COOK FAMILY FOODS, LTD. v. RANDY BOWLING, JAMES L. KERR, ADMINISTRATIVE LAW JUDGE, AND WORKERS' COMPENSATION BOARD
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RENDERED:
AUGUST 24, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002323-WC
COOK FAMILY FOODS, LTD.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-71107
v.
RANDY BOWLING, JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE, AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, GUIDUGLI, AND TACKETT, JUDGES.
TACKETT, JUDGE:
Cook Family Foods, Ltd., appeals from the
decision of the Workers’ Compensation Board affirming the
decision of the ALJ awarding a total occupational disability to
Randy Bowling.
We cannot improve upon the well-reasoned opinion
of the Board and adopt it in its entirety as our own:
Cook Family Foods, Ltd. (Cook) appeals
from an opinion and award rendered April 21,
2000 by the Hon. James L. Kerr,
Administrative Law Judge (ALJ) awarding a
total occupational disability to Randy
Bowling (Bowling) as a result of a workrelated injury sustained on August 28, 1997.
Cook maintains on appeal that Bowling has
failed to sustain his burden of proof by
competent and substantial evidence and that
the ALJ does not have discretion to disregard
uncontradicted medical testimony. For the
reasons hereinafter discussed, we affirm the
decision of the ALJ.
Bowling is thirty-eight years old, has
ten years of formal education and a GED. His
employment history includes truck driving,
carpentry and construction labor. He began
his employment with Cook in April 1997. As a
laborer for Cook, his job required constant
bending, lifting and stooping. On August 28,
1997, Bowling sustained a serious workrelated injury when a ham transporting
conveyor system collapsed from the ceiling
striking him in the back and shoulder. The
combined weight of the conveyor and product
was estimated to be anywhere from 800 to
1,000 pounds. As a result of the incident,
Bowling suffered a shoulder injury requiring
surgery, a back injury requiring two
surgeries and has experienced bladder and
sexual dysfunction. Bowling was immediately
treated at Kings Daughters’ Medical Center
and was released. He was readmitted two days
later and remained hospitalized for a period
of six days.
An MRI performed during this
hospitalization revealed a herniated disc.
He was referred to the University of Kentucky
Medical Center (UKMC) where back surgery was
performed by Dr. Phillip Tibbs on September
12, 1997. According to Bowling, the surgery
had to be performed again on December 12,
1997. Bowling testified that he tried to go
back to work after the surgery, but simply
could not work because of the pain. He
testified that he could not stand or walk on
concrete. Bowling also testified that his
left shoulder was operated on at UKMC.
Bowling stated that his shoulder condition is
getting worse and that he experiences
recurring snapping, popping and grinding in
his shoulder. Bowling also testified to a
decreased range of motion and that he is in
almost constant pain. His testimony revealed
that he suffers from a significant bladder
problem. Bowling testified that he had to
catheterize himself at least three times a
day, that he had to go to the bathroom from
four to five times per hour, but that there
was leakage which he couldn’t feel and left
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him “in a mess.” In describing his back
pain, Bowling testified that even after
surgery he couldn’t bend nor could he stand
for any longer than forty-five minutes. He
testified that he could not walk without
pain, that he has numbness in his calf and
numbness in his foot which comes and goes.
Bowling also stated that whether he was
walking, standing or sitting, there was
constant pain and that other than a few hours
for Cook, he has not worked since the
accident.
The medical evidence in this case
comes by way of records and reports of Dr.
Phillip A. Tibbs, Professor of Neurosurgery
and Rehabilitation Medicine and the Director
of the University of Kentucky Spine Center;
Dr. Timothy Prince, a physician at UKMC; and
Dr. J. William McRoberts, a urologist and
professor of surgery at UKMC. Dr. Tibbs
first examined Bowling on September 10, 1997.
At that time, he took a history from Bowling
which included severe left hip and leg pain
and that he could not put his foot down flat.
Bowling also reported poor rest even using
Percocet; that he had bladder hesitancy and
only partial erectile ability. Dr. Tibbs
noted that Bowling was in extreme acute
distress with severe left antalgic gait and
that his left achilles reflex was absent. He
further reported that sensation was decreased
in the left S1. The straight leg raise was
extremely positive on the left at 20%, and
cross leg raise was positive at 30% on the
right. He further noted that he reviewed the
MRI scan performed on September 2, 1997. The
MRI showed a very large extruded disc at L5S1 on the left. Dr. Tibbs recommended a
lumbar microdiscectomy as soon as possible.
At that time, he advised Bowling not to
return to work until eight weeks after the
surgery.
The surgery was in fact performed on
September 12, 1997 by Dr. Tibbs; however, on
December 12, 1997, Dr. Tibbs reoperated on
Bowling and found a large recurrent herniated
disc fragment at L5-S1 on the left.
Additionally, he found instability at L5-S1
and a posterior lumbar interbody fusion was
performed using Titanium threaded cages. Dr.
Tibbs reported that a January 7, 1998,
follow-up with Bowling revealed that he was
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doing well but was having some significant
spasm. Dr. Tibbs prescribed Lorcet and
Flexeril for pain. He also noted that at
that time Bowling reported normal bowel and
bladder ability.
A March 18, 1998, follow-up report by
Dr. Tibbs indicated that Bowling was still
having a lot of cramping from his coccyx to
his shoulders and leg spasms. Bowling again
denied bladder or bowel incontinence, but
stated he was experiencing some limited
sexual activity because of the pain. An
October 7, 1998, report of Dr. Tibbs
indicated that Bowling still suffered from
back pain but that previously incapacitating
leg pain had been relieved. Dr. Tibbs
reported that he was starting Bowling on a
program of iontophoresis for residual
muscular spasm. He predicted that Bowling
would be at maximum medical improvement in
December 1998, and he noted that Bowling
should consider vocational retraining.
On December 2, 1998, Dr. Tibbs again
saw Bowling and reported that he was using a
TENS unit for his back and his medications
consisted of Voltaren, Ultram and
Amitriptyline. Dr. Tibbs released Bowling to
work on a trial basis. He restricted Bowling
as follows: 1) working no longer than four
hours a day; 2) lifting no more than ten to
fifteen pounds; 3) avoid repetitive bending
and twisting at the waist; and, 4) be able to
change from standing to sitting position as
needed. At that time, he further prescribed
Restoril and Doxepin in addition to Ultram
and Voltaren. Dr. Tibbs concluded that
Bowling had significant residual symptoms and
restrictions but it was his opinion that
Bowling could work safely in the light duty
range.
On February 17, 1999, Dr. Tibbs
reported that Bowling had completed his
functional capacity evaluation and had
unsuccessfully attempted a trial return to
work. He stated at that time that it was his
opinion that Bowling had attained maximum
medical improvement and he assigned an
impairment rating pursuant to the AMA Guides
of a 20% permanent partial impairment to the
body as a whole. He attributed 50% of this
impairment to his work-related injury and 50%
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to the presence of pre-existing dormant
degenerative disc disease.
Dr. Timothy Scott Prince examined
Bowling on April 8, 1999. He also reviewed
Bowling’s medical records and reports. Dr.
Prince diagnosed Bowling as having a left
shoulder partial rotator cuff tear which had
been surgically repaired; chronic low back
pain, status post-herniated necleous pulposa
at L5-S1 with radiculopathy, status post
laminectomy and discectomy x 2 with fusion x
1; neurogenic bladder and erectile
dysfunction. He placed Bowling under
significant restrictions and indicated that
Bowling did not have the physical capacity to
return to the type of work performed at the
time of the injury. He recommended that
Bowling be restricted to light work, lifting
twenty pounds maximum with frequent lifting
or carrying of objects weighing up to ten
pounds. He further recommended walking or
standing for no more than one to four hours
or sitting no more than five to eight hours;
no stooping, crouching, bending or squatting;
no overhead work - left; and no lifting,
pushing or pulling floor to waist, or
shoulder level or above on the left side.
His report also indicated that he would
restrict Bowling from working near moving
and/or hazardous machinery and that any
employment allow for frequent changes in
posture and ready access to the bathroom.
Dr. Prince, using the most recent AMA Guides
to the evaluation of permanent impairment,
assessed a total impairment of 26% with 4%
related to the shoulder, 10% to the low back,
9% to the bladder and 4% to sexual
dysfunction.
Dr. William McRobers treated Bowling
and assessed an impairment of 24% based upon
the Second Edition of the AMA Guides. He
assigned 15% of the impairment for loss of
sexual function and 10% for bladder
dysfunction.
The ALJ reviewed and thoroughly
summarized the evidence of record and
ultimately concluded as follows:
Utilizing the prerogative allowed
to the undersigned by virtue of KRS
342.730(1)(a), the Administrative
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Law Judge concludes that the
plaintiff is totally occupationally
disabled as a result of his workrelated injury. His work history
has included only heavy manual
labor and plaintiff has no
specialized or vocational training.
While the restrictions of the
various physicians may allow the
plaintiff to return to light work,
plaintiff’s credible testimony
regarding pain convinces the
undersigned that the plaintiff
lacks the ability to be employed on
a full-time basis. In addition,
plaintiff’s requirement that he
frequently change positions and
have ready access to a restroom
indicate to the undersigned that
the plaintiff does not have the
ability to sustain employment on a
regular basis. Accordingly, the
undersigned concludes that the
plaintiff should be awarded total
disability as a result of his workrelated injuries.
The crux of Cook’s argument is that
it was error for the ALJ to conclude that
Bowling was totally disabled when the
uncontradicted medical testimony established
that Bowling could return to sedentary or
light duty work with certain restrictions.
True enough, it is error in this
Commonwealth for the fact finder to reject
the uncontradicted medical evidence of record
without providing a significant explanation
for his rejection. See Commonwealth v.
Workers’ Compensation Board of Kentucky,
Ky.App. 697 S.W.2d 540 (1985); Mengel v.
Hawaiian-Tropic Northwest & Central
Distributors Inc., Ky.App., 618 S.W.2d 184
(1981); Collins v. Castleton Farms, Ky.App.,
650 S.W.2d 830 (1977). This occurs
typically, when the causal relationship
between the trauma and the injury is not
readily apparent to a layman. The question
is one properly within the province of
medical experts, and the ALJ may not
disregard the uncontradicted medical evidence
of record. Mengel, 618 S.W.2d at 186-87, see
also Elizabethtown Sportswear v. Stice,
Ky.App., 720 S.W.2d 732, 733 (1986). This,
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however, is not the typical case and we . . .
are not writing on a clean slate. In Ira A.
Watson Department Store v. Hamilton, 1999 WL
1086225,1 the Court of Appeals adopted the
Board’s opinion in its entirety.
In that case, as this, the employer
contended that the Board erred in concluding
that the ALJ’s total disability finding was
supported by substantial evidence. Hamilton
injured his low back while moving stock. He
received medical treatment but continued to
suffer from back pain. He attempted to
return to work but was unsuccessful because
of the pain. The medical evidence contained
functional impairment assessments from 5% to
27%. Restrictions placed on the claimant
limited repetitive lifting from five to forty
pounds, no repetitive bending or stooping, or
no sitting or walking for more than three
hours in an eight-hour day. Other
restrictions of record were that claimant
could not work at heights and extreme
temperatures and vibratory equipment should
be avoided. A vocational evaluation was
performed in which it was ultimately
concluded that the claimant lacked
significant potential for training or
competitive employment. The ALJ determined
that Hamilton was totally and permanently
disabled. In that case, as in the appeal
presently before us, no physician testified
that the claimant was totally occupationally
disabled or was incapable of performing any
work on a regular and competitive basis. As
was pointed out by the Court of Appeals, this
is simply not required in claims for total
disability.
Permanent total disability is
defined in KRS 342.0011(11)(c) as “[t]he
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. . . .” “Work” is defined in KRS
342.0011(34) as “[p]roviding services to
another in return for remuneration on a
1
Subsequent to the Board’s decision, the Kentucky Supreme
Court granted discretionary review and affirmed the Court of
Appeals’ decision in Ira A. Watson Department Store v. Hamilton,
34 S.W.3d 48 (2001).
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regular and sustained basis in a competitive
economy.”
The Court in Ira A. Watson
Department Store v. Hamilton, supra, stated
“[m]edical assessments remain one of many
elements to be considered. The ALJ, as was
his right, considered the individual’s own
testimony, vocational testimony,
physiological testimony and arrived at a
finding of total disability. See Caudill v.
Maloney’s Discount Stores, Ky., 560 S.W.2d 15
(1977); Eaton Axle Corp. V. Nally, Ky., 688
S.W.2d 343 (1985); and Smyzer v. B.F.
Goodrich Chemical Co., Ky., 474 S.W.2d 367
(1971).”
Thus, when a party without the
burden of proof is unsuccessful, the question
on appeal is whether the findings of the ALJ
are supported by substantial evidence. Id.
Substantial evidence is “evidence of
substance and relevant consequences having
fitness to induce conviction in the minds of
reasonable men.” Union Underwear Co. v.
Scearce, Ky., 896 S.W.2d 7, 9 (1995). If the
findings of the ALJ are supported by
substantial evidence the reviewing court must
affirm the fact finder’s decision.
In determining whether an award of
total permanent disability is appropriate,
the statutes cited above mandate a twopronged finding by the ALJ. First, whether
the medical proof establishes a “permanent
disability rating,” and second, a finding
that there has been a complete and permanent
inability to perform any type of work as a
result of the injury. Evidence establishing
the first prong was provided by Dr. Timothy
Prince who assessed a 26% impairment rating
and by Dr. Tibbs who assessed a 20%
impairment rating. The second prong is and
continues to be a discretionary function of
the fact finder. The question that the ALJ
must answer is whether the claimant’s injury
has rendered him or her incapable of regular
employment in the labor market. It is
abundantly clear that the restrictions and
limitations placed on him by his treating and
examining physicians were as stringent, if
not more so, than those placed on the
claimant in Ira A. Watson Department Store v.
Hamilton, supra. Given this evidence and
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Bowling’s testimony, we believe that there is
substantial evidence of record to support the
ALJ’s award of total disability benefits.
Cook also argues that Bowling’s
claim did not include testimony by way of
vocational experts. We conclude however that
the presence or absence of testimony of
vocational experts is not in and of itself
determinative of anything. Our appellate
courts have held that vocational expert
testimony simply does not take precedence
over any other testimony of record, and
further, that an uncontradicted opinion by a
vocational expert is not such evidence as
compels any finding. See Eaton Axle v.
Nally, 688 S.W.2d at 347; Parson v. Union
Underwear Co., Ky. App., 758 S.W.2d 43 (1988)
(overruled on other grounds in Beale v.
Faultless Hardware, Ky., 837 S.W.2d 893
(1992)).
Cook finally argues that the report
of Dr. McRoberts should be totally
disregarded as he assessed an impairment
rating of 24% which he reported was under the
second edition of the AMA Guides. This
edition is long outdated and we agree with
Cook that any reliance on Dr. McRoberts’ one
paragraph report was error. Dr. McRoberts’
report reads as follows:
This is regarding our phone
conversation on Randy Bowling and
your request for an AMA Impairment
Rating. I have determined
according to the Guide to the
Evaluation of AMA Impairment
Ratings, 2nd Edition, p. 240-241,
that he is a class 2 (15%)
impairment for his sexual function
and a class 1 (10%) for his bladder
dysfunction. By the values on this
chart, his total impairment is
calculated to be 24%.
Any attempt by this Board to justify the use
of this evidence would amount to nothing more
than sophistry. The Legislature, in its
amendment to KRS 342.730, and since 1987, has
required impairment ratings to be determined
under the Guides to the Evaluation of
Permanent Impairment, American Medical
Association, latest edition available. The
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latest edition available currently is the 4th
edition. That having been said, we believe
that error, if any, was harmless. While the
ALJ did find that Dr. McRoberts assessed a
24% impairment rating, that assessment fell
between the assessments made by Dr. Tibbs and
Dr. Prince. The ALJ relied on the reports of
Dr. Tibbs and Dr. Prince concerning Bowling’s
physical condition and the restrictions that
were placed on him. Bowling’s bladder
dysfunction was fully addressed by Dr.
Prince. Irrespective of Dr. McRoberts’
report, the mandates placed on the ALJ by KRS
342.0011(11)(c) and KRS 342.0011(34) have
been satisfied by evidence of substance
contained in the records. Special Fund v.
Francis, Ky., 708 S.W.2d 641 (1986).
For the foregoing reasons, the
opinion and award of ALJ James L. Kerr is
AFFIRMED.
The decision of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE RANDY
BOWLING:
Gregory C. Shields
Ashland, Kentucky
Billy J. Moseley
Webster Law Offices
Pikeville, Kentucky
BRIEF FOR ADMINISTRATIVE LAW
JUDGE, AND WORKERS’
COMPENSATION BOARD:
Walter W. Turner
Valerie L. Salven
Frankfort, Kentucky
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