FREEDOM ENERGY MINING COMPANY v. PHILLIP A. ADAMS; HONORABLE RONALD E. JOHNSON, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 7, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001231-WC
FREEDOM ENERGY MINING COMPANY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-00-00769
v.
PHILLIP A. ADAMS; HONORABLE
RONALD E. JOHNSON, ADMINISTRATIVE
LAW JUDGE; WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, COMBS, AND DYCHE, JUDGES.
DYCHE, JUDGE.
Freedom Energy Mining Company petitions for review
of an opinion of the Workers’ Compensation Board which reversed
and remanded an opinion of the Administrative Law Judge denying
Phillip A. Adams’s claim for income benefits for temporary total
disability (TTD).
The sole issue for our review is whether the
Board substituted its judgment for that of the ALJ in assessing
the evidence.
The testimony which presents the problem in this case
is that of a Dr. Ronald Mann, who failed to say directly that
Adams had not “reached maximum medical improvement” from his
injury, and had not reached the “level of improvement that would
permit a return to employment.”
KRS 342.0011(11)(a).
Dr. Mann
did say that Adams was undergoing a work-hardening treatment, at
the conclusion of which he should be able to return to work, and
that someone in his office might have given Adams a return-towork slip at Adams’s request.
He further detailed Adams’s
symptoms and the limitations which his injuries place upon him.
The ALJ found that there was “no medical testimony that
the plaintiff [is] in fact temporar[ily]. . . disabled . . . .”
The Board characterized this as a misinterpretation of Dr. Mann’s
testimony, which it admitted “might be subject to a number of
interpretations . . . .
Unfortunately, the ALJ does not appear
to be drawing an inference[,] but states rather there is no
medical testimony that Adams was off work upon the advice of a
physician.”
The Board then credited the ALJ with a thorough job
sifting through the evidence, but remanded the case for further
findings on the TTD issue.
While Adams might not prevail based upon the gelatinous
testimony of Dr. Mann, we agree with the Board that further
review by the fact finder is justified.
Then a more enlightened
review of the ALJ’s decision may be accomplished.
The opinion of
the Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE ADAMS:
A. Stuart Bennett
Lexington, Kentucky
Miller Kent Carter
Pikeville, Kentucky
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