MALONE FREIGHT LINES, INC. v. RONALD DALE BURDEN; ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD
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RENDERED: DECEMBER 27, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-001521-WC
MALONE FREIGHT LINES, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-99-99879
RONALD DALE BURDEN; ROGER D. RIGGS,
ADMINISTRATIVE LAW JUDGE; WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING IN PART AND
VACATING IN PART AND REMANDING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, and HUDDLESTON, JUDGES.
BUCKINGHAM, JUDGE:
Malone Freight Lines, Inc., petitions for
review of an opinion of the Workers’ Compensation Board (Board)
which affirmed an award by administrative law judge (ALJ) of
temporary total disability (TTD) benefits and permanent partial
disability (PPD) benefits to Ronald Dale Burden.
Malone contends
that the ALJ erroneously determined the termination date for TTD
benefits and erroneously failed to assign some portion of
Burden’s disability rating to prior injuries.
We affirm the
award of PPD benefits; however, because the ALJ failed to make
adequate findings of fact in support of his award of TTD
benefits, we vacate the award of those benefits and remand for
additional findings.
Prior to his present work-related injury, Burden
suffered two prior injuries to his back.
In 1994, Burden
suffered a back strain while working at Pizza Hut, after which he
missed several days of work.
Then, on November 1, 1998, while
unloading firewood at home, Burden sprained his back, after which
he missed one day of work.
On November 9, 1998,
while working for Malone as a
dispatcher, Burden went to the restroom and noticed a sign
warning of a wet floor which had been mopped.
Burden stated that
when he came out of the restroom he slipped on the wet floor,
struck a bench, and landed on the floor.
After falling, he felt
a sharp burning pain in his low back with pain and pressure down
his right hip and right leg.
numbness in his right foot.
He also experienced tingling and
Burden was taken by ambulance to the
Owensboro Mercy Health Systems Hospital, where he was treated in
the emergency room and released the same day.
Following his injury, Burden returned to work part-time
for approximately three weeks in April 1999.
He quit due to his
pain and had not returned to work at the time of the ALJ decision
in this case.
Burden eventually underwent fusion surgery on
October 12, 1999.
On October 23, 2000, Burden filed an Application for
Resolution of Injury Claim with the Department of Workers’
Claims.
The claim was subsequently assigned to an ALJ for final
adjudication.
On January 14, 2002, the ALJ entered and opinion
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and award granting Burden PPD benefits based upon an impairment
rating of 25% and TTD benefits for the period of November 9,
1998, through August 2, 2001 (excepting the three weeks Burden
returned to work in April 1999).
The ALJ assigned no portion of
the impairment rating to the injuries sustained by Burden in the
prior Pizza Hut accident or the firewood accident.
Malone subsequently appealed to the Board.
On June 19,
2002, the Board entered an opinion affirming the ALJ’s award of
PPD and TTD benefits.
This petition for review followed.
Malone first contends that the ALJ erred by awarding
TTD benefits for a period of time after Burden was determined to
be at maximum medical improvement.
The ALJ awarded Burden TTD
benefits from November 9, 1998, the date of the work-related
injury, until August 2, 2001, the date Dr. Phillip A. Tibbs
assessed Burden with permanent restrictions.
Malone argues that
TTD benefits were payable only until Burden had reached maximum
medical improvement and that maximum medical improvement occurred
either (1) on October 17, 2000, pursuant to the uncontradicted
opinion of Dr. Gregory Gleis that Burden reached maximum medical
improvement on that date or, alternatively, (2) on November 14,
2000, when Dr. Tibbs assigned the permanent impairment rating
upon which the ALJ eventually relied.
By implication, the ALJ’s
TTD award determined that the date of maximum medical improvement
was August 2, 2001, or later.
"Temporary total disability" means “the condition of an
employee who has not reached maximum medical improvement from an
injury and has not reached a level of improvement that would
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permit a return to employment.”
KRS1 342.0011(11)(a).
Awards of
TTD benefits are appropriate when a worker is totally disabled by
the effects of a compensable injury but has not yet reached
maximum medical improvement.
Clemco Fabricators v. Becker, Ky.,
62 S.W.3d 396, 397-398 (2001).
“TTD is payable until the medical
evidence establishes the recovery process, including any
treatment reasonably rendered in an effort to improve the
claimant's condition, is over, or the underlying condition has
stabilized such that the claimant is capable of returning to his
job, or some other employment, of which he is capable, which is
available in the local labor market.”
W.L. Harper Construction
Company, Inc. v. Baker, Ky. App., 858 S.W.2d 202, 205 (1993).
See also Halls Hardwood Floor Co. v. Stapleton, Ky. App., 16
S.W.3d 327, 329 (2000).
question of fact.
The duration of TTD benefits is a
W. L. Harper Construction at 205.
The ALJ’s consideration of the TTD issue in his opinion
and award was minimal, which has hindered our review of the
issue.
The opinion and award stated, in relevant part, as
follows:
The plaintiff is entitled to temporary total
disability benefits from November 9, 1998
through the date on which Dr. Tibbs assigned
limitations and restrictions on August 2,
2001. He is entitled to recovery at the rate
of $205.73 per week for each week during that
time except for the three week period
following March 30, 1999.
Since the ALJ resolved the TTD issue in favor of
Burden, who had the burden of proof on the issue, the question on
1
Kentucky Revised Statutes.
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appeal is whether substantial evidence in the record supported
the decision.
Wolf Creek Collieries v. Crum, Ky. App., 673
S.W.2d 735, 736 (1984).
Substantial evidence is evidence of
relevant consequence having the fitness to induce conviction in
the minds of reasonable people.
Smyzer v. B.F. Goodrich
Chemical Co., Ky., 474 S.W.2d 367 (1971); Transportation Cabinet
v. Poe, Ky., 69 S.W.3d 62, 69 (2001).
We agree with Malone that KRS 342.0011(11)(a)
establishes a two-prong test that TTD benefits are payable until
(1) maximum medical improvement has been reached, or (2) the
injury has reached a level of improvement which would permit a
return to employment.
Central Kentucky Steel v. Wise, Ky., 19
S.W.3d 657 (2000), clarifies that prong two applies, not to a
release to perform minimal work, but, rather, to work that was
customary to the claimant or that he was performing at the time
of the injury.
Id. at 659.
Malone does not object to the
assignment of August 2, 2001, as the date applicable to prong
two.
Rather, Malone contends that prong one, maximum medical
improvement, was achieved at a much earlier date.
Malone asserts
that the ALJ and the Board essentially ignored prong one of the
test.
Malone initially contends that the date of maximum
medical improvement must be considered as October 17, 2000, on
the basis that its independent medical examiner, Dr. Gleis,
expressed the uncontradicted opinion that Burden reached maximum
medical improvement on that date.
Since no other date of maximum
medical improvement is explicitly expressed by any other witness
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in the case, Malone argues that Dr. Gleis’ testimony is
uncontradicted.
Where the ALJ does not state his reasons for
rejecting uncontradicted evidence put forward by the employer,
which evidence would have defeated employee's claim, an award of
TTD benefits cannot be sustained.
Collins v. Castleton Farms,
Inc., Ky. App., 560 S.W.2d 830, 831 (1977).
In the alternative, Malone contends that, at the
latest, maximum medical improvement occurred on November 14,
2000, the date Dr. Tibbs assigned the permanent impairment rating
upon which the ALJ ultimately relied.
Malone contends that since
the time was ripe for assessing a permanent impairment rating on
November 14, 2000, the only reasonable inference is that Burden
had reached maximum medical improvement as of that date.
In
support of this proposition, Malone quotes the AMA Guides, 5th
Edition, § 1.2., as follows:
An impairment is considered permanent when it
has reached maximum medical improvement
(MMI), meaning it is well stabilized and
unlikely to change substantially in the next
year with or without medical treatment. The
term impairment in the Guides refers to
permanent impairment, which is the focus of
the Guides. (Emphasis original).
The Board addressed the TTD issue, in relevant part, as
follows:
In the case sub judice, the record contained
conflicting medical opinions as to the date
Burden reached maximum medical improvement
and regarding his capability of returning to
work. Nonetheless, the ALJ chose to rely on
the evidence from the treating surgeon, Dr.
Tibbs. Dr. Tibbs’ [sic] did not assign any
permanent restrictions until the date of his
August 2, 2001 deposition. Other medical
records in evidence from Dr. Tibbs do not
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indicate that he had released Burden to
return to any type of work or assigned any
restrictions at any earlier date than August
2, 2001. Therefore, given that Burden’s job
requirements at Malone consisted primarily of
answering the telephone, when coupled with
the specific restrictions imposed by Dr.
Tibbs, we believe it was reasonable for the
ALJ to infer that Burden could return to his
previous type of work as a dispatcher.
Jackson v. General Refractories Co., Ky. 581
S.W.2d 10 (1979). It was not until Dr. Tibbs
imposed those restrictions on August 2, 2001,
that Burden met the test for cessation of TTD
as provided by Central Kentucky Steel v.
Wise, supra. We consequently also affirm the
ALJ’s determination on the second issue.
Special Fund v. Francis, [Ky., 708 S.W.2d 641
(1986)], and KRS 342.285.
In regard to the Board’s assessment of the ALJ’s
decision, we identify two problems.
First, we have examined the
medical records submitted by Dr. Tibbs, including the November
14, 2000, letter from Dr. Tibbs to Burden’s counsel, and Dr.
Tibbs’ deposition testimony, and are unable to locate any record
of Dr. Tibbs stating an opinion as to when Burden reached maximum
medical improvement.
We are not persuaded that merely because
Dr. Tibbs assigned permanent restrictions on the date of his
deposition, August 2, 2001, that that translates into an
expression of an opinion that maximum medical improvement was
reached on that date.
Second, the Board’s decision reflects that
it may have interpreted the Central Kentucky Steel case as
holding that TTD benefits terminate when and only when an
employee is released to perform work of the type which he
customarily performs without regard to maximum medical
improvement.
In Central Kentucky Steel, however, the employee
returned to work on September 30, 1997, and did not reach maximum
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medical improvement until October 28, 1997.
We construe Central
Kentucky Steel as not affecting preceding authorities which would
require a cut-off of TTD benefits at an earlier date if maximum
medical improvement is reached prior to an employee’s release to
perform the type of work he customarily performs.
Because the ALJ’s minimal consideration of the TTD
issue in his opinion and award does not explain his reasoning
with respect to maximum medical improvement matters, we remand
the case back to the ALJ for additional findings of fact
concerning his reasoning for determining that August 2, 2001, was
the appropriate date to terminate TTD benefits. In particular,
the ALJ should make a finding of fact regarding the date maximum
medical improvement was reached and set forth his reasoning in
arriving at that date.
While we agree that it would be proper to conclude that
August 2, 2001, was the date Burden was released to do the type
of work he customarily performs, absent additional findings by
the ALJ, we are not persuaded that there is substantial evidence
in the record to support that August 2, 2001, or a later date,
was also the date of maximum medical improvement.
We therefore
vacate and remand for additional findings regarding this issue.
Malone also contends that the ALJ erred in assigning no
portion of Burden’s 25% impairment rating to his pre-existing
medical injuries.
Malone argues that although Dr. Tibbs assessed
a 25% impairment rating under the AMA Guides, he nevertheless
testified that only one-half of the impairment, or 12.5%, was due
to the work injury, and that some part of the other 12.5% was due
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to the pre-existing anatomical nature of Burden’s back.
Malone
acknowledged, however, that Tibbs was unable to express an
opinion about the magnitude of the pre-existing active
impairment.
The ALJ addressed the issue as follows:
According to the testimony of Dr. Phillip A.
Tibbs, the treating neurosurgeon, Mr. Burden
has been suffering with spondylolisthesis2
for several years which is documented by his
medical records. He said spondylolisthesis
was not caused by his recent injuries but
pre-existed anything that happened in
November of 1998 for several years. He said
he was also of the opinion that Mr. Burden
had chronic problems with his back
periodically and episodically until he
finally suffered injury on November 9, 1998
when he fell at work. Dr. Tibbs did note
that he had no history of a November 1, 1998
incident, however, after reviewing the
emergency room records he stated that the
November 1 incident was apparently another
episodic incident which was properly
diagnosed as a back sprain. He said the
November 9, 1998 incident when he fell at
work was, in his opinion, the cause of his
severe symptomatology with disabling back and
leg pain. He assigned a 25% impairment when
one uses the Fourth or Fifth Edition of the
AMA Guidelines and felt that half was due to
the November 9 fall at work with half being
due to his pre-existing condition. There was
some discussion by Dr. Tibbs as to whether
the condition would be considered preexisting dormant or active, however, the
Administrative Law Judge interprets Dr.
Tibbs’ opinion to be that, though Mr. Burden
had episodic back difficulties due to
spondylolisthesis, it was the November 9,
1998 incident which resulted in his symptoms
and required surgical fusion.
2
In his deposition testimony, Dr. Tibbs stated,
“Spondylolisthesis is a defect in the pars interarticularis,
which is a connecting bridge of bone from one part of a joint to
another. When spondylolisthesis exists, there’s a structural
weakness in the spine that predisposes slippage of one bone upon
the other.”
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. . . .
The treating physician, Dr. Tibbs, was
confronted with the same medical scenario
which the Administrative Law Judge now faces.
Even with that he continued to be of the
opinion that the fall at work was the cause
of Mr. Burden’s severe difficulties and that
the November 1 incident was simply an
episodic occurrence similar to those which
Mr. Burden has periodically experienced due
to his spondylolisthesis over the years.
Mr. Burden has testified that he periodically
had back problems through the years and felt,
even after the November 1 incident, that
though he was still having some back problems
he was able to return to work until he fell
on the wet floor. The Administrative Law
Judge had the opportunity to observe Mr.
Burden during his testimony at [the] Hearing
and feels that this man has not fabricated
the incident of November 9, 1998. Reaching
this conclusion the Administrative Law Judge
accepts the opinion of Dr. Tibbs, who, after
reviewing all of the medical records, still
remained convinced that the November 9, 1998
incident was that which resulted in his
present severe symptoms. The Administrative
Law Judge accepts Dr. Tibbs’s opinion with
reference to an impairment of 25%.
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 ALJ has
the discretion to choose whom and what to believe. 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).
If work-related trauma causes nonwork-related
degenerative changes to be aroused into disability and to result
in an impairment, that harmful change is compensable.
McNutt
Construction v. Scott, Ky., 40 S.W.3d 854, 859 (2001); Bright v.
American Greetings Corp., Ky., 62 S.W.3d 381, 384 (2001).
The
ALJ’s interpretation of Dr. Tibbs’ medical evaluations and
deposition testimony that Burden’s prior back problems were as a
result of episodic back difficulties due to spondylolisthesis and
that it was the November 9, 1998 incident which resulted in his
symptoms and required surgical fusion was a reasonable
interpretation of the evidence.
We agree with the Board:
Dr. Tibbs testified that one-half, or 12.5%
of Burden’s impairment was pre-existing. He
also testified that some part of the preexisting portion “may” have been active and,
for that reason, based on our interpretation,
offered no opnion as to any apportionment.
Furthermore, we believe the evidence from Dr.
Tibbs, when taken as a whole, reasonably
demonstrates that Burden’s condition remained
relatively dormant from 1994 until November
1998, and that his low back pain did not
become truly chronic until after his November
9, 1998 fall. Burden had returned to work
without restrictions following the November
1, 1998 nonwork-related injury. Dr. Tibbs’s
believed the November 9, 1998 work-related
injury caused the nerve root impingement that
ultimately led to Burden’s back surgery.
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Furthermore Dr. Tibbs nowhere testified that
Burden had any functional impairment under
the Guides prior to his November 9, 1998 work
injury. Thus, ALJ Riggs was soundly within
his authority to find that the pre-existing
condition was dormant and non-disabling and
subsequently aroused into disabling reality
by his 1989 work injury. McNutt Construction
Co. v. Scott, Ky., 40 S.W.3d 854 (2001);
Transportation Cabinet v. Guffy, Ky., 42
S.W.3d 618 (2001). . . .
Having reviewed the medical records and deposition
testimony provided by Dr. Tibbs, the medical witness primarily
relied upon by the ALJ, we are persuaded that there is
substantial evidence in the record to support the award of PPD
benefits.
For the foregoing reasons the Board’s opinion is
affirmed in part and vacated in part and this case is remanded
for additional proceedings consistent with this opinion.
HUDDLESTON, JUDGE, CONCURS.
BARBER, JUDGE, CONCURS IN PART AND DISSENTS IN PART,
AND FILES SEPARATE OPINION.
BARBER, JUDGE, CONCURRING IN PART AND DISSENTING IN
PART.
I would affirm the ALJ and Board on both issues.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John C. Morton
Rebecca L. Briggs
Morton & Bach
Henderson, Kentucky
Ronald K. Bruce
Greenville, Kentucky
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