JEFFREY WAYNE BARKER v. JAMES ADKINS, INDIVIDUALLY; JAMES ADKINS PLUMBING; UNINSURED EMPLOYER'S FUND; HON. RONALD W. MAY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: JUNE 8, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002139-WC
JEFFREY WAYNE BARKER
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-96-03825
JAMES ADKINS, INDIVIDUALLY;
JAMES ADKINS PLUMBING; UNINSURED
EMPLOYER'S FUND; HON. RONALD W. MAY,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND TACKETT, JUDGES.
JOHNSON, JUDGE: Jeffrey Wayne Barker has filed a petition for
review of an opinion of the Workers’ Compensation Board rendered
on August 20, 1999, which affirmed an Administrative Law Judge’s
opinion, award and order which denied Barker’s claim for
permanent partial disability benefits.
Having concluded that the
Board has misconstrued the law and improperly assessed the
evidence in this matter, we reverse and remand.
In the Board’s 2 to 1 opinion, Member Lovan concisely
set forth the relevant factual background and we adopt that part
of the Board’s opinion:
Barker, born April 12, 1961, has worked
as a driver/aide for a mental health facility
and has also worked as a laborer for a state
highway crew and for two construction
companies. In these jobs, he has operated a
crusher and other equipment. Barker was
employed by James Adkins Plumbing (“Adkins”)
as an apprentice plumber and heavy equipment
operator from January 1994 until December
1995. On April 4, 1995, Barker was using a
piece of equipment to cover a sewer line when
he was thrown from the equipment and broke is
[sic] his tibia and fibula. He was taken to
the hospital where he remained for three days
and had a rod inserted in his tibia. He was
off work from the time of the accident until
returning to work on September 5, 1995.
During that time, his salary was continued at
$9.00 per hour for 40 hours per week. After
returning to work on September 5, Barker
continued to work for Adkins until December
20, 1995. On that date, he broke the rod
that had been inserted in his tibia.
Dr. Serey took Barker off work and he
has not worked for Adkins since that time.
In April 1996, his old rod was removed and
replaced with a larger rod. On September 1,
1996, Barker returned to work for another
employer, Technical Piping, but testified he
had a difficult time doing his work because
of pain and the amount of medication he was
having to take. His pain eventually reached
the point that he was no longer able to work
at Technical Piping and he has not worked
since April 27, 1997.
Dr. Pugh performed surgery to remove the
second rod from Barker’s leg and discovered a
screw was broken. Barker was placed in a
cast while he remained off work. In May of
1996, Dr. Pugh discovered Barker’s fracture
was not healing. A bone stimulator was
utilized in an effort to stimulate bone
growth. In March of 1998, Barker had a
fourth surgery on his leg. Dr. Pugh placed a
steel plate with screws and used a bone graft
taken from the hip. He continued to treat
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Barker on a regular basis until November
1998.
Barker testified that Dr. Pugh had never
released him to return to work. He continues
to have pain and is under continuous
restrictions which prevent much of the
activity he would otherwise be able to do.
He is now studying computer aided drafting at
Rowan Technical College.
Barker submitted medical evidence from
Dr. Kevin Pugh. Dr. Pugh was deposed on
January 16, 1997 and completed a Form 107 in
July 1998. Dr. Pugh began treating Barker in
March of 1996. X-rays at that time revealed
a broken nail in Barker’s tibia with a
nonunion at the distal end of the tibia. In
April 1996, Dr. Pugh removed the broken nail
and inserted a new nail. After several
months, it was felt the fracture had healed
and Barker was permitted to return to work.
Barker returned in 1997 with complaints of
pain over the site of the previous fracture.
X-rays indicated the fracture was healed and
it was thought there may be some problem with
the nail that had been inserted. Surgery was
performed to remove the nail in May 1997. In
June, Barker’s fracture was not healed and a
bone stimulator and walking cast were used.
Dr. Pugh saw Barker on the morning of his
deposition and Barker reported that his
symptoms had decreased considerably over the
last two weeks. X-rays appeared to show that
the fracture was going to heal. At that
time, Barker had not yet reached maximum
medical improvement and Dr. Pugh had not yet
returned him to work.
He stated Barker should walk around but
should not climb ladders and stairs nor
should he crawl on pathways. At that time,
Barker was still in a cast and could probably
not carry more than 10 or 15 pounds since he
would only be able to use one hand and was
using that other hand for a cane. Dr. Pugh’s
Form 107 indicated that he had removed the
nail and installed further hardware in 1998.
X-rays taken July 7, 1998 showed a well
united fracture nonunion and no evidence of
recurrent fracture or hardware failure. Dr.
Pugh assessed a 0% whole body impairment
rating as there was no ankylosis or malalignment. Barker would have restrictions in
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that he should not climb ladders and should
be allowed to sit occasionally. He indicated
it would be difficult for Barker to return to
the type of work performed at the time of the
injury due to pain from prolonged walking or
standing. He noted Barker had difficulty
kneeling and crawling.
After summarizing the evidence, the ALJ
found that Barker’s attempts to return to
work at Adkins and at Technical Piping were
unsuccessful returns to work. With respect
to permanent impairment, the ALJ found as
follows:
8.
. . . Although an award can be
made to plaintiff for
occupational disability, any
such award is dependent upon
medical evidence sufficient to
establish a finding of
occupational disability as
well as an impairment rating
determined by the physician
using the AMA Guidelines.
Stated in an entirely
different way, although the
ALJ has the authority to
determine a claimant’s
vocational disability and to
make an award upon that
disability, the ALJ is not
permitted to create a
percentage of disability when
no supporting medical evidence
exists. In this case, the
most recent evidence is the
Form 107 report of Dr. Kevin
Pugh of July 1998 in which he
stated that the previous
nonunion of fracture had now
healed and that plaintiff had
a well united fracture as
demonstrated by x-ray on July
7, 1998. Although the
physician believes it would be
difficult for plaintiff to
return to type of work he was
doing at the time of injury
and he felt that plaintiff
should not climb ladders and
should be allowed to sit
occasionally, the physician
reported that plaintiff’s
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injury disclosed no ankylosis
or mal-alignment and that his
whole body impairment under
the AMA Guidelines was 0%.
Under such a state of the
evidence, any finding of
vocational disability by the
ALJ would be mere speculation
and conjecture. Accordingly,
plaintiff will receive no
award for permanent
disability.1
Barker appealed to the Board and argued that the ALJ
erred when he denied him permanent partial disability benefits.
Barker argued that even though Dr. Pugh assessed no functional
impairment, the evidence clearly showed that he had suffered a
decrease in his earning capacity due to his injury and that he is
entitled to benefits under KRS 342.0011(11).
He pointed to the
fact the Dr. Pugh had assigned him restrictions; Dr. Pugh had
stated that it would be difficult for him to return to his
previous type of work; he still had pain; and he had not made a
successful return to work.
We believe the Board correctly summarized the law as to
Barker’s burden of proof and the role of the ALJ and the Board as
follows:
Before the ALJ, Barker had the burden of
proving each of the essential elements of his
claim. Snawder vs. Stice, Ky.App., 576 SW2d
276 (1979). Since he had the burden of proof
and was [not] successful, the question on
appeal is whether the evidence is so
overwhelming as to compel a finding in his
favor. Paramount Foods, Inc., vs. Burkhardt,
Ky., 695 SW2d 418 (1985). Compelling
1
The ALJ did find Barker to be temporarily totally disabled
from April 4, 1995, to and including September 4, 1995, from
December 21, 1995, to and including August 31, 1996, and again
beginning April 28, 1997, to an including July 7, 1998.
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evidence is evidence so persuasive that it is
clearly unreasonable for the ALJ not to be
convinced by it. Reo Mechanical vs. Barnes,
Ky.App., 691 SW2d 224 (1985). It is not
enough to merely show that the record
contains evidence which would support a
contrary result. McCloud vs. Beth-Elkhorn
Corp., Ky., 514 SW2d 46 (1974). As fact
finder, the ALJ has the sole authority to
determine the weight, credibility, substance
and inferences to be drawn from the evidence.
Paramount Foods, Inc., vs. Burkhardt, supra.
The ALJ may chose [sic] to believe parts of
the evidence and disbelieve other parts, even
when it comes from the same witness or the
same party’s total proof. Caudill vs.
Maloney’s Discount Stores, Ky., 560 SW2d 15
(1977). Further, the Board may not
substitute its judgment for that of the ALJ
in matters involving the weight to be
accorded the evidence in questions of fact.
KRS 342.285.
We review opinions of the Board in accordance with
Western Baptist Hospital v. Kelly,2 wherein our Supreme Court
held that “[t]he function of further review of the WCB in the
Court of Appeals is to correct the Board only where the the [sic]
Court perceives the Board has overlooked or misconstrued
controlling statutes or precedent, or committed an error in
assessing the evidence so flagrant as to cause gross injustice.”
In construing the relevant statutes in the case sub
judice, the Board correctly stated:
Since the ALJ determined Barker had not
successfully returned to work, he could have
awarded a total disability under KRS
342.730(1)(a) or a partial disability under
342.730(1)(c) if he felt the evidence
warranted it. Section (1)(c) provides for a
permanent partial disability based upon the
percentage of functional impairment or as
determined under KRS 342.0011(11), whichever
is greater. Here, there was no functional
2
Ky., 827 S.W.2d 685, 687-88 (1992).
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impairment assigned so any award for
permanent partial disability would have to be
based upon KRS 342.0011(11).
However, we believe the Board erred in its next
statements:
Here, the ALJ was aware of his ability to
make that award, but did not find the
evidence persuasive. Stated differently, the
ALJ apparently did not feel Barker had
produced clear substantial evidence upon
which he could base an award of a percentage
of permanent disability. Functional
impairment, while not a determinative factor
in a determination under KRS 342.0011, is
nonetheless still a factor to be considered
in that determination. Other factors are the
kind of work the employee is customarily able
to do, the area where he lives, his age,
occupation, education and the effect upon his
general health of continuing the kind of work
he is customarily able to do. While the
restrictions assigned by Dr. Pugh and the
fact that Barker has not yet made a
successful return to work are evidence which
might support a finding of some degree of
occupational disability, we do not believe
the evidence as a whole in this case compels
a finding of occupational disability. We
therefore affirm the ALJ’s decision in this
regard.
We believe Member Stanley in his dissent correctly
construed the law and properly assessed the evidence when he
stated:
Kentucky’s workers’ compensation system
should never fail to justly compensate the
truly injured worker, yet that in my opinion
is clearly the situation in Barker’s case.
The principles of equity cry out for an award
of permanent disability benefits in this
claim, or at lest [sic] an open-ended award
of temporary total disability. This
unfortunate man suffered a bona fide injury.
He has undergone three harrowing surgeries
and, according to unrebutted evidence,
continues to suffer pain and symptoms. Most
importantly, he has never been released to
return to work by his treating physician.
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Yet, in spite of a mountain of evidence
demonstrating occupational disability, the
ALJ focused on the fact that the AMA Guides
allow for no percentage rating for the type
of injury at issue and dismissed Barker’s
claim. In so ruling, the ALJ states that he
“is not permitted to create a percentage of
disability when no supporting medical
evidence exists.”
Here, however, there is an abundance of
medical evidence all of which I believe to be
unrebutted and all of which mandates an
award. As noted by the majority, the
question before this Board is whether the
evidence compels a different result than that
reached by the ALJ. Paramount Foods, Inc.,
vs. Burkhardt, supra. Compelling evidence is
so overwhelming that no reasonable person
could reach the same conclusion as the ALJ.
Reo Mechanical vs. Barnes, supra. In my
opinion, and in what I believe would be the
opinion of all reasonable people. The
evidence in this case is so persuasive in
Barker’s favor that it was unreasonable for
the ALJ not to be convinced by it. As such,
I would qualify the ALJ’s decision as
arbitrary.
I understand and agree with the majority
that there is a strong need to respect and
preserve the broad discretion granted to ALJs
by law and that we are in a sense watchdogs
charged with that principle’s protection.
However, I do not believe the ALJ’s
discretion is so absolute that it must be
staunchly guarded to the degree that we are
required to endorse arbitrary and unjust
results.
We agree with this dissent and reverse and remand to
the ALJ for further consideration consistent with this Opinion.
TACKETT, JUDGE, CONCURS.
BUCKINGHAM, JUDGE, DISSENTS.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Michelle R. Williams
Mt. Sterling, KY
No brief filed.
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