TOM DREXLER PLUMBING v. ANCIL FARMER, JR.; HON. THOMAS A. NANNEY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
NOVEMBER 22, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002340-WC
TOM DREXLER PLUMBING
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-98009
ANCIL FARMER, JR.; HON. THOMAS A.
NANNEY, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND JOHNSON, JUDGES.
JOHNSON, JUDGE: Tom Drexler Plumbing petitions for review of an
opinion of the Workers’ Compensation Board rendered on August 27,
1999, which affirmed an opinion of the Administrative Law Judge,
awarding permanent partial disability benefits to the appellee,
Ancil Farmer, Jr.
Having reviewed the record and the Board’s
opinion, we are unable to conclude that the Board committed an
error in construing the law, or in assessing the evidence.1
Thus, we affirm.
Farmer, a licensed plumber with a 10th grade education,
had worked with Tom Drexler since 1981, first as a partner, then
as an employee.
In his application for benefits, Farmer alleged
that he sustained an injury to his back as the result of three
work-related incidents, all of which occurred near the end of
1997.
Farmer testified that he first strained his back on
September 23, 1997, lifting a steel bath tub from a residence.
He was treated with a muscle relaxant and returned to work after
a week’s vacation.
On October 23, 1997, Farmer strained his back
again while insulating pipes, a job that required that he lay
flat on his back in the crawl space under a house.
While
performing this job, Farmer had to hold his head up all day to
keep it out of the mud.
The resulting back sprain was again
treated with a muscle relaxant and, for the next several weeks,
Farmer asked, and was allowed, to perform light duty jobs.
On
December 31, 1997, Farmer sustained a serious injury to his back
while using a jackhammer.
Following this incident, Farmer did
not respond to conservative treatment and was required to undergo
back surgery in February 1998.
He has not been able to work as a
plumber or perform heavy labor since that time.
Drexler denied Farmer’s claim for disability benefits
alleging that the injury did not arise out of his employment,
that he had failed to give it due and timely notice and that his
1
See Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685
(1992), which sets forth the standard this Court is to utilize in
its review of a decision of the Board.
-2-
condition was the result of a pre-existing, active disability.
Medical reports from Farmer’s treating physicians, Dr. David
Britt and Dr. Wayne Villaneuva, a neurosurgeon, were submitted to
the arbitrator, along with the medical report of Dr. Michael
Best, who performed an independent medical evaluation for
Drexler.
On September 10, 1998, the arbitrator issued a benefit
review determination which concluded that Farmer had incurred a
work-related injury resulting in a 10% permanent impairment and
that Farmer could not return to the type of work that he had done
prior to the injury.
Utilizing the formula contained in KRS2
342.730(1)(a) and (c)1, the arbitrator awarded Farmer benefits of
$50.29 per week for 425 weeks.
Drexler sought a de novo hearing before an ALJ.
In the
pre-hearing order and memorandum entered on January 19, 1999, the
only contested issues were identified as “notice, extent of
disability, [and] causation/work-relatedness.”
conducted by the ALJ on February 1, 1999.
A hearing was
No additional
contested issues were raised at the hearing.
On March 31, 1999,
the ALJ rendered his opinion and award and arrived at the same
resolution of Farmer’s claim as the arbitrator had reached.
After describing the three incidents which Farmer alleged had
culminated in his disabling condition, the ALJ concluded as
follows:
Having reviewed [Farmer’s] testimony as
well as the other evidence mentioned above,
it is my finding that [Farmer] did give due
and timely notice to [Drexler] of the first
two incidents. However, I do not believe
2
Kentucky Revised Statutes.
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that the incident of September 1997 and
October 1997 resulted in any permanent
impairment. Clearly, [Drexler] had due and
timely notice of the injury of December 31,
1997 since [Farmer] was off work on vacation
for approximately a week following this
injury and [Drexler] acknowledges that it
received notice no later than January 12,
1998. Since this injury is apparently the
injury that has resulted in [Farmer’s]
permanent disability, a delay of two weeks
under the circumstances as presented in this
case, does not constitute a failure of
notice.
. . .
The medical testimony from Dr. Best and
Dr. Villaneuva has established that [Farmer]
has sustained a 10% impairment to the body as
a whole under the AMA Guidelines based upon
DRE lumbosacral Category 3 with
radiculopathy. [Farmer] has undergone a
surgical procedure by Dr. Villaneuva. Dr.
Villaneuva has imposed permanent restrictions
of no lifting greater than 50 lbs. and no
repetitive lifting greater than 25 lbs. He
specifically recommended that [Farmer] quit
plumbing work. Having found that [Farmer]
has sustained a work-related injury resulting
in a 10% impairment, and having further found
that he does not retain the physical capacity
to return to the work he was performing prior
to the injury, [Farmer’s] benefits shall be
calculated as follows:
$335.27 X 10% = $33.53
$ 33.53 X 1.0 = $33.53
$ 33.53 X 1.5 = $50.29
[Farmer] shall be entitled to such
temporary total disability benefits at the
rate of $338.58 per week from January 1, 1998
through September 29, 1998, the date [Farmer]
reached maximum medical improvement according
to Dr. Villaneuva.
Drexler filed a petition for reconsideration on April
7, 1999, and asked the ALJ to reconsider his decision and make
additional findings on the issues of causation, pre-existing
conditions and the natural aging process.
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The motion was denied
on April 26, 1999.
Drexler appealed to the Board and argued that
the ALJ erred in (1) failing to make adequate findings with
respect to the issue of causation, (2) awarding temporary total
disability beyond June 25, 1998, and (3) failing to attribute
one-half of the permanent disability to the natural aging
process.
In its review, the Board affirmed the ALJ’s disposition
of Farmer’s claim and Drexler has sought further review in this
Court.
As its first issue, Drexler contends that the ALJ did
not make sufficient findings to support his conclusion that
Farmer’s impairment was the result of the December 31, 1997
injury at work.
The Board disagreed and, citing Big Sandy
Community Action Program v. Chaffins,3 held that “it is
unnecessary for the fact-finder to detail the entirety of his
mental reasoning.”
The Board then outlined detailed testimony
relating to the issue of work-relatedness that supported the
ALJ’s finding that Farmer’s disabling back condition was the
result of the injury sustained while using a jackhammer on
December 31, 1997.
Nevertheless, Drexler insists that the
findings of the ALJ are inadequate to provide a meaningful
review, and that the Board’s opinion “misses the point of the
appeal.”
Clearly, the Board did not miss the point.
It is
settled that where the party with the burden of proof was
successful before the ALJ, the issue before the Board is whether
3
Ky., 502 S.W.2d 526 (1973).
-5-
there is substantial evidence to support the ALJ’s findings.4
Further, while Drexler argues that there was a
“significant” issue presented with respect to work-relatedness,
the record indicates otherwise.
The evidence upon which Drexler
primarily relied consisted of a note in Farmer’s treating
physician’s medical records pertaining to his visit on January 5,
1998, which indicated that Farmer’s most recent back problems
resulted from a coughing episode and did not contain any
reference to the jackhammer incident.
The ALJ’s failure to
recite this evidence does not mean the evidence was overlooked,
but could just as easily reflect the fact that the ALJ did not
find it worth mentioning.
In any event, the ALJ did describe in
detail the three work-related incidents related by Farmer and
specifically found, from that testimony and the medical evidence,
that the December 31, 1997 jackhammer incident was the cause of
Farmer’s continuing back problems.
We agree with the Board that
the ALJ is not required to set forth his entire thought processes
and we hold that the findings rendered by the ALJ sufficiently
apprised the parties of the basis of his decision to comport with
the standard set forth in Shields v. Pittsburg & Midway Coal
Mining Co.5
Next, Drexler contends that the Board erred in
affirming the ALJ’s award of temporary total disability benefits
for the period January 1, 1998, to September 29, 1998.
4
The ALJ
Special Fund v. Francis, Ky., 708 S.W.2d 641 (1986).
5
Ky.App., 634 S.W.2d 440, 444 (1982) (“basic facts” must be
“clearly set out to support the ultimate conclusions”).
-6-
relied upon the testimony of Farmer’s surgeon, Dr. Villaneuva,
who opined that Farmer did not reach maximum medical improvement
until September 29, 1998, which testimony, as the Board
concluded, is clearly sufficient to support the ALJ’s award of
TTD.
However, because Dr. Villaneuva also released Farmer on
June 25, 1998, with the restriction that he perform light duty
work only, Drexler reasons that the ALJ erred in awarding any TTD
beyond the earlier date.
Drexler argues that KRS 342.0011(11)(a), which defines
“[t]emporary 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,” precludes as a matter of law, an award of
TTD to an injured worker after he is released to any type of
work.
Further, Drexler insists that it is irrelevant that it had
no light duty work available for Farmer, or that Farmer did not
actually return to work.
Nevertheless, we believe that the Board
properly interpreted the statutory definition of “temporary total
disability” so as not to preclude an award of TTD merely because
an injured worker was released to perform “some employment.”
Rather, as this Court recently held in considering the identical
issue, it is apparent that the Legislature contemplated a “return
to employment” commensurate with the worker’s regular work.6
Finally, Drexler argues that the Board erred in
affirming the ALJ’s award even though the award failed to
6
Halls Hardwood Floor Co. v. Stapleton, Ky.App., 16 S.W.3d
327, 329-30 (2000); see also W.L. Harper Construction Co., Inc.
v. Baker, Ky.App., 858 S.W.2d 202 (1993).
-7-
attribute any of the permanent disability to the natural aging
process.7
The Board declined to address the merits of this
argument because Drexler failed to raise the issue before the
fact-finder.
Drexler contends that since it raised the issue in
its petition for reconsideration, that the Board was “mistaken”
in failing to address the issue.
We disagree.
Having failed to
identify as “contested” any issue with respect to the natural
aging process prior to the ALJ’s decision, Drexler was precluded
from attempting to litigate the issue in a petition for
reconsideration.
Thus, the Board did not err in holding that the
issue was not properly preserved for further review.8
In any event, the evidence supports the ALJ’s award
without any deduction for the natural aging process.
The medical
evidence established that Farmer’s back condition was dormant and
non-disabling prior to December 31, 1997, and that any
degenerative changes were aroused by the work-related injury and
not the aging process.
Indeed, Dr. Best, the IME, opined that
Farmer had a 10% “whole-person impairment,” 50% of which he
attributed to the arousal of a pre-existing, congenital entity.
As this Court recently held, “the terms ‘dormant non-disabling
condition’ and ‘natural aging process’ cannot be equated and held
to be synonymous with one another.”9
7
KRS 342.0011(1), enacted by the Legislature effective
December 12, 1996, provides in part that “‘[i]njury’ does not
include the effects of the natural aging process.”
8
See Webb v. Wolfe Creek Collieries, Ky.App., 859 S.W.2d 129
(1993); and 803 KAR 25:010E, §11 (6) and (7).
9
Ingersoll-Rand v. Edwards, Ky.App., ____S.W.3d ____
(continued...)
-8-
Accordingly, the opinion of the Workers’ Compensation
Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Douglas A. U’Sellis
Louisville, KY
Ched Jennings
Louisville, KY
9
(...continued)
(rendered 9/15/2000). Also, this Court in Commonwealth of
Kentucky, Transportation Cabinet v. Frank Guffey, 1999-CA-000753WC (rendered 12-10-99), which is pending in the Supreme Court,
rejected the argument that a dormant non-disabling condition is
no longer compensable under the 1996 legislative changes, and
held:
That which is a dormant, non-disabling
condition has not now become “the natural
aging process.” When a claimant has
degenerative changes that were dormant and
non-disabling but were aroused by a workrelated trauma, it is not the effects of the
natural aging process that is compensated but
rather the disabling effects of the injury
upon those dormant and non-disabling
conditions that is compensated. The 1996 Act
merely codifies the law as it had been
interpreted prior thereto.
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