BLUEGRASS CONTRACTING v. DOUGLAS HAMMOND; JOHN B. COLEMAN, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: February 11, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-003043-WC
BLUEGRASS CONTRACTING
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-79134
v.
DOUGLAS HAMMOND; JOHN B. COLEMAN,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
AND
NO. 1998-CA-003199-WC
DOUGLAS HAMMOND
v.
APPELLEES
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-79134
BLUEGRASS CONTRACTING; JOHN
B. COLEMAN, Administrative
Law Judge; and WORKERS’
COMPENSATION BOARD
CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, EMBERTON AND MCANULTY, JUDGES.
EMBERTON, JUDGE: This appeal and cross-appeal stem from those
aspects of a workers’ compensation proceeding that concern the
award of temporary total disability benefits, the calculation of
the claimant’s average weekly wage and impairment rating, and the
denial of benefits for certain medical treatments.
We affirm.
On July 1, 1997, the claimant, Douglas Hammond,
sustained a back injury in the course of his employment with
Bluegrass Contracting when the brakes on the dump truck he was
operating failed, causing the truck to overturn as he was
descending a hill.
After five days of hospitalization, Hammond
was diagnosed as having a compression fracture of his lower back
and undertook a course of treatment from several doctors,
including physical therapy.
He has worked only one day since the
accident.
Bluegrass paid voluntary total temporary disability
benefits to Hammond from July 2, 1997, through February 12, 1998,
at the rate of $156.09 per week and medical expenses amounting to
$13,078.60.
Hammond testified before the ALJ that, although he
has applied for work through his local union, no work has been
made available to him.
The ALJ, after hearing evidence on the
contested issues, concluded that Hammond was entitled to
additional temporary total disability benefits for the period
between February 12, 1998, through April 30, 1998.
He awarded
Hammond benefits based upon a 5% functional impairment, utilizing
the factors in Kentucky Revised Statutes (KRS) 342.730(1)(b) to
arrive at an occupational disability of 3.75%.
Because Hammond
had been employed by Bluegrass for less than thirteen weeks
immediately preceding his injury, the ALJ calculated his average
weekly wage pursuant to KRS 342.140(1)(e), arriving at a figure
of $234.13.
The ALJ also denied Hammond’s claim for payment of
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certain physical therapy treatments on the basis that they could
not be considered reasonable or necessary and relieved Bluegrass
of responsibility for a radiology bill not submitted within
forty-five days of treatment.
Both Hammond and Bluegrass
appealed the ALJ’s decision to the Workers’ Compensation Board
which affirmed the decision of the ALJ.
In this forum, Bluegrass argues that the Board
misinterpreted the new statutory definition of “temporary total
disability” and that the ALJ should have reduced Hammond’s
benefits pursuant to KRS 342.730(1)(c) on the basis that he is
capable of returning to the type of work he was performing prior
to the injury.
Hammond argues in his cross-appeal that the ALJ
erred in calculating his impairment rating and average weekly
wage and in holding a portion of his physical therapy treatments
and radiology bill non-compensable.
We first address Hammond’s contention that his average
weekly wage was not properly calculated.
Hammond argues that the
ALJ should have considered his testimony that he earned
approximately $30,000 in 1996, or the evidence he submitted
showing that he earned a total of $8,026.35 in the thirteen week
period prior to April 5, 1997.
We find no error.
Hammond began working for Bluegrass in May 1997, and
earned wages for eight weeks prior to his injury.
Thus, as
explained by the Supreme Court in C & D Bulldozing Company v.
Brock,1 KRS 342.140(1)(e) must be utilized to determine what
Hammond would have earned during the thirteen week period
1
Ky., 820 S.W.2d 482, 484 (1991).
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immediately preceding his injury and had he “been employed by the
employer the full weeks and had worked, when work was available
to other employees, in a similar occupation.”
As noted by the
Board, the ALJ strictly complied with the statutory prescription
and with the interpretation of the statute set out in Brock.
Therefore, like the Board, we cannot say the ALJ erred in
rejecting Hammond’s alternative method of calculating his average
weekly wage.
Next, we turn to the arguments of both Hammond and
Bluegrass concerning the methodology employed in calculating
Hammond’s impairment rating under KRS 342.730, and in applying
the modifying factor required to establish his average weekly
wage.
In determining Hammond’s impairment rating, the ALJ relied
upon medical evidence from Dr. M. G. Schiller who testified that
Hammond had sustained a 25% compression fracture in the injury of
July 1, 1997.
Hammond argues that other medical experts
testified to 30% to 50% compression fractures, and thus, the ALJ
should have used the impairment table for compressions
demonstrating a 26% to 50% rating.
We disagree.
The Board correctly observed that the ALJ retains sole
discretion on disputed medical evidence of choosing which
physician’s testimony to accept.2
Because the ALJ supported his
decision by the substantial evidence supplied by Dr. Schiller, it
cannot be said that the evidence compelled a different result.3
2
Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 123 (1977).
3
Special Fund v. Francis, Ky., 708 S.W.2d 641 (1986).
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Bluegrass argues that because there was evidence that
Hammond was capable of returning to work his weekly award of
$5.85 should be reduced by half under KRS 342.730(1)(c).
It is
true that the ALJ believed that Hammond was physically capable of
returning to work on the basis of his own testimony and that of
Dr. Bilkey.
In fact, Hammond testified that he attempted to
return to work but, when his employer found out about his back
injury, he was let go.
He also stated that he had attempted to
find work through his local union.
The ALJ considered these
factors and concluded that they did not serve to trigger the
statutory reduction.
The Board carefully analyzed Hammond’s
situation in light of the statutory directives and concluded that
there was no basis under the plain language of KRS 342.730 for
either reducing or enhancing Hammond’s weekly benefit of $5.85.
We find no error in that determination.
Bluegrass also complains about the imposition of an
additional period of temporary total disability benefits.
It
contends that the ALJ misinterpreted the definition of “temporary
total disability” set out under the new workers’ compensation law
and misapplied it to this case.
We disagree.
KRS 342.0011(11)(a) defines “temporary total
disability” as:
. . .the condition of an employee who has not
reached maximum medical improvement from an
injury and has not reached a level of
improvement that would permit a return to
employment.
The ALJ made the following finding concerning the duration of
Hammond’s temporary total disability award:
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The plaintiff has also requested
additional temporary total disability
benefits from February 12, 1998 to April 30,
1998, the date of Dr. Bilkey’s opinion that
the plaintiff had reached maximum medical
improvement. According to KRS
342.0011(11)(a) “temporary disability” is
defined as the condition of the employee who
has not reached maximum medical improvement
from an injury and has not reached the level
of improvement that would permit a return to
employment. Although the plaintiff was
released to light duty employment at an
earlier date, he testified that he was not
able to do so. I am convinced from his
testimony and Dr. Bilkey’s opinion regarding
maximum medical improvement that the
plaintiff did not meet this two-part test
until April 30, 1998.
Bluegrass argues that the statute does not require a
two-part analysis and that the factors (maximum medical
improvement and ability to return to work), although
interrelated, are actually independent of one another.
Thus,
Bluegrass argues, if either condition occurs, a claimant is no
longer entitled to benefits for temporary total disability.
In
rejecting this contention, the Board noted that despite the fact
that temporary total disability is now statutorily defined, the
question of its duration remains a factual determination to be
made by the ALJ.
Although there was evidence in this case that
Dr. Cheng concluded that he could return to light duty work with
restrictions, the ALJ also heard Hammond’s testimony that he was
unable to do so, as well as Dr. Bilkey’s statement that maximum
medical improvement did not occur until April 30, 1998.
On
conflicting evidence, the ALJ is the sole arbiter of the weight
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and credibility to be given the evidence.4
Because there was
substantial evidence supporting the ALJ’s decision as to the
duration of temporary total disability, we have no authority to
set that determination aside.
Finally, Hammond asserts that the ALJ erred in refusing
to require payment for physical therapy treatments past the
eighteenth visit and in denying payment for radiological services
which were clearly related to his work injury but were not
submitted to the employer within the forty-five-day time frame
set out in KRS 342.020(1).
Under KRS 342.020, an employer is
responsible for payment of reasonably necessary medical expenses.
In Square D. Company v. Tipton,5 the Supreme Court interpreted
this section as relieving an employer of the burden of paying for
expenses related to treatments and procedures which “are shown to
be unproductive or outside the type of treatment generally
accepted by the medical profession as reasonable in the injured
worker’s particular case.”
Here, the ALJ relied upon the
testimony of the physical therapist who stated that there was no
need for continued treatment past the eighteenth visit since
Hammond ceased to show improvement.
This conclusion was
bolstered by the opinions of two physicians.
Thus, there was
substantial evidence supporting the ALJ’s conclusion that
4
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418
(1985).
5
Ky., 862 S.W.2d 308,310 (1992).
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additional physical therapy past the eighteenth visit was neither
reasonable nor necessary.6
As to the bills for radiological studies while Hammond
was in the hospital for treatment of this injury, the ALJ
disallowed the claim on the basis that the provider failed to
submit its statement within forty-five days of the date treatment
was rendered.
KRS 342.020(1) provides in pertinent part:
The employer, insurer, or payment obligor
acting on behalf of the employer, shall make
all payments for services rendered to an
employee directly to the provider of the
services within thirty (30) days of receipt
of a statement for services. The
commissioner shall promulgate administrative
regulations establishing conditions under
which the thirty (30) day period for payment
may be tolled. The provider of medical
services shall submit the statement for
services within forty-five (45) days of the
day treatment is initiated and every fortyfive (45) days thereafter, if appropriate, as
long as medical services are rendered. . . .
(Emphasis added).
In this case, although the services were performed on
July 1, 1997, July 2, 1997, and July 5, 1997, the bill for these
services was not received by Bluegrass’s payment obligor until
May 29, 1998.
The actual health insurance claim forms for these
services bore a date of May 27, 1998, and on each of the forms
the medical provider had checked the box stating that the
patient’s condition was related to his employment.
As the Board
acknowledged, this is not a situation in which the medical
provider had no way of knowing it was dealing with a work-related
incident.
6
We, therefore, agree with the Board that the plain
Special Fund v. Francis, supra.
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language of KRS 342.020(1) must be construed as relieving
Bluegrass from responsibility for claims which were not filed in
accordance with the statute.
The opinion of the Workers’ Compensation Board is in
all respects affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE:
BRIEF FOR APPELLEE/CROSSAPPELLANT DOUGLAS HAMMOND:
Douglas A. U’Sellis
William P. Swain
Louisville, Kentucky
Wayne C. Daub
Louisville, Kentucky
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