MARK GARNETT v. CALVARY COAL COMPANY, INC. HON. R. SCOTT BORDERS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: JUNE 10, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2004-CA-001154-WC
MARK GARNETT
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. 02-WC-65168
CALVARY COAL COMPANY, INC.
HON. R. SCOTT BORDERS, ADMINISTRATIVE
LAW JUDGE; AND WORKERS’ COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: BUCKINGHAM, JOHNSON, AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Mark Garnett has petitioned this Court for
review of an opinion of the Workers’ Compensation Board vacating
and remanding an opinion, order, and award by the Administrative
Law Judge which determined that Garnett was totally disabled as
a result of a work-related accident and awarded him
corresponding workers’ compensation benefits.
The Board vacated
and remanded the case because the ALJ’s decision was based, in
part, on his mistaken belief that Garnett’s hand injury was to
his dominant hand, when, in fact, the injury was to his
nondominant hand.
Having concluded that the Board correctly
determined that the ALJ’s decision was based, at least in part,
upon a misconception which could possibly affect the outcome of
the award, we affirm.
On November 15, 2002, while in the employ of Calvary
Coal Company, Inc., Garnett was operating a scoop to clean a
coal feeder and push shuttle cars.
An acetylene tank had been
left in the scoop bucket, and when Garnett pushed the bucket
into the feeder the tank was crushed and exploded.
As a result,
Garnett suffered burns to his face and right hand.
Garnett also
suffered psychological injuries as a result of the accident.
Garnett has not returned to work since the accident.
On March 26, 2003, Garnett filed an Application for
Resolution of Injury Claim with the Department of Workers’
Claims.
Following discovery and an evidentiary hearing, on
November 25, 2003, the ALJ issued an opinion, order, and award
wherein he determined Garnett to be permanently and totally
occupationally disabled.
The ALJ awarded corresponding total
occupational disability benefits to Garnett.
Calvary Coal subsequently filed a motion for
reconsideration.
In its motion, among other things, Calvary
Coal asserted that Dr. Talmage Hays’s 15% impairment rating to
the body as a whole based on Garnett’s hand injury was the
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result of the mistaken premise that Garnett’s hand injury was to
his dominant hand when, in fact, the injury was to his
nondominant hand.
In making his decision dated November 25,
2003, the ALJ relied upon this erroneous impairment rating.
On
December 30, 2004, the ALJ entered an order denying the motion
for reconsideration.
Calvary Coal subsequently appealed the decision to the
Board.
On May 17, 2004, the Board entered an opinion vacating
and remanding the case to the ALJ because the ALJ’s decision was
based, in part, upon the misconception that Garnett’s injury was
to his dominant hand, when the injury was actually to his
nondominant hand.
This petition for review followed.
In its May 17, 2004, opinion, the Board stated, in
relevant part, as follows:
Calvary also argues the ALJ abused his
discretion by relying on the 15% impairment
rating assessed by Dr. Hays for injury to
Garnett’s right hand because Dr. Hays
mistakenly thought Garnett’s right hand was
Garnett’s dominate [sic] hand. Calvary
notes that Garnett testified that he is
left-handed. Calvary argues Table 13-22 of
the AMA Guides does not allow for a 15%
rating for a non-dominant hand. Calvary
believes that because the 15% rating is
erroneous, it cannot be relied upon by the
ALJ to enter an award of permanent
disability benefits. . . .
Since December 12, 1996, it has been
axiomatic that before there is an award of
permanent partial disability benefits or
permanent total disability benefits, an
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injured worker must first establish a
permanent impairment rating as the
foundation for a permanent disability
rating. Ira A. Watson Department Stores v.
Hamilton, [34 S.W.3d 48 (Ky. 2000)]. KRS
342.0011(36) defines permanent disability
rating as the permanent impairment rating
selected by an administrative law judge
times the factor set forth in the table that
appears at KRS 342.730(1)(b).
The record in Garnett’s claim contains
substantial evidence to support an
impairment rating for a physical condition
as well as a psychological condition.
Testimony of Dr. Weitzel is sufficient to
establish a 15% impairment for Garnett’s
psychological condition. With respect to
the physical condition, Calvary correctly
notes that the 15% functional impairment
assessed for Garnett’s right hand injury
exceeds the range in Table 13-22 for a nondominant extremity; however, Dr. Hays
clearly stated he assessed a Class 2
impairment using Table 13-22 of the AMA
Guides. Table 13-22 sets forth criteria for
rating impairment related to chronic pain in
one upper extremity. A Class 2 impairment
is determined using the same criteria
whether the impairment is for the dominant
or nondominant extremity. Under the AMA
Guides, a Class 2 impairment for a
nondominant extremity qualifies for a 5%-14%
impairment rating. Thus, evidence from Dr.
Hays is sufficient to support a 5-14% rating
for impairment of Garnett’s nondominant
hand.
An ALJ may select a rating from within
an appropriate range established by the
medical evidence. . . . [W]e note that the
ALJ on remand may select an impairment
rating within the 5-14% range for the injury
to Garnett’s hand.
Since December 12, 1996, once an ALJ
has determined an individual has a
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disability rating, the factors in Osborne v.
Johnson, [432 S.W.2d 800 (Ky. 1968)], as
modified by Ira Watson, supra, are applied
to determine whether the claimant has a
total occupational disability. It remains
within the province of the ALJ to translate
the medical impairment rating and nonmedical factors and determine occupational
disability utilizing the factors in Osborne
v. Johnson. See, Ira A. Watson Department
Stores v. Hamilton, supra, and McNutt
Construction Company v. Scott, [40 S.W.3d
854, 858 (Ky. 2001)]. The ALJ may rely on
the medical testimony as well as the
worker’s own self-assessment of his ability
to work. Hush v. Abrams, Ky., 584 S.W.2d 48
(1979). Here, the ALJ reviewed the medical
restrictions as well as Garnett’s own
testimony concerning his hand and his
psychological condition. There was evidence
to support a finding of total occupational
disability.
Garnett had a limited education and had
worked primarily in the mining industry.
There was substantial evidence that Garnett
could not return to his work in the mines.
Although Garnett had worked for Smith
Trucking as a mobile home escort, Garnett
testified he could no longer drive as a
result of his psychological condition. As
noted by the ALJ, Garnett is functionally
illiterate. Given his limited vocational
skills and intellectual skills, as well as
the physical and psychological conditions,
the ALJ could reasonably conclude that
Garnett was permanently totally disabled.
All of the foregoing notwithstanding,
we agree with Calvary the permanent total
disability award may be predicated in part
on a mistaken belief that Garnett’s right
hand was Garnett’s dominate [sic] hand. In
summarizing the evidence, the ALJ expressly
noted Dr. Hays assessed a 15 % impairment
for “a Class II injury involving a dominant
extremity.” . . . The ALJ accepted the 15%
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impairment rating, and the total disability
award was based, at least in part, on the
physical injury to Garnett’s hand. We
cannot glean from the opinion below whether
the ALJ was aware Garnett’s injury actually
was to Garnett’s nondominant hand; how or
whether the ALJ’s acceptance of Dr. Hays’
impairment assessment may have been
affected; or how or whether the ALJ’s
determination of occupational disability may
have been affected. The difference between
an injury to a claimant’s dominant hand and
an injury to a claimant’s nondominant hand
is not without significance to an ALJ in
determining the physical and psychological
impact of an injury on a claimant’s
occupational abilities [emphasis original].
The function of the Court of Appeals in reviewing a
decision of the Board is to correct the Board only where the
Court perceives that the Board has "overlooked or misconstrued
controlling statutes or precedent" or where it has flagrantly
erred in its assessment of the evidence so as to result in a
gross injustice.1
Having reviewed the record, we are persuaded that the
Board has not overlooked or misconstrued controlling statutes or
precedent or erred in its assessment of the evidence.
To the
contrary, the Board has identified a misconception by the ALJ
which was applied in his decision in this case, and has properly
remanded the matter for a reevaluation by the ALJ exclusive of
the misconception.
1
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992).
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Dr. Hays based his physical impairment rating of 15%
upon the incorrect premise that the injured hand was Garnett’s
dominant hand.
Garnett’s own testimony establishes that the
injury was to his nondominant hand.
As a result of this
mistake, Dr. Hays assigned an impairment greater than permitted
under the guidelines for an injury to a nondominant hand.
ALJ appears to have relied upon this misconception.
The
Thus, the
Board did not err in its assessment that this error may have not
been noticed by the ALJ, and that if he had known of the error,
the outcome may have been different.
It follows that the Board
properly vacated and remanded the case for additional review by
the ALJ in light of Dr. Hays’s error.
Garnett argues that remand is not necessary because
the error was brought to the ALJ’s attention in Calvary Coal’s
petition for rehearing.
However, the ALJ’s order denying
rehearing did not address the issue on the merits and leaves the
record silent on the ramifications, if any, of the erroneous
impairment rating.
Hence, the ALJ’s denial of Calvary Coal’s
motion for reconsideration is not a basis to disturb the Board’s
decision.
For the foregoing reasons, the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Shawn C. Conley
Harlan, Kentucky
William E. Brown, II
Kimberly D. Newman
Lexington, Kentucky
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