COOPER PAINTING v. JEFFREY DALE OSBORNE; ROGER D. RIGGS, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: July 13, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-002520-WC
COOPER PAINTING
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-72515
v.
JEFFREY DALE OSBORNE;
ROGER D. RIGGS,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, HUDDLESTON and GUIDUGLI, Judges.
HUDDLESTON, Judge:
Workers’
Cooper Painting appeals from an opinion by the
Compensation
Administrative
Law
Board
Judge
that
reversed
dismissing
a
Jeffrey
decision
Dale
by
an
Osborne’s
disability claim following reconsideration, and remanded the case
for further findings by the ALJ.
Osborne was born in October 1969, has a ninth grade
education, and has worked as a painter since 1992.
employment
with
Cooper,
Osborne
sustained
four
During his
work-related
injuries on January 2, 1997, June 16, 1997, October 15, 1997, and
July 16, 1998.
On January 2, 1997, Osborne injured his right foot
and ankle in a slip and fall.
the incident.
He missed one week of work following
On July 16, 1997, he injured his right knee and back
when he fell climbing a wet ladder to the platform of a lift.
He
subsequently underwent arthroscopic surgery and physical therapy,
and missed approximately five weeks of work.
On October 15, 1997,
Osborne injured his lower back and shoulder when another worker
dropped his end of a walk board the two were carrying causing him
to stretch his back.
He missed approximately four months of work.
After each of these incidents, Osborne returned to work with a few
temporary physical restrictions.
Osborne sought treatment from Dr. John Gilbert for back
and leg pain in July 1997.
Dr. Gilbert found evidence of soft
tissue injury in the lumbosacral area, a bruised stretch nerve and
bilateral
leg
sciatica.
unremarkable.
In
August
An
MRI
1997,
of
Dr.
the
lumbar
Gilbert
spine
prescribed
was
pain
medication and some physical therapy, but allowed him to continue
performing light duty work while avoiding heavy lifting, bending
and/or twisting.
Osborne did not see Dr. Gilbert between August
1997 and July 1998.
On July 16, 1998, Osborne was injured in a work-related
vehicle accident resulting in extreme low back pain and groin pain.
A CT scan and x-rays performed immediately afterward in a hospital
emergency room indicated some mild bulges in his discs at the L2-3,
L3-4 and L4-5 levels, but no obvious herniation.
A few days after
the accident, Osborne was seen by Dr. Gilbert complaining of
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increasing back and neck pain.
On May 24, 1999, Dr. Gilbert
performed a myelographic study that indicated some nerve root
compression on the left side at the L4-5 level.
Osborne has not
returned to work since the July 1998 accident.
In
December
1998,
Dr.
Michael
Best,
an
orthopedic
surgeon, examined Osborne and performed a functional capacity
evaluation (FCE).
Based on his examination and review of the
medical history, Dr. Best found only a soft tissue injury with no
pathology.
A CT scan showed some bulging discs, but they were
within normal limits.
Dr. Best stated that the FCE indicated some
significant subjective magnification of symptoms.
He felt that
Osborne needed no further treatment and indicated he could return
to his regular employment without restrictions following a short,
initial period of medium-duty work.
He assessed Osborne as having
no physical impairment using the DRE model pursuant to the American
Medical Association (AMA) Guidelines.
On June 5, 1999, Dr. Daniel Primm, Jr., an orthopedic
surgeon, examined Osborne. His examination showed no signs of disc
herniation, radiculopathy or significant lumbar spine injuries. Xrays revealed only a minimal narrowing of the disc space at the L5S1 level.
Dr. Primm found no functional impairment.
He stated
Osborne was at maximum medical improvement and could return to work
with no permanent restrictions following a six- to eight-week
period of physical restrictions.
On August 18, 1999, Dr. Gilbert again examined Osborne
and submitted a Form 107 medical report containing his medical
evaluation. His diagnosis indicated Osborne suffered from low back
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pain, disc bulge, lumbar radiculopathy, groin pain, intractable
left leg pain, soft tissue injury in the lumbosacral area, back
spasms, bilateral leg sciatica and insomnia. Dr. Gilbert’s patient
history stated that Osborne “was working with some scaffolding and
slipped on something wet on the floor and as he fell caught himself
with his arms.
Since that time he has had terrible back pain that
goes down both legs but it is worse on the right than the left.”
He assessed Osborne with a 10% permanent whole body impairment
under the AMA Guidelines.
Dr. Gilbert further stated that Osborne
could not return to his previous employment and recommended that he
not lift weights more than 10 to 20 pounds; avoid bending, walking,
standing or sitting more than 30 minutes; and avoid climbing,
reaching, grasping or operating heavy equipment.
On December 3, 1999, Dr. Bart Goldman conducted an
extensive functional capacity evaluation and reviewed Osborne’s
medical records. As with the earlier FCE, Dr. Goldman believed the
results
revealed
magnification.
inconsistent
He
noted
that
effort
Dr.
indicating
Best’s
and
Dr.
symptom
Primm’s
evaluations contained no objective findings of significant injury
and most of the imaging studies were normal. Dr. Goldman disagreed
with Dr. Gilbert’s impairment assessment and felt Osborne could
return to work with a short period of temporary restrictions.
Osborne initially filed his application for resolution of
injury claim on April 26, 1999, listing the four above-noted
injuries.
In July 1999, an arbitrator found that any claim based
on the January 1997 injury was barred by the two-year statute of
-4-
limitations.1
functional
She also found there was insufficient evidence of
impairment
to
support
the
claim
for
compensation.
Osborne sought review by an Administrative Law Judge.
During the hearing before the ALJ, Osborne testified that
he had problems with pain, weakness and throbbing in his right
knee.
He also stated that he could not carry the 40-50 pound paint
buckets due to his knee and pain in his lower back.
Osborne said
that he could not stand or sit for more than 10-15 minutes because
of extreme pain in his back and groin areas.
He indicated that he
has constant pain and takes medication prescribed by Dr. Gilbert.
On March 30, 2000, the ALJ issued an opinion finding
Osborne to be permanently partially disabled based on an impairment
of 10% subject to enhancement under KRS 342.730(1)(c)1 because of
his inability to return to work as a painter.
The ALJ indicated
that
on
his
decision
was
predicated
primarily
Dr.
Gilbert’s
evaluation and the injury Osborne sustained in the motor vehicle
accident of July 16, 1998.
recovered
from
the
first
He stated that Osborne appeared to have
three
injuries.
The
ALJ
accepted
Osborne’s complaints of continuing symptoms from the July 1998
injury, but found that the evaluations of Drs. Best, Primm and
Goldman did not support a claim of permanent total disability.
On
April
13,
2000,
Cooper
filed
a
petition
for
reconsideration2 based, inter alia, on Dr. Gilbert’s Form 107 and
the ALJ’s focus on the July 1998 injury as the basis for the award.
Cooper asserted that Dr. Gilbert’s impairment rating as reflected
1
See Ky. Rev. Stat. (KRS) 342.185(1).
2
See KRS 342.281.
-5-
in the patient history in the Form 107 was not attributed to the
July 1998 incident.
It argued the ALJ’s erroneous reading of Dr.
Gilbert’s Form 107 medical report was subject to reconsideration
because the error was patent on the face of the opinion.3
On June 1, 2000, the ALJ accepted the petition for
reconsideration and issued an order denying Osborne’s claim for
compensation.
The ALJ noted in the order that he had found no
occupational disability resulting from the first three injuries and
that Dr. Gilbert’s Form 107 indicated that Osborne’s functional
impairment was attributable to an earlier injury, rather than the
July 1998 motor vehicle accident. Osborne appealed the decision to
the Workers’ Compensation Board.
In his brief before the Board, Osborne challenged the
petition
for
reconsideration
and
procedural and substantive grounds.
subsequent
order
on
both
He contended that the ALJ was
procedurally precluded from reconsidering the merits or changing
the factual findings of his original opinion on a petition for
reconsideration.4
He also maintained that the ALJ erred in finding
Dr. Gilbert’s functional impairment assessment did not include the
July 1998 injury.
Meanwhile, Cooper asserted that the ALJ’s
initial opinion was based on the mistaken belief that Dr. Gilbert’s
functional impairment was based on the July 1998 injury, and the
order on the petition for reconsideration corrected an erroneous
review of the record.
It noted that Dr. Gilbert’s Form 107
3
See Eaton Axle Corp. v. Nalley, Ky., 688 S.W.2d 334 (1985).
4
See Wells v. Beth Elkhorn Coal Corp., Ky., 708 S.W.2d 104
(1986).
-6-
referred to an incident involving a slip and fall rather than a
motor vehicle accident.
The Board rendered an opinion reversing and remanding the
ALJ’s order on petition for reconsideration.
It held that the ALJ
acted
for
properly
in
accepting
the
petition
reconsideration
because of the apparent discrepancy between Dr. Gilbert’s Form 107
and the ALJ’s initial findings concerning the first three injuries.
The Board felt the ALJ correctly concluded that he mistakenly
believed Dr. Gilbert’s functional impairment rating was based on
the July 1998 injury, rather than the June 1997 injury.
Nevertheless, the Board held that the case should be
remanded
to
the
ALJ
for
reconsideration
because
the
ALJ’s
misreading of Dr. Gilbert’s Form 107 potentially impacted his
initial finding that Osborne did not suffer from an impairment
caused by any of the first three injuries, as well as his finding
of impairment from the July 1998 injury.
The Board held that
Osborne, like Cooper, was entitled to a conclusion based on an
accurate interpretation of the evidence.
It further stated that a
review of the definitional provisions in KRS 342.0011 involving
“permanent partial disability,”5 “permanent impairment rating,”6 and
“permanent
disability rating,”7
indicated
that
if
there
is
a
permanent impairment rating pursuant to the AMA Guidelines which is
attributable to a claimed work-related injury, “then the worker is
entitled to an award for permanent partial disability pursuant to
5
KRS 342.0011(11)(b).
6
KRS 342.0011(35).
7
KRS 342.0011(36).
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KRS
342.730(1)(b)
even
if
the
ALJ
concludes
there
is
no
‘occupational disability.’” Thus, the Board construed the statutes
to require that Osborne be awarded compensation if the ALJ finds
that there “is an impairment rating attributable to any of the
claimed work-related injures.”
The Board concluded:
Therefore, we are compelled to reverse and remand the
decision of the ALJ to initially reconsider his factual
findings
based
upon
the
correct
understanding
and
interpretation of the report of Dr. Gilbert and, in the
event he concludes that the claimed injury which resulted
in that impairment has no impact upon the physical
capacity of Osborne to return to his prior work, an award
of 10% should be entered.
If, however, he concludes
after consideration of the report that while the injury
resulted
in
subsequently
no
immediate
limited
impact
Osborne’s
but
physical
the
injury
capacity
to
return to work at the same job, then the enhancer should
be used . . . .”
This appeal followed.
Cooper raises two issues on appeal. First, it challenges
the
Board’s
finding
that
the
case
should
be
reconsideration based on Dr. Gilbert’s evaluation.
remanded
for
Cooper states
there is no indication that the ALJ had not already performed such
an analysis in his review of the petition for reconsideration and
the Board did not identify anything in the order of reconsideration
to suggest this was not the case.
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We agree with the Board that a remand to the ALJ is
appropriate. As the Board noted, the ALJ initially relied upon Dr.
Gilbert’s
opinion
and
his
10%
impairment
rating
despite
the
contrary opinions of the other three physicians, and the otherwise
unremarkable objective medical studies.
An ALJ has discretion to
rely on the opinion of a single physician over conflicting opinions
by other physicians.8
The ALJ also found that the evidence
supported the conclusion that Osborne continued to have residual
medical
symptoms
and
difficulties.
Obviously,
Dr.
Gilbert’s
opinion and Osborne’s subjective testimony were major factors in
the decision.
Furthermore, as the Board noted, the ALJ’s finding that
any disability was related to the July 1998 motor vehicle accident,
and not any of the three prior injuries, was based on the absence
of an impairment being assigned or significant restrictions imposed
by any physician as a result of the earlier injuries, and Osborne’s
return to work after the earlier incidents.
The ALJ’s order on
reconsideration fails to explicitly indicate whether he took Dr.
Gilbert’s opinion into account in evaluating the June 1997 injury.
The ALJ’s failure to explain or attempt to rectify the apparent
conflict in the weight and credibility given to Dr. Gilbert’s
opinion in his two opinions justified the Board’s decision to
remand the case.9
8
See, e.g., Halls Hardwood Floor Co. v. Stapleton, Ky.
App., 16 S.W.3d 327 (2000).
9
See, e.g., Cook v. Paducah Recapping Service, Ky., 894
S.W.2d 684 (1985)(stating that the claimant was entitled to have
his claim decided on the basis of correct findings of basic fact).
-9-
Second, Cooper argues that the Board erred in requiring
that
a
minimum
10%
functional
impairment
rating
be
assigned
regardless of any vocational impact or occupational disability. It
asserts that given the conflicting medical opinions, the Board’s
ruling improperly substitutes its judgment for that of the ALJ.
We believe that Cooper misunderstands the Board’s action
and the scope of the remand.
The Board indicated that on remand,
the ALJ should re-evaluate Osborne’s disability status with respect
to the earlier injuries, primarily the June 1997 injury, in light
of the view that Dr. Gilbert’s opinion was not based solely on the
July 1998 injury.
As Cooper notes, credibility and weight of the
evidence is within the sole province of the ALJ as fact-finder.10
While we question the apparent focus in the statutes solely on
impairment as opposed to occupational disability for determining a
permanent partial disability,11 the 1996 amendments to KRS 342.730
clearly severely restrict an ALJ’s discretion when determining the
extent of a worker’s permanent partial disability.12
Under the
amendments, awards for permanent partial disability are a function
of the worker’s AMA impairment rating, the statutory multiplier for
that rating, and whether the worker can return to the pre-injury
10
Miller v. East Kentucky Beverage/Pepsico, Inc., Ky. App.,
951 S.W.2d 329, 331 (1997); Luttrell v. Cardinal Aluminum Co., Ky.
App., 909 S.W.2d 334, 336 (1995).
11
See, e.g., Newberg v. Weaver, Ky., 866 S.W.2d 435, 436
(1993)(stating the purpose and policy of the Workers’ Compensation
Act is to compensate disabled workers for the decrease in their
wage earning capacity resulting from injury caused by work).
12
Ira A. Watson Dept. Store v. Hamilton, Ky., 34 S.W.3d 48,
51 (2000); McNutt Construction/First General Services v. Scott,
Ky., 40 S.W.3d 854, 859 (2000).
-10-
employment.13
As the Board noted, the vocational impact of the
injury is relevant to the third factor under KRS 342.730(1)(c)
involving the post-injury type of work the worker can perform,
rather than the initial determination of a compensable permanent
partial disability under KRS 342.730(1)(b).
Nevertheless, the ALJ
retains discretion on determining whether a worker has sustained a
work-related impairment or injury in the first instance.
As the
court stated in the recent case of McNutt Construction/First
General Services v. Scott:
Although the [Workers’ Compensation] Act underwent
extensive revision in 1996, the ALJ remains in the role
of the fact-finder.
KRS 342.285(1).
It is among the
functions of the ALJ to translate the lay and medical
evidence
into
a
finding
of
occupational
disability.
Although the ALJ must necessarily consider the worker’s
medical condition when determining the extent of his
occupational disability at that particular point in time,
the ALJ is not required to rely upon the vocational
opinions of either the medical experts or the vocational
experts.
A worker’s testimony is competent evidence of
his physical condition and of his ability to perform
various activities both before and after being injured.14
13
Id.; KRS 342.730(1)(b) and (c).
14
McNutt, supra, n. 12, at 859-60 (citations omitted). See
also Ira A. Watson Dept. Store, supra, n. 12, at 52.
-11-
In
the
current
case,
Cooper
interprets
the
Board’s
opinion as mandating a minimum permanent partial disability award
based on a 10% functional impairment rating.
Although the opinion
is somewhat unclear, a review of the entire opinion indicates that
the Board did not find that Osborne was entitled to an award and
the ALJ is free to determine this issue in the first instance based
on a re-evaluation of Dr. Gilbert’s Form 107 medical report and the
other evidence.
The Board directed the ALJ to utilize the 10%
functional impairment rating only if the ALJ first decides that
Osborne has suffered a work-related functional impairment.
This
was based on the fact that Dr. Gilbert is the only physician to
assess a functional impairment rating and the ALJ had already
accepted Dr. Gilbert’s impairment rating in his initial opinion.
The error with respect to Dr. Gilbert’s Form 107 medical report
that justified reconsideration of the initial award did not involve
the level of the impairment or percentage amount of the rating, but
rather which injury caused the impairment. Consequently, we do not
believe the Board erred in stating that the ALJ should utilize the
10% functional impairment rating if he finds a permanent function
impairment.
The
function
of
the
Court
of
Appeals
in
reviewing
decisions of the Workers’ Compensation Board is to correct the
Board only when it has overlooked or misconstrued controlling law
or committed an error in assessing the evidence so flagrant as to
cause gross injustice.15
Cooper has not shown that the Board
15
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687-88 (1972); Huff Contracting v. Sark, Ky. App., 12 S.W.2d 704,
(continued...)
-12-
misconstrued
existing
law
or
committed
a
flagrant
error
in
assessing the evidence.
The opinion of the Workers’ Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Guillermo Carlos
James B. Cooper
BOEHL, STOPHER & GRAVES
Lexington, Kentucky
Effie L. Stidham
MORGAN, BAILEY & COLLINS
Hyden, Kentucky
15
(...continued)
707 (2000).
-13-
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