MUDCAT CONSTRUCTION, INC. v. REX DANIEL CUNDIFF; LEE COUNTY ADJUSTMENT CENTER; HON. W. BRUCE COWDEN, JR., ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
SEPTEMBER 14, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002344-WC
MUDCAT CONSTRUCTION, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-60741
v.
REX DANIEL CUNDIFF;
LEE COUNTY ADJUSTMENT CENTER;
HON. W. BRUCE COWDEN, JR.,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: BARBER, GUIDUGLI, AND TACKETT, JUDGES.
BARBER, JUDGE:
Appellant, Mudcat Construction (“Mudcat”), the
second of two employers in this workers’ compensation claim,
seeks review of the Board’s opinion affirming the ALJ’s
determination that the claimant’s second injury resulted in
permanent total disability.
Finding no error, we affirm.
Appellee, Rex Daniel Cundiff (“Cundiff”), filed a Form
101 on February 10, 1999, alleging: (1) that he injured his back
on August 5, 1997, unloading wire from a truck while working for
the Appellee, Lee County Adjustment Center (“LCAC”) and (2) that
he injured his back on September 24, 1998, running a ditch witch
while working for Mudcat.
Cundiff’s work history reflects that
he worked for LCAC from October 4, 1990, until September 14,
1997; for Harper Diesel & Machine Service, as a laborer in a
repair shop, from September 16, 1997, until March 20, 1998, and
for Mudcat as a loader operator/laborer from September 21, 1998,
until October 1, 1998.
The contested issues before the ALJ, as outlined on the
October 22, 1999, prehearing order and memorandum, include:
workrelatedness and notice on the 1998 injury; extent and
duration; compensability of medicals; preexisting active;
apportionment as to carriers and exclusion for natural aging.
On March 1, 2000, the ALJ rendered an opinion, order
and award, “siding with” Cundiff on the issues of workrelatedness
and notice for the 1998 injury (Mudcat’s).
The ALJ noted that
both injuries occurred after the 1996 revision of the Act and
that income benefits were controlled by the 1996 amended version
of KRS 342.730.
The ALJ found that Cundiff had a 20% functional
impairment based upon Dr. Vaughn’s opinion.
The ALJ apportioned
half or 10% to the first injury (LCAC), which translated to a 10%
occupational disability, using the grid factor of 1 in the
statute.
The ALJ found that, following the 1997 injury, Cundiff
had retained the capacity to return to the type of work he had
previously performed.
The ALJ determined that neither KRS
342.730(1)(c)(1), nor 342.730(1)(c)(2) factors came into play.
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The ALJ concluded that Cundiff was permanently and
totally disabled based upon the restrictions imposed by Dr.
Vaughn after the second injury at Mudcat.
The ALJ explained that
Dr. Vaughn had restricted lifting to 10 pounds and did not
believe Cundiff could return to gainful employment.
The ALJ
rejected the argument that any award should exclude the natural
aging process relying upon the testimonies of Dr. Vaughn and of
Dr. Goodman that Caudill’s spondylolisthesis was not due to the
natural aging process but was a congenital or developmental
condition; further, the injuries, themselves, had aroused this
condition into disabling reality.
The ALJ agreed with LCAC’s
analysis that medical expenses should not be apportioned under
Derr Construction Co. v. Bennett, Ky., 873 S.W.2d 824 (1994).
The ALJ directed the parties to submit a proposed award
based upon applicable law commensurate with his findings.
On
April 5, 2000, the ALJ rendered an amended opinion, order and
award.
Based upon Fleming v. Windchy, Ky., 953 S.W.2d 604
(1997), the ALJ made the following award:
1997 injury against LCAC:
$20.09 per week beginning August 5, 1997, and
continuing for a period not to exceed 425
weeks, together with interest at the rate of
12% per annum on all due and unpaid
installments of such compensation and the
said defendant shall take credit for payments
of such compensation heretofore made.
1998 injury against Mudcat:
$303.33 per week beginning September 24,
1998, and continuing for so long he is so
disabled, together with interest at the rate
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of 12% per annum on all due and unpaid
installments and the said defendant shall
take credit for payments of such compensation
heretofore made . . . . [T]o the extent that
any permanent partial disability benefits
paid . . . [on the 1997/LCAC injury] overlap
the period of total disability, they will
offset the liability of Mudcat . . . which
would otherwise be due pursuant to the total
disability award.
The ALJ determined that LCAC was liable for medical
expenses from August 5, 1997 until September 24, 1998 (the date
of the second injury, at Mudcat) and Mudcat was liable
thereafter.
Mudcat appealed to the Board contending: (1) that the
ALJ erred in failing to find LCAC the responsible employer; (2)
that Cundiff’s injury at Mudcat was not work-related;
(3) that
Cundiff did not give due and timely notice of the injury at
Mudcat and (4) that Cundiff is not totally and permanently
disabled.
On September 6, 2000, the Board rendered a unanimous
24-page opinion affirming from which we quote in pertinent part:
Mudcat first argues that Cundiff’s injury at
LCAC was a preexising active disability
. . . at most, any work incident at Mudcat
in September 1998 was the aggravation of a
pre-existing active condition. It points to
the evidence in the record that Cundiff had
persistent pain and ongoing treatment
following the LCAC injury and therefore that
employer should bear the responsibility for
the payment of benefits.
Apparently, Mudcat is arguing that Cundiff
sustained the full extent of his disability
with LCAC and the injury with Mudcat merely
aggravated a pre-existing condition . . . .
We believe that contrary to Mudcat’s
arguments, that the ALJ undertook the correct
analysis of this successive injury claim.
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. . . .
As previously noted, because of the
amendments [in 1996] to KRS 342.730, LCAC
could be found liable for no more than 10% of
the award once the ALJ chose to rely on Dr.
Vaughn’s 20% impairment rating (10%
apportioned to LCAC and 10% apportioned to
Mudcat). The ALJ correctly applied KRS
342.730 in calculating LCAC’s liability. The
ALJ also correct determined that since the
later injury culminated in total disability,
Mudcat was entitled only to a credit for the
overlapping period . . . from the prior
permanent partial disability award . . . .
We further find that the ALJ’s determination
that Cundiff was partially disabled by the
first injury and rendered totally disabled by
the second injury is supported by substantial
evidence in the record. Though he testified
he suffered continuous pain and sought
medical treatment following the injury with
LCAC, he nonetheless continued to work,
performing what was described as strenuous
labor with Harper Diesel. It was not until
his injury with Mudcat that he could no
longer work and his symptoms became more
severe. Indeed, if the 1997 injury was taken
alone, the ALJ’s award of 10% disability
would have been, in all likelihood, the
correct result. In essence, the ALJ did find
a portion of Cundiff’s disability to be
active at the time of his injury at Mudcat.
. . . .
Mudcat next argues the ALJ erred in finding
that Cundiff sustained his burden of proving
causation . . . .
Cundiff bore the burden of proof to establish
causation . . . . Snawder v. Stice, Ky.App.
576 S.W.2d 276 (1979). Since Cundiff was
successful . . . before the ALJ . . . the
question is whether the ALJ’s decision was
supported by substantial evidence. Wolf
Creek Collieries v. Crum, Ky. App., 673
S.W.2d 735 (1984).
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The ALJ chose to rely on Cundiff’s testimony
as how his injuries occurred . . . .
Inasmuch as the ALJ’s decision is supported
by substantial evidence, we are without
authority to find otherwise. [Citation
omitted.]
Mudcat next argues that Cundiff did not
provide due and timely notice . . . . The
ALJ relied on Cundiff’s testimony that he
informed his supervisor on Friday, the day he
first saw a physician for his work injury at
Mudcat. He also relied on the testimony of
Donald Best that the claimant informed him
that he had hurt his back . . . . [T]he
ALJ’s decision is supported by substantial
evidence and may not be reversed on appeal.
[Citation omitted.]
Lastly, Mudcat argues the ALJ erred in
concluding that Cundiff was totally
occupationally disabled and further contends
the ALJ erred by failing to apportion any
liability to the natural aging process and
erred in his apportionment of medical
expenses.
. . . .
[The] . . . provisions [of KRS
342.0011(11)(c), defining permanent total
disability and KRS 342.0011(34) defining
work] mandate two specific findings by an
. . . [ALJ] in assessing a total disability
award. First he ALJ must find the evidence
establishes a “permanent disability rating.”
Here . . . Drs. Vaughn and Goodman assessed
20% and 15% impairment ratings, respectively.
The second aspect of the analysis requires
the ALJ to determine whether there . . .[is]
a complete and permanent inability to perform
any type of work as a result of the injury.
This portion of the definition of permanent
total disability provides discretion to the
Administrative Law Judges who interpret
evidence in light of the definition of
“work.” Thus, in order to qualify for
permanent total disability benefits, a
claimant must demonstrate not that he is
completely unable to perform any sort of work
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activities, but rather, that he cannot
work activities that he may be capable
performing on a regular and sustained
competitive basis . . . . Inasmuch as
ALJ’s opinion is supported by evidence
substance, we must affirm. [Citation
omitted.]
do any
of
the
of
Mudcat also argues that the ALJ erred in
failing to apportion any of Cundiff’s
disability as due to the natural aging
process. The ALJ relied on the testimony of
Dr. Vaughn, as acknowledged by Dr. Goodman
. . . . We particularly note the AMA Guides’
instruction that the natural aging process,
as well as other common developmental
findings in the back, such as spondylolisis,
spondylolisthesis, and herniated disc without
radiculopathy are excluded within the AMA
Guides impairment ratings and categories in
the calculation of functional impairment
ratings.
We further note the Court of Appeals, in the
unpublished opinion of Commonwealth of
Kentucky, Transportation Cabinet v. Frank
Guffey, et al. 1999-CA-00753-WC (rendered
December 10, 1999)1, affirmed the Board’s
interpretation of KRS 342.0011(1) . . . that,
“that which is a dormant, nondisabling
condition has not now become ‘natural aging
process.’ The Court conceded [sic] that it
is the effect of the injury being
compensated, and not the effect of natural
aging.
We believe the ALJ correctly refused to
exclude any of the award as due to the
natural aging process. Clearly the
physicians testified that spondylolisthesis
is not due to the natural aging process.
. . . .
Lastly, Mudcat argues the ALJ erred in his
apportionment of medical expenses. We
1
That decision was appealed to the Supreme Court, which rendered Commonwealth v. Guffey, Ky., 42 S.W .3d 618
(2001), on April 26, 2001, affirming the Court of Appeals’ decision with respect to the natural aging process.
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disagree and find the ALJ correctly
apportioned medical expenses pursuant to
. . . Derr Construction Co. v. Bennett, 873
S.W.2d 824 (1994). The Court [in Derr] held
that the employer was liable for all medical
expenses, noting that unlike the other
sections in the Act, KRS 342.020 contains no
exclusion for prior active disability . . . .
In this case, following Cundiff’s injury with
LCAC he was able to return to work doing the
same type of job without difficulty and
without the need for surgical intervention or
significant medical treatment. It was not
until the second injury with Mudcat that
surgery was necessitated. Therefore, based
upon the law in Derr Construction Co. v.
Bennett, supra, we believe the ALJ reached
the same result.
Mudcat again appeals.
Mudcat maintains that the Board
and ALJ erred in concluding: (1) that LCAC was not the
responsible employer because Cundiff’s disability was preexisting and active before the injury at Mudcat; (2) that Cundiff
met his burden of proof on causation; (3) that Cundiff met his
burden of proof on notice and (4) that Cundiff was totally
disabled.
Mudcat also maintains that it was error not to
apportion liability for medical expenses.
Mudcat acknowledges the fact that it is not our
function, as a reviewing court, to reweigh the evidence;
nevertheless, that is exactly what Mudcat asks us to do.
Mudcat
states that it “believes the law in this case has been
misapplied” but proceeds to continue to argue the evidence rather
than identify any error of law.
The Board thoroughly addressed
each of the issues raised by Mudcat.
analysis.
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We concur in their
We also draw the parties’ attention to McNutt Constr.
v. Scott, Ky., 40 S.W.3d 854 (2001).
There, the Supreme Court
was not “persuaded that the legislature's decision to abolish
Special Fund apportionment with regard to traumatic injury claims
had any effect on the longstanding principle that a harmful
change to a worker's body which is caused by work is an "injury"
for the purposes of Chapter 342.”
Id. at 859.
The Court held
that disability which results from the arousal of a prior,
dormant condition by a work-related injury remains compensable
under the 1996 Act.
McNutt rejected the argument that the 1996 amendments
to KRS 342.0011(11) legislatively overruled the definition of
occupational disability in Osborne v. Johnson, Ky., 432 S.W.2d
800(1968) codified in the pre-December 12, 1996, version of KRS
342.0011(1).
The Court explained that pursuant to the 1996
amendments awards for permanent, partial disability are a
function of the AMA impairment rating, the statutory multiplier
for that rating, and whether or not the worker can return to preinjury employment.
The ALJ has very limited discretion when
determining the extent of a worker's permanent, partial
disability. KRS 342.730(1)(b) and (c).
However, determining
whether a particular worker is partially or totally disabled as
defined in KRS 342.0011(11) clearly requires a weighing of the
evidence concerning whether the worker will be able to earn an
income by providing services on a regular and sustained basis in
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a competitive economy.
The Court explained that some of the
principles in Osborne v. Johnson, supra, remain viable when
determining whether occupational disability is partial or total.
Despite the extensive revision of the Act in 1996, the ALJ
remains the fact-finder whose functions include translating lay
and medical evidence into a finding of occupational disability.
KRS 342.285(1).
Accordingly, we affirm the September 6, 2000, opinion
of the Workers’ Compensation Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, REX DANIEL
CUNDIFF:
Tara R. Beckwith
Sheffer, Hutchinson Kinney
Louisville, Kentucky
John E. Cornett
Jackson, Kentucky
BRIEF FOR APPELLEE, LEE COUNTY
ADJUSTMENT BOARD:
Sherri P. Brown
Ferreri & Fogle
Lexington, Kentucky
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