FLOYD SCHANZ PLUMBING v. JAMES EVANS; HONORABLE LLOYD R. EDENS, ADMINISTRATIVE LAW JUDGE; 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NOT TO BE PUBLISHED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.
2000-CA-000467-WC
FLOYD SCHANZ PLUMBING
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS’ COMPENSATION BOARD
WC-97-68531
JAMES EVANS;
HONORABLE LLOYD R. EDENS,
ADMINISTRATIVE LAW JUDGE;
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND McANULTY, JUDGES.
KNOPF, JUDGE:
This is an appeal by Floyd Schanz Plumbing from an
opinion of the Workers’ Compensation Board which affirmed an
award of total permanent disability benefits to appellee James
Evans.
Evans was born on February 2, 1944, and is a resident
of Louisville, Kentucky.
He has a ninth grade education with no
specialized or vocational training.
His relevant work experience
consists of employment as a carpenter, a plumber’s helper, and a
quality control inspector performing foundry and lathe work.
Evans began his employment as a carpenter and plumber’s helper
with Floyd Schanz Plumbing in 1993.
On September 2, 1997, while attempting to lift a sewer
machine weighing between 150 and 200 pounds into a truck, Evans
sustained a work-related injury to his lower back.
Evans felt a
pop in his lumbar region and immediately experienced pain
radiating into his left hip and down his left leg.
By the next
morning, Evans reported that he could “hardly walk.”
He remained
on light duty at Floyd Schanz Plumbing until November 3, 1997.
He has not returned to work anywhere since that time.
Evans underwent treatment for his condition.
He was
diagnosed with a herniated disk at L4-5 with spinal stenosis and
degenerative disk disease at multiple levels.
he underwent a lumbar diskectomy.
In February 1998,
Thereafter, Evans underwent an
extensive course of physical therapy, but continued to experience
back pain.
On October 29, 1998, Dr. Raque pronounced that Evans
had reached maximum medical improvement.
Based upon the DRE of
the AMA Guides, Evans was assessed a 10% permanent functional
impairment.
Evans was restricted to a “low medium category of
work” with no lifting in excess of 35 pounds or pushing or
pulling in excess of 45 pounds.
Evans was further limited to
stair climbing only occasionally provided he did not carry
objects up and down the steps.
He was directed to avoid
activities that required repetitive bending and twisting at the
waist, and was restricted to only occasional crouching, crawling,
or kneeling.
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On December 14, 1998, Evans filed an application for
resolution of injury claim.
assigned to an Arbitrator.
On December 22, 1998, the case was
On March 12, 1999, the Arbitrator
rendered a benefit review determination granting Evans benefits
based upon a 10% permanent partial disability rating.
Thereafter, pursuant to KRS 342.275, Evans requested a de novo
hearing before an Administrative Law Judge (ALJ).
His claim was
assigned to an ALJ.
In June 1999, Evans was examined by a vocational
specialist, Dr. Robert Tiell.
Dr. Tiell concluded that Evans, in
his current condition, could no longer engage in substantial
gainful employment.
He further stated that Evans was not a
legitimate retraining candidate.
On September 27, 1999, the ALJ rendered his Opinion,
Order, and Award wherein he determined Evans to be permanently
and totally occupationally disabled.
The ALJ also noted that Dr.
George Raque had assigned the entire 10% functional rating under
the DRE to Evans’s work injury.
In light of that opinion, the
ALJ concluded that a “carve out” due to the natural aging
process, which is excluded expressly from the definition of
injury contained in KRS 342.0011(1), was not appropriate.
Floyd Schanz Plumbing appealed the decision of the ALJ
to the Workers’ Compensation Board.
On January 28, 2000, the
Board rendered its opinion affirming the decision of the ALJ.
This appeal followed.
First, Floyd Schanz Plumbing contends that Evans does
not qualify for a permanent total disability award because he
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does not have a complete inability to perform “any type of work”
as a result of his injury.
KRS 342.0011(11)(c) defines "Permanent total
disability" to mean, in pertinent part, “the condition of an
employee who, due to an injury, has a permanent disability rating
and has a complete and permanent inability to perform any type of
work as a result of an injury[.]”
defines
KRS 342.0011(34), in turn,
“Work" to mean “providing services to another in return
for remuneration on a regular and sustained basis in a
competitive economy.”
In his September 27, 1999, Opinion, Order, and Award,
the ALJ stated that
[t]he definition of work contained in KRS
342.0011 requires the ability to function on
a regular and sustained basis in the
competitive economy. In this instance, Mr.
Evans has described the work history of
medium to heavy labor requiring the
repetitive bending, stooping and lifting.
The restrictions placed on him by Dr. Raque,
while permitting lifting up to 35 pounds,
prohibit crouching, crawling and repetitive
twisting and bending at the waist and permit
him to climb steps on an occasional basis but
prohibit the carrying of objects while doing
so. While he has, on a limited basis,
engaged in hunting activities with his sons,
the evidence in the claim persuades me that
he does not have the ability to engage in
work activities on a regular and sustained
basis, and in view of his age, education and
work experience, physical limitations placed
upon him by Dr. Raque, his description of his
pain, as well as the definition of work, I am
persuaded the Petitioner, James Evans, is
permanently and totally disabled as defined
by KRS 342.0011(c) and KRS 342.0011(34).
The ALJ, as the finder of fact, and not the reviewing
court, has the sole authority to determine the quality,
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character, and substance of the evidence.
Square D Company v.
Tipton, Ky., 862 S.W.2d 308, 309 (1993);
Paramount Foods, Inc.
v. Burkhardt, Ky., 695 S.W.2d 418 (1985).
“Where there is
evidence of substantial quality to support the ALJ's decision,
the reviewing tribunal is bound by the record.”
Addington
Resources, Inc. v. Perkins, Ky. App., 947 S.W.2d 421, 423 (1997);
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419
(1985).
“[T]he function of the Court of Appeals in reviewing
decisions of the Workers' Compensation Board is to correct the
Board only when we perceive that the Board has overlooked or
misconstrued controlling law or committed an error in assessing
the evidence so flagrant as to cause gross injustice.”
Daniel v.
Armco Steel Company, L.P., Ky. App., 913 S.W.2d 797, 797-798
(1995);
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687-688 (1992).
Where the medical evidence is conflicting, the
question of which evidence to believe is the exclusive province
of the ALJ.
Square D, 862 S.W.2d at 309; Pruitt v. Bugg
Brothers, Ky., 547 S.W.2d 123, 124 (1977).
Dr. Tiell, the occupational evaluation expert stated in
his deposition that
it’s my opinion that [Evans] has in fact
sustained an occupational loss as a result of
this low back injury of September ‘97. And I
-- for all practical purposes, I estimate
that occupational loss to be certainly 100
percent as it relates to his work history,
and I think very close to 100 percent as it
relates to the labor market as a whole, if
not actually 100 percent.
. . . .
I think if I were in a position where I had
to try to place this gentleman in a job, I
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would not be very optimistic about being able
to succeed with that.
. . . .
I would -- I would certainly not be adverse
to trying to [rehabilitate Evans back to
gainful employment], but as I just indicated
a minute ago, I would not be particularly
optimistic about being successful with it for
all the various reasons that I just gave. I
think he would ultimately be viewed by
employers as a higher risk.
My concern, for starters, would be just the
matter of how he would -- the impression that
he would leave physically, and walking in for
an interview, and just kind of dealing with
that whole interview screening process. The
way he ambulates, the way he -- the
appearance that he projects, the fact he
struggles so in terms of that clerical
reading and writing function, all of those
things I think would weigh very much against
his prospects of being able to impact
favorably and to have somebody give him a
shot at it.
Dr. Tiell’s testimony is evidence of substantial
quality supporting the ALJ’s determination that Evans is
permanently and totally disabled.
While other evidence was
presented that suggested that Evans continued to hunt and fish
and perhaps could perform some sedentary job, the occupational
medical expert identified Evans’s occupational disability as
being at or near 100%, and the ALJ acted within his discretion in
accepting this medical evidence of Evans’ disability.
Further,
we cannot say that the ALJ or the Board misconstrued the 1996
amendments to Chapter 342 insofar as they modified the
definitions of “disability” and/or “work.”
Next, Floyd Schanz Plumbing contends that the ALJ erred
by failing to carve out an amount from the award due to the
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effect of the natural aging process.
Based on the medical
records from 1995, Floyd Schanz Plumbing contends that the
evidence is undisputed that Evans had a pre-existing disc
degeneration and spinal stenosis, two years prior to the injury.
KRS 342.0011(1) defines “injury” as
any work-related traumatic event or series of
traumatic events, including cumulative
trauma, arising out of and in the course of
employment which is the proximate cause
producing a harmful change in the human
organism evidenced by objective medical
findings. "Injury" does not include the
effects of the natural aging process, and
does not include any communicable disease
unless the risk of contracting the disease is
increased by the nature of the employment.
"Injury" when used generally, unless the
context indicates otherwise, shall include an
occupational disease and damage to a
prosthetic appliance, but shall not include a
psychological, psychiatric, or stress-related
change in the human organism, unless it is a
direct result of a physical injury. (Emphasis
added.)
In support of its position that Evans suffered from
back problems as a result of the natural aging process, Floyd
Schanz Plumbing cites us to medical records it filed into the
record from Evans’s previous treatments by Dr. John A. Lach, Jr.
We have reviewed these records and find only two references
related to preexisting diagnoses concerning Evans’s back: (1) an
August 14, 1995 entry which states, “On x-ray we seem [sic] the
beginning of osteoarthritic changes in the spine.”; and (2) an
August 14, 1995, entry which states, “I think if we [sic] don’t
start to take a little better care of ourself [sic], a problem
might come to the front, such as osteoarthritis, pulmonary
disease, and chronic low back pain.”
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However, the medical records filed into the record by
Evans include a letter from Dr. George H. Raque to Nurse Debra
Lanham of Occupational Managed Care Alliance, Inc., which states,
in part, that
[Evans] has suffered a partial permanent
impairment and according to the AMA Guides of
Evaluation of Permanent Impairment, II
edition, Page 113, Table 75 the patient
carries a 10 percent impairment of the body
as a whole for surgically treated disc lesion
with residual medical documented pain and
rigidity.
. . . .
As the patient gives no history of back
problems1 prior to his work related injury I
feel that his current restrictions and
impairment are secondary to his work injury
and not to pre-existing conditions. (emphasis
added).
Again, we are persuaded that Dr. Raque’s opinion that
Evans’ occupational disability was not related to a pre-existing
condition constitutes substantial evidence such that we must
defer to the ALJ’s judgment on the matter.
While Floyd Schanz
Plumbing has identified evidence that Evans had begun to
experience osteoarthritic changes in his spine in 1995,
where the medical evidence is conflicting, the question of which
evidence to believe is the exclusive province of the ALJ.
Pruitt
v. Bugg Brothers, supra.
For the foregoing reasons, the Opinion of the Workers’
Compensation Board is affirmed.
1
In his “Plaintiff’s Answers to Defendants’ written
questions” filed January 22, 1999, Evans stated that “I had no
back problems prior to the September 2, 1997, injury. The
September 2, 1997 back injury is not due to a previous
condition.”
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE JAMES
EVANS:
W. Kenneth Nevitt
G. Phil Williams
Williams, Wagoner & Nevitt
Louisville, Kentucky
Robert M. Lindsay
Segal, Stewart, Cutler,
Catlett, Lindsay & Jones, PLLC
Louisville, Kentucky
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