ANDREW WALDRIDGE v. ORR SAFETY CORPORATION; DONNA H. TERRY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
October 11, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000706-WC
ANDREW WALDRIDGE
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-99-62470
v.
ORR SAFETY CORPORATION; DONNA H. TERRY,
ADMINISTRATIVE LAW JUDGE; AND WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, MILLER, AND TACKETT, JUDGES.
TACKETT, JUDGE:
The Administrative Law Judge (ALJ) determined
that Andrew Waldridge suffered work-related injuries and that, as
a result, he sustained a 2% percent occupational disability.
Waldridge appealed to the Workers' Compensation Board (Board),
arguing, among other things, that the ALJ had incorrectly
determined his disability rating and that the proper rating
should have been assessed as 4 1/2%.
The Board affirmed the
ALJ's decision, and we now affirm the Board.
Waldridge was hired by Orr Safety Corporation in 1990.
In June 1998, Waldridge was involved in a non-work-related
automobile accident.
of low back pain.
Following the accident Waldridge complained
On September 2, 1998, Waldridge was diagnosed
with lumbar strain with mild disc protrusion at L4-L5.
As a
result of his accident injuries, Waldridge missed about three to
four weeks of work.
On March 17, 1999, Waldridge was involved in
a second non-work-related automobile accident.
Following the
accident, Waldridge again complained of low back pain, and was
off work for about two to three months.
In September 1999, Waldridge was classified as a lead
man, performing and overseeing order picking, receiving, and
shipping in a warehouse environment.
On September 8, 1999,
Waldridge sustained a work-related lifting injury to his lower
back while unloading a UPS truck.
Waldridge testified that as he
was lifting up a box he felt something tighten up “real bad” on
the right side of his back.
Waldridge was treated by Dr. Gregory Nazar.
An MRI
taken in December 1999 revealed a herniated disc at L4-5.
After
unsuccessful conservative treatment and physical therapy, on
January 14, 2000, Dr. Nazar performed a right L4-5 diskectomy.
Dr. Nazar assessed a 10% permanent impairment to the whole body.
In his deposition testimony, Dr. Nazar indicated that he agreed
with the assessment of Dr. Frank Wood’s apportionment of the
total impairment rating among the June 1998 motor vehicle
accident (5%); the March 1999 motor vehicle accident (3%); and
the September 1999 work injury (2%).
On July 20, 2001, Nazar
sent a letter to Waldridge’s counsel providing additional
explanation regarding his impairment rating assessment.
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As
explained later, it is this letter which forms the basis for
Waldridge’s objection to the ALJ’s decision.
At the request of Orr Safety Corporation, Waldridge was
given and independent medical examination by Dr. Wood.
On March
23, 2001, Dr. Wood’s independent medical examination report was
filed into the record.
The report stated, in part, “of
[Waldridge’s] 10% total whole-person impairment, 5% is due to the
motor vehicle accident of 06/25/98 [sic], 3% to the motor vehicle
accident of 03/15/99 and 2% to the occupational injury of
09/08/99.”
On December 14, 2000, Waldridge filed an Application
for Resolution of Injury Claim with the Department of Workers
Claims.
Following a hearing, on September 19, 2001, the ALJ
issued an opinion and award determining that Waldridge had a
permanent partial occupational disability of 2%.
The opinion and
order awarded Waldridge benefits of $4.82 per week for a period
not to exceed 425 weeks.
Waldridge subsequently appealed the
ALJ's decision to the Board; on March 6, 2002, the Board entered
a decision affirming the ALJ's decision.
This petition for
review followed.
Waldridge contends that the evidence of record compels
a 4 1/2% impairment rating being assigned to Waldridge instead of
the 2% assigned by the ALJ.
In awarding benefits based upon a 2% impairment, the
ALJ stated as follows:
The extent and duration of disability
attributable to the work injury must be
determined. This issue is inextricably
intertwined with the question of the extent
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of pre-existing active disability arising
from the two motor vehicle accidents. For
injuries occurring on or after December 12,
2000, the extent of permanent partial
disability is determined by reference to a
permanent impairment rating calculated
pursuant to the AMA Guides to Evaluation of
Permanent Impairment. KRS 342.0011(11)(b)
and KRS 342.730. In this case, both Dr.
Woods and Dr. Nazar have agreed that Mr.
Waldridge now has a 10% permanent impairment
rating. Amazingly enough, both physicians
also agree that only 2% of that impairment
rating is attributable to the September 8,
1999, incident, and that 5% is due to the
June 25, 1998 motor vehicle accident and 3%
is due to the March 17, 1999 motor vehicle
accident. Thus, the Administrative Law Judge
finds that Mr. Waldridge currently has a 10%
impairment rating under the AMA Guides, of
which 2% is attributable to the work injury,
based upon the above expert opinions. In
reaching this conclusion, the Administrative
Law Judge has also considered Dr. Nazar’s
July 20, 2001 letter to Mr. Waldridge’s
counsel which somewhat varies the opinion
rendered in his July 30, 2001 deposition.
However, it is clear that both Dr. Wood and
Dr. Nazar would have imposed a permanent
impairment rating prior to the September 8,
1999 injury if requested and thus, the
impairment set forth hereinabove, is adopted.
The fact-finder, the ALJ, rather than the reviewing
court, has the sole discretion to determine the weight,
credibility, quality, character, and substance of evidence and
the inference to be drawn from the evidence.
Paramount Foods,
Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419 (1985).
the discretion to choose whom and what to believe.
The ALJ has
Addington
Resources, Inc. v. Perkins, Ky. App., 947 S.W.2d 421, 422 (1997).
The ALJ may reject any testimony and believe or disbelieve
various parts of the evidence, regardless of whether it came from
the same witness or the same adversary party's total proof.
Caudill v. Maloney's Discount Stores, Ky., 560 S.W.2d 15, 16
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(1977).
Although a party may note evidence which would have
supported a conclusion contrary to the ALJ's decision, such
evidence is not an adequate basis for reversal on appeal.
McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46 (1974).
In
instances where the medical evidence is conflicting, the sole
authority to determine which witness to believe resides with the
ALJ. Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 123, 124 (1977).
The ALJ resolved the issue against Waldridge, who had the burden
of proof on the issue.
Where, as here, the party with the burden
of proof was unsuccessful before the ALJ, the issue on appeal is
whether the evidence compels a finding in his favor.
Paramount
Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419 (1985); Daniel
v. Armco Steel Co., L.P., Ky. App., 913 S.W.2d 797, 800 (1995).
To be compelling, evidence must be so overwhelming that no
reasonable person could reach the same conclusion as the ALJ.
REO Mechanical v. Barnes, Ky. App., 691 S.W.2d 224, 226 (1985).
Waldridge contends that the ALJ erred in her disability
assessment because Dr. Nazar’s July 20, 2001 letter to
Waldridge’s counsel qualified his earlier 2% disability rating.
The letter stated, in relevant part, as follows:
With regards to your first question about the
assigned impairment rating in 1998 of 5%, I
do not believe this would change my opinion
from Dr. Wood’s assessment. I believe the
assigned impairment rating[s] that Dr. Wood
has suggested are correct and that the March
1999 auto accident would add an additional 3%
and that the work related injury in September
1999, would be a 2% rating. Thus, his total
impairment rating is 9%.
This is with the assumption that he has
already concluded the impairment rating for
the work accident in 1998 with 5%. If there
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was no impairment rating assigned at that
time, then we would have to start from the
beginning again, and thus, one would assign
5 1/2% impairment to the 1999 injury and
4 1/2% to the September 1999 injury.
However, if the impairment rating was
assigned [5%] prior to the 1999 injury, then
things would stand as Dr. Wood suggested.
Waldridge contends that the July 20, 2001 letter
reflects that Dr. Nazar agreed to a 2% work-related disability
assessment only in the event that an impairment rating had been
assigned following the original motor vehicle accident.
Since no
rating was in fact made following the original accident,
Waldridge contends that the evidence compels a finding that a
4 1/2% disability rating should have been assigned to Waldridge
as a result of the work injury.
Though Dr. Nazar’s July 20, 2001 letter modified his
original deposition testimony, we first note that Dr. Wood’s
testimony alone is sufficient to sustain the 2% work-related
impairment rating.
In light of Dr. Wood’s impairment rating
assessment, even if we accept Waldridge’s interpretation of the
July 20, 2001 letter, the evidence does not compel a result in
his favor.
Dr. Wood’s medical findings support the ALJ’s finding
of a 2% impairment rating.
In addition, we agree with the Board that Waldridge has
misconstrued the overall tone and meaning of Dr. Nazar’s
statements.
We therefore adopt the Board’s discussion of the
issue:
It is the second portion of the above-quoted
letter that forms the ground for Waldridge’s
argument on appeal. Waldridge interprets Dr.
Nazar’s letter as indicating that he only
agreed with Dr. Wood’s apportionment of the
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impairment between the injuries if Dr. Nehil
had assigned an impairment rating at the time
of the 1998 motor vehicle accident. Although
we perceive some ambiguity in the letter, for
a number of reasons we believe Waldridge has
misconstrued the overall tone and meaning of
Dr. Nazar’s statements. First, from his
brief on appeal it is apparent that Waldridge
believes Dr. Nazar was referring to Dr. Nehil
in the second paragraph of the July 20, 2001
letter when he wrote “[t]his is with the
assumption that he has already concluded the
impairment rating . . . .” (The Board’s
emphasis.) However, when reading this
statement in the context of the entire
letter, there can be no doubt that Dr. Nazar
was referring to Dr. Wood. Secondly, a
reference to Dr. Nehil in the letter is
illogical because Dr. Nehil treated Waldridge
for his second motor vehicle accident in
1999, not the first, as Waldridge suggests.
Further, there would have been no reason for
any physician to assign an impairment rating
at the time of either the 1998 or 1999 motor
vehicle accident and, in fact, no impairment
ratings were ever requested. Initially, Dr.
Wood was the only physician who attempted to
assign an impairment to the 1998 injury. Dr.
Wood testified that based on his review of
Waldridge’s medical records, diagnostic
tests, and complaints, he was able to
determine that Waldridge’s impairment for the
1998 injury was 5%. Finally, Dr. Nazar’s
treatment notes do not indicate he was
provided with a history of the 1998 motor
vehicle accident and the record is unclear as
to when he first became aware of that
accident. Thus, Dr. Nazar’s opinion as to
apportionment is based on his apparent
agreement with Dr. Wood’s assessment of the
effects of the 1998 auto injury.
While Waldridge urges a different
interpretation of Dr. Nazar’s letter, his
position represents nothing more than a
possible alternative inference that could be
drawn from the evidence. To the contrary,
our independent review of Dr. Nazar’s
testimony convinces us the ALJ accurately
assessed the evidence, which she has neither
misinterpreted nor misapplied. The ALJ, as a
matter of law, is empowered to choose to
believe part of the evidence while at the
same time disregard other portions of the
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evidence whether the evidence came from the
same witness or the same party’s total proof.
Whittaker v. Rowland, Ky., 998 S.W.2d 479
(1999); Paramount Foods, Inc. v. Burkhardt,
Ky., 695 S.W.2d 418 (1985).
As the Board has not overlooked or misconstrued
controlling statutes or precedent, or committed an error in
assessing the evidence so flagrant as to cause gross injustice,
we affirm.
Western Baptist Hospital. v. Kelly, Ky., 827 S.W.2d
685, 687-88 (1992).
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, ORR SAFETY
CORPORATION:
Edward A. Mayer
Louisville, Kentucky
James G. Fogle
Ferreri & Fogle
Louisville, Kentucky
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