HALLS HARDWOOD FLOOR COMPANY V. CHARLES STAPLETON; HONORABLE JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: April 7, 2000; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001333-WC
HALLS HARDWOOD
FLOOR COMPANY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-72694
v.
CHARLES STAPLETON;
HONORABLE JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, MILLER AND TACKETT, JUDGES.
TACKETT, JUDGE:
Halls Hardwood Floor Company (Halls) brings this
petition for review from an opinion of the Workers’ Compensation
Board (the Board) affirming an opinion and award of an
administrative law judge (ALJ) awarding Charles Stapleton
(Stapleton) benefits based upon a 7% occupational disability.
For the reasons set forth herein, we affirm.
Stapleton suffered a work-related knee injury while
employed by Halls in August 1997, and did not return to work
until January 1998.
After he returned to work, Stapleton was
still experiencing pain in his knee and was unable to perform all
of his previous duties (i.e., installing, sanding, coating and
refinishing hardwood floors).
In March 1998, Stapleton advised
Halls’ owner that he was unable to perform his duties without
assistance and Stapleton left Halls’ employ.
Stapleton filed a
claim for workers’ compensation benefits based upon his knee
injury, and an arbitrator issued a benefit determination finding
Stapleton to have a 7% occupational disability.
Halls filed a request for a de novo hearing before an
ALJ.
After additional proof was taken, the ALJ issued an opinion
and award finding that Stapleton suffered from a 7% occupational
disability, enhanced to 10.5% by virtue of Kentucky Revised
Statute (KRS) 342.730(1)(c)1 and rejecting Halls’ request for
credit for overpayment of temporary total disability (TTD)
payments.
Halls’ appeal to the Board was unsuccessful, after
which Halls filed this petition for review.
Halls’ first argument is that the ALJ’s finding that
Stapleton suffers from a 7% occupational disability is not
supported by objective medical evidence.
A claimant bears the
burden of proof as to each element of his claim.
Rowland, Ky., 998 S.W.2d 479, 481 (1999).
Whittaker v.
If the claimant is
successful before the ALJ, the “issue on appeal is whether
substantial evidence supported the ALJ’s conclusion.”
Id.
Substantial evidence is “some evidence of substance and relevant
consequence, having the fitness to induce conviction in the minds
of reasonable men.”
Id. at 481-82.
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The medical evidence in this case was conflicting.
The
ALJ chose to rely on the diagnosis and opinion of Dr. Mark Siegel
and to reject the opinions of the other physicians.
Such action
was entirely permissible as it is clear that the ALJ as the
finder of fact has the “sole discretion to determine the quality,
character, and substance of [the] evidence[,]” and “may reject
any testimony and believe or disbelieve various parts of the
evidence, regardless of whether it came from the same witness or
the same adversary party’s total proof[.]”
Id. at 481.
See also
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419
(1985).
In this case, Dr. Siegel examined Stapleton, took xrays of Stapleton, and interpreted those x-rays to arrive at his
diagnosis that Stapleton suffered from hypermobility of the
patella and patellofemoral dislocation.
The ALJ had the right to
rely on Dr. Siegel’s diagnosis, whether or not his diagnosis
agreed with that of the other physicians.
Halls’ argument that
Dr. Siegel’s diagnosis is improper due to his combining two
sections of the American Medical Association’s (AMA) Guidelines
in assessing a percentage of impairment for Stapleton is without
merit.
As noted by the Board on page ten of its opinion,
“[c]ontrary to Halls[’] assertions, there are places in the AMA
Guidelines which permit the physician to combine percentages, as
Dr. Siegel did in this case.”
The conclusion reached by the ALJ
and affirmed by the Board is not the only one possible, but it is
supported by substantial evidence and must, therefore, be
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affirmed.
Daniel v. Armco Steel Company, L.P., Ky. App., 913
S.W.2d 797, 798 (1995).
Halls’ next argument is that it is entitled to a credit
for overpayment of TTD.
The ALJ and Board found that Stapleton
was entitled to TTD from the date of his injury until December
26, 1997, when Dr. Richard Hoblitzell stated that Stapleton could
return to work with no restrictions.
Halls contends that
Stapleton was not entitled to TTD after August 30, 1997, when Dr.
Hoblitzell opined that Stapleton could return to work under
certain restrictions.
TTD is payable:
until the medical evidence establishes the
recovery process, including any treatment
reasonably rendered in an effort to improve
the claimant’s condition, is over, or the
underlying condition has stabilized such that
the claimant is capable of returning to his
job, or some other employment, of which he is
capable, which is available in the local
labor market.
W.L. Harper Construction Company, Inc. v. Baker, Ky. App., 858
S.W.2d 202, 205 (1993).
fact.
Id.
Entitlement to TTD is a question of
Temporary total disability is statutorily defined 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.”
KRS
342.0011(11)(a).
Dr. Hoblitzell’s August 30 report indicates that
Stapleton could return to “modified duty” work at his regular
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hours, provided that:
he did not lift more than ten pounds, did
not kneel, did not bend or squat, and did not climb stairs.
However, the president of Halls, Bret Hall, testified that he did
not have any light duty jobs available for Stapleton.
Furthermore, it is clear that one would have to kneel, squat, and
bend over in order to perform the type of
Stapleton had engaged.
work in which
As the Board noted, Stapleton’s adult
work history was in manual labor jobs, meaning that it would have
been very difficult for him to return to any type of gainful
employment on August 30, 1997.
Finally, the ALJ had the right to
reject Dr. Hoblitzell’s opinion as to when Stapleton was able to
return to work in the same manner he rejected Dr. Hoblitzell’s
ultimate diagnosis.
In short, the ALJ’s decision is supported by
substantial evidence and must be affirmed.
Daniel, supra at 800.
Finally, Halls argues that the ALJ erroneously computed
the amount of weekly benefits to which Stapleton is entitled.
Halls contends that the ALJ improperly used Stapleton’s temporary
total disability rate as a basis for his permanent partial
disability award.
Stapleton does not argue that the ALJ properly
computed his weekly benefit amount.
Rather, Stapleton agrees
with the Board that this issue was not properly preserved for
appellate review under the principles set forth in Eaton Axle
Corporation v. Nally, Ky., 688 S.W.2d 334 (1985).
Eaton Axle held that a party was required to file a
petition for reconsideration with the finder of fact before
seeking appellate relief.
Id. at 338.
In 1994, however, the
General Assembly effectively abrogated Eaton Axle when it amended
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KRS 342.281 to provide that “[t]he failure to file a petition for
reconsideration shall not preclude an appeal on any issue.”
However, this language was deleted from the statute in 1996.
The
Board determined that this deletion revived the holding of Eaton
Axle, meaning that Halls had waived this issue by not including
it in its petition for reconsideration.
The issue of the effect of the 1996 version of KRS
342.281 is apparently one of first impression.
Statutory
interpretation is a matter of law reserved for the courts and
this Court is not bound by the Board’s interpretation of the
statute.
Commonwealth, Cabinet For Human Resources, Interim
Office of Health Planning and Certification v. Jewish Hospital
Healthcare Services, Inc., Ky. App., 932 S.W.2d 388, 390 (1996).
The “cardinal rule” of statutory instruction is that the
reviewing court must ascertain and give effect to the
legislature’s intent.
Id.
A court is not, however, to
“speculate as to what the legislature intended.”
Fiscal Court
Commissioners of Jefferson County v. Jefferson County
Judge/Executive, Ky. App., 614 S.W.2d 954, 957 (1981).
It is clear the General Assembly intended to reinstate
the requirement in Eaton Axle that a petition for reconsideration
be filed in order to preserve an issue for appellate review.
Certainly, the General Assembly intended for its 1996 amendment
to the statute to have some effect, Grieb v. National Bond &
Investment Co., 264 Ky. 289, 94 S.W.2d 612, 617 (1936), and
further the General Assembly is aware of previously enacted
statutes and their common law interpretations.
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Cook v. Ward,
Ky., 381 S.W.2d 168, 170 (1964).
We cannot discern any logical
meaning underpinning the 1996 amendments to KRS 342.281 other
than a conscious decision by the General Assembly to return to
the requirement that a petition for reconsideration must be filed
before an issue is preserved for appellate review.
Accordingly,
the Board correctly held that the principles in Eaton Axle have
been legislatively revived.
We do not believe that the Board “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, 687-8 (1992).
The Board’s decision is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Douglas A. U’Sellis
Louisville, Kentucky
A. Page Beetem
Ft. Mitchell, Kentucky
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