HUNTINGTON BANKS v. EARLEEN HAYNES; LLOYD R. EDENS, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: JULY 27, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000106-WC
HUNTINGTON BANKS
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-68584
v.
EARLEEN HAYNES; LLOYD R. EDENS,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; COMBS and JOHNSON, Judges.
COMBS, JUDGE:
Huntington Banks (“Huntington”) appeals from a
decision of the Workers’ Compensation Board (“Board”) affirming
an opinion, order, and award rendered by the Hon. Lloyd R. Edens,
Administrative Law Judge (“ALJ”).
Applying the “whole man”
theory, the ALJ found Earleen Haynes (“Haynes”) to be totally
occupationally disabled due to an injury that she sustained while
she was employed by Huntington as a branch manager.
After
reviewing the record on appeal, we find no error and affirm.
Haynes testified that on March 10, 1997, after
finishing a discussion with her area manager, she was leaving her
office when her heel caught on a chair mat and she fell.
She was
taken by ambulance to a hospital where she was treated and
released.
The next day, Haynes saw her family physician, Dr.
Gary Shearer, who referred her to Dr. John Schmitz.
Dr. Schmitz,
in turn, referred her to Dr. Lee Greiner, who ultimately
performed lower back surgery on Haynes in November 1997.
Haynes
testified that she has not returned to work since her surgery and
that she suffers from lower back pain, right leg pain, numbness,
and depression.
She also indicated that she has difficulty
walking and must use a cane or walker for support.
Haynes
further testified that she has a history of lower back problems
that goes back to 1991.
Prior to the incident of March 10, 1997,
Haynes had undergone four (4) surgeries to her lower back.
She
testified, however, that none of these surgeries had ever had any
impact on her ability to work.
The evidence in the record concerning Haynes’s physical
condition consists of:
the deposition and records of Dr.
Shearer, a family practitioner; the deposition and records of Dr.
Robert Jacob, an evaluating orthopedic surgeon; records from Drs.
Greiner and Hwa-Shain Yen, both neurosurgeons; records from Dr.
Kendall Hansen, a pain specialist; records from Dr. Schmitz, an
orthopedic surgeon; and records from St. Elizabeth’s Hospital,
Associates in Primary Care, the Kentucky Diagnostic Center, and
Mayfield Neurological Institute, Inc.
From among these items of
evidence, we have focused primarily upon the depositions and
records of Drs. Shearer and Jacob.
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Dr. Shearer testified that he had been Haynes’s family
physician since March 22, 1991, and that he had examined her on
March 12, 1997 — two days following the incident in question.
He
also testified that prior to her fall, Haynes had undergone four
lower back surgeries and that she had an active symptomatic
condition.
However, he believed that this condition had no
effect on her ability to work regularly at her job.
Dr. Shearer
further indicated that the injuries suffered by Haynes as the
result of her fall — in particular, a recurrent herniated disk —
exacerbated her condition to the point that she could not return
to work.
He diagnosed her condition as continued chronic back
pain due to injury, multiple surgeries, and scar tissue.
He also
noted that Haynes had experienced extreme muscle spasms
immediately prior to her injury but that since the fall, the
spasms had worsened and rendered her back rigidly straight and
firm.
Dr. Shearer assigned Haynes a 48% permanent functional
impairment and explained that the American Medical Association
(“AMA”) Guides did not fully reflect her condition because of the
extreme pain and chronic spasms from which she suffered.
He
attributed 50% of the impairment to Haynes’s pre-existing active
condition and the other 50% to the injuries that she sustained as
the result of her fall.
Dr. Shearer ultimately concluded that
Haynes could do no more than take care of her personal needs and
that she could not return to work.
On cross-examination, Dr.
Shearer testified that without the pre-existing active condition,
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the incident of March 10, 1997 would not have physically disabled
Haynes.
Dr. Jacob testified that he had performed an
independent medical examination of Haynes on June 24, 1998.
He
assigned her a 10% permanent functional impairment for
radiculopathy under the AMA Guides and opined that this
impairment pre-existed the injury due to her fall.
Dr. Jacob
further testified that he believed that Haynes was capable of
working in a sedentary capacity.
On cross-examination, Dr. Jacob
admitted that Haynes apparently had been able to perform all of
her duties at work prior to March 10, 1997.
The evidence in the record concerning Haynes’s
psychological condition consists of the depositions and records
of Dr. Robert Granacher, a psychiatrist, and Dr. Thomas McCann, a
clinical psychologist.
Dr. Granacher testified that he examined
Haynes on January 7, 1998.
He opined that she suffered from a
mild degree of major depression and a pain disorder.
Dr.
Granacher assigned Haynes a 15% functional impairment due to
these impairments with 50% of this impairment attributable to
physical conditions and the other 50% attributable to
exaggeration of her mental state.
Dr. McCann testified that he examined Haynes on January
6, 2000.
Based on this examination, he opined that Haynes
suffered from a severe reactive depression that was linked very
closely to her physical condition.
Dr. McCann further testified
that her psychological condition was caused or aggravated by the
March 10, 1997 incident because of the physical limitations it
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placed on her ability to work.
He ultimately assigned Haynes a
Class IV functional impairment.
The ALJ rendered an opinion and order on June 16, 2000,
finding that Haynes was totally occupationally disabled.
reasoning for his decision reads — in pertinent part — as
follows:
KRS 342.0011[(11)](c) defines permanent
total disability 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....” KRS 342.0011(34) defines work as
“... providing services to another in return
for remuneration on a regular and sustained
basis in a competitive economy.”
In this instance, I am persuaded that
the Plaintiff is permanently and totally
disabled under the above definition. I am
further persuaded by the opinion of Dr.
Shearer that the Plaintiff had a prior active
nonwork-related functional impairment. Dr.
Shearer was, however, also of the opinion
that she was able to perform her job prior to
the injury of March 10, 1997 but following
the injury could do no more than take care of
her personal needs. Ms. Haynes had worked
for the Respondent/Employer since 1978 and
had progressed to her position of branch
manager prior to her March 10, 1997 injury.
I am, therefore, persuaded by the Plaintiff’s
testimony and the opinion of Dr. Shearer, in
conjunction with the findings of Dr. Greiner,
who performed the Plaintiff’s surgery
following the March 10, 1997 incident, as
well as the opinions of Drs. Granacher and
McCann that the March 10, 1997 incident, by
itself, has rendered the Plaintiff
permanently and totally disabled. Pursuant
to the “whole man” theory as set forth in
International Harvest v. Poff, Ky., 331
S.W.2d 712 (1959) the Plaintiff shall be
entitled to benefits for permanent total
disability beginning March 10, 1997, and
continuing for so long thereafter as she
shall remain disabled, with said benefits to
terminate as of the date she qualifies for
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His
normal old-age Social Security Retirement
benefits under 42 USC § 301 to 1398(f).
Subsequently, Huntington filed a Petition for Reconsideration,
taking issue with a number of the ALJ’s factual findings and
legal conclusions.
On July 27, 2000, this petition was denied,
and Huntington appealed to the Workers’ Compensation Board.
appeal, the Board affirmed.
On
This appeal followed.
Huntington’s sole contention before this court is that
the facts of this case did not justify the application of the
“whole man” theory enunciated in International Harvester v. Poff,
supra.
Huntington does not challenge the ALJ’s conclusion that
Haynes was totally disabled.
Instead, it argues that the
evidence clearly indicated that Haynes’s disability was not
caused solely by the March 10, 1997, incident but that it was
caused by a combination of that episode and Haynes’s prior active
condition.
Accordingly, Huntington submits that an award of
total disability benefits was inappropriate.
This same argument
was raised before the Board, and we cannot say that in addressing
this issue the Board “overlooked or misconstrued controlling
statutes or precedent, or committed an error in assessing the
evidence so flagrant as to cause gross injustice.”
Western
Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992).
After our review, we adopt the Board’s well-reasoned opinion as
our own:
In [Ira A. Watson Department Store v.
Hamilton, Ky., 34 S.W.3d 48 (2000)] the
[Kentucky] Supreme Court ruled that pursuant
to the 1996 amendments to KRS 342.730, awards
for permanent partial disability are a
function of the worker’s AMA Guides
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impairment rating, the statutory multiplier
for that rating, and whether the worker is
capable of returning to his pre-injury
employment. In such instances, the ALJ has
very limited discretion when determining the
extent of a worker’s permanent partial
disability. See, KRS 342.730(1)(b) and (c)1.
However, the Court further determined that
whether a particular worker has sustained a
partial or total disability, as defined by
KRS 342.0011(11), clearly requires a weighing
of the evidence concerning whether the worker
will be able to earn income by providing
services on a regular and sustained basis in
a competitive economy. For that reason, the
Court concluded that some of the principles
established in the landmark decision of
Osborne v. Johnson, Ky., 432 S.W.2d 800
(1968), remain viable when determining
whether a worker’s occupational disability is
partial or total. In fact, the Court
specifically stated, in relevant part, as
follows:
An analysis of the factors set forth
in KRS 342.0011(11)(b), (11)(c), and
(34) clearly requires an individualized
determination of what the worker is and
is not able to do after recovering from
the work injury. Consistent with
Osborne v. Johnson, supra, it
necessarily includes a consideration of
factors such as the worker’s post-injury
physical, emotional, intellectual, and
vocational status and how those factors
interact. It also includes [a]
consideration of the likelihood that the
particular worker would be able to find
work consistently under normal
employment conditions. A worker’s
ability to do so [is] affected by
factors such as whether the individual
will be able to work dependably and
whether the worker’s physical
restrictions will interfere with
vocational capabilities. The definition
of “work” clearly contemplates that a
worker is not required to be homebound
in order to be found to be totally
occupationally disabled. See, Osborne v.
Johnson, supra, at 803.
Although the Act underwent extensive
revision in 1996, the ALJ remains in the
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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.[...]
Hence, although functional impairment
ratings and how they are apportioned,
absolutely control the structuring of awards
in permanent partial disability situations,
total disability awards are another matter.
In total disability situations, the standard
remains purely one of “occupational
disability,” as defined in Osborne v.
Johnson, supra, and its progeny. Therefore,
as correctly addressed by the ALJ below, the
question was not whether Haynes had any prior
active functional impairment, but whether she
was suffering from any prior active
occupational disability as a result of that
functional impairment.
Active disability is defined as the
degree of occupational disability that
existed immediately prior to the subsequent
injury without regard to the effects of the
subsequent injury. Griffin v. Booth Memorial
Hosp., Ky., 467 S.W.2d 789 (1971) and Wells
v. Bunch, Ky., 692 S.W.2d 806 (1985). Thus,
prior active disability must be measured as a
decrease in wage earning capacity due to
injury or loss of ability to compete
considering the claimant’s customary
occupation, age, and education. Under the
“whole man” doctrine, if a work-related
injury, in and of itself, is sufficient to
render the claimant totally occupationally
disabled without regard to the pre-existing
active disability, the claimant is entitled
to be awarded benefits, as here, for
permanent total occupational disability with
no offset for pre-existing active disability.
Schneider v. Putnam, Ky., 579 S.W.2d 370
(1970).
Contrary to the assertions of
Huntington, therefore, since the Osborne,
supra, occupational disability standard
remains applicable to total permanent
occupational disability situations, an
Administrative Law Judge also retains the
discretion in such claims to apply the “whole
man” doctrine enunciated in International
Harvester v. Poff, supra.
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As the parties are well aware, in a
workers’ compensation claim, the worker bears
the burden of proving each of the essential
elements of her cause of action. Snawder v.
Stice, Ky. App., 576 S.W.2d 276 (1979).
However, the burden of proving the existence
of a pre-existing active occupational
disability falls upon the defendants.
Therefore, the issue before us is whether the
evidence compels a finding of prior active
occupational disability. Compelling evidence
is defined as evidence which is so
overwhelming that no reasonable person could
reach the same conclusion as the ALJ. REO
Mechanical v. Barnes, Ky. App., 691 S.W.2d
224 (1985). So long as the ALJ’s opinion is
supported by any evidence of substance, we
must affirm. Special Fund v. Francis, Ky.,
708 S.W.2d 641 (1986).
The ALJ concluded that pursuant to Dr.
Shearer’s opinion, Haynes had a prior active
nonwork-related functional impairment.
However, the ALJ properly did not equate this
with any prior active occupational
disability, also based on Dr. Shearer’s
opinion, along with Haynes’ own testimony
that she could perform all of her job duties
prior to the March 10, 1997 injury. In our
view, this evidence is more than sufficient
to support the ALJ’s ultimate holding.
In conclusion, the presence of preexisting active disability remains an
occupational determination rather than a
medical determination in total disability
determinations. We find nothing in the
modification of the Kentucky Workers’
Compensation Act that occurred on or after
December 12, 1996, that indicates otherwise,
especially in light of Ira A. Watson
Department Store v. Hamilton, supra. While
the existence of a pre-existing impairment
may constitute evidence that would support a
finding of pre-existing active disability,
such a finding is not mandated under the
facts of this case. Seventh Street Road
Tobacco Wrhse. [v.] Stillwell, Ky., 550
S.W.2d 469 (1976) and Wells v. Bunch, supra.
In the case sub judice, the ALJ relied on the
evidence from Haynes and Dr. Shearer that
although Haynes had undergone prior back
surgeries, she was fully capable of
performing her job as a bank manager. Hush v.
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Abrams, Ky., 584 S.W.2d 48 (1979). We are,
therefore, without authority to find
otherwise. Special Fund v. Francis, supra.
Accordingly, the decision of the Workers’ Compensation
Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE EARLEEN
HAYNES:
H. Douglas Jones
Kenneth J. Dietz
Florence, KY
Curtis H. Hatfield
Covington, KY
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