STARDUST CRUISERS v. JEREMY DERRYBERRY; ROBERT L. WHITAKER, DIRECTOR OF SPECIAL FUND; HONORABLE JOHN B. COLEMAN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: July 16, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002610-WC
STARDUST CRUISERS
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-94-43890
JEREMY DERRYBERRY;
ROBERT L. WHITAKER, DIRECTOR
OF SPECIAL FUND;
HONORABLE JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI AND MILLER, JUDGES.
GUIDUGLI, JUDGE.
Stardust Cruisers (Stardust) appeals from an
order rendered by the Board on September 18, 1998, which affirmed
an opinion and order entered by the Administrative Law Judge
(ALJ) on April 24, 1998, which awarded temporary total disability
(TTD) to Jeremy D. Derryberry (Derryberry).
We affirm.
Derryberry was employed by Stardust as a finish
carpenter responsible for installing trim on houseboats.
He was
injured on November 9, 1994, when he fell through an open
hatchway and landed on his back.
Stardust voluntarily paid TTD
in the amount of $133.34 per week from November 10, 1994 through
January 31, 1995.
Pursuant to the opinion and award entered by
the ALJ, Stardust was ordered to pay TTD benefits in the amount
of $123.06 per week from November 10, 1994 through April 8, 1996,
with Stardust being permitted to take credit for any compensation
already paid.
Stardust next appealed to the Board arguing that
the ALJ’s decision to award TTD was not supported by substantial
evidence.
The Board affirmed and this appeal followed.
Stardust argues on appeal that the ALJ’s award of TTD
is contrary to the law.
Stardust maintains that under W. L.
Harper Construction Co. v. Baker, Ky. App., 858 S.W.2d 202
(1993), the ALJ must consider not only when maximum medical
improvement was reached, but also if the underlying condition had
stabilized to the point that Derryberry should have been able to
return to work.
While Stardust’s argument may or may not have
merit, we note that it was not raised before the Board.
Hence,
it is not properly preserved for appeal and we will not consider
it.
Lost Mountain Mining v. Fields, Ky. App., 918 S.W.2d 232,
233 (1996).
Stardust also argues that the ALJ’s decision to award
TTD is not supported by substantial evidence.
Having reviewed
the parties’ briefs on appeal and the record, we feel that we
cannot improve on the Board’s opinion on this issue and adopt the
following portion of the Board’s opinion as our own:
Derryberry was injured on November 9,
1994, while working for Stardust in trimming
a houseboat. His right foot became hung and
he lost his balance, falling onto the hull of
the houseboat. He developed low back pain
and sought medical attention from Dr. Carol
-2-
Peddicord. He participated in physical
therapy and other conservative medical
treatment. Prior to his injury, he had some
college and, during the recovery process and
upon the suggestion of Dr. Peddicord, he
returned to taking college courses. He
continued to experience pain into 1996.
Derryberry altered some of his recreational
activities such as avoiding playing
basketball and baseball.
Dr. Peddicord, the treating physician,
testified that Derryberry was a compliant
patient and appeared to do everything she
asked. She believed he had a small herniated
disk which was identified on MRI. She
prescribed medication as well as physical
therapy. She did not believe he would be
able to return to heavy employment and,
specifically, based upon his description as
well as her own experience with other
employees of Stardust, certainly could not
return to work there. Dr. Peddicord
testified that by May of 1995 she believed
that he had attained approximately 60%
recovery. By October 1995, Derryberry was at
90% of recovery and by April 1996, he was at
maximum medical improvement. She
acknowledged that probably in October of 1995
he would be able to perform light and
sedentary labor and certainly by April of
1996 he could perform medium, light and
sedentary labor, although she would continue
to recommend against heavy work. Derryberry
had undergone physical therapy in early 1995
and then underwent a second course of
physical therapy in late 1995.
Dr. John Purvis believed Derryberry was
exhibiting symptom magnification and appeared
to be morose and depressed. He felt that
there was probably some conversion reaction.
He found no evidence in October of 1995 of
any injury and was of the opinion that
Derryberry was certainly at maximum medial
improvement then and probably before that
time. He would recommend no restrictions.
Dr. Michael Best also believed there was
evidence of symptom magnification and no
significant clinical findings. He would
assign no impairment and believed Derryberry
had reached maximum medical improvement by
-3-
March of 1995 based upon his review of Dr.
Purvis’ records.
Debbie Heazlitt, a case manager with
Intracorp, submitted a “vocational”
evaluation into evidence. She believed that
there were employment opportunities in the
local area at a minimum wage level that were
available to Derryberry.
...
[T]he issue boils down to a review of Dr.
Peddicord’s testimony and whether that would
support a finding of temporary total
disability through April 1996 within the
definition as it is set out in W. L. Harper
vs. Baker. We believe that it does. Dr.
Peddicord attempted to provide realistic and
candid responses to her evaluation of
Derryberry. She did not believe he reached
maximum medical improvement until April 1996.
She did believe he had the physical capacity
to perform some light and sedentary work
prior to that time although as late as
October 1995 he was “admitted with
exacerbation of his lumbar disk disease,
muscle spasms. He was put on muscle
relaxers.” Even into March of 1996 he
continued with physical therapy. Since the
ALJ relied upon Dr. Peddicord and she did not
consider Derryberry to be at maximum medical
improvement until April 1996, the issue is
whether his recovery had stabilized to a
degree that he could participate in active
gainful employment. While we may have
concluded otherwise, since he continued to
participate in physical therapy, continued to
see a physician, was participating in
attempting to better himself vocationally, it
was certainly not unreasonable for the ALJ to
infer that within his restrictions and within
his experience and ability, Derryberry was
not capable of performing active gainful
employment during the period of October 1995
to April 1996.
The opinion and order of the Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, SPECIAL
FUND:
James G. Fogle
-4-
Louisville, KY
Benjamin C. Johnson
Louisville, KY
No brief for appellee, Jeremy
D. Derryberry
-5-
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