COPAR, INC. v. SHERRI ROGERS; DONNA TERRY, Administrative Law Judge; and THE WORKERS' COMPENSATION BOARD
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RENDERED: DECEMBER 20, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2002-CA-000951-WC
COPAR, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-99-93138
SHERRI ROGERS; DONNA TERRY,
Administrative Law Judge; and
THE WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM and HUDDLESTON, Judges.
HUDDLESTON, Judge:
Copar, Inc., has appealed a decision of the
Workers’ Compensation Board which affirmed an Administrative Law
Judge’s
decision
finding
Sherri
Rogers
to
have
sustained
a
permanent total disability as a result of a work-related physical
injury and resulting psychological condition.
The facts of the case, as stated by the Board, are
essentially as follows:
Rogers began working for Copar in 1997 as a factory
production worker. Rogers testified she injured her back
on January 25, 1999. She left the production area of the
factory and headed into the main office.
As she opened
a glass door leading into the office area, a draft of air
caught the door causing her to jerk and twist.
She
experienced a popping sensation in her low back followed
by severe pain in her low back and right leg.
Rogers
immediately gave notice of the injury and was placed on
light duty.
She attempted to treat her condition by
soaking in hot tubs of water after work.
When her
symptoms did not resolve, she sought treatment from Dr.
Paul Taylor, her family physician. Rogers testified that
prior to the work injury in 1999 she was physically
active and participated in horseback riding, swimming and
other vigorous activities in addition to working and
caring for her children.
Since the injury she has been
in constant pain and has required increasing doses of
pain medication to remain minimally functional.
She
indicated she had severe and constant left leg pain and
somewhat
milder
right
leg
pain.
She
developed
psychological problems as a result of the chronic pain
and economic pressures caused by the loss of income.
Rogers testified she attempted to commit suicide while
her daughters were packing their clothes to go live with
their father since she was unable to provide for or care
for them.
-2-
On Appeal, Copar presents four questions for our review.
Specifically,
•
Did the Board and ALJ improperly allow Rogers to
present the opinions of more than two doctors?
•
Is the ALJ’s award of permanent total disability
benefits
not
supported
by
a
valid
impairment
rating?
•
In
affirming
the
ALJ’s
finding
that
Rogers’s
psychological condition was a direct result of the
work injury, did the Board misconstrue Coleman v.
Family Enterprises, Inc.?1
•
Was Copar denied meaningful appellate review of the
ALJ’s granting of interlocutory relief?
The ALJ Did Not Err in Allowing the Admission of Hospital
Records and Physician Opinions
As observed by the ALJ, a full summary of each piece of
the voluminous record compiled in this case would result in the
needless decimation of a small forest.
Therefore, we need not
present, as did the ALJ and the Board, recitations of all the
medical evidence presented below.
Rogers offered into evidence the medical records of Dr.
Paul M. Taylor, her treating physician; the deposition of Dr. Mark
Awh, the radiologist who interpreted her MRI study; and the report
of Dr. Wayne Naimoli.
1
Rogers also submitted medical records from
Ky., 58 S.W.3d 459 (2001).
-3-
Western State Hospital and Pennyroyal Center.
Contained in the
records from Western State and Pennyroyal Center were the opinions
of Drs. Manuel DeLaRocha and Robert Sivley.
On appeal, Copar points to 803 Kentucky Administrative
Regulations (KAR) 25:010 § 14(2), which provides as follows:
Any party may file as evidence before the administrative
law judge pertinent material and relevant portions of
hospital, educational, Office of Vital Statistics, Armed
Forces, Social Security, and other public records.
An
opinion of a physician which is expressed in these
records shall not be considered by an administrative law
judge in violation of the limitation on the number of
physician’s opinions established in [Kentucky Revised
Statutes (KRS)] 342.033.
KRS 342.033 limits medical proof in the following manner:
In a claim for benefits, no party may introduce direct
testimony from more than two (2) physicians without prior
consent from the administrative law judge.
The motion
requesting additional testimony shall clearly demonstrate
the need for such additional testimony.
A party may
introduce direct testimony from a physician through a
written medical report.
The report shall become a part
of the evidentiary record, subject to the right of an
adverse party to object to the admissibility of the
report and to cross-examine the reporting physician. The
commissioner shall promulgate administrative regulations
-4-
prescribing the format and content of written medical
reports.
There is no dispute that when Rogers sought to introduce
the records from Western State and Pennyroyal Center, she did not
seek the ALJ’s permission through a demonstration of the need for
additional
medical
testimony,
as
provided
in
KRS
342.033.
Therefore, Copar argues, the opinions of Dr. DeLaRocha and Dr.
Silvey contained in the hospital records should not have been
considered by the ALJ because their introduction violates the two
doctor limitation on direct testimony.
Rogers makes two arguments in response.
Her first is
that Copar misinterprets the language of 803 KAR 25:010 § 14(2).
Specifically, Rogers contends that the language that a physician’s
opinion “shall not be considered . . . in violation of the
limitation” means that opinions contained in hospital records are
not to be counted against the total limit.
regulation
to
mean
that
only
direct
Rogers interprets the
doctor’s
testimony
not
contained within hospital records is limited by KRS 342.033, and
that 803 KAR 25:010 Section 14(2) allows an ALJ to consider a
potentially unlimited number of doctor’s opinions if such opinions
are
contained
within
the
records
of
a
hospital
or
similar
institution.
While a resolution of the above dispute would present a
novel challenge, it is one we need not undertake to decide this
case.
As presented in Rogers’s other argument and as decided by
the Board, Copar has ignored 803 KAR 25:010 § 14(1), which provides
that “[t]he Rules of Evidence prescribed by the Kentucky Supreme
-5-
Court shall apply in all proceedings before an administrative law
judge except as varied by specific statute and this administrative
regulation.” Relevant here is Kentucky Rule of Evidence (KRE) 103,
which provides in part:
(a)
Effect of erroneous ruling.
Error may not be
predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is
affected; and
(1)
Objection.
In
case
admitting
evidence,
a
the
ruling
timely
is
objection
one
or
motion to strike appears of record, and upon
request
of
the
court
stating
the
specific
ground of objection, if the specific ground
was not apparent from the context[.]
Copar did not object to Rogers’s proffer of the hospital
records in question (i.e., to introduce the opinions of Drs.
DeLaRocha and Sivley) until after the ALJ had already made an
award.
While Copar is correct that it did not have to object to
Rogers’s intention to present the records,2 that duty manifested
itself at the hearing when Rogers’s use of the opinions contained
therein became apparent.
KRE 105(a) provides that evidence which
may only be admitted for a limited purpose shall not, by its
unlimited introduction or use, form a basis for reversal unless the
complaining party requested that the evidence be restricted to its
2
Copar contends that it did not know the purpose for which
Rogers intended to enter the records.
Although we have
reservations about the reliability of this argument, we will accept
it as true for present purposes.
-6-
proper use.
By not objecting to Rogers’s use of hospital records
which may have been admissible for other purposes but not for
reliance on the medical opinions contained therein,3 Copar lost its
ability to complain on appeal.
Therefore, we hold this issue is
not properly preserved for our review and accordingly affirm the
ALJ and the Board.4
The ALJ’s Award Of Permanent Disability Benefits is
Supported By a Valid Impairment Rating
In making an award, the ALJ stated that she could rely on
either the five percent impairment rating assessed by Dr. Gregory
Gleis or the fifteen percent impairment rating assessed by Dr.
Taylor.
Copar
argues
that
this
alternate
impairment
scheme
violates the requirement in KRS 342.0011(36) that a permanent
impairment rating be calculated using the permanent impairment
rating selected by the ALJ.
Also, Copar posits that it would be
impossible in the future to determine if Rogers were entitled to
benefits
upon
reopening
should
her
condition
change.
The
conclusion of this argument is that the case must be remanded to
the ALJ, who must then finally select one of the two possible
impairment ratings.
As
fact-finder,
the
ALJ
has
the
sole
authority
to
determine the weight, credibility, substance and inferences to be
3
We repeat that we have not decided whether or not the
opinions, in the face of a proper objection, should have been ruled
inadmissible.
4
See also Ky. R. Civ. P. (CR) 76.12(4)(c)(v), requiring an
argument to have been initially presented to the original
adjudicator before it may be raised on appeal.
-7-
drawn from the evidence.5
The ALJ may choose 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.6
Furthermore,
the Board may not substitute its judgment for that of the ALJ in
matters
involving
the
questions of fact.7
weight
to
be
afforded
the
evidence
in
Furthermore, a finding of fact cannot be
disturbed on appeal if there is substantial evidence to support
it.8
“Substantial evidence has been . . . defined . . . as that
which, when taken alone or in light of all the evidence, has
probative value to induce conviction in the mind of a reasonable
person.”9
This Court’s function in reviewing the Board’s decision
is “to correct the Board only where [we perceive that] 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.”10
Here,
there
is
evidence
to
support
either
possible
impairment rating, such that we would not disturb either finding.
5
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418,
419 (1985).
6
Caudill v. Maloney’s Discount Stores, Ky., 560 S.W.2d 15,
16 (1977).
7
See KRS 342.285(2).
8
Jackson v. General Refractories Co., Ky., 581 S.W.2d 10,
11 (1979).
9
Bowling v. Natural Resources & Environmental Protection
Cabinet, Ky. App., 891 S.W.2d 406, 409 (1994) (citing Kentucky
State Racing Commission v. Fuller, Ky., 481 S.W.2d 298, 308 (1972).
See also Blankenship v. Lloyd Blankenship Coal Co., Inc., Ky., 463
S.W.2d 62 (1970).
10
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687 (1992).
-8-
As the ALJ explained, either impairment rating supports the award.
Therefore, because we would have affirmed had the ALJ reached
either conclusion, it would be futile to remand for a more specific
determination. While we would caution ALJs against using this sort
of alternate conclusion-making in the future, we see no need to
disturb this award.
Copar’s claim that the award creates too much
uncertainty with respect to reopening is too speculative to address
at
this
time.11
Should
the
case
be
reopened
and
an
actual
controversy arise with respect to a change in Rogers’s impairment,
it may be decided at that time.
The Board Did Not Misconstrue Coleman v. Family Enterprises, Inc.
In Affirming the ALJ’s Finding That Rogers’s Psychological
Condition Was a Direct Result of the Work Injury
Copar argues that the ALJ erred in attributing Rogers’s
psychological condition to her work injury and that it therefore
should not have been compensable.
Both parties cite Coleman v.
Family Enterprises, Inc.12 for the proposition that “[t]he general
rule is that all of the injurious consequences that flow from a
work-related physical injury and that are not attributable to an
unrelated cause are compensable.”13
Essentially, then, our review
must focus on whether the ALJ’s decision regarding the work-
11
See Dixie Fuel Co. v. Commissioner of Social Sec., 171
F.3d 1052 (6th Cir. 1999).
12
Supra, n. 1.
13
Id. at 462.
-9-
relatedness of Rogers’s psychological condition is supported by
substantial evidence.
In reaching her conclusion, the ALJ relied on Rogers’s
own testimony, her lack of need for psychiatric care prior to her
injury,
and
Dr.
Sivley’s
assessment
that
Rogers’s
emotional
distress is a result of her back injury and resulting loss of
income. Copar, however, points to evidence that Rogers’s emotional
distress and psychological problems are the result of developments
in her personal life unrelated to her work injury.
As we stated above, the ALJ has the sole authority to
determine the weight, credibility, substance and inferences to be
drawn from the evidence.14
The ALJ may choose 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.15
Therefore, it
was uniquely within the province of the ALJ to evaluate the
evidence presented and decide what to conclude therefrom.
We
cannot disturb that decision when, as here, it is supported by
substantial evidence.
Copar Has Not Been Denied Review
of the ALJ’s Interlocutory Award
As decided by the Board,
we believe Copar’s arguments concerning interlocutory
relief are rendered moot.
take
credit
previously
for
made,
any
The ALJ indicated Copar shall
payment
including
of
such
payments
compensation
of
temporary
14
Paramount Foods, Inc. v. Burkhardt, supra, n. 5.
15
Caudill v. Maloney’s Discount Stores, supra, n. 6.
-10-
disability benefits already made.
Since all payments by
Copar fall within that period of total disability and
since a credit for payments was granted, Copar has
already received the credit asked for on appeal.
Conclusion
Because Copar did not adequately preserve its objection
regarding the introduction of medical opinions contained within
Rogers’s proffered hospital records, that argument may not be
reviewed.
The
ALJ’s
decision
was
supported
by
substantial
evidence; accordingly, we affirm the Board’s decision upholding the
ALJ’s award.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John C. Morton
MORTON & BACH
Henderson, Kentucky
Dick Adams
ADAMS LAW FIRM
Madisonville, Kentucky
-11-
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