobs within
Kidd’s region that he could probably perform based upon
his
physical
and
psychological
limitations.
encouraged vocational rehabilitation.
opinion
Kidd
could
engage
in
He
He was of the
sedentary
laboring
activities.
Joe
probably
Woolwine
engage
also
in
acknowledged
sedentary
to
that
Kidd
light
could
laboring
activities. He did testify at one point that he believed
Kidd was presently totally occupationally disabled.
He
noted that the combination of the physical injury with
-6-
the psychological difficulties would likely limit Kidd
from engaging in working activities at this time. Unlike
others, he did not believe Kidd was a good candidate for
vocational rehabilitation.
The ALJ, after the [sic] considering the entirety of
the
evidence
and
addressing
the
issue
of
total
disability, stated "I believe it is clear that he is.
While there may be some very light jobs that he could
perform with his current restrictions, I believe he would
be
placed
at
such
a
competitive
disadvantage,
when
compared with workers of similar age, education and
experience, that he would be, for all practical purposes,
unemployable." The ALJ went on to state that he believed
with vocational rehabilitation that the permanency of the
total disability could be overcome.
The employer challenges the ALJ’s findings arguing
that since there is some evidence of record indicating
that light and sedentary jobs could be available to Kidd
that under the changes in the Workers’ Compensation Act
effective December 12, 1996, an award of permanent total
disability benefits is inappropriate.
We have previously addressed similar arguments in
other cases, initially in Ira a. Watson Dept. Store vs.
David Hamilton, Claim No. 97-90489, rendered November 13,
1998.
This Board strives for consistency, particularly
when we believe that our prior decision is correct.
-7-
In
rendering the opinion herein, we will borrow liberally
from our discussion in Ira Watson.
Since December 12, 1996, many things in the Kentucky
Workers’ Compensation Act have changed. Some things have
not.
It is the interaction of what has changed and what
has not that must be analyzed in the instant appeal. One
thing that has not changed is that the burden of proof
rests
with
entitlement
the
worker
benefits.
to
injured
to
When,
establish
however,
the
his
party
without the burden of proof is unsuccessful before the
ALJ, in this case Torie, we must view the evidence of
record
and
the
law
to
determine
whether
there
was
substantial evidence of probative value to support the
ALJ’s ultimate conclusion.
Paramount Foods, Inc., vs.
Burkhardt, Ky., 695 SW2d 418 (1985).
Prior to December 12, 1996, there was a single
definition of disability contained in KRS 342.0011(11).
Effective December 12, 1996, the Legislature created
three specific subsections defining "temporary total
disability",
"permanent
partial
"permanent total disability".
disability"
and
While additional sections
of the Act severely limit an adjudicator’s ability to
assess
occupational
disability
in
permanent
partial
disability cases, the adjudicator has more discretion to
evaluate the evidence in determining total occupational
disability.
The
determination
of
permanent
total
disability continues to be a factual finding. The strict
-8-
restrictions referred to by Torie apply only to the
determination
of
permanent
partial
accordance with KRS 342.730(1)(b).
disability
in
If, however, the
adjudicator decides that an individual is permanently and
totally disabled, those mathematical factors are not
applicable.
Permanent total disability is defined as:
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...
"Work" is defined in KRS 342.0011(34) as follows:
"Work"
means
providing
services
to
another
in
return for remuneration on a regular and sustained
basis in a competitive economy.
These two provisions of the Act mandate two specific
findings
by
an
adjudicator
disability award.
in
assessing
a
total
First, the adjudicator must conclude
that the evidence establishes that there is a "permanent
disability rating".
Here, there is no serious challenge
but that Kidd has a 34% or greater impairment rating from
his physiological injury and a 15 to 25% impairment as a
result of the psychiatric aspects of this injury.
The
second aspect of the analysis requires the adjudicator to
determine whether there has been a complete and permanent
inability to perform any type of work as a result of the
injury.
This portion of the definition of permanent
-9-
total disability provides discretion with an ALJ or
Arbitrator as he or she interprets the evidence in light
of the definition of "work".
While
permanent
partial
disability
assessments
provide for very little discretion on the part of the
fact finder, total disability assessments are not so
strictly limited.
Although the full impact of Osborne
vs. Johnson, Ky., 432 SW2d 800 (1968) has been modified,
it
is
not
Osborne,
the
court
requirements
emphasized
gone.1
totally
for
that
determinative.
(footnote
thoroughly
finding
medical
While
that
supplied.)
analyzed
the
disability.
The
percentages
statement
In
needed
court
are
is
no
not
longer
controlling for permanent partial disability, it remains
applicable to permanent total disability.
The statute,
as it existed at the time of the decision in Osborne and
thereafter until December 12, 1996, also required the
fact finder to analyze the worker’s competitive abilities
based upon the "local labor market".
However, with the
changes in the Kentucky Workers’ Compensation Act as
effective December 12, 1996, the local labor market
analysis is no longer appropriate.
The ALJ in the
instant action in concluding Kidd was experiencing total
occupational disability did not limit his assessment to
the local labor market and, therefore, appropriately
1
Legislative amendments since Osborne to Ky. Rev. Stat.
(KRS) 342.730 have made disability ratings determinative for
permanent partial disability awards.
-10-
disregarded that aspect of Osborne.
We believe that the
Legislature’s definition of "work" as set out above
follows a great deal of the language used by the court in
Osborne, particularly in their quotations from Larson.
Larson noted that if the worker’s physical condition is
such as to disqualify him for regular employment in the
labor market, then total disability may be found.
Osborne at 803.
See
The court went on to state also at page
803 "if the Board finds the workman is so physically
impaired that he is not capable of performing any kind of
work
of
regular
employment
.
.
considered to be totally disabled".
.
the
man
will
be
In a footnote, the
court further states at 803:
We are talking about hired employment, not selfemployment.
We do not believe the law contemplates
that consideration shall be given to the workman’s
ability to sell apples or pencils on the street.
In defining normal employment conditions, the court
adopted Larson’s test of probable dependability to sell
services in a competitive labor market.
This definition
considers whether the individual will be dependable,
whether his physiological restrictions prohibit him from
using
skills
within
his
individual
vocational
capabilities and accepts that one is not required to be
homebound
to
be
determined
disabled.
-11-
totally
occupationally
Here, we have an individual who has significant
physiological impairment and psychiatric impairment under
the AMA Guidelines.
We have vocational testimony that
offers the belief Kidd is presently totally disabled,
although
we
have
medical
testimony
and
vocational
testimony stating he might be able to engage in light and
sedentary labor.
The evidence, however, as analyzed by
the ALJ does support the ALJ’s conclusion that the
medical,
lay
and
inability
of
vocational
this
testimony
individual
at
this
support
time
to
the
be
competitive for work, employment of a regular nature in
a competitive market.
It was within the ALJ’s authority
and discretion to consider this evidence in this finding.
See Caudill vs. Maloney’s Discount Stores, Ky., 560 SW2d
15 (1977); Eaton Axle Corporation vs. Nally, Ky., 688
SW2d 334 (1985); and Smyzer vs. B.F. Goodrich Chemical
Co., Ky., 474 SW2d 367 (1971).
evidence
may
have
supported
a
While arguably the
finding
of
permanent
partial disability, we agree with the ALJ that it clearly
supports a finding of total occupational disability at
this time. With proper medical and psychiatric treatment
coupled with efforts at vocational rehabilitation, Kidd
may
overcome
experiences.
the
level
of
disability
that
he
now
Until or if that occurs, Kidd is entitled
to a finding of total disability.
While things have changed, the Board now has no
greater authority to second guess an ALJ’s reliance upon
-12-
evidence of record than it did prior to December 12,
1996.
See McCloud vs. Beth-Elkhorn Corp., Ky., 514 SW2d
46 (1974).
The statutory analysis of disability offered
by the Kentucky Legislature in reality provides a greater
degree of discretion with the fact finder on assessments
of total occupational disability than it does on partial
occupational disability.
Legislature
created
this
We can only presume that the
discretion
in
a
purposeful
manner.
Accordingly, the decision of Hon. Denis S. Kline,
Administrative Law Judge, is hereby AFFIRMED and this
appeal is DISMISSED.
We have reviewed the Board’s opinion in accord with the
dictates of Western Baptist Hospital v. Kelly.2
In Western, the
Supreme Court discussed the standard of review applicable to
decisions of the Board:
The function of further review of the WCB in the Court of
Appeals 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.3
2
Ky., 827 S.W.2d 685 (1992).
3
Id. at 687.
-13-
Finding that the Board has not overlooked or misconstrued
controlling law or erred in assessing the evidence, we affirm its
decision.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul E. Jones
BAIRD, BAIRD, BAIRD
& JONES, P.S.C.
Pikeville, Kentucky
Miller Kent Carter
BRANHAM & CARTER, P.S.C.
Pikeville, Kentucky
-14-
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