THE HAMILTON-RYKER COMPANY, INC. v. BRENDA TALBOTT; DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD
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RENDERED:
OCTOBER 25, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000750-WC
THE HAMILTON-RYKER COMPANY, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 98-WC-01033
v.
BRENDA TALBOTT; DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE; WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; DYCHE AND HUDDLESTON, JUDGES.
DYCHE, JUDGE:
The Hamilton-Ryker Company petitions for review
from an opinion of the Workers’ Compensation Board affirming an
award of permanent partial disability (PPD) benefits and
temporary total disability (TTD) benefits to Brenda Talbott.
In June 1998, Talbott filed a claim for workers’
compensation benefits, alleging that she had sustained workrelated injuries to her right hand and arm during her employment
with Hamilton-Ryker, an employment staffing agency.1
1
Talbott
In recounting the early history of the case, we rely
(continued...)
began working for Hamilton-Ryker on September 17, 1997, and she
was given a job assignment at a toy manufacturer in Murray,
Kentucky.
She was placed on a production line scraping excess
plastic off the toys.
Talbott stated in her deposition that
after working her first twelve-hour shift she began experiencing
pain in her right arm.
She informed her supervisor about the
condition of her hand and was assigned to a new job.
However,
Talbott was subsequently placed back on the production line
scraping off excess plastic, and she continued to experience pain
in her right arm.
It appears from the record that Talbott worked
approximately two or three twelve-hour shifts on the production
line before ceasing to work on September 28, 1997.
On June 4, 1998, Talbott filed a claim for workers’
compensation benefits, alleging that she had sustained a workrelated injury to her right arm while working for Hamilton-Ryker
on the production line.
On March 19, 1999, the Administrative
Law Judge (ALJ) rendered his decision finding that Talbott had a
3% occupational disability and awarding her PPD benefits.
Talbott filed a petition for reconsideration with the ALJ, asking
the ALJ to reconsider his decision not to award her TTD benefits.
On April 16, 1999, the ALJ entered an order denying her petition,
stating that the issue of TTD benefits had not been raised and
that the evidence did not support such an award.
Subsequently,
Hamilton-Ryker and Talbott both appealed the ALJ’s decision to
the Board.
1
(...continued)
extensively upon this Court’s opinion and order in Case No. 1999CA-002702-WC, rendered September 8, 2000.
-2-
On October 8, 1999, the Board rendered an opinion
reversing and remanding the case to the ALJ for additional
findings of fact to support his conclusions that Talbott’s injury
was work-related and that she was not entitled to TTD benefits.
The Board determined that the ALJ had failed to set forth
sufficient reasoning to support his conclusions.
In addition,
the Board determined that Talbott’s request for TTD benefits was
preserved.
The Board did not address the substantive merits of
the case but directed the ALJ on remand to “provide additional
findings of fact to support his conclusions as they relate to
work-relatedness/causation and the entitlement to temporary total
disability benefits.”
Hamilton-Ryker subsequently filed an appeal with this
Court contending that the Board erred in remanding the case to
the ALJ to make additional findings of fact to support his
conclusions.
Hamilton-Ryker argued that the Board should have
reversed the ALJ’s award of PPD benefits to Talbott on the ground
that there was simply no medical evidence to support the
conclusion that her injury was work-related and that the evidence
did not support an award of TTD benefits.
On September 8, 2000, this Court rendered an opinion
dismissing the appeal as interlocutory.
The opinion and order
noted that, on remand, the ALJ’s task was not to take new
evidence or alter his original decision but, rather, was to
provide adequate findings in support of his original award.
opinion further noted that, following the entry of the ALJ’s
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The
findings, presumably the Board would then review the case in
light of the additional findings.
Unfortunately, on remand, the ALJ did not comply with
his task of setting forth findings of fact as mandated by the
Board’s opinion of October 8, 1999, and in this Court’s September
8, 2000, opinion and order.
Instead, on January 4, 2001, the ALJ
entered an order which purported to reverse his original award of
PPD benefits on the basis that Talbott had “failed to show her
condition was causally related to her repetitive work
activities.”
The order also purported to dismiss the PPD claim.
The ALJ also failed to make findings regarding TTD issues,
stating that “the remaining issue regarding entitlement to
temporary total disability benefits is rendered moot and will not
be discussed further herein.”
Thus, Talbott again appealed to the Board.
On June 6,
2001, the Board entered an order again remanding the case to the
ALJ.
The opinion noted that the ALJ had not complied with the
mandate on initial remand to make findings of fact, and had
improperly disregarded the unambiguous expression of this Court
that the ALJ was precluded from altering his opinion on remand.
Upon the second remand, the Board charged the ALJ with “the
responsibility of a detailed analysis of the facts,” and noted
that “detailed findings of fact are required in order to give due
deference to the opinion of the Kentucky Court of Appeals.”
Following the second remand, on August 30, 2001, the
ALJ finally entered an order complying with his mandate to enter
-4-
findings supporting his original award of PPD benefits.2
However, apparently still not understanding the prior appellate
decisions, rather than merely setting forth the findings of fact
in support of his original denial of TTD benefits, the ALJ
purported to reverse his original decision concerning TTD
benefits and awarded Talbott TTD benefits.
Hamilton-Ryker then
filed the third appeal in the case to the Board.
On March 13, 2002, the Board entered an opinion which
had the effect of affirming an award of PPD benefits and TTD
benefits.
This petition for review followed.
First, Hamilton-Ryker contends that the ALJ was barred
on the second remand from making an award for TTD benefits on the
basis that (1) in his order of April 16, 1999, denying Talbott’s
motion for reconsideration, the ALJ stated, “TTD was never raised
as an issue and the medical evidence fails to support that
award”; (2) the claim was dismissed upon the first remand in the
ALJ’s order of January 4, 2001; and (3) this Court’s opinion and
order of September 8, 2000, precluded the ALJ from changing his
decision on remand.
The ALJ’s April 16, 1999, order stating that the TTD
issue was not preserved and was not supported by medical evidence
was reversed and superceded by the Board’s opinion of October 8,
1999.
We agree with the Board that the TTD issue was preserved
as the issue was encompassed within the overall issue of extent
2
Apparently under the impression that his order of January
4, 2001, had denied and dismissed the original PPD award, the
order stated, “[T]he Plaintiff’s condition is once again found to
be compensable and causally related to her work with DefendantEmployer.”
-5-
and duration of Talbott’s occupational disability.
Similarly,
the ALJ’s order of January 4, 2001, purporting to dismiss the TTD
issue as moot was reversed by the Board’s order of June 6, 2001.
In addition, the purported dismissal violated the law of the case
by not complying with the appellate decisions directing the ALJ
to go no further than to make findings of fact on remand.
that reason as well the dismissal was invalid.
For
See E'town
Shopping Center, Inc. v. Holbert, Ky., 452 S.W.2d 396, 397
(1970); Siler v. Williford, Ky., 375 S.W.2d 262, 263 (1964);
City of Lexington v. Garner, Ky., 329 S.W.2d 54, 55 (1959); and
H.R. ex rel. Taylor v. Revlett, Ky. App., 998 S.W.2d 778, 780
(1999).
We agree with Hamilton-Ryker, however, that pursuant to
the law of the case as established in this Court’s opinion and
order of September 8, 2000, the ALJ was not entitled to change
his decision regarding TTD benefits (or PPD benefits) on remand.
We agree with Hamilton-Ryker on this point, and we will disregard
the ALJ’s August 30, 2001, order to the extent that it purports
to make an award for TTD benefits.
The ALJ’s August 30, 2001,
findings of fact, however, will be reviewed pursuant to the
normal standards.
Based upon the foregoing unraveling of procedural
matters, with respect to TTD benefits, the procedural posture is
as follows.
Based upon the law of the case, the ALJ’s original
denial of TTD benefits on the basis that “the medical evidence
fails to support that award” is the decision presented for our
review, not the ALJ’s award of TTD benefits in his August 30,
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2001, order.
We are disregarding the award of TTD benefits in
the August 30, 2001, order.
However, for purposes of reviewing
the original denial, we do so with reference to the findings of
fact made by the ALJ in his August 30, 2001, order.
Our standard
of review will be under the normal principles where the party
with the burden of proof was unsuccessful before the ALJ.3
In
such cases, the issue on appeal is whether the evidence compels a
finding in his favor.
Paramount Foods, Inc. v. Burkhardt, Ky.,
695 S.W.2d 418, 419 (1985);
Daniel v. Armco Steel Co., L.P., Ky.
App., 913 S.W.2d 797, 800 (1995).
To be compelling, evidence
must be 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, 226 (1985).
In his order of August 30, 2001, the ALJ made the
following findings regarding TTD benefits:
[T]he Plaintiff is entitled to temporary
total disability benefits from September 18,
1997 to December 1997 at the rate of $178.92
per week (based upon the stipulated average
weekly wage of $268.38). This Administrative
Law Judge again found the Plaintiff’s
testimony to be credible regarding the
alleged onset of her symptoms while at work
and her inability to perform those workrelated activities thereafter. Dr. Charette
specifically took the Plaintiff off work on
October 13, 1997. He recommended the
Plaintiff have work hardening in December
1997. This indicates to the Administrative
3
Contrary to our disposition of the issue, the Board
recognized the ALJ’s award of TDD benefits in his August 30,
2001, order. The Board accordingly applied the test applicable
if an applicant is successful before the ALJ. Pursuant to the
law of the case doctrine and this Court’s opinion and order of
September 8, 2000, the Board should not have recognized the ALJ’s
award of TTD benefits. While we disagree with the Board’s
approach, in the end, we reach the same conclusion.
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Law Judge that the Plaintiff could return to
light duty work thereafter. This finding of
temporary total disability awarded to the
Plaintiff is based upon the persuasive
testimony of Dr. Charette in this matter.
The fact-finder, the ALJ, rather than the reviewing
court, has the sole discretion to determine the weight,
credibility, quality, character, and substance of evidence and
the inference to be drawn from the evidence.
Paramount Foods,
Inc. v. Burkhardt, supra, at 419.
The ALJ has the discretion to
choose whom and what to believe.
Addington Resources, Inc. v.
Perkins, Ky. App., 947 S.W.2d 421, 422 (1997).
The ALJ may
reject any testimony and believe or disbelieve various parts of
the evidence, regardless of whether it came from the same witness
or the same adversary party's total proof.
Caudill v. Maloney's
Discount Stores, Ky., 560 S.W.2d 15, 16 (1977).
Although a party
may note evidence which would have supported a conclusion
contrary to the ALJ's decision, such evidence is not an adequate
basis for reversal on appeal.
Ky., 514 S.W.2d 46 (1974).
McCloud v. Beth-Elkhorn Corp.,
In instances where the medical
evidence is conflicting, the sole authority to determine which
witness to believe resides with the ALJ.
Pruitt v. Bugg
Brothers, Ky., 547 S.W.2d 123, 124 (1977).
"Temporary total disability" means the condition of an
employee who has not reached maximum medical improvement from an
injury and has not reached a level of improvement that would
permit a return to employment.
KRS 342.0011(11)(a).
Awards of
TTD benefits are appropriate when a worker is totally disabled by
the effects of a compensable injury but has not yet reached
-8-
maximum medical improvement.
62 S.W.3d 396, 397-398 (2001).
Clemco Fabricators v. Becker, Ky.,
TTD is payable until the medical
evidence establishes the recovery process, including any
treatment reasonably rendered in an effort to improve the
claimant's condition, is over, or the underlying condition has
stabilized such that the claimant is capable of returning to his
job, or some other employment, of which he is capable, which is
available in the local labor market.
W.L. Harper Construction
Company, Inc. v. Baker, Ky. App., 858 S.W.2d 202, 205 (1993);
accord Halls Hardwood Floor Co. v. Stapleton, Ky. App., 16 S.W.3d
327, 329 (2000).
In his finding of facts, the ALJ recited that he found
Talbott’s testimony to be credible regarding the alleged onset of
her symptoms while at work and her inability to perform those
work-related activities thereafter.
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.
Hush v. Abrams, Ky., 584 S.W.2d 48 (1979).
The ALJ
further specifically accepted the medical findings of Dr.
Charette regarding the matter.
The record discloses that
September 18, 1997, was the date that Talbott stopped work due to
her injury.
Dr. Charette’s office notes of October 13, 1997, and
October 27, 1997, kept Talbott off work.
Dr. Charette’s office
note of November 10, 1997, documented continuing problems and
recommended a neurology consultation with EMG.
His office note
of December 23, 1997, referred Talbott to work hardening.
-9-
While the ALJ’s initial order of March 19, 1999,
initially found that the medical evidence did not support an
award for TTD, based upon the findings as set forth in the order
of August 30, 2001, we are persuaded that the medical evidence
compels a finding that Talbott is entitled to TTD benefits.
Talbott was off work beginning September 18, 1997, and was not
released to return to work until December 23, 1997.
Dr.
Charette’s medical records document Talbott’s injury and his
recommendation that she remain off work.
Talbott’s testimony,
which the ALJ found to be credible, establishes her symptoms and
when and how they originated.
Based upon Talbott’s credible
testimony and the medical reports of Dr. Charette, the evidence
is so overwhelming that no reasonable person could reach the
conclusion that Talbott was not entitled to TTD benefits.
Hamilton-Ryker also contends that the TTD award is
flawed in that the ALJ failed to specify a termination date for
TTD benefits.
The Board addressed this issue as follows:
The only other question is that the ALJ
failed to identify a specific date in
December of 1997 when temporary total
disability benefits would terminate.
Although as a general rule this would
constitute a fact finding obligation, since
this matter has already been twice remanded
to the ALJ, we would simply note that he
relied upon the evidence from Dr. Raymond
Charette and the only date in December upon
which one could rely from Dr. Charette’s note
as an appropriate date for termination of
temporary total disability benefits is his
note of December 23, 1997. That is the date
on which temporary total disability benefits
should terminate.
We agree with the Board.
While the specific TTD
termination date would normally be a matter subject to the ALJ’s
-10-
findings of fact, the record discloses that the ALJ could only
have intended for December 23, 1997, to be the termination date.
Therefore, for purposes of judicial economy, we affirm the
Board’s determination that Talbott is entitled to TTD benefits
and that the proper termination date for TTD benefits is December
23, 1997.
Next Hamilton-Ryker contends (1) that Talbott’s claims
for PPD benefits are effectively dismissed and barred from
further consideration on the basis that the ALJ failed to make an
award in his order of January 4, 2001, upon the initial remand;
(2) that the PPD and the claims were previously dismissed in
their entirety in the January 4, 2001, order upon the initial
remand; and (3) that there was a lack of substantial evidence of
probative value to support any award for permanent partial
disability benefits and/or medical benefits.
As previously noted in our discussion of TTD benefits,
the January 4, 2001, ALJ order is of no consequence because, to
the extent that it purported to do anything more than make
findings of fact, it violated the law of the case and, further,
the order was reversed by the Board’s opinion of June 6, 2001.
Hamilton-Ryker’s attempted reliance on the ALJ’s order of January
4, 2001, is without merit.
Applying the same principles as set forth in our
discussion of TTD benefits, the procedural posture of the case
requires us to review the ALJ’s award of PPD benefits in his
March 19, 1999, order in light of his findings of fact as set
forth in his August 30, 2001, order.
-11-
Since the ALJ resolved the
PPD issue in favor of Talbott, who had the burden of proof on the
issue, the question on appeal is whether substantial evidence in
the record supported the decision.
Wolf Creek Collieries v.
Crum, Ky. App., 673 S.W.2d 735 (1984).
Substantial evidence is
evidence of relevant consequence having the fitness to induce
conviction in the minds of reasonable people.
Smyzer v. B.F.
Goodrich Chemical Co., Ky., 474 S.W.2d 367 (1971).
With
reference to PPD issues, the ALJ’s order of August 30, 2001,
found as follows:
. . . The Administrative Law Judge again
finds the Plaintiff’s testimony to be
credible regarding her symptoms and when and
how they originated. Plaintiff’s employment
for the Defendant-Employer included twelvehour workdays in which she scraped excess
plastic off toys. These repetitive
activities included scraping approximately
270 to 285 toys in a shift. Plaintiff
developed severe pain from her right hand
radiating up the right upper extremity to the
shoulder while on the job. When she reported
these problems to her supervisor, she was
taken to the doctor’s office with her boss.
Although Dr. Love did not specifically state
causation was due to her employment, the
history on which he relied in treating the
Plaintiff included repetitive tasks for the
Defendant-Employer at the time her symptoms
began. The Administrative Law Judge is
allowed to draw inferences from the record
based upon the totality of the circumstances
under Union Underwear, Inc. v. Scearce, Ky.,
896 S.W.2d 7 (1995). Therefore the
Plaintiff’s condition is once again found to
be compensable and causally related to her
work with the Defendant-Employer. The
Plaintiff further testified that she had no
problems with her right hand or arm in the
past. Plaintiff’s history to Dr. Charette
and the Morgan-Hough Clinic included
histories of symptomology beginning following
Plaintiff’s performing work activities. Dr.
Charette specifically indicated the work
activities involved removing excess plastic
in the molding department.
-12-
Again, the ALJ, rather than the reviewing court, has
the sole discretion to determine the weight, credibility,
quality, character, and substance of evidence and the inference
to be drawn from the evidence.
Paramount Foods, Inc., supra.
We have reviewed the testimony of Talbott and the medical records
filed by Dr. Charette.
Based upon our review of the evidence, we
are persuaded that there is substantial evidence in the record to
support the ALJ’s original award based upon a 3% occupational
disability.
The opinion of the Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE TALBOTT:
Bradley D. Harville
Louisville, Kentucky
Rodger W. Lofton
Paducah, Kentucky
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