FIELD PACKING COMPANY v. MURRAY ROWLAND; HON. SHEILA C. LOWTHER, ADMINISTRATIVE LAW JUDGE; SPECIAL FUND; AND WORKERS' COMPENSATION BOARD
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RENDERED: December 4, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002413-WC
FIELD PACKING COMPANY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 91-026301
MURRAY ROWLAND; HON. SHEILA C. LOWTHER,
ADMINISTRATIVE LAW JUDGE; SPECIAL FUND;
AND WORKERS' COMPENSATION BOARD
AND
NO.
1997-CA-002663-WC
SPECIAL FUND
v.
APPELLEES
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 91-026301
FIELD PACKING COMPANY;
MURRAY ROWLAND;
HON. SHEILA C. LOWTHER,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
OPINION
AFFIRMING
** ** ** ** **
CROSS-APPELLEES
BEFORE: GUDGEL, CHIEF JUDGE; ABRAMSON1 AND JOHNSON, JUDGES.
JOHNSON, JUDGE.
Field Packing Company (Field) petitions and the
Special Fund cross-petitions for review of a Workers' Compensation Board (Board) opinion rendered on September 5, 1997, which
affirmed the Administrative Law Judge's (ALJ) decision.
The ALJ
found Murray Rowland (Rowland) to have met his burden of proof on
his motion to reopen and awarded him permanent total disability
benefits.
Liability was apportioned equally between Field and
the Special Fund.
Field argues that there was insufficient
evidence to support (1) the ALJ’s findings of an increased
occupational disability; or (2) the ALJ’s findings that Rowland’s
original occupational disability was 40%.
In its cross-petition,
the Special Fund adopts Field's arguments as to the sufficiency
of the evidence, and additionally argues that Rowland's benefits
should have been limited to 88.84% rather than 100%.
The Special
Fund argues that the appropriate rate should be calculated by
subtracting 11.16% from the 100% award because 11.16% represents
the difference in rate found by the ALJ (40%) and the actual
amount of Rowland’s original settlement (28.84%).
Having
reviewed the record and considered the parties' arguments, we
affirm.
Rowland, a 63-year-old man with an eighth grade
education and no specialized training, worked at Field for over
fifteen years primarily as a maintenance worker.
Rowland
testified that his position required him to lift up to 120
1
Judge Abramson concurred in this opinion prior to leaving
the Court on November 22, 1998.
-2-
pounds, walk most of the time, bend, and get in tight places.
In
February 1987, Rowland picked up a small conveyer to place it
back into a packaging machine, fell and injured his lower back.
In November 1989, Rowland underwent back surgery for this injury.
The surgery was performed by Dr. Michael Kavolus (Dr. Kavolus),
an orthopedic surgeon.
Rowland returned to work for Field in
February or March 1990 at his regular job, where he worked until
December 1990.
There is conflicting evidence as to whether Field
terminated Rowland or whether Rowland quit working for Field;
however, there is no dispute that Rowland has not been employed
since December 1990.
On July 24, 1991, Rowland filed a workers’ compensation
claim for permanent partial disability benefits.
settled in December 1991.
The claim was
Rowland received a lump sum payment of
$25,646, which represented payments of $70.52 per week for 425
weeks.
The amount of the settlement reflected a 28.84% occupa-
tional disability.
Liability was apportioned approximately 68.5%
to Field and 31.5% to the Special Fund.
After the settlement
Rowland was successful in receiving unemployment benefits.
Rowland testified that at the time of the settlement he was able
to push mow his yard, walk approximately one block and play pool.
In June 1992, Rowland was referred by Dr. Kavolus to
Dr. William Madauss (Dr. Madauss), a neurosurgeon, who performed
a vertebral fusion on Rowland in November 1992.
After Dr.
Madauss performed the first fusion, Rowland experienced temporary
improvement.
However, Rowland’s condition worsened and he
applied for and was awarded Social Security total disability
-3-
benefits back to his last date of employment in December 1990.
In 1994, Rowland's condition had declined to the point that Dr.
Madauss was forced to perform yet another vertebral fusion.
Rowland testified that since the second fusion he has been unable
to perform even the most sedentary tasks.
He claims that he
cannot sit for more than ten minutes at a time and spends 85% of
his day lying on the couch with a cushion placed behind his back.
On May 2, 1996, Rowland filed a motion to reopen his
workers’ compensation claim based upon a worsening of his
condition which he claimed resulted in a permanent total
occupational disability.
Field opposed the motion based upon
noncompliance with a regulation.
On June 6, 1996, the Chief ALJ
overruled Rowland's motion to reopen based on this regulatory
noncompliance.
On July 3, 1996, Rowland refiled his motion to
reopen his claim.
On August 12, 1996, an ALJ determined that
Rowland had made a prima facie case for reopening and the matter
was assigned to an ALJ for the taking of proof.
In his
deposition, Rowland stated that he has not been able to return to
work since he left Field in December 1990.
Dr. Madauss testified that Rowland did well after his
first fusion and might have been able to perform sedentary work.
Dr. Madauss stated that the second fusion was probably
unsuccessful and suggested that since Roland was a smoker any
further surgery was not recommended.
Dr. Madauss sought and
received a second medical opinion confirming this conservative
approach.
Dr. Madauss stated that since the second fusion,
Rowland had been "less capable of doing even minimal activity
-4-
. . . ."
Dr. Madauss opined that Rowland had made all the
improvement possible "barring a miracle", that he had a 40%
impairment rating based on AMA guidelines and that Rowland was
not capable of lifting anything or standing or sitting for
prolonged periods.
Dr. Madauss concluded that Rowland "cannot
even perform sedentary type work."
On cross-examination, Dr. Madauss agreed that Rowland
had not worked since the first day he saw him and that he had
never released Rowland to work.
Dr. Madauss expressed the belief
that since he began treating Rowland, Rowland had developed
junctional instability in his spine.
Dr. Madauss stated that
Rowland experienced a great deal of pain due to the failure of
the second fusion and he added that Rowland now walked with a
simian gait and required a cane.
A final hearing was held on January 29, 1997, with the
only contested issues being whether Rowland's occupational
disability had increased from December 1991 to July 1996, and the
apportionment of any award.
During his testimony at the hearing,
Rowland changed his testimony from his deposition and denied that
he had been totally disabled since he left Field.
Dr. Madauss'
deposition with Roland's medical records attached was entered
into evidence.
Mrs. Olive Rowland testified that her husband's
condition had changed since the time of settlement.
She stated
that in December 1991 her husband went fishing, played pool,
traveled, mowed yards, and helped her around the house.
She
testified that these activities ceased when he had his last
surgery in 1994.
She testified that "he can't walk good, he
-5-
can't bend, he can't lift.
He just can't do nothing [sic]."
She
stated that since the last surgery, Rowland spends around 80% of
his time on the couch.
Ronald Neal (Neal), Field's Director of Human
Resources, testified that Rowland voluntarily quit his job
because Rowland claimed he was not physically able to work five
days a week.
Neal stated that Rowland was not terminated and
that he had no complaints about Rowland's work performance.
Neal
opined that at the time Rowland left Field he was capable of
holding other employment.
Field presented no medical evidence.
The ALJ determined that Rowland was permanently and
totally occupationally disabled as of July 3, 1996.
In
explaining the basis for her finding, the ALJ stated as follows:
This has been a troubling case to the
Administrative Law Judge. The testimony
offered by the three lay witnesses is
certainly confusing. However, having had the
opportunity to observe all three witnesses at
the hearing, and having otherwise carefully
reviewed all the evidence contained in the
record, it is the finding of the
Administrative Law Judge that the Plaintiff's
condition did worsen dramatically. This is
evidenced by the subsequent surgeries
performed by Dr. Madauss. Dr. Madauss
estimated that after the original procedure,
Mr. Rowland retained a 5% functional
impairment. This is consistent with the fact
that the Plaintiff was able to return to work
and work for at least ten months in his
regular occupation. Dr. Madauss testified
that the Plaintiff now retains a 40%
functional impairment, and is incapable of
performing even sedentary work. Based upon
this, it is the finding of the Administrative
Law Judge that the Plaintiff has sustained
his burden of demonstrating a worsening of
his condition and is now totally and
permanently occupationally disabled. Peabody
Coal Co. v. Gossett, Ky., 819 SW2d 33 (1991).
-6-
The ALJ apportioned liability equally between Field and the
Special Fund and ordered that each party pay $122.33 per week
based upon their 50% share of a total occupational disability
starting July 3, 1996, and continuing for as long as Rowland is
disabled.
Field was ordered to first pay the disability award
for the number of weeks proportionate to its liability, with the
Special Fund to pay for the remainder of the disability.
Both Field and the Special Fund filed petitions for
reconsideration.
Field argued the ALJ had erred in finding that
Rowland's condition had worsened.
Field argued the ALJ had
failed to make a finding as to Rowland's occupational disability
as of the date of settlement or to make an apportionment for preexisting active disability which is non-compensable.
Field also
contended that the apportionment erroneously required Field to
pay the Special Fund's portion for the first half of the award.
The Special Fund requested findings of the actual amount of
occupational disability at the time of the settlement and the
percentage of disability represented by the settlement agreement.
The Special Fund argued that Rowland is precluded from recovering
the difference between those two amounts and that his disability
award is limited to the amount represented by the settlement
agreement plus the amount of increase in disability (28.84% + 60%
= 88.84%).
By order dated May 22, 1997, the ALJ found that at the
time of settlement Rowland had a 40% occupational disability.
The ALJ found that Rowland had not been able to work for a
substantial period of time after the injury and that during this
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period he was temporarily totally disabled and that until Rowland
returned to work at Field in February 1990 he remained
permanently partially disabled.
The ALJ found that when Rowland
had filed the motion to reopen on July 3, 1996, that he was
totally occupationally disabled.
On appeal to the Board, Field contended that there was
no evidence of substance to support the finding of a 40%
occupational disability at the time of the settlement.
Instead,
Field argued that Rowland was totally disabled in December 1990,
and had just made a bad bargain by settling for a disability of
only 28.84%.
Hence, Field argued that there had been no change
in Rowland's condition as required for an award upon reopening.
The Special Fund agreed with Field that there was no evidence of
increased occupational disability, and also argued that the ALJ
erred in awarding benefits for a 40% occupational disability for
the remainder of the original 425-week period and in not carving
out from the award made on reopening for permanent total
disability the difference (11.16%) in the percentage of
disability which the claimant actually had at the time of his
settlement (40%) and the degree of disability for which he had
settled (28.84%).
In an opinion dated September 5, 1997, the Board
affirmed the ALJ's findings and stated in pertinent part as
follows:
Field refers us to Newberg v. Davis, Ky.,
841 S.W.2d 164 (1992), in arguing that
Rowland was required to show a change of
occupational disability on reopening, not
merely worsening of his condition. It
contends that at the time of the settlement,
-8-
Rowland was in fact 100 percent
occupationally disabled, referring to the
fact that at the time Rowland had left his
position at Field, was no longer looking for
employment, had been awarded social security
disability benefits commencing prior to the
date of the settlement, and testified that he
could not work prior to the date of the
settlement because he was totally disabled.
It contends the ALJ's finding that he was
only 40 percent disabled at the time of the
settlement is not supported by any evidence
and fails to state the basis upon which such
a finding was made.
* * * * *
In determining that Rowland was only 40
percent occupationally disabled at the time
of his settlement, the ALJ referred to
testimony from Dr. Madauss, the claimant,
claimant's wife, and the Human Resources
Director for Field. Although Rowland at one
time testified he was incapable of working
after he left Field, he at another point
testified that in his opinion he was still
capable of engaging in several different
occupations after that date. Neal, in
explaining why he did not contest Rowland's
application for unemployment benefits, stated
in part that he could not win the case
because an employee who is not physically
able to work for Field but is gainfully able
to work somewhere else is still eligible for
unemployment benefits. He also stated, in
response to a question as to his opinion on
whether Field was performing his job in an
acceptable fashion on the date of his last
employment, that he had no complaints with
Rowland's work.
In our opinion, that evidence is evidence
of substance supporting the ALJ's
determination that Rowland was not 100
percent occupationally disabled at the time
of his settlement. As to the ALJ's finding
of a 40 percent occupational disability, we
would only note that it is the function of
the ALJ to translate functional disability
into occupational disability, and the ALJ may
use his discretion in deciding whether to fix
occupational disability below, the same as,
or greater than the functional disability
shown in the medical evidence. General Tire
-9-
& Rubber Co. v. Rule, Ky., 479 S.W.2d 629
(1972). The ALJ is afforded great leeway in
reaching this decision.
* * * * *
The Special Fund contends the ALJ erred on
reopening in indicating Rowland was entitled
to $146.80 per week for the period commencing
on the date his motion to reopen was filed
and continuing for the remainder of the
original 425-week period, contending that
since claimant settled his claim for a 28.84
percent occupational disability, he is
precluded from receiving any additional
benefits based upon the ALJ's finding on
reopening that at the time he settled that
claim he was 40 percent occupationally
disabled. It appears the ALJ has structured
the award in the manner argued for by the
Fund. The award for the weeks remaining
after July 3, 1996[,] on the original 425week period covered by the settlement is
$146.80 per week, 60 percent of the $244.66
per week awarded Rowland for his permanent
total disability commencing after the
expiration of that 425-week period. The
award, in effect, gives petitioners credit
for the settlement agreement based upon the
40 percent occupational disability finding
the ALJ made on reopening.
We find no authority for the Fund's
assertion that claimant's benefits for total
disability, after the expiration of the 425week period, are limited to benefits for
88.84 percent disability (the 60 percent
increase on reopening and the 28.84 percent
represented in the settlement agreement).
After the expiration of the period covered by
the settlement agreement, the claimant is
entitled to benefits for a 100 percent
occupational disability without reduction.
Field raises two issues in its petition for review,
both of which deal with sufficiency of the evidence.
Field
argues (1) that Rowland failed to present any evidence of
substance to prove that he sustained a change in his occupational
disability; and (2) that the ALJ’s finding that Rowland's
-10-
original occupational disability was 40% is not supported by any
evidence of substance.
This Court must affirm the Board's
opinion unless we determine that “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 Hospital v. Kelly, Ky., 827 S.W.2d
685, 687-688 (1992).
Kentucky Revised Statutes 342.125(1), applicable at the time
of this case, provides, in pertinent part that
Upon motion by any party . . . or
administrative law judge’s own motion, an
. . . administrative law judge may reopen and
review any award or order on any of the
following grounds:
(a) Fraud;
(b) Newly-discovered evidence which could not
have been discovered with the exercise of due
diligence;
(c) Mistake; and
(d) 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.
In order to succeed upon reopening, the claimant has the burden
of proving an increase in occupational disability.
Gro-Green
Chemical Co. v. Allen, Ky. App., 746 S.W.2d 69, 70 (1987); Jude
v. Cubbage, Ky., 251 S.W.2d 584, 585 (1952).
Evidence of an
increase in functional disability alone is insufficient to
sustain a finding on a motion to reopen that the worker has also
sustained an increase in occupational disability.
Peabody Coal
Co. v. Gossett, Ky., 819 S.W.2d 33, 35 (1991); Gro-Green, supra.
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"[T]he appellee [claimant] ha[s] the burden of proving that he
not only . . . sustained an increase in functional disability,
but an increase in occupational disability as well."
Gro-Green,
supra, at 70.
When a settlement has been reached between the parties,
as in this case, then the ALJ must determine whether there has in
fact been a change in the claimant's physical condition since the
date of settlement that has produced an increase in the
claimant's occupational disability.
As stated in Davis, 841
S.W.2d at 166, the ALJ must determine "the difference between
claimant's actual occupational disability on the date of the
settlement, regardless of the figure for which he settled, and
his occupational disability at the time of reopening.”
The ALJ
is afforded great leeway in exercising her discretion when
translating functional disability into occupational disability.
Seventh Street Road Tobacco Warehouse v. Stillwell, Ky., 550
S.W.2d 469, 471 (1976).
An ALJ must consider an individual's
condition at the time of settlement as well as any circumstances
bearing on the issue of occupational disability .
See Commercial
Drywall v. Wells, Ky. App., 860 S.W.2d 299 (1993); Wells v.
Baker, Ky. App., 713 S.W.2d 476 (1986); and W.E. Caldwell Co.,
Inc. v. Borders, 301 Ky. 843, 193 S.W.2d 453 (1946).
A
recitation of a percentage of disability in the settlement
agreement is not controlling upon reopening.
Commercial Drywall
v. Wells, supra, at 302.
In our opinion, the evidence of record was subject to
multiple reasonable inferences.
However, the making of
-12-
reasonable inferences is for the ALJ and not for the Board or
this Court.
Jackson v. General Refractories Co., Ky., 581 S.W.2d
10, 11 (1979).
The ALJ may reject or accept any testimony before
her and may believe some parts of the evidence while disbelieving
other parts, even if the testimony came from the same witness.
Codell Construction Co. v. Dixon, Ky., 478 S.W.2d 703, 708
(1972).
"When the decision of the fact-finder favors the person
with the burden of proof, his only burden on appeal is to show
that there was some evidence of substance to support the finding,
meaning evidence which would permit a fact-finder to reasonably
find as it did."
Special Fund v. Francis, Ky., 708 S.W.2d 641,
643 (1986).
Admittedly, the evidence of increased occupational
disability is conflicting.
At the hearing, Rowland stated that
at the time of the settlement he was capable of working at his
former job at Field.
He stated that he had looked for work after
he left Field and before he filed a Social Security claim, but no
one would hire him due to this age and the fact he had had back
surgery.
However, during his discovery deposition, Rowland
conceded that his ability to work had not significantly changed
and that he has not been able to work since he left Field.
He
also agreed that the Social Security Administration had
determined that he was totally disabled from the time he was last
employed at Field in December 1990.
Neal, the Director of Human Services at Field, stated
that on Rowland's last day at Field, Rowland was performing his
job in an acceptable manner.
Neal expressed an opinion that at
-13-
the time Rowland left Field, he was able to be gainfully employed
elsewhere.
Dr. Madauss stated that the AMA guidelines assessed a
5% functional impairment rating based upon the surgery performed
by Dr. Kavolus.
Dr. Madauss expressed his opinion that Rowland
was able to do sedentary work after Dr. Kavolus' surgery while,
in contrast, Dr. Madauss opined that after he performed the two
fusion surgeries, Rowland "cannot even perform sedentary type
work."
Dr. Madauss agreed that he had never released Rowland to
return to work since he performed the first fusion in November
1992.
While this evidence is conflicting, the ALJ is free to
choose to believe some parts of the evidence and disbelieve other
parts.
We believe the Board correctly determined that there is
evidence of substance which supports the ALJ's opinion that
Rowland was not 100% occupationally disabled at the time of his
settlement but later became 100% occupationally disabled.
While
other fact-finders might have viewed the evidence differently,
the findings made by the ALJ were supported by the evidence.
We
note that the ALJ has great leeway in translating functional
disability into occupational disability.
We cannot say that the
Board in affirming the ALJ has "committed an error in assessing
the evidence so flagrant as to cause gross injustice."
As mentioned previously, while Rowland settled his
claim for a 28.84% disability, the ALJ determined his actual
disability to be 40%.
The Special Fund argues that Rowland's
permanent disability benefits should be limited to a disability
of 88.84%, consisting of the 60% increase on reopening and the
-14-
28.84% settlement portion.
The Board stated that it did not find
any authority for this position.
In its cross-petition, the
Special Fund cites from the following portion of Newberg v.
Davis, supra, in support of its argument:
The disability figure contained in a
settlement agreement is a negotiated figure
and may or may not equal the claimant's
actual occupational disability. Under KRS
342.125, a claimant is required to show that
a change in his physical condition since the
date of the settlement has produced an
increase in his occupational disability
during that period in order to reopen the
award. The relevant change in occupational
disability, therefore, is the difference
between claimant's actual occupational
disability on the date of the settlement,
regardless of the figure for which he
settled, and his occupational disability at
the time of reopening.
841 S.W.2d at 166.
The Special Fund then states:
"We fail to
see how the law could be more clearly stated in favor of our
argument."
However, we conclude that the Special Fund's reliance
on Newberg is misplaced.
The above quote from Newberg, relied
upon so heavily by the Special Fund, is taken out of context and
applies to the question of determining the relevant change in the
worker’s condition for the purposes of reopening under KRS
342.125.
before us.
The holding in Newberg does not address the issue
Id.
In conclusion, like the Board, we find no
authority for the Special Fund's argument.
For the foregoing reasons, we affirm the opinion of the
Board.
ALL CONCUR.
BRIEF FOR APPELLANT, FIELD
PACKING COMPANY:
BRIEF FOR APPELLEE, ROWLAND:
Hon. Christopher G. Safreed
-15-
Hon. John H. Helmers
Owensboro, KY
Owensboro, KY
BRIEF FOR CROSS-APPELLANT,
SPECIAL FUND:
Hon. David R. Allen
Louisville, KY
-16-
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