EDWARD RICHARD WILLIS v. SALLEE HORSE VANS; HONORABLE DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: JULY 5, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000366-WC
EDWARD RICHARD WILLIS
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-01-00339
v.
SALLEE HORSE VANS;
HONORABLE DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; GUIDUGLI AND MILLER, JUDGES.
GUIDUGLI, JUDGE.
Edward Richard Willis (hereinafter “Willis”)
has petitioned this Court for review of the Workers’ Compensation
Board’s (hereinafter “the Board”) opinion affirming in part and
reversing in part and remanding the Administrative Law Judge’s
(hereinafter “ALJ”) opinion and award.
Specifically, Willis is
appealing the Board’s holding that the ALJ’s assignment of a 10%
functional impairment rating is not supported by substantial
evidence.
Having considered the parties’ arguments, the record,
and the applicable case law, we affirm.
Willis is currently a fifty-nine year-old resident of
Lexington, Kentucky.
He completed high school, has obtained a
CDL driver’s license, and has specialized training in law
enforcement and as a firefighter/EMT.
While working for the Clay
County Sheriff’s Department in Florida in 1983, Willis sustained
a work-related injury to his low back when he fell after stepping
in a hole.
He underwent surgery for a herniated disc at L5-S1,
and continued experiencing problems with his back until around
1998.
Willis began working for the Sallee Horse Vans
(hereinafter “Sallee”) in 1998 transporting horses in an 18wheeler with a 45-foot trailer.
In January 2000, Willis was
involved in a motor vehicle accident as a passenger in the cab of
an 18-wheeler.
He sought treatment for low back and left leg
pain, and was later released to his regular duties for Sallee.
On December 22, 2000, Willis sustained a work-related
injury to his low back when he slipped on ice while stepping up
onto a trailer.
He did not immediately experience a lot of pain,
but noted the onset of pain when he drove from Lexington to
Cincinnati and back on December 24th, and then flew from
Lexington to Florida the next day.
He sought treatment for low
back and left leg pain from chiropractor Dr. Bob Hutchinson in
Florida on December 26th.
He continued seeking treatment upon
his return to Lexington, and he was eventually released to work
in April 2001.
Willis is currently working for Sallee.
On March 9, 2001, Willis filed an Application for
Resolution of Injury Claim with the Department of Workers’
Claims.
The claim was assigned to ALJ Donald Smith, and proof
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time began on March 29, 2001.
Willis filed the medical reports
of Dr. Hutchinson and Dr. William Brooks, and Sallee took the
deposition of treating physician Dr. Gregory Snider.
Willis
testified by deposition and at the final hearing.
Dr. Hutchinson first saw Willis on December 26, 2000,
for complaints of severe pain in the low back and left hip
radiating into the left leg.
Willis received treatment from him
in the form of adjustments and massage therapy until he returned
to Lexington, and Dr. Hutchinson noted slow but steady
improvement.
Dr. Brooks evaluated Willis on February 13, 2001, at
which time his chief complaint was low back and left leg pain.
He noted a history of a 1983 excision of a herniated
intervertebral disc.
prescribed medication.
Dr. Brooks ordered physical therapy and
A March 12, 2001, MRI of the lumbar spine
revealed previous surgery on the left at L5-S1, but no
herniation.
In an April 2, 2001, letter, Dr. Brooks stated his
diagnosis as a musculoligamentous strain of the lumbar spine, and
released him to work on April 16, 2001, with the restriction that
he avoid lifting over 35 to 50 pounds.
Dr. Brooks also stated
that Willis’ symptoms were directly related to the December 22,
2000, incident.
He later assigned a 10 to 13% whole person
impairment pursuant to DRE lumbar Category III of the AMA Guides.
Dr. Snider originally treated Willis following his
January 2000 motor vehicle accident for neck, low back, and left
leg pain.
He then saw Willis on January 5, 2001, for complaints
of low back and left leg pain, noting a history of a slip and
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fall.
Dr. Snider diagnosed low back pain with left sciatica, but
the etiology of the problem was unclear to him as it did not seem
to be related to the slip at work.
Willis did not keep his
follow-up appointment scheduled for January 26, 2001.
Following the prehearing conference and final hearing,
the contested issues remained notice, Sallee’s right to crossexamine Dr. Brooks, and extent and duration.
opinion and award on September 5, 2001.
The ALJ issued an
On the issue of the
right to cross-examine witnesses, the ALJ acknowledged that an
adverse party may depose reporting physicians, but it must be
done in a timely manner.
In this case, Sallee did not timely
seek an extension of proof time in order to take Dr. Brooks’
deposition and was therefore precluded from doing so.
On the
issue of notice, the ALJ found that Sallee was notified of the
injury by Dr. Hutchinson on December 26th, and that this evidence
was unrebutted and credible.
On the issue of extent and duration, the ALJ found that
Willis did not retain the physical capacity to return to the same
work due to the lifting restrictions imposed by Dr. Brooks, and
that he was not earning more money at that time because he was
working less hours, albeit it at the same wages.
He found Dr.
Brooks’ assignment of a 10% functional impairment rating as the
most persuasive.
The ALJ awarded Willis permanent partial
disability benefits in the amount of $57.27 per week for 425
weeks beginning December 23, 2000, for the 10% impairment rating
as well as medical expenses.
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Both Willis and Sallee filed petitions for
reconsideration.
Willis’ petition was denied as untimely, and
Sallee’s was granted only to the extent that benefits were to
terminate when Willis qualified for social security benefits and
that he would only receive half of the benefits for weeks he
returned to work at the same or greater wages.
Both Willis and
Sallee appealed to the Workers’ Compensation Board.
On January 23, 2002, the Board issued an opinion
affirming in part, and reversing in part and remanding.
The
Board affirmed on Willis’ argument that he should have received
an award of TTD benefits, reasoning that because he did not
timely seek reconsideration of that issue, the ALJ was precluded
from reviewing it.
Sallee raised three issues, including whether
the ALJ erred by assuming Willis’ 10% impairment was due to the
December 22, 2000, accident, for failing to apportion any of the
impairment to his previous injury, and for misconstruing his
wages.
The Board reversed on the first issue, holding that the
ALJ erred in relying on the impairment rating of Dr. Brooks
because he did not mention a level of the spine it was related to
and did not specifically attribute it to the work incident.
It
could not be assumed that the rating was for the
musculoligamentous condition Dr. Brooks found.
Because the award
of permanent partial disability benefits is predicated on the
existence of a functional impairment rating, proof of the
impairment rating is an essential element.
In this case, the
Board found that there was not substantial evidence to support a
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permanent partial disability award.
Due to this holding, the
other issues Sallee raised were moot.
Willis petitioned this Court for review solely on the
issue as to whether the 10% impairment rating was supported by
the record, arguing that the ALJ is permitted to draw conclusions
based upon the evidence as a whole.
Willis also contends that
based upon the letters and reports from Dr. Brooks, the ALJ could
logically infer and conclude that because the limitations and
work restrictions were based solely on the work injury, the
impairment rating was also based solely upon that injury.
In
response, Sallee argued that the ALJ could not assume a causal
connection between the December 2000 incident and the 10 to 13%
impairment rating.
It was uncontradicted that Willis had
undergone a previous surgery to his low back at L5-S1 for which
the AMA Guides would apply a 10 to 13% impairment even if
asymptomatic.
While Dr. Brooks stated that the symptoms were
attributable to the December 2000 incident, he did not attribute
the functional impairment to the incident.
The ALJ may not make
assumptions that are not supported by the evidence.
In Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d
685 (1992), the Supreme Court addressed its role and that of the
Court of Appeals in reviewing decisions in workers’ compensation
actions.
“The function of further review of the WCB in the Court
of Appeals is to correct the Board only where the [] Court
perceives the Board has overlooked or misconstrued controlling
statutes or precedent, or committed an error in assessing the
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evidence so flagrant as to cause gross injustice.”
Id., at 687-88.
The standard of review applicable to situations where
the party with the burden of proof is successful before the ALJ
is well settled in the Commonwealth.
“The claimant in a
workman’s compensation case has the burden of proof and the risk
of persuading the board in his favor.”
Ky.App., 576 S.W.2d 276, 279 (1979).
Snawder v. Stice,
“When the decision of the
fact-finder favors the person with the burden of proof, his only
burden on appeal is to show that there was some evidence of
substance to support the finding, meaning evidence which would
permit a fact-finder to reasonably find as it did.”
Special Fund
v. Francis, Ky. 708 S.W.2d 641, 643 (1986).
Although a court cannot substitute its
evaluation of the weight and credibility of
the evidence for that of the Workmen’s
Compensation Board, nevertheless, the
findings of fact of the board when it decides
in favor of the claimant must be supported by
substantial evidence. Substantial evidence
means evidence of substance and relevant
consequence having the fitness to induce
conviction in the minds of reasonable men.
Smyzer v. Goodrich Chemical Co., Ky., 474 S.W.2d 367, 369 (1971).
Substantial evidence is “evidence of substance and relevant
consequence having the fitness to induce conviction in the minds
of reasonable men.”
Union Underwear Co. v. Scearce, Ky., 896
S.W.2d 7, 9 (1995).
The issue in this appeal, therefore, is whether there
is substantial evidence to support the ALJ’s finding that the 10%
functional impairment assigned by Dr. Brooks was related to the
December 22, 2000, work incident.
We agree with the Board and
Sallee that there is not substantial evidence to support this
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finding.
Although Dr. Brooks clearly stated that the symptoms
were related to the work injury, he never related the 10 to 13%
functional impairment rating to it.
In his May 8, 2001, letter
to Willis’ attorney, Dr. Brooks stated, “I am in receipt of your
letter and would concur with the DRE lumbar Category III
indicating a 10 to 13% impairment of the whole person.”
did he relate this impairment to the work incident.
Nowhere
Indeed,
Sallee points out that the 5th Edition of the AMA Guides assigns
a 10 to 13% impairment under DRE lumbar Category III for a
history of a herniated disc and surgery.
It is undisputed that
Willis had a herniated disc and surgery to correct it in 1983.
It would not be logical for the ALJ to conclude that even though
Dr. Brooks related Willis’ symptoms to and imposed restrictions
based upon the December 2000 incident, it necessarily followed
that the functional impairment was also related to the work
incident.
Because there was no evidence of substance to support
the ALJ’s finding that the 10% functional impairment was related
to the work incident, we believe that the Board did not err in
assessing the evidence, did not substitute its judgment for that
of the ALJ, and properly reversed and remanded on this issue.
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685 (1992).
The Board’s opinion affirming in part, and reversing in
part and remanding the ALJ’s opinion and award is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
L. Davis Bussey
Lexington, KY
Charles E. Lowther
Lexington, KY
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