DAVID ARVIN v. MOUNTAIN CONSTRUCTION COMPANY; HONORABLE DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
November 26, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO.
2003-CA-001214-WC
DAVID ARVIN
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
CLAIM NOS. WC-02-00973 & WC-02-0975
v.
MOUNTAIN CONSTRUCTION COMPANY;
HONORABLE DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
* * * * * * * * *
BEFORE:
Judge.1
McANULTY and SCHRODER, Judges; HUDDLESTON, Senior
HUDDLESTON, Senior Judge.
David Arvin petitions for review of
an opinion of the Workers’ Compensation Board, which affirmed
the decision of an Administrative Law Judge that awarded him
partial disability benefits on his claim involving carpal tunnel
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 Ky. Rev. Stat. (KRS) 21.580.
This opinion was prepared and concurred in prior to the
expiration of the Special Judge assignment on November 25, 2003.
syndrome but denied his claim based on hearing loss for failure
to follow medical advice.
Arvin challenges the denial of his
hearing loss claim and the failure to increase his award on the
carpal tunnel syndrome claim under the statutory multiplier in
Kentucky Revised Statute (KRS) 342.730(1)(c)1.
Arvin, who was born in 1948, has a work history as a
truck
driver,
carpenter
manual
in
Construction
mine
from
laborer,
backhoe
construction.
1977
through
operator,
He
1983,
worked
and
janitor,
for
returned
and
Mountain
in
1990
working as a backhoe operator until he quit in February 2002.
In 1971, while employed at L & M Corporation, Arvin
suffered severe hearing loss in his left ear from a dynamite
blast
incident.
At
that
time,
Dr.
Albert
Cullum,
an
ontolaryngologist, began treating Arvin and fitted him for a
hearing aid in his left ear.
Arvin told Dr. Cullum that he had
experienced hearing problems since the age of 17.
a
workers’
compensation
claim
that
resulted
Arvin settled
in
payment
of
benefits based on a 25% permanent partial disability rating.
In July 1984, Arvin was struck on the right side of
his head by a tree limb while working at a lumber company.
This
incident resulted in a total loss of hearing in the left ear and
diminished hearing in the right ear.
W.
G.
Begley,
audiologist.
an
Arvin was examined by Dr.
ontolaryngologist,
and
Janet
Martis,
an
Auditory testing indicated an 88% combined hearing
2
loss following the incident.
In January 1989, Arvin was awarded
workers’ compensation benefits and medical expenses based on a
finding that he had sustained an 85% occupational disability,
which
the
Special
ALJ
Fund
diagnosed
in
apportioned
(based
on
30%
a
adolescence
to
the
employer,
preexisting
and
the
dormant
cumulative
30%
to
hearing
effect
of
the
loss
loud
noises experienced while employed by other prior employers), and
25% to preexisting active occupational disability.
On June 18, 2001, Arvin returned to Dr. Cullum stating
his hearing had worsened.
At that time, Dr. Cullum advised
Arvin to cease exposure to loud sound such as heavy machinery.
On April 16, 2002, Dr. Cullum performed audiometric tests that
indicated
severe
to
profound
bilateral
sensorineural
hearing
loss, total in the left ear and near total in the right with
extremely poor speech discrimination.
functional
impairment
under
the
Dr. Cullum assessed a 35%
American
Medical
Association
Guides to Evaluation of Permanent Impairment (AMA Guidelines)
related to noise exposure in the workplace.
Meanwhile, on September 21, 2001, Dr. Robert Woods, an
otolaryngologist, examined Arvin and found that he suffered from
profound
hearing
loss
and
poor
speech
discrimination
right ear, and no hearing in his left ear.
in
his
He opined that the
majority of his hearing loss probably was attributable to his
previous hearing loss in adolescence and from the 1971 and 1984
3
incidents, but he was unable to assign a percentage attributable
to noise exposure in the workplace.
On
September
25,
2002,
Dr.
Ian
Windmill,
an
audiologist, performed a university evaluation pursuant to KRS
342.315.
Dr. Windmill found profound bilateral hearing loss
probably
related
to
workplace
noise.
He
assessed
a
35%
numbness,
and
permanent functional impairment under the AMA Guidelines.
In
1997,
Arvin
complained
of
pain,
tingling in his hands and wrists to his family physician, Dr. A.
Dahhan, who referred him to Dr. Phillip Tibbs, a neurosurgeon.
Dr. Tibbs diagnosed carpal tunnel syndrome bilaterally with some
tendonitis evidenced by an EMG performed on December 1, 1997.
Dr.
Tibbs
surgery
recommended
and
instead
surgery
wore
a
but
brace
Arvin
decided
periodically
to
and
forego
took
pain
medication.
In May 2002, Arvin was seen by Dr. David Muffly, an
orthopedic
surgeon,
with
continuing
stiffness, and tingling in his hands.
complaints
of
pain,
Dr. Muffly’s examination
revealed reduced grip strength, and positive Tinel and Phalen
tests.
Consistent
diagnosed
moderate
with
a
nerve
bilateral
conduction
carpal
tunnel
test,
Dr.
syndrome
Muffly
directly
related to the repetitive use of his hands during his years of
employment
at
Mountain
functional
impairment
Construction
rating.
Dr.
4
and
Muffly
he
assessed
suggested
a
6%
possible
carpal
tunnel
release
surgery
and
treatment
with
braces
and
filed
Application
for
medications.
On
May
31,
2002,
Arvin
an
Resolution of Injury Claim (No. 02-00793) based on the condition
of his hands and wrists diagnosed as carpal tunnel syndrome.
On
June 6, 2002, he filed an Application for Resolution of Hearing
Loss Claim (No. 02-00975).
The two claims were consolidated
with Mountain Construction contesting several issues including,
inter alia, a defense to the hearing loss claim based on failure
to
follow
medical
advice.
Construction deposed Arvin.
On
July
11,
2002,
Mountain
On October 28, 2002, an evidentiary
hearing was held with Arvin as the only witness.
He testified
that the first time that Dr. Cullum told him to avoid exposure
to loud noise such as heavy machinery was on his June 18, 2001,
visit.
He also stated that he felt he could no longer perform
his job because of his hearing and hand conditions.
On December 17, 2002, the ALJ entered an opinion and
award granting Arvin income and medical benefits associated with
his carpal tunnel syndrome claim based on a 6% impairment rating
for a period of 425 weeks.
Dr.
Cullum
and
Dr.
The ALJ credited the testimony of
Windmill
in
finding
that
Arvin
had
experienced an increase in hearing loss since 1984 as a result
of
continued
equipment.
exposure
to
noise
at
work
from
operating
heavy
However, he denied the hearing loss claim based on
5
Arvin’s failure to follow medical advice to avoid environments
with noisy heavy machinery.
The ALJ also found that Arvin was
not totally disabled and could return to his prior employment.
The Workers’ Compensation Board affirmed the ALJ’s decision on
appeal.
This petition for review followed.
In a workers’ compensation action, the employee bears
the burden of proving every essential element of a claim.2
the
fact-finder,
the
ALJ
has
the
authority
to
determine
quality, character, and substance of the evidence.3
the
ALJ
has
the
sole
authority
to
determine
inferences to be drawn from the evidence.4
the
As
the
Similarly,
weight
and
The fact-finder also
may reject any testimony and believe or disbelieve various parts
of the evidence even if it came from the same witness.5
When the
decision of the fact-finder is in favor of 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
2
Burton v. Foster Wheeler Corp., Ky., 72 S.W.3d 925, 928
(2002); Gibbs v. Premier Scale Co./Indiana Scale Co., Ky., 50 S.W.3d
754, 763 (2001); Jones v. Newberg, Ky., 890 S.W.2d 284, 285 (1994).
3
Burton, supra at 928; Square D Co. v. Tipton, Ky., 862
S.W.2d 308, 309 (1993); Paramount Foods, Inc. v. Burkhardt, Ky., 695
S.W.2d 418, 419 (1985).
4
Miller v. East Kentucky Beverage/Pepsico, Inc., Ky., 951
S.W.2d 329, 331 (1997); Luttrell v. Cardinal Aluminum Co., Ky. App.,
909 S.W.2d 334, 336 (1995).
5
Magic Coal Co. v. Fox, Ky., 19 S.W.3d 88, 96 (2000);
Whittaker v. Rowland, Ky., 998 S.W.2d 479, 481 (1999); Halls Hardwood
Floor Co. v. Stapleton, Ky. App., 16 S.W.3d 327, 329 (2000).
6
as
some
evidence
of
substance
and
consequence
sufficient
induce conviction in the minds of reasonable people.6
to
Where the
party with the burden of proof is not successful before the ALJ
in
a
workers’
compensation
matter,
the
issue
on
appeal
is
whether the evidence in that party's favor is so compelling that
no reasonable person could have failed to be persuaded by it.7
The
ALJ
has
broad
discretion
occupational disability.8
in
determining
the
extent
of
A party challenging the ALJ’s factual
finding must do more than present evidence supporting a contrary
conclusion to justify reversal.9
decision,
the
appellate
court’s
Upon review of the Board’s
function
is
limited
to
correcting the Board only where the reviewing court perceives
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
6
Transportation Cabinet v. Poe, Ky., 69 S.W.3d 60, 62
(2001); Whittaker, supra at 481-82; Special Fund v. Francis, Ky., 708
S.W.2d 641, 643 (1986).
6
Carnes v. Tremco Mfg. Co., Ky., 30 S.W.3d 172, 176 (2000);
Bullock v. Peabody Coal Co., Ky., 882 S.W.2d 676, 678 (1994).
8
Commonwealth v. Guffey, Ky., 42 S.W.3d 618, 621 (2001); Cal
Glo Coal Co. v. Mahan, Ky. App., 729 S.W.2d 455, 458 (1987); Thompson
v. Fischer Packing Co., Ky. App., 883 S.W.2d 509, 511 (1994).
9
Poe, supra at 62; Ira A. Watson Dep’t Store v. Hamilton,
Ky., 34 S.W.3d 48, 52 (2000).
10
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687
(1992). See also Phoenix Manufacturing Co. v. Johnson, Ky., 69
S.W.3d 64, 67 (2001); Huff Contracting v. Sark, Ky. App., 12 S.W.3d
704, 707 (2000).
7
Arvin raises two issues concerning the denial of his
hearing
loss
claim
and
whether
he
was
entitled
to
increased
benefits for his carpel tunnel cumulative trauma injury based on
an inability to perform the same type of work as before the
injury.
The ALJ denied Arvin’s hearing loss claim based on the
statutory defense of failure to follow medical advice.
KRS 342.035(3) provides in pertinent part:
No compensation shall be payable for the
death or disability of an employee if his
death is caused, or if and insofar as his
disability is aggravated, caused, or
continued, by an unreasonable failure to
submit to or follow any competent surgical
treatment or medical aid or advice.
There are three elements necessary to establish the
affirmative defense provided under this statute:
employee’s
(1) an
failure to follow competent medical advice; (2) the
employee’s failure was unreasonable; and (3) the unreasonable
failure caused the disability.11
The employer, who is the party
asserting the affirmative defense, bears the burden of
establishing all of the elements of the defense.12
“Refusal to
submit to treatment is unreasonable if it ‘is free from danger
to life and health and extraordinary suffering, and according to
the best medical or surgical opinion, offers a reasonable
11
See Luttrell v. Cardinal Aluminum Co., Ky. App., 909 S.W.2d 334,
336 (1995).
12
See, e.g., Teague v. South Central Bell, Ky. App., 585 S.W.2d 425,
428 (1979).
8
prospect of restoration or relief from the disability.’”13
Each
of the elements constitutes a question of fact for the ALJ.14
“Medical advice” under the statute encompasses advice from
medical professionals that, if followed, would have prevented
further injury or disability, in addition to specific advice
concerning treatment of an injury or disease.15
In the current case, the ALJ found that Arvin’s
failure to follow the medical advice to avoid environments
involving noisy heavy equipment after the 1984 injury caused an
increase in his hearing loss while he was employed by Mountain
Construction.
Both Dr. Cullum and Dr. Windmill attributed his
increased deterioration in hearing ability to exposure to noise
in the workplace.
Based on a comparison of audiometric tests
conducted in 1987 and 2002, Dr. Windmill assessed a 3% increase
in hearing loss because of loud noise in Arvin’s work
environment.
Dr. Windmill also testified that any advice to
Arvin following the 1984 incident to avoid noisy machinery to
prevent further deterioration of his already limited hearing was
reasonable.
13
Luttrell, supra at 336 (quoting Fordson Coal Co. v. Palko, 282 Ky.,
397, 138 S.W.2d 456, 459 (1940)).
14
See, e.g., id.; Teague, supra; Beth-Elkhorn Corp. v. Epling, Ky.,
450 S.W.2d 814, 816 (1970).
15
See Allen v. Glenn Baker Trucking, Inc., Ky., 875 S.W.2d 92, 94
(1994).
9
While Arvin does not contest the issues of
reasonableness and causation, he does question the finding that
he failed to follow any such medical advice.
In reaching his
decision, the ALJ relied primarily on Dr. Cullum’s treatment
records and portions of the 1989 Order awarding Arvin workers’
compensation disability benefits on his prior hearing loss
claim.
The pertinent sections of the 1989 Order state as
follows:
4. Dr. Albert G. J. Cullum, plaintiff’s
treating physician since prior to the 1971
injury, testified that plaintiff consulted
him about the decreased hearing in his right
ear on September 4, 1984 and related a
history of a work-related blow to the head
on July 23, which broke the hearing aid that
he was wearing at the time. Plaintiff
related to Dr. Cullum that his hearing had
faded in and out after the accident and had
disappeared completely from his right ear a
few days prior to September 4, 1984.
Dr. Cullum stated that plaintiff had a
permanent hearing loss of 100% in the right
ear and a profound hearing loss in the left
ear and should avoid environments, such as
the one involving noisy heavy machinery, in
order to prevent any further damage to the
hearing, which he has retained in his left
ear.
5. Both Dr. W. G. Begley, an ontolaryngologist, and Janet Martis, an audiologist
employed by Dr. Begley testified on behalf
of Bell.
. . . .
10
7. There is no dispute between medical
authorities as to the need to avoid loud
noises, including heavy machinery.
Alvin testified that Dr. Cullum did not tell him to
avoid noisy heavy machinery until his June 2001 examination.
He
also correctly points out that the 1989 Order does not
explicitly state that Dr. Cullum told him to cease working with
heavy machinery.
However, Dr. Cullum’s treatment records
conflict with Arvin’s testimony.
For instance, the entry for an
October 29, 1971, examination states:
“The chief complaint is
that of severe hearing loss, with poor discrimination.
This was
first noted at about the age of 17, becoming progressively worse
. . . .
He does work in relatively loud noise, using back hose
(sic) and other heavy machinery.
In addition, Lee’s sonic ear
valves are prescribed, and avoidance of occupational
evnironmental (sic) noise is strongly recommended.
The patient
states that he will consider the possibilities of changing
occupation.”
The entry for an April 10, 1973, visit states,
“Advised to continue to abstain from noisy environments (states
that he had the possibility of obtaining employment in a factory
in Frankfort).”
While direct deposition testimony from Dr. Cullum
would have been preferable, we cannot say that the ALJ’s finding
that Arvin failed to follow medical advice was not supported by
substantial evidence.
As the fact-finder, the ALJ is authorized
11
to determine the credibility of witnesses and draw reasonable
inferences from the record.
Despite Arvin’s testimony, given
the conflicts in the record and the numerous recommendations
expressed by the medical personnel as evidenced by the 1989
Order, the ALJ did not err in finding that Mountain Construction
satisfied its burden of showing that Arvin failed to follow
reasonable medical advice.
Arvin also challenges the ALJ’s failure to award
additional disability benefits pursuant to KRS 342.730(1)(c),
which provides for enhancement of benefits by a factor of three
for permanent partial disability if due to an injury an employee
does not retain the physical capacity to return to the type of
work that he was performing at the time of his injury.
The
question of whether an employee retains the capacity to return
to his pre-injury employment is a question of fact.16
Because
Arvin has the burden of proof on this element of his claim, the
ALJ’s decision must be upheld absent compelling evidence to the
contrary.
Arvin testified that he is unable to perform his past
work because he cannot continuously use his hands to operate the
control levers on a backhoe.
He argues that the combination of
his “uncontradicted” testimony and Dr. Muffly’s diagnosis of
16
See Carte v. Loretto Motherhouse Infirmary, Ky. App., 19 S.W.3d
122, 126 (2000).
12
carpal tunnel syndrome “clearly established” his right to the
KRS 342.730(1)(c)(1) multiplier.
As indicated earlier, the ALJ has discretion in
assessing the extent and duration of disability.17
Neither Dr.
Tibbs, nor Dr. Muffly opined that Arvin was unable to return to
his previous employment.
They both suggested possible surgical
treatment and Dr. Muffly recommended treatment with braces and
medication, but as the ALJ noted, neither placed restrictions on
Arvin that would have prevented him from returning to his preinjury employment.
Furthermore, Arvin testified that he could
operate a manual transmission on his vehicle, handle carpentry
tools, and manipulate fishing equipment with little difficulty.
We agree with the Board that the evidence does not compel
reversing the ALJ’s finding that Arvin could return to his prior
type of employment.
The Board has not overlooked or
misconstrued controlling law nor erred in assessing the evidence
so flagrantly as to cause gross injustice.
The opinion of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ronald C. Cox
Walter Ward
17
See supra note 8.
13
Harlan, Kentucky
Lexington, Kentucky
14
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