AUSTIN APPAREL COMPANY v. SANDRA LAKE; HON. W. BRUCE COWDEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
NOVEMBER 30, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001281-WC
AUSTIN APPAREL COMPANY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-70816
v.
SANDRA LAKE; HON. W. BRUCE COWDEN,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, McANULTY, AND SCHRODER, JUDGES.
BARBER, JUDGE:
The employer, Austin Apparel Company (“Austin
Apparel”), appeals from a decision of the Workers’ Compensation
Board, affirming the ALJ’s award of 100% occupational disability
benefits to the Appellee, Sandra Lake (“Lake”).
Finding no
error, we affirm.
Lake was employed by Austin Apparel.
She filed a
workers’ compensation claim on March 9, 1999, alleging that she
twisted her back while lifting on April 1, 1997.
The record
reflects that Lake underwent anterior cervical diskectomies at
C5-6 and C6-7 with iliac bone crest grafting on June 19, 1997, by
Dr. Steven Kiefer.
Lake’s diagnosis was cervical spondylosis
with cervical radiculopathy.
The claim was ultimately assigned to an ALJ who
rendered an opinion, order and award on December 29, 1999.
The
ALJ found in accordance with the parties’ stipulations that Lake
had not worked since August 1998, that she was born on July 27,
1945, has a tenth grade education, a GED, and has specialized
work experience as a seamstress.
The ALJ further found that Lake testified she was
receiving social security disability benefits, that she has not
looked for work since she left Austin Apparel, and that she had
hurt her neck and low back on April 1, 1997.
At the hearing on
November 4, 1999, Lake testified that her condition had not
changed for the better and that she could not do anything.
Lake
claimed that she could not vacuum and had to sit down to wash
dishes.
The medical proof included a report from Dr. James
Owen who assigned 29% functional impairment, body as a whole,
limited lifting to less than five pounds, and sitting to less
than a half an hour.
Dr. Kiefer’s records were filed; the
records documented significant degenerative conditions in the
cervical spine.
Dr. Primm, the employer’s examining physician,
assigned a 10% functional rating to the cervical spine,
attributing essentially all of it to the arousal of a preexisting degenerative disc condition.
Dr. Primm advised against
heavy work but would allow lifting of five to ten pounds
regularly.
Luca Conte performed a vocational evaluation.
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He
testified that Lake had a 38% occupational loss and acknowledged
that, based upon Dr. Owens’ restrictions, the occupational loss
would exceed 75%.
The ALJ found that Lake had sustained her burden of
proving a work-related cervical and shoulder injury; however, the
ALJ was not persuaded that Lake had proven any work-related low
back injury.
The ALJ concluded that “from the cervical condition
standing alone, [Lake] . . . is 100% disabled.”
The ALJ provided
detailed findings to support this conclusion:
Based on [Lake’s] . . . age, education, and
prior work experience, and taking into
account the medical and lay testimony, the
ALJ is convinced that [Lake] . . . is 100%
disabled based on the restrictions and
diagnosis imposed. Dr. Kiefer has diagnosed
significant left sided degenerative disc
disease at the C5-C6 and the C6-C7 levels
which has resulted in a two level cervical
fusion. Dr. Owens has assessed a 25%
impairment rating based upon the cervical
condition standing alone and more
importantly, opines that [Lake’s] . . .
restrictions should be lifting [handling and
carrying] less than 5 pounds . . . and that
[she] . . . would be unable to continue with
her occupation. Dr. Conte further opined
that based on Dr. Owens’ restrictions
standing alone, that [Lake’s] occupational
disability would be greater than 75%.
The ALJ found that there was no evidence that Lake, immediately
prior to the work injury, was under any active restrictions;
therefore, the ALJ declined to carve out any portion of the award
as active and non-compensable.
The ALJ also noted that none of
the physicians had testified that Lake’s condition was the result
of the natural aging process; therefore, the ALJ determined that
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“there shall be no carve out for the natural aging process as
well.”
On January 11, 2000, Austin Apparel filed a notice of
appeal to the Workers’ Compensation Board.
On appeal, Austin
Apparel raised one question of law:
Under current Kentucky law, the awarding of
total occupational disability is controlled
by KRS 342.730 and must meet the definition
found at KRS 342.0011(11) which defines that
form of disability:
Permanent total disability benefits
[means] 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 . . . .
Austin Apparel contended that the ALJ’s award of total
occupational disability is contrary to evidence, emphasizing that
Luca Conte’s vocational opinion was unrebutted.
On April 28, 2000, the Board rendered a unanimous
opinion, affirming the ALJ.
The Board stated:
Since Austin is the party without the burden
of proof, we must view the evidence to
determine whether there was substantial
evidence of substance to support the ALJ’s
conclusion . . . .
Austin asserts on appeal that as a matter of
law the ALJ was without authority to assess a
total occupational disability. We, however,
disagree and therefore affirm the ALJ. As we
have noted on more than one occasion since
December 12, 1996, the ALJ is clothed with a
greater degree of discretion in assessing a
permanent total occupational disability than
he would be in assessing a permanent partial
disability. See Ira A. Watson Dept. Stores
vs. Hamilton, Claim No. 1998-CA-003100-WC,
rendered November 19, 1999 . . . now on
appeal to the Supreme Court.
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The Board reviewed the evidence — that Dr. Owen had assigned a
29% impairment rating and Dr. Primm had assigned 10% — and
explained that once an impairment rating is established, it is
incumbent upon the ALJ to determine whether this condition
prevents the individual from engaging in “work.”
The Board noted
that although the opinion of a vocational evaluator, such as Luca
Conte, may be beneficial, it is not ultimately binding citing
Eaton Axle v. Nally, Ky., 688 S.W.2d 334 (1985).
The Board
determined that the ALJ, within his discretion, certainly could
have concluded that an individual with the restrictions imposed
by Dr. Owen, who is older, and has limited work experience, has
no real ability to compete for work as defined by the Act.
The
Board recognized that the ALJ could have found a lesser degree of
disability, but the ALJ was not compelled to do so.
Thus, the
Board affirmed the ALJ’s decision.
On appeal to this Court, Austin Apparel contends that
the ALJ erred in failing to exclude a portion of Lake’s
disability due to her low back problem.
Lake had alleged both
low back and cervical problems as a result of the work-related
injury.
This issue was not raised before the Board; thus, it is
not preserved for review.
Notwithstanding, we fully agree with
the Board that the ALJ’s determination of total occupational
disability due to Lake’s cervical spine injury has a substantial
evidentiary foundation.
Lake also argues that the 1996 revision of the Act
effectively repealed Osborne v. Johnson.
Since entry of the
Board’s decision, the Supreme Court has rendered a final decision
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in Ira A.Watson Dep’t. Store v. Hamilton, Ky., 34 S.W.3d 48, 51
(2001), which is dispositive of the issue on appeal:
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. . . . . 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,
[Ky., 423 S.W.2d 800 (1968)] . . . remain
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.
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The Supreme Court explained that, despite the extensive revision
of the Act in 1996, the ALJ remains the factfinder.
It is still
the ALJ’s function to translate lay and medical evidence into a
occupational disability.
Although the ALJ must consider the
worker's medical condition when determining the extent of his
occupational disability at a particular point in time, the ALJ
“is not required to rely upon the vocational opinions of either
the medical experts or the vocational experts.”
added.)
(Emphasis
Id. at 52.
The April 28, 2000 opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Phil Williams
Williams, Wagone & Nevitt
Louisville, Kentucky
John W. Morgan
Denney, Morgan, Rather &
Gilbert
Lexington, Kentucky
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