HILL & HILL CONSTRUCTION COMPANY v. SUSAN WILLEY; HON. J. KEVIN KING, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
August 22, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2002-CA-002078-WC
HILL & HILL CONSTRUCTION COMPANY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-99-79282
v.
SUSAN WILLEY; HON. J. KEVIN KING,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
** ** ** ** ** ** ** **
BEFORE: PAISLEY AND TACKETT, JUDGES; AND HUDDLESTON, SENIOR
JUDGE.1
PAISLEY, JUDGE.
Hill & Hill Construction Company petitions for
review of an opinion of the Workers’ Compensation Board (board),
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of the
Kentucky Constitution and KRS 21.580.
which affirmed the decision of the Administrative Law Judge
(ALJ) awarding Susan Willey permanent partial disability
benefits based on a 30% disability rating and a 20% functional
impairment rating involving injuries to Willey’s bladder,
kidney, and lumbar spine.
Hill & Hill asserts that the portion
of the award which relates to Willey’s kidney condition is not
based on objective medical findings.
After reviewing the record
and the arguments of counsel, we agree with appellant as to that
issue.
Thus, we affirm in part, reverse in part, and remand
with directions.
On November 18, 1998,2 during her second day of
employment as a flag-person for Hill & Hill, Willey was injured
when a large boulder fell from a truck, struck her in the
abdomen, and knocked her to the ground.
She was taken to a
hospital emergency room where she was diagnosed with bruised
ribs and kidneys and was treated with pain medication.
She
returned to work the next day and continued to work part-time at
Hill & Hill doing various jobs for approximately six months
until she was laid off.
She has been employed at several
restaurants since 1999.
2
There is some testimony in the record from Willey that the
injury occurred on November 8, 1998. This appears to be erroneous,
but the reason for the inconsistency is unclear.
2
About two weeks after the incident, Willey was seen by
Dr. Sandra Dionisio, a family physician, with complaints of
general soreness, tenderness and swelling near her stomach, as
well as urinary urgency and leakage, and pelvic region numbness.
A urinalysis indicated some traces of blood in her urine.
Dr.
Dionisio referred her to a urologist, Dr. Juan Drachenberg,
whose preoperative diagnosis was second-degree cystourethrocele
and urinary incontinence.
On January 26, 2000, Dr. Drachenberg
performed a “retropubic cystourethropexy by Burch” surgical
procedure to attach Willey’s bladder to her pelvic bone.
The
operation resolved her urinary leakage problem, but she
continued to experience abdominal pain and swelling, left leg
pain, pelvic numbness, and urinary incontinence.
Willey is not
currently receiving active treatment for her physical
complaints.
On October 29, 2001, Willey filed an Application for
Resolution of Injury Claim claiming injury to her ribs, kidney,
and bladder based on the November 1998 incident.
She included
notes from Dr. Dionisio pertaining to several visits.
Subsequently, she filed a report and Form 107 prepared by Dr.
Paul Forberg of the Kentucky Orthopedic and Chiropractic Center
involving an examination performed on January 14, 2002.
In his
two-page report, Dr. Forberg diagnosed Willey as suffering from
bladder avulsion, kidney contusion with hematria, sexual
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dysfunction, numbness in the peroneal region, and bilateral SI
joint pain.
He reported that Willey told him she continued to
have bladder incontinence, painful sex, bloody urine, constant
low back and hip pain, leg numbness, and an inability to stand
for long periods of time.
In his Form 107, Dr. Forberg assessed
a 20% permanent whole body impairment under the most recent
American Medical Association (AMA) Guides to Evaluation of
Permanent Impairment, of which he attributed 9% to a kidney
condition, 7% to a bladder condition, and 5% to lumbosacral
abnormalities.
He stated Willey should avoid prolonged
standing, and that she needed GV and GYN follow-up.
Hill & Hill
objected to the filing of Dr. Forberg’s report for evidentiary
purposes, based on the physician’s alleged failure to set forth
sufficient objective medical findings.
The ALJ overruled the
stated objection on the ground that it went to the weight rather
than the admissibility of the evidence.
On February 20, 2002, Hill & Hill filed the report of
a neurologist, Dr. Joseph Zerga, who examined Willey on February
13, 2002.
Dr. Zerga’s physical examination indicated that
Willey had tenderness in her left lower abdomen, subjective
decreased numbness in the left suprapubic region, no atrophy,
and fasciculation or muscle tenderness in her legs.
He stated
that Willey’s symptoms were predominately in the distribution of
the iliohapogastric nerve, and that her urinary complaints might
4
be due to a lumbosacral plexus trauma or local trauma to the
bladder.
Dr. Zerga noted there was no impairment rating given
in the AMA Guides for an iliohapogastric nerve injury, but after
reviewing impairment ratings for other similar nerve conditions
he assigned impairment ratings of 2% for sensory deficit, 2% for
dysesthesias associated with the iliohapogastric nerve
condition, and 3% for impairment related to urinary problems for
a total whole person impairment of 7%.
He felt that Willey’s
only restriction should be to avoid heavy lifting.
On March 27, 2002, Willey testified during a hearing
before the ALJ that she suffered constant stomach pain, numbness
in her left arm and leg, and urinary incontinence and overflow.
She said that she could perform daily activities but that she
had difficulty performing heavy manual labor.
On April 30,
2002, the ALJ issued an opinion awarding Willey benefits
commensurate with a 30% permanent partial disability rating
under KRS 342.730, based on the 20% functional impairment rating
(20% X 1.5) assessed by Dr. Forberg.
The ALJ indicated that he
utilized Dr. Forberg’s impairment rating because he felt that
Dr. Forberg’s emphasis on Willey’s urinary problems, as opposed
to Dr. Zerga’s focus on Willey’s peripheral nerve deficit, more
closely correlated with the condition which had the greatest
impact on Willey’s functional ability.
5
On May 6, 2002, Hill & Hill filed a petition for
reconsideration seeking a reduction of the award or additional
findings of fact based on a lack of objective medical findings
to support Dr. Forberg’s impairment rating of 9% for Willey’s
kidney condition.
On May 22, 2002, the ALJ denied the petition
to reconsider, stating that the objection involved the merits of
the case which is an improper ground for collateral review.
See
Wells v. Beth-Elkhorn Coal Corp., Ky. App., 708 S.W.2d 104
(1985).
He also stated that Dr. Forberg relied on a provision
of the AMA Guides which provides for the assessment of
impairment for signs of upper urinary tract dysfunction that do
not require continuous treatment or surveillance.
11, 2002, the board affirmed the ALJ’s decision.
On September
This appeal
followed.
Hill & Hill argues that the ALJ erred in awarding
benefits based on Dr. Forberg’s impairment rating as it related
to Willey’s kidney condition.
It does not dispute the portion
of the award which is based on Dr. Forberg’s functional
impairment ratings associated with Willey’s bladder and
lumbosacral abnormalities, but it maintains that Dr. Forberg
provided no objective medical findings to support the impairment
rating for her alleged kidney dysfunction.
Unfortunately, as
asserted by Hill & Hill and admitted by Willey, the board
misunderstood the issue which was raised by Hill & Hill as to
6
the award of benefits for a kidney infection.
Instead, the
board addressed only the evidence supporting benefits related to
Willey’s bladder condition.
As the fact-finder, the ALJ has the authority to
determine the quality, character, and substance of evidence.
Burton v. Foster Wheeler Corp., Ky., 72 S.W.3d 925, 929 (2002);
Square D Co. v. Tipton, Ky., 862 S.W.2d 308, 309 (1993).
In a
workers’ compensation action, “the claimant bears the burden of
proof and the risk of nonpersuasion” as to every essential
element.
Magic Coal Co. v. Fox, Ky., 19 S.W.3d 88, 96 (2000);
Whittaker v. Rowland, Ky., 998 S.W.2d 479, 481 (1999).
When the
fact-finder’s decision favors the party with the burden of
proof, the issue on appeal is whether the ALJ’s decision is
supported by substantial evidence, which is defined as some
evidence of substance and consequence sufficient to “induce
conviction in the minds of reasonable people.”
Transportation
Cabinet, Department of Highways v. Poe, Ky., 69 S.W.3d 60, 62
(2001); McNutt Construction/First General Services v. Scott,
Ky., 40 S.W.3d 854, 860 (2001).
KRS 342.0011 provides in pertinent part as follows:
(1) "Injury" means any work-related
traumatic event or series of traumatic
events, including cumulative trauma, arising
out of and in the course of employment which
is the proximate cause producing a harmful
change in the human organism evidenced by
objective medical findings. . . .
7
. . . .
(33) “Objective medical findings” means
information gained through direct
observation and testing of the patient
applying objective or standardized methods.
The interplay between these two sections was discussed by the
Kentucky Supreme Court in Gibbs v. Premier Scale Co./Indiana
Scale Co., Ky., 50 S.W.3d 754 (2001).
After discussing the
legislative history of KRS 342.0011(1), the court recognized a
legislative intent to make the requirements for proving a claim
for occupational injury more stringent, stating that “although a
worker may experience symptoms and although a physician may have
diagnosed a work-related harmful change, the harmful change must
be evidenced by objective medical findings as that term is
defined by KRS 342.0011(33).
as an ‘injury.’”
Id. at 761.
Otherwise, it is not compensable
The court noted that a claimant’s
complaints of symptoms are not objective medical findings as
defined by KRS 342.0011(33), and that subjective claims must be
confirmed by direct observations or standardized tests.
762.
Id. at
The claimant must offer either direct or indirect evidence
of the harmful change in the form of objective medical findings
which demonstrate the existence of symptoms of a harmful change.
Id.
See also Staples, Inc. v. Konvelski, Ky., 56 S.W.3d 412
(2001).
Substantial evidence of a harmful change in the human
organism constituting a compensable “injury” must include
8
objective medical findings.
See, e.g., Gibbs, supra; Staples,
supra.
In the current case, Hill & Hill challenges the ALJ’s
finding that Willey suffered from a permanent partial disability
related to her kidney.
The majority of the ALJ’s opinion with
respect to the medical evidence involved his acceptance of Dr.
Forberg’s rather than Dr. Zerga’s impairment assessment, as well
as his acceptance of Dr. Forberg’s impairment ratings as to
Willey’s bladder and lumbosacral condition.
However, the ALJ
did not specifically discuss Willey’s kidney condition, and Dr.
Forberg did not indicate either that he performed or that
Willey’s medical history contained any diagnostic or evaluative
tests pertaining to her kidney condition.
Indeed, aside from
his ultimate diagnosis of kidney contusion with hematuria and
the impairment rating, the only reference in Dr. Forberg’s
report to Willey’s kidney condition lies in his notation about
her subjective reference to having blood in her urine.
However,
a medical report dated November 30, 1998, from the White House
Clinic states that Willey was told in the emergency room on the
day of the incident that she might have a bruised kidney and
“[t]he hematuria lasted about 2-days and has resolved.”
Moreover, at the hearing before the ALJ, Willey testified that
she was never specifically treated for a kidney condition and
that she did not know of any abnormalities with her kidney.
9
On appeal to this court, Willey has pointed to no
specific objective medical evidence to support benefits for a
kidney impairment.
Instead Willey relies on Dr. Forberg’s
report, which contains no analysis, medical test reports, or
direct observations related to her kidney.
Although Hill & Hill
requested the ALJ to make additional findings to support the
conclusion that a kidney impairment exists, that request was
denied.
As our review of the record shows that Willey has
failed to provide objective medical findings of a compensable
“injury” to her kidney as required by KRS 342.0011(1) and (33),
we must conclude that substantial evidence does not support the
ALJ’s and the board’s findings that Willey suffers a permanent
impairment as a result of a kidney condition.
We therefore affirm in part, we reverse that portion
of the ALJ’s award of permanent partial disability benefits
which is associated with Willey’s kidney condition, and we
remand for an award based solely on her bladder and lumbosacral
conditions.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Walter W. Turner
Lexington, Kentucky
McKinnley Morgan
Hyden, Kentucky
10
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