DOYLE CARNES, JR. v. PARTON BROTHERS CONTRACTING, INC.; BACKFIELD COAL CO.; AND WORKERS' COMPENSATION BOARD
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RENDERED:
AUGUST 19, 2005; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002267-WC
DOYLE CARNES, JR.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. 02-WC-68728
v.
PARTON BROTHERS CONTRACTING, INC.;
BACKFIELD COAL CO.; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER AND JOHNSON, JUDGES; HUDDLESTON, SENIOR JUDGE.1
JOHNSON, JUDGE:
Doyle Carnes, Jr. has petitioned for review
from an opinion of the Workers’ Compensation Board entered on
October 8, 2004, which vacated and remanded the Chief
Administrative Law Judge’s opinion and award rendered on April
6, 2004, which found Carnes to be permanently and totally
disabled.
Having concluded that the Board misapplied the
relevant statutory provisions and exceeded its authority on
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
appellate review, we reverse and remand this matter to the Board
to reinstate the CALJ’s opinion and award.
Carnes was born on October 27, 1969.
He is a high
school graduate, and received some vocational training in diesel
mechanics while in high school.
in any job.
Carnes never used these skills
Following high school, Carnes worked as a cook at a
McDonald’s restaurant for approximately one year.
After working
at McDonald’s, Carnes worked as an underground coal miner from
1988 to 2002, with the exception of approximately one year of
employment with a construction company in 1998 and 1999.2
While
in the coal industry, Carnes worked primarily as a continuous
mine operator.
Carnes suffered at least three work-related injuries
before the injury which gave rise to the claim on review.
Carnes’s right shoulder was injured on October 18, 1993, while
he was working for Crockett Collieries when draw rock fell on
him.
No workers’ compensation claim was filed and the problem
resolved itself within a few days.
Then, on December 12, 1996,
Carnes’s left foot was struck by draw rock, causing temporary
nerve damage.
He filed a workers’ compensation claim, which was
settled for the lump sum of $15,000.00 based on a 7.5%
impairment rating.
Carnes also suffered an injury in January
2001 when he was struck in the shoulders and in the head by a
2
Carnes testified that he returned to coal mining because he did not want to
do the traveling required for construction work.
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piece of draw rock, just two days after beginning work for Jack
Rock Coal.
He reported pain in his head, shoulders, and mid-
back, and ringing in his ears.
have surgery.
He was hospitalized, but did not
With continuing pain and ringing in his ears,
Carnes returned to work with the help of pain medication and
monthly doctor visits.
He filed a workers’ compensation
complaint and received an award and a settlement for his medical
expenses.
After the January 2001 injury, Carnes was employed
with Parton Brothers Contracting, Inc. on July 17, 2001, and he
was injured on October 10, 2002,3 while dragging a five-gallon
can of gear oil, 700 to 800 feet, in an underground mine.4
Upon
completing the task, he immediately felt a severe throbbing and
burning with a stinging sensation down his left leg and pain in
the center of his back just above his beltline.
Carnes drove
himself to the hospital where he was treated at the emergency
room.
3
He was unable to return to work5 and filed his Application
During this time, Carnes worked 48 hours per week.
4
Carnes was manually moving the can of oil because the equipment normally
used was broken.
5
Dr. James Bean’s medical report indicated that Carnes was off work for 18
days, returned to work, but pain reoccurred and he did not return to work at
Parton Brothers. Later, Carnes attempted to return to mining work with a
different employer for five to six days, but could not continue because of
the injury, i.e., severe chronic back and left leg pain.
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for Resolution of Injury Claim on July 21, 2003.6
On February 6, 2004, an evidentiary hearing was held
before the CALJ.
Evidence presented included Carnes’s
deposition and live testimony, and medical evidence from Dr.
James Bean, Dr. David Muffly, and Dr. Christopher Stephens.
Carnes testified in his deposition that he suffers from severe
lower back pain, as well as numbness in his left leg, and muscle
spasms in his calf muscles.
He also testified that he suffers
from temporary paralysis in his lower left leg from time to
time.
The numbness in his leg comes and goes, but he described
the back pain as a constant ache.
Due to his pain, Carnes
engages in very few daily activities, but stays in bed most of
the time, while applying a heating pad.
In a 12-hour period,
Carnes spends approximately six to eight hours lying down, one
hour standing, and one hour sitting.
He stated that he is able
to do some yard work on a riding lawn mower from time to time,
and that he does laundry, but only what he has to, and he
sometimes goes to the grocery store.
His family and friends
perform the housekeeping tasks that he cannot do on his own.
He
testified that he can no longer engage in the hobbies he enjoyed
before his low-back injury, including hunting and fishing.
He
also stated that he only drives when he has to, and only 10 to
6
Carnes also filed a black lung claim which is not a part of this case. He
also applied in May 2003 for Social Security benefits, but was denied. The
case was on appeal at the time of the hearing before the CALJ.
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15 miles at a time, because he cannot sit for longer periods of
time.
On February 6, 2004, Carnes testified before the CALJ
regarding his injury, stating that he is in constant pain, and
that he suffers from paralysis in his left leg several days out
of the month.
walking.
He sometimes uses a cane to assist him with
He is currently on Percocet, a muscle relaxer, and has
recently been taking sleeping pills and blood pressure
medication as needed.
He has been bedridden by his pain for up
to nine consecutive days.
his back.
He is most comfortable lying flat on
He has received medical care for his pain, including
hospitalization, emergency room treatment,7 injections of
medication, as well as daily medication.
He also testified that
he has discussed the options of surgery with Dr. Stephens, but
that he has not undergone the surgery because of the risks and
the somewhat minimal relief that Dr. Stephens told him he could
expect from surgery.
Carnes also testified that his pain is worsening and
that he could not do any type of work as of the date of the
hearing.
He had not looked for work since the date he gave his
deposition.
The CALJ specifically asked Carnes about his
educational and vocational training.
Carnes testified that due
to his condition he did not think he could perform any job.
7
He testified that he had been to the emergency room three times since he
gave his deposition in October, due to pain related to the injury.
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Carnes submitted in support of his claim a Form 107
dated May 10, 2003, along with Dr. Bean’s report dated May 10,
2003.
Dr. Bean indicated in his report that Carnes’s straight-
leg-raising test was positive on the left, but he had a normal
motor sensory reflex exam.
After reviewing an MRI dated
December 12, 2002, Dr. Bean reported that Carnes suffered from
degenerative disc disease, lumbar sprain, and a central disc
bulge at the L4-5 and L5-S1 levels.
It was Dr. Bean’s opinion
that these conditions were due to the injury Carnes sustained in
2002, and that Carnes did not have an active impairment before
this injury.
He assigned Carnes an 8% functional impairment
rating in accordance with the AMA Guides to the Evaluation of
Permanent Impairment.
Dr. Bean recommended that Carnes lift no
more than 30 to 40 pounds, and avoid any activities which
required continuous bending or stooping.
He further opined that
Carnes was physically unable to return to the type of work he
performed prior to and at the time of his injury.
Dr. Muffly, an orthopedic surgeon, testified by
deposition dated November 12, 2003.
Dr. Muffly had treated
Carnes for both his 1997 foot injury and his 2001 shoulder
injury.8
He evaluated Carnes on May 19, 2003, after he
complained of low-back pain as a result of the October 10, 2002,
injury.
He testified that prior to this date, Carnes had never
8
Dr. Muffly stated that his testimony related solely to the orthopedic
problems, not the foot injury.
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complained of pain in his lumbar spine and had no history of
lumbar problems.
He reported that Carnes’s straight-leg-raising
test was positive at 80 degrees in both the seated and supine
positions and that Carnes walked without a limp, but had
stiffness in the low back with change of position and tenderness
in the low back.
Dr. Muffly also reviewed the MRI scan dated
December 12, 2002, and agreed with Dr. Bean that the MRI showed
a moderate disc bulge at the L4-5 and the L5-S1 levels.
Dr.
Muffly’s diagnosis was lumbar strain, disc bulging of the lower
two lumbar levels, and degenerative changes.
He attributed
these conditions to Carnes’s October 2002 injury, and estimated
Carnes’s functional impairment rating to be 8% based on the AMA
Guides.
Dr. Muffly recommended that Carnes lift no more than 30
pounds, do only minimal bending and stooping, and change
positions every 30 to 60 minutes.
Dr. Muffly testified that it
was within reasonable medical probability that the restrictions
would be permanent.
Dr. Muffly testified that, following his May 19, 2003,
evaluation of Carnes, he was able to review additional medical
records, including an MRI scan of Carnes’s lumbar spine taken on
May 29, 2003.
He stated that it was his opinion that the May
29, 2003, MRI showed a progression of Carnes’s disc injury,
including a disc protrusion at the L4-5 level, and disc
herniation at L5-S1 level, and that the injury was more
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significant than was diagnosed by the first MRI scan.
Dr.
Muffly revised his estimation of Carnes’s impairment level to
10% and revised his recommendation to restrict Carnes’s lifting
to less than 20 pounds.
He stated that Carnes should only bend
or stoop one to two hours per day, changing positions at least
every 30 minutes, including lying down.
Dr. Muffly testified
that Carnes would continue to suffer from chronic pain, and that
he would suffer from “flare-ups,” which would render him
bedridden or even require hospitalization.
He also stated that
he believed Carnes’s medical condition would slowly worsen over
time, as it appeared to be worsening every five months between
MRI scans.
He stated that Carnes needed to have regular doctor
visits and additional testing, medication, and possibly future
surgical treatment.
He testified that combining the effect of
Carnes’s prior neck injury9 and the low-back injury, Carnes would
be limited to less than sedentary work, because he should lift
less than ten pounds, could not stand or sit for even three
hours in an eight-hour workday, and would have difficulty
concentrating.
He also testified that Carnes would be slower at
performing daily activities.
9
Dr. Muffly was referring to the injury that occurred in January 2001, which
was work-related, and the Board acknowledged that it could be considered in
determining whether the October 2002 low-back injury caused Carnes to be
totally disabled. See KRS 342.730(1)(a).
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The medical report of Dr. Stephens was also
introduced.
Dr. Stephens evaluated Carnes on November 21, 2003,
and also reviewed Carnes’s treatment records10 and the two MRI
scans from December 12, 2002, and May 29, 2003.
He stated that
Carnes’s straight-leg-raising test was positive on the left, he
had a three-quarters inch atrophy on his left calf, and that he
had decreased left ankle-jerk reflex.
Dr. Stephens agreed with
earlier conclusions that the December 12, 2002, MRI showed
degenerative changes at the L4-5 and the L5-S1 levels with
bulging.
He also concluded that the May 29, 2003, MRI showed a
moderately large disc herniation at the L5-S1 level.
Dr.
Stephens diagnosed Carnes with left lumbar radiculopathy with
neurologic deficit secondary to lumbar disc herniation.
Dr.
Stephens believed that surgery was an option for Carnes to
relieve the pain in his left leg, but the report revealed that
Dr. Stephens did not believe surgery would help Carnes’s back
pain, nor significantly improve his functionality.
Dr. Stephens found that without surgery, Carnes had
reached maximum medical improvement, and estimated a 10%
functional impairment rating.
He recommended Carnes lift
repetitively no more than 30 pounds, and that he refrain from
repetitive bending, stooping, kneeling, and crawling.
10
Dr.
Dr. Stephens reviewed the records of Dr. Bean, Dr. Muffly, Dr. Zerga, and
Dr. Oculam. The record does not indicate the first names of Dr. Zerga or Dr.
Oculam.
-9-
Stephens stated he did not believe any of Carnes’s “current
complaints” to be related to his January 2001 injury.
He also
opined that Carnes did not retain the capacity to return to the
type of work he was performing prior to and at the time of his
injury.
After examining the evidence, the CALJ entered her
opinion on April 6, 2004, finding Carnes to be permanently and
totally disabled, with a 10% functional impairment rating.
The
CALJ observed that Carnes was 34 years old with a high school
education.
While in high school, he received some vocational
training in diesel mechanics.
The CALJ also pointed out that
Carnes had worked as an underground coal miner for essentially
his entire adult life, and that he had testified that he no
longer had the physical capacity to return to any type of work
he had performed in the past.
The CALJ found that Carnes
continued to have low-back pain, radiating into his left leg,
and continued to receive conservative medical treatment.
The
CALJ also found Carnes to be a “highly credible witness,” and
that his testimony was consistent with his demeanor during the
hearing.
The CALJ took note of the findings from the three
treating physicians, stating that the evidence had a “remarkable
degree of similarity.”
Further, the CALJ noted that Carnes had
had at least two prior work-related injuries, but that Carnes
was able to continue working on a regular basis until the low-
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back injury.
The CALJ then set out in detail the medical
conclusions of the three physicians that were placed into
evidence.
Based on the totality of the evidence and based on
the law of KRS 342.0011(11) and Ira A. Watson Department Store
v. Hamilton,11 the CALJ found that Carnes had a 10% functional
impairment as a result of the October 10, 2002, injury, and that
as a result of that injury he is now permanently and totally
disabled.
On April 20, 2004, Parton Brothers filed a petition
for reconsideration in which it argued that the CALJ’s finding
of permanent total disability was erroneous and not supported by
substantial evidence.
Parton Brothers further argued that the
CALJ should have at least ordered Carnes to undergo vocational
rehabilitation pursuant to KRS 342.710.12
The CALJ overruled the
petition for reconsideration on May 14, 2004, and Parton
Brothers appealed to the Board.
In its appeal to the Board, Parton Brothers argued
that Carnes was able to perform light duty and sedentary work,
and pointed out that none of the physicians had opined that
Carnes was permanently and totally disabled.
Thus, Parton
Brothers argued that the CALJ’s opinion was not supported by
“substantial evidence of probative value.”
11
Parton Brothers also
34 S.W.3d 48 (Ky. 2000).
12
This was the first instance in which vocational rehabilitation was
discussed in the course of the claim for benefits.
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relied on the fact that Dr. Muffly’s revised opinion relied on
both Carnes’s earlier injuries and the lumbar injury sustained
on October 10, 2002.
Parton Brothers argued that it was
erroneous for the CALJ to rely upon Carnes’s testimony that he
was unable to work, and claimed that the physicians’ testimony
was that Carnes “does retain the capacity to be gainfully
employed within the medical restrictions imposed on him.”
Further, it argued that the modifiers for impairment
calculations in KRS 342.730 should have been considered.
Parton
Brothers also argued that, at a minimum, the CALJ should have
ordered vocational rehabilitation pursuant to KRS 342.710.
Parton Brothers further claimed that the CALJ could not have
found Carnes permanently and totally disabled even under the
strictest restrictions in the medical evidence and that the CALJ
should have ordered vocational rehabilitation pursuant to KRS
342.710.
In an opinion entered October 8, 2004, the Board
vacated and remanded the CALJ’s decision, with instructions that
the CALJ “expressly state whether Carnes has a complete and
permanent inability to perform any type of work as a result of
his lower back injury.”
The Board acknowledged that the issue
of vocational rehabilitation was “imperfectly preserved” and
raised by Parton Brothers only on its petition for
reconsideration.
However, the Board instructed the CALJ on
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remand to grant the parties a reasonable time to address the
appropriateness of a vocational rehabilitation evaluation
pursuant to KRS 342.710(3).
The CALJ was instructed that if
either party were to request such an evaluation, “the CALJ shall
thereafter follow the procedure outlined in KRS 342.710(3).”
The Board stated that it had authority to remand this issue to
the CALJ under KRS 342.285(2)(c), since the claim was being
remanded on a “related issue.”
This petition for review
followed.
Carnes argues to this Court that (1) the Board abused
its discretion in vacating and remanding the decision of the
CALJ, and (2) the Board abused its discretion in ordering the
CALJ to allow consideration of vocational rehabilitation.
Parton Brothers states in response that Carnes’s arguments are
“based upon a misapplication of the case law and statutes.”
The ALJ is the finder of fact and has the sole
authority “to determine the quality, character, and substance of
all the evidence.”13
The ALJ alone is to judge the “weight,
credibility, and inferences” to be drawn from the evidence,14 and
is therefore permitted to believe some evidence and to
13
Garrett Mining Co. v. Nye, 122 S.W.3d 513, 518 (Ky. 2003) (citing Square D.
Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993); and Paramount Foods, Inc. v.
Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985)).
14
Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329, 331 (Ky.
1997).
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disbelieve other evidence.15
Further, as fact-finder, the ALJ
may draw on either of two reasonable inferences.16
On appeal,
“[n]o new evidence may be introduced before the Board,17 and the
Board may not substitute its judgment for that of the ALJ
concerning the weight of evidence on questions of fact.”18
Upon the initial reading of the Board’s opinion, one
error is obvious.
The Board remanded the case to the CALJ
because the CALJ did not “expressly state that Carnes has a
complete and permanent inability to perform any type of work as
a result of his lower back injury.”19
Upon reading the CALJ’s
opinion, we conclude that the Board overlooked the CALJ’s
statement on page seven of her opinion that “the plaintiff is
15
Burton v. Foster Wheeler Corp., 72 S.W.3d 925, 929 (Ky. 2002) (citing
Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977)). See
also Pruitt v. Bugg Brothers, 547 S.W.2d 123, 124 (Ky. 1977).
16
Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979).
17
Parton Brothers argues that the Board did not examine new evidence or
substitute its opinion for the ALJ’s opinion. If it had done so, it would
have ordered the ALJ to enter an award based upon permanent partial
disability.
18
Smith v. Dixie Fuel Co., 900 S.W.2d 609, 612 (Ky. 1995).
342.285(2).
19
See also KRS
The Board remanded “for additional fact finding . . . to ensure that the
CALJ’s permanent total disability award is based on a correct understanding
of the evidence and to meaningfully inform appellate review of the issue.”
The Board cited Cook v. Paducah Recapping Service, 694 S.W.2d 684 (Ky. 1985)
and Shields v. Pittsburg & Midway Coal Mining Co., 634 S.W.2d 440 (Ky.App.
1982). However, those cases involved highly controverted evidence, and the
lower decisions were insufficiently clear for the reviewing body to determine
what weight, if any, the fact-finder had given to particular evidence. As
laid out in Shields, the rule is that the fact-finder is required to “support
its conclusions with facts drawn from the evidence in each case so that both
sides may be dealt with fairly and be properly apprised of the basis for the
decision.” Id. at 444.
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now permanently and totally disabled as a result of this injury
pursuant to KRS 342.0011(11) and Ira A. Watson Department Store
v. Hamilton, 34 S.W.3d 48 (Ky. 2000).”
In fact, the CALJ had
noted earlier in her opinion that the real issue was “whether
the plaintiff’s functional impairment and restrictions are so
great that he now has a complete and permanent inability to
perform any type of work as a result of this injury.
KRS
342.0011(11)(c).”
KRS 342.0011(11)(c) defines permanent partial
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[.]”
The Board stated that the CALJ did not recognize
“the distinction between an inability to perform the type of
work performed at the time of injury and a complete and
permanent inability to perform any type of work[.]”
However,
the ALJ demonstrated familiarity with and understanding of the
statute, and how it has been interpreted by our Supreme Court in
Hamilton.
After citing Carnes’s credibility and the opinions of
the physicians, the CALJ went on to conclude that Carnes’s
injury resulted in him being permanently and totally disabled.
The Board then stated that the CALJ’s ruling is
unclear because of Carnes’s testimony that “he no longer has the
physical capacity to return to any type of work that he has done
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in the past.”
The Board stated that this testimony could have
required an award of permanent partial disability benefits
tripled pursuant to KRS 342.730(1)(c)1.20
Further, the Board
stated that none of the medical evidence provided by the three
physicians indicated why an award of permanent total disability
is warranted.
If the CALJ had relied on any single piece of
evidence, rather than a totality of the evidence in the record,
the Board’s rationale would be proper; however, that is not what
occurred.
The CALJ specifically acknowledged that it was her
“responsibility . . . to look at the totality of lay and medical
evidence contained in the record . . . in making the
determination of whether [Carnes] has a total and permanent
occupational disability.”
The Board vacated and remanded the decision of the
CALJ, stating that the evidence adduced by the CALJ “does not
lead ineluctably21 to an award of permanent total disability.”
However, this is not the proper standard of review.
Where a
claimant “is successful before the ALJ, the issue on appeal [to
the Board] is whether substantial evidence supported the ALJ’s
20
KRS 342.730(1)(c)1 states that it applies “[i]f, due to an injury, an
employee does not retain the physical capacity to return to the type of work
that the employee performed at the time of injury[.]”
21
Ineluctably is defined as “not to be avoided or overcome; inescapable.”
Webster II New College Dictionary, p. 566 (2001).
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conclusion.”22
Substantial evidence is defined as “evidence of
substance and relevant consequence having the fitness to induce
conviction in the minds of reasonable [people]” [citation
omitted].23
The Board should have determined if there was
substantial evidence to support the CALJ’s conclusions, and if
so, then it was the Board’s duty to affirm.
The evidence need
not lead inescapably to the CALJ’s ultimate finding; rather that
finding need only be supported by substantial evidence and
authorized by the law.
The fact that the evidence in this case
does not “lead ineluctably” to the CALJ’s conclusion is of
little consequence, as there was substantial evidence to support
the CALJ’s award.
The CALJ noted that Carnes is a young worker, a high
school graduate, and that he has some vocational training.
The
CALJ determined that Carnes was a highly credible witness.
The
CALJ further pointed out the consistency of the evidence from
the physicians, and pointed out that Carnes’s symptoms were
uncontroverted.
She noted that Dr. Muffly had testified that
Carnes was now limited to less than sedentary work because of
the low-back injury and the earlier neck injury.
Carnes
testified at the hearing before the CALJ that he had been
22
Burton, 72 S.W.3d at 929 (citing Special Fund v. Francis, 708 S.W.2d 641,
643 (Ky. 1986)). See also Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736
(Ky.App. 1984).
23
Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971).
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bedridden for as many as nine days, that the pain was not
getting better, but was worsening, and that he would be unable
to return to any kind of work.
“[A] worker is not required to
be homebound in order to be found to be totally occupationally
disabled.”24
We conclude that this evidence in its totality was
substantial to support the CALJ’s finding that Carnes is totally
and permanently disabled.
Because we conclude that the CALJ’s award was based on
substantial evidence and authorized by law, and that remand to
the CALJ by the Board was erroneous, the second issue raised by
Carnes is moot.
However, we will briefly discuss it.
We
conclude that it was improper for the Board to instruct the CALJ
upon remand to consider vocational rehabilitation.
KRS 342.
710(3) provides, in relevant part, as follows:
The administrative law judge on his own
motion, or upon application of any party or
carrier, after affording the parties an
opportunity to be heard, may refer the
employee to a qualified physician or
facility for evaluation of the
practicability of, need for, and kind of
service, treatment, or training necessary
and appropriate to render him fit for
remunerative occupation [emphasis added].
In statutory interpretation and construction, “‘[m]ay’ is
permissive[,]”25 while “‘[s]hall’ is mandatory[.]”26
24
We conclude
McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 860
(Ky. 2001) (citing Osborne v. Johnson, 432 S.W.2d 800, 803 (Ky.App. 1968)).
25
KRS 446.010(20).
26
KRS 446.010(29).
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that the use of the word “may” in KRS 342.710(3) places
vocational rehabilitation entirely within the discretion of the
CALJ.
Furthermore, neither party requested a vocational
rehabilitation evaluation when the matter was before the CALJ.27
The Board, citing its authority under KRS 342.285(2)(c) to
ensure that a decision is in conformity with the provisions of
KRS chapter 342, determined that it was proper to instruct the
CALJ to consider vocational rehabilitation, because of the
purpose of vocational restoration embodied in KRS 342.710(1).28
However, KRS 342.710(3)29 places the consideration of vocational
rehabilitation within the discretion of the CALJ.
The effect of
the Board’s opinion is to second-guess the CALJ’s exercise of
that discretion.
Such an approach would place a duty upon an
27
In its brief to the CALJ, Parton Brothers did argue that Carnes was
retrainable. However, only in its petition for reconsideration, did it argue
that Carnes had “transferable job skills” and that CALJ should have ordered
vocational rehabilitation pursuant to KRS 342.710.
28
KRS 342.710(1) states as follows:
One of the primary purposes of this chapter
shall be restoration of the injured employee to
gainful employment, and preference shall be given to
returning the employee to employment with the same
employer or to the same or similar employment.
See Whittaker v. Reeder, 30 S.W.3d 138, 144 (Ky. 2000).
29
KRS 342.710(3) also states in part that an employee, who cannot perform
work which he is trained to do, is entitled to vocational rehabilitation
services and the ALJ shall determine whether such services have been offered
and accepted. Carnes testified that he could not perform any type of work.
Further, with testimony from both Carnes and Dr. Muffly that Carnes’s
condition was worsening and that he was at times bedridden, there was no
reason for the CALJ to further inquire about vocational rehabilitative
services.
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ALJ to order a vocational rehabilitation evaluation on its own
motion in cases where the Board, in retrospect, determines that
a vocational rehabilitation evaluation would be appropriate.
We
do not agree with this application of the statute and conclude
that the Board abused its discretion in ordering the CALJ to
consider vocational rehabilitation.
We conclude that the CALJ’s conclusion that Carnes is
now permanently and totally disabled as a result of his low-back
injury is supported by substantial evidence, and that a remand
for more specific findings was inappropriate, as the findings of
fact were sufficient to enable a meaningful review.
We also
conclude that the Board abused its discretion by ordering the
CALJ to consider vocational rehabilitation, as it was within the
discretion of the CALJ, since neither party requested such
evaluation.
For the foregoing reasons, the Board’s opinion is
reversed, and this matter is remanded to the Board for
reinstatement of the opinion and order of the CALJ.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Susan Turner Landis
Harlan, Kentucky
William E. Brown, II
Lexington, Kentucky
-20-
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