HARLAN/CUMBERLAND COAL COMPANY JERMA MADON; HON. THOMAS A. NANNEY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
FEBRUARY 9, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-003051-WC
HARLAN/CUMBERLAND COAL COMPANY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-88210
v.
JERMA MADON; HON. THOMAS A. NANNEY,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, HUDDLESTON AND JOHNSON, JUDGES.
JOHNSON, JUDGE: Harlan/Cumberland Coal Company petitions for
review of an opinion of the Workers’ Compensation Board rendered
on November 6, 1998, which affirmed the Administrative Law
Judge’s award of total occupational disability benefits to Jerma
Madon.
After reviewing the record and the Board’s opinion, we
are unable to conclude that the Board has committed an error in
construing the law or in assessing the evidence.1
Thus, we
affirm.
1
See Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685
(1992).
Madon, a 45-year-old mine superintendent, sustained a
work-related injury to his back on April 7, 1997, while setting
timbers in a mine.
Madon’s entire work history consisted of
working in coal mines and he worked for Harlan/Cumberland from
1989 until he was injured in 1997.
since his injury.
He has not worked anywhere
The only contested issues for the ALJ’s
consideration were the extent and duration of Madon’s disability
pursuant to the provisions of KRS2 342.0011(11)(c) as amended
effective December 12, 1996.3
After considering the lay and
medical evidence, the ALJ found Madon to be permanently and
totally disabled as follows:
Based upon the diagnosis of Dr. Brooks,
I find [Madon] to be suffering from
spondylolisthesis, secondary to congenital
spondylolysis. The pre-existing abnormality
was aggravated by the work injury. I further
find that [Madon] has sustained a 10%
impairment to the body as a whole pursuant to
the DRE Model of the Fourth Edition of the
AMA Guidelines. [Madon] will be restricted
from lifting more than 15 lbs. on occasion
with the lifting of no weight on a repetitive
or frequent basis. He will be limited in his
ability to crawl, kneel or crouch. He cannot
stand, walk or sit for more than 20-30
minutes without having to change his
position. These restrictions essentially
preclude [Madon] from performing his past
work as an underground coal miner. [Madon]
has no other training in any other field of
endeavor. He has a somewhat limited
education which will preclude him from most
clerical and other sedentary jobs requiring
2
Kentucky Revised Statutes.
3
The prehearing order listed both “active disability” and
“effects of [the] normal aging process” as contested issues;
however, at the hearing, the appellant acknowledged that there
was no evidence to establish that Madon’s disability was the
result of the normal or natural aging process or that he had an
active disability.
-2-
good skills in reading, writing and
mathematics. While it may be true that
[Madon] retains the functional capacity to
perform some menial tasks on an occasional
basis, as set forth above, I do not believe
that this was the intent of the law as passed
in December 1996. I, hereby, find that
[Madon] is permanently incapable of selling
his services as an employee in the
competitive labor market.
In its appeal to the Board, Harlan/Cumberland opined
that the ALJ did “not like the new Workers’ Compensation Act” and
that he erred in relying upon the principles outlined in Osborne
v. Johnson.4
Essentially, the employer argued that while Madon
had significant impairment which precluded him from working in
the mining industry, he was not precluded from working at light
or sedentary type work and, for that reason, was not entitled
under the 1996 changes to the workers’ compensation scheme, to an
award for permanent total disability.
Harlan/Cumberland also
argued that the ALJ erred in allowing Madon to introduce the
testimony of Dr. Norman Hankins, a vocational expert.
In its review, the Board addressed these issues as
follows:
“Work” is defined in KRS 342.0011(34) as
“providing services to another in return for
remuneration on a regular and sustained basis
in a competitive economy.” The ALJ’s
recognition that Madon may be able to perform
menial tasks on an occasional basis does not
fall within the definition of work as found
in KRS 342.0011(34). Based on Dr. Brooks’
testimony as to Madon’s severe restrictions,
along with the claimant’s own testimony of
his intractable pain, clearly there is
evidence in the record to support the ALJ’s
finding of total occupational disability.
Simply stated, the claimant is not able to
4
Ky., 432 S.W.2d 800 (1968).
-3-
perform “any work” as defined in KRS
342.0011(34). The ALJ’s quotation from
Osborne v. Johnson, supra, concerns the
employee’s ability to work in a competitive
labor market. Although Osborne v. Johnson
has largely been done away with, the
definition of work in the statute still
considers regular work in a competitive
economy. We therefore find the ALJ did not
err in relying on Osborne v. Johnson, supra,
in a limited manner.
Further, we find the ALJ did not err in
permitting vocational testimony to be entered
into the record. While Harlan/Cumberland
argues there is no provision for the
allowance of vocational testimony in either
the administrative regulations or the
Workers’ Compensation Act itself, there was
no such provision in the previous Act. It
has always been recognized that vocational
testimony is not accorded in workers’
compensation cases the same deference as
medical testimony [citation omitted].
Rather, vocational testimony is accorded
legal weight similar to that of a lay
witness. That remains the same under the
1996 Act, and it is within the discretion of
the ALJ as to the weight to accord said
testimony.
In its petition for review in this Court,
Harlan/Cumberland contends that the Board erred in affirming the
ALJ’s award of total occupational disability benefits and in
failing to give a literal interpretation to KRS 342.0011(11)(c).
This statute defines “[p]ermanent total disability” as “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[.]”
In its
brief, Harlan/Cumberland argues that the ALJ’s finding that Madon
was capable of performing menial jobs, when applied to KRS
342.0011(11)(c), precludes an award for total disability benefits
as a matter of law:
-4-
In order to be awarded total benefits, the
Legislature means exactly what it said, an
employee must have a permanent disability
rating and a complete and permanent inability
to perform any type of work. “Complete means
full and an entire inability to do any type
of work. “Any” means some, just one out of
many types of jobs, not that the injured
worker is precluded from his usual employment
[emphasis original].
Harlan/Cumberland is not the first employer to assert
that by amending the workers’ compensation scheme, and
specifically in defining “permanent total disability,” the
Legislature intended to overrule the definition of occupational
disability in Osborne.
This case was placed in abeyance pending
the review of another opinion from this Court which addressed
this same issue in Ira A. Watson Department Store v. Hamilton.5
The Supreme Court of Kentucky has now resolved the issue in a
manner consistent with the opinion of the Board in the case sub
judice:
Pursuant to the 1996 amendments to KRS
342.730, awards for permanent, partial
disability are a function of the worker’s AMA
impairment rating, the statutory multiplier
for that rating, and whether the worker is
capable of returning to the pre-injury
employment; thus, it is clear that the ALJ
has very limited discretion when determining
the extent of a worker’s permanent, partial
disability. See KRS 342.730(1)(b) and (c)1.
However, determining whether a particular
worker has sustained a partial or total
occupational disability as defined by KRS
342.0011(11) clearly requires a weighing of
the evidence concerning whether the worker
will be able to earn an income by providing
services on a regular and sustained basis in
a competitive economy. For that reason, we
conclude that some of the principles set
forth in Osborne v. Johnson, supra, remain
5
Ky., ___S.W.3d___ (rendered 10-26-2000).
-5-
viable when determining whether a worker’s
occupational disability is partial or total.
An analysis of the factors set forth in
KRS 342.0011(11)(b), (11)(c), and (34)
clearly requires an individualized
determination of what the worker is and is
not able to do after recovering from the work
injury. Consistent with Osborne v. Johnson,
supra, it necessarily includes a
consideration of factors such as the worker’s
post-injury physical, emotional,
intellectual, and vocational status and how
those factors interact. It also includes a
consideration of the likelihood that the
particular worker would be able to find work
consistently under normal employment
conditions. A worker’s ability to do so is
affected by factors such as whether the
individual will be able to work dependably
and whether the worker’s physical
restrictions will interfere with vocational
capabilities. The definition of “work”
clearly contemplates that a worker is not
required to be homebound in order to be found
to be totally occupationally disabled. See
Osborne v. Johnson, supra, at 803.6
Our Supreme Court also reiterated that despite the vast
changes in the workers’ compensation scheme made by the
Legislature in 1996, “the ALJ remains in the role of the factfinder,”7 and where a finding of total disability has been made,
the “inquiry on appeal” is whether the finding “is so
unreasonable under the evidence that it must be viewed as
erroneous as a matter of law.”8
Harlan/Cumberland has never argued that the ALJ’s
findings lack the support of substantial evidence.
6
Id., Slip Op. at 4-5.
7
Indeed, in
Slip Op. at 5.
8
Slip Op. at 6 (citing Special Fund v. Francis, Ky., 708
S.W.2d 641, 643 (1986)).
-6-
addition to the medical testimony and Madon’s own testimony, the
testimony of the owner of the coal company provides compelling
evidence supporting the ALJ’s award.9
Thus, there being no issue
with respect to the sufficiency of the factual underpinning of
the ALJ’s award, and since the ALJ and the Board properly
interpreted and applied the law, the award must be affirmed.
Lastly, Harlan/Cumberland argues that the ALJ erred in
allowing Madon to introduce the deposition of a vocational
expert.
It contends that since the Legislature has made no
provision for vocational testing or for the introduction of
vocational testimony, the ALJ erred in denying its motion to
strike the deposition.
It further faults the Board for failing
to address the issue of the admissibility of such evidence,
rather than the weight the evidence is to be afforded.
We find no error in the Board’s resolution of this
issue.
Harlan/Cumberland has not cited any statute or regulation
prohibiting the introduction of vocational testimony.
As far as
we can tell, the 1996 amendments made no change with respect to
the admissibility of testimony of vocational experts.
Obviously,
as the ALJ opined, such evidence would have no relevance in a
9
Clyde Bennett, the owner of Harlan/Cumberland and the
person for whom Madon had worked for over twenty years at
Harlan/Cumberland and other mines, testified that he was certain
that Madon could not return to any type of work in the mining
industry or anywhere else, and that Madon would “love to be
working” if he were able. Madon’s attorney asked Bennett how he
knew Madon was in pain, to which Bennett answered, “I’ve seen
him. I know he’s in pain.” Bennett had no doubt about Madon’s
condition and gratuitously explained during his counsel’s
questioning: “The thing I don’t like is too many of these people
fake stuff and this guy [Madon] has been one of the best workers
I’ve had for years, and I think I’m a pretty good judge of
somebody faking it or being actually hurt.”
-7-
partial disability case.
However, where the injured employee is
seeking permanent, total disability benefits, vocational
testimony is clearly pertinent as recognized by the Court in
Watson Department Store, supra.10
Accordingly, the opinion of the Workers’ Compensation
Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Denise M. Davidson
Hazard, KY
Ronald C. Cox
Harlan, KY
10
Slip. Op. at 5 (“the ALJ is not required to rely upon the
vocational opinions of either the medical experts or the
vocational experts”).
-8-
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