BORDERS (BARRY) VS. COMP BUSH AND BURCHETT, ET AL.
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RENDERED: DECEMBER 3, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000486-WC
BARRY BORDERS
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-04-95838
BUSH AND BURCHETT;
HON. DOUGLAS W. GOTT,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND STUMBO, JUDGES; LAMBERT,1 SENIOR JUDGE.
1
Senior Judge Joseph E. Lambert 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.
LAMBERT, SENIOR JUDGE: Barry Borders petitions for review of a decision of
the Workers’ Compensation Board. The Board affirmed an Administrative Law
Judge’s decision in favor of Bush and Burchett as to Appellant’s reopened
workers’ compensation claim. Appellant argued that he had incurred a worsening
of his impairment sufficient to warrant a finding of permanent total disability, but
the ALJ concluded that Appellant was only entitled to an increase in the amount of
his previously awarded permanent partial disability benefits. For reasons that will
be explained, we affirm the decision of the Workers’ Compensation Board.
Facts and Procedural History
Appellant is a 55-year-old resident of River, Kentucky who worked
for Bush and Burchett2 from 1995 to 2003 as a mechanic and welder. He also
performed other tasks, including electrical and machine-operation work, and was
often required to engage in heavy manual labor. Appellant filed a workers’
compensation claim on March 8, 2004 after sustaining work-related injuries in two
separate incidents. On June 1, 2003, Appellant injured his cervical spine when he
inadvertently drove his truck over a ditch or depression in the roadway and was
thrown against the top of the truck’s cab. Appellant did not miss work as a result
of this injury, but on June 19, 2003, he injured his lumbar spine while lifting a steel
sling weighing approximately 250 pounds. Following the second injury, Appellant
took five days off and then returned to work, but he required co-workers to assist
2
Bush and Burchett is a construction company that specializes in the construction of bridges.
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with any heavy lifting. He has not worked for Bush and Burchett or any other
employer since July 3, 2003.
In February 2005, an ALJ reviewed the medical evidence relating to
Appellant’s injuries and awarded Appellant permanent partial disability benefits
based on findings that Appellant suffered an 8% impairment as a result of his
lumbar spine injury and a 5% impairment as a result of his cervical spine injury.
The ALJ also found that Appellant’s lumbar injury prevented him from returning
to his former employment3 and that he was entitled to temporary total disability
benefits for the period from June 20, 2003 through June 7, 2004 as a result of that
injury. A corresponding psychiatric impairment claim filed by Appellant was
dismissed.
In February 2009, Appellant was allowed to reopen his workers’
compensation claim pursuant to KRS 342.125(1)(d)4 due to an alleged worsening
of his cervical and lumbar injuries since the original award. Appellant specifically
alleged that since the original award he had experienced worsening pain in his
neck, shoulders, and lower back, along with a radiation of pain and numbness
down his arms and legs. He attempted to address these ailments with physical
therapy, medication, and injections but ultimately underwent an anterior cervical
3
The “3x” multiplier set forth in KRS 342.730(1)(c)1 was consequently applied to this injury.
4
KRS 342.125(1)(d) provides: “Upon motion by any party or upon an administrative law judge’s
own motion, an administrative law judge may reopen and review any award or order on any of
the following grounds: . . . Change of disability as shown by objective medical evidence of
worsening or improvement of impairment due to a condition caused by the injury since the date
of the award or order.”
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C6-7 microdiskectomy and fusion in February 2009 to address a herniated disc.
Because of his worsening condition, Appellant contended that he was now entitled
to a finding of permanent total disability and a corresponding increase in his
occupational disability benefits.5 Appellant supported his claim with records and
reports from his physicians, along with his own testimony at a hearing and by
deposition. He also filed a fully favorable decision from the Social Security
Administration awarding him Social Security disability benefits.
Dr. Ira Potter, one of Appellant’s primary care physicians, assigned a
25% whole person impairment rating to Appellant based on Appellant’s cervical
spine surgery and noted that this impairment might stand at 28% depending on
how much pain Appellant experienced and its impact on his daily living. Dr.
Potter’s records indicate that prior to Appellant’s surgery, he was referred for nerve
conduction studies that revealed a right medial neuropathy at the right wrist with
mild ulnar neuropathy at the left elbow. Dr. Potter placed restrictions on
Appellant’s physical activity and indicated that Appellant’s condition had
deteriorated since the original award, resulting in a greater occupational disability.
Dr. Loey Kousa, another of Appellant’s primary care physicians, similarly reported
that Appellant had reached maximum medical improvement and remained unable
to perform gainful employment.
5
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[.]”
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Appellant also submitted records from Dr. Henry Bell, a pain
management physician. Dr. Bell noted that Appellant’s primary complaint was
constant and activity-dependant neck and shoulder pain radiating into both arms
and that he also complained of lower-back pain that radiated into both legs.
Appellant also complained of numbness and tingling in his upper extremities.
Appellant received both cervical and lumbar epidural steroid injections in October
2007 and noted that his pain levels improved afterwards. He received additional
injections in January 2008.
Appellant was eventually referred to Dr. Leon Ravvin, a
neurosurgeon. Dr. Ravvin also believed that Appellant had reached maximum
medical improvement and was unable to perform gainful employment. In January
2009, Appellant complained of worsening pain radiating down his right upper
extremity. Dr. Ravvin subsequently performed the aforementioned cervical
surgery to address these complaints.
Appellant testified that the cervical surgery eliminated the
“excruciating pain” running down his right arm but noted that he still occasionally
suffered from some pain, numbness, and tingling in that arm. Appellant also
indicated that he still suffered from constant pain in his neck and shoulder area but
that it was “nothing like it was before.” Appellant further testified that following
surgery, his level of pain was “about the same” as it was prior to the original
award. However, he noted that his pain was beginning to increase again because
his injections were wearing off. Appellant also indicated that his neck bothered
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him more than his lower back. Appellant further stated his belief that he was
unable to return to any type of employment, including light duty work such as
working the counter at an auto parts store; however, he acknowledged that he had
made no efforts to seek employment of any kind since the original award. The
remainder of Appellant’s testimony relating to his injuries is well-summarized in
the ALJ’s Opinion, Award and Order.
On November 4, 2009, the ALJ found that Appellant’s cervical
impairment had increased to 26% as a result of his microdiskectomy and fusion
surgery and that he no longer retained the physical capacity to return to his former
work. Thus, Appellant was entitled to an increase in his permanent partial
disability benefits as a result of this impairment.6 The ALJ also awarded benefits
for a period of temporary total disability running from February 13, 2009 to May
13, 2009 but concluded that the evidence did not support a finding of permanent
total disability.
In reaching this latter conclusion, the ALJ noted that the restrictions
placed on Appellant’s physical activity by Dr. Potter in 2009 differed only slightly
from those imposed by Dr. Potter in 2004 prior to the original award. With respect
to Appellant’s lower-back injuries, the ALJ found that Appellant’s own testimony
reflected that his limitations there were no more severe than what they were in
2004.7 The ALJ further found that with respect to Appellant’s cervical injuries,
6
The “3x” multiplier set forth in KRS 342.730(1)(c)1 was consequently applied to this injury, as
well.
7
The original award relating to Appellant’s lumbar injury was undisturbed.
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Appellant had admitted that his surgery had alleviated a substantial amount of his
pain and that his pain levels were at a level similar to those he described at the time
of the original award. The fact that Appellant had surgery, standing alone, was not
enough to render him totally disabled.
Thus, while the ALJ believed that Appellant was unable to return to
his former employment, he did not deem Appellant to be totally disabled.
Appellant subsequently filed a petition for reconsideration on this issue, asking the
ALJ to reconsider his Opinion, Award and Order or, in the alternative, to make
“specific findings as to what if any jobs [Appellant] could possibly do given his
age, education and current restrictions.” The ALJ denied the petition and Borders
appealed to the Workers’ Compensation Board. The Board determined that
substantial evidence supported the ALJ’s determination that Appellant was not
totally disabled and consequently affirmed.8 This appeal followed.
Analysis
On appeal, Appellant argues that the medical evidence compels a
finding of permanent total disability and asks this Court to remand this case for an
entry of an award to this effect. He further contends that because the ALJ failed to
make additional factual findings at his request, the Opinion, Award and Order
lacks sufficient factual findings to justify the decision therein.
8
The case was remanded to the ALJ for resolution of a medical fee dispute, but that issue is not
before us.
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A workers’ compensation claimant bears the burden of proof and risk
of non-persuasion before the ALJ with regard to every element of his claim.
Burton v. Foster Wheeler Corp., 72 S.W.3d 925, 928 (Ky. 2002). This standard
also applies to a claimant attempting to increase his original award. Griffith v.
Blair, 430 S.W.2d 337, 339 (Ky. 1968). Because Appellant had the burden of
proof before the ALJ and was unsuccessful, the issue on appeal is whether the
evidence compels a different result, i.e., “the evidence in that party’s favor is so
compelling that no reasonable person could have failed to be persuaded by it.”
Carnes v. Tremco Mfg. Co., 30 S.W.3d 172, 176 (Ky. 2000); see also Special Fund
v. Francis, 708 S.W.2d 641, 643 (Ky. 1986); Wolf Creek Collieries v. Crum, 673
S.W.2d 735, 736 (Ky. App. 1984). In conducting our review, we must abide by
the rule that “the ALJ, as the fact finder, has sole authority to judge the weight,
credibility, substance, and inferences to be drawn from the evidence.” Morrison v.
Home Depot, 279 S.W.3d 172, 175 (Ky. App. 2009); see also Paramount Foods,
Inc., v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985); KRS 342.285. This
particularly holds true where medical testimony is concerned. Addington
Resources, Inc. v. Perkins, 947 S.W.2d 421, 422-23 (Ky. App. 1997). Moreover,
we can reverse a decision of the Workers’ Compensation Board affirming an
ALJ’s decision only where the Board “has overlooked or misconstrued controlling
statutes or precedent, or committed an error in assessing the evidence so flagrant as
to cause gross injustice.” Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88
(Ky. 1992).
-8-
Applying these standards, we find no basis for reversing the decision
of the ALJ or the Board. The ALJ cited to Appellant’s medical records and
testimony extensively in support of his conclusion that Appellant’s condition had
not worsened to the point that he was permanently and totally disabled. Appellant
argues that his testimony and that of his physicians support his contention that his
injuries preclude any gainful employment. However, “[a]lthough 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.” Ira A. Watson
Dep’t Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000); see also McCloud v. BethElkhorn Corp., 514 S.W.2d 46, 47 (Ky. 1974). This holds particularly true where a
claimant must establish that the evidence compels a different result. Thus, while
Appellant presented evidence that supports his claim of permanent disability, this
Court is not in a position to second-guess the ALJ and the Board given the
stringent standards under which we must operate on appeal.
Appellant also contends that reversal is merited because the ALJ
failed to comply with his request for additional factual findings. In a petition for
reconsideration, Appellant asked the ALJ to “come forth with some positive
evidence that there are really some jobs out there” that he could do. The ALJ
declined to do so, and Appellant now argues that the Opinion, Award and Order
consequently lacks sufficient factual findings. In support of this argument
Appellant cites to Shields v. Pittsburg and Midway Coal Min. Co., 634 S.W.2d 440
(Ky. App. 1982). However, his reliance upon this decision is unavailing. While
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Shields does require that an ALJ identify those specific factual findings on which
he relies in support of his ultimate conclusions, id. at 444, it does not require an
ALJ to produce evidence to support his findings beyond that which exists in the
record. This burden rests with the claimant. Thus, Appellant’s argument is
rejected.
Conclusion
For the foregoing reasons, the decision of the Workers’ Compensation
Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas W. Moak
Prestonsburg, Kentucky
F. Allon Bailey
Patrick J. Murphy, II
Lexington, Kentucky
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