AERO ENERGY, INC. v. PHILLIP JOHNSON; DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD
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RENDERED:
December 31, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2003-CA-001693-WC
AERO ENERGY, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NOS. WC-01-75327; WC-02-00943
PHILLIP JOHNSON; DONALD G.
SMITH, ADMINISTRATIVE
LAW JUDGE; WORKERS’ COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: EMBERTON, Chief Judge; BUCKINGHAM and KNOPF, Judges.
BUCKINGHAM, JUDGE.
Aero Energy, Inc., petitions for review from
an opinion of the Workers’ Compensation Board affirming the
determination of an administrative law judge (ALJ) that Phillip
Johnson is totally occupationally disabled as the result of a
work-related injury.
Aero contends that the ALJ erred by
relying upon the impairment rating of Dr. James Templin in his
determination that Johnson is totally disabled and by not
carving out from Johnson’s award the impairment rating assessed
by Dr. Templin for Johnson’s carpal tunnel syndrome.
For the
reasons stated below, we affirm.
Johnson was born on March 21, 1947.
He has a high
school education and is certified as a mine foreman and
electrician.
Johnson’s past relevant work experience has
consisted primarily of employment in various capacities in the
coal mining industry beginning in 1966.
In August 1994 Johnson
sustained an injury to his right arm and shoulder for which he
received a 10% occupational disability award. (Claim No. 9606095).
On December 1, 2000, Johnson moved to reopen the
opinion and award in Claim No. 96-06095 alleging that his
occupational disability had increased substantially.
On January
27, 2001, his motion to reopen this claim was denied.
On June 21, 2000, Johnson was first informed that he
had carpel tunnel syndrome in his hands and wrists.
On July 10,
2000, Johnson suffered a work-related injury when he bumped his
right knee against a conveyor belt.
On August 22, 2001, he
incurred a work-related injury when he slipped and fell, causing
him to injure his back.
On August 27, 2001, Johnson incurred a
work-related injury to his left wrist and hand.
In addition, he
was exposed to loud noises at work on a daily basis and had
developed cumulative work-related hearing loss.
returned to work since August 27, 2001.
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Johnson has not
On June 20, 2002, Johnson filed an application for
resolution of injury claim with the Board of Claims.
Johnson
alleged in the application that he sustained work-related
injuries to his right arm on June 21, 2000; his right knee on
July 10, 2000; his back on August 22, 2001; and his left arm on
September 24, 2001.
Johnson later clarified that the injury to
his left arm occurred on August 27, 2001.
On the same day, June
20, 2002, Johnson filed an application for resolution of hearing
loss claim against Aero.
The claims were subsequently
consolidated and heard by an ALJ.
On January 17, 2003, the ALJ entered an opinion and
award dismissing Johnson’s carpal tunnel syndrome claim, his
right knee claim, and his hearing loss claim.1
However, the ALJ
awarded Johnson total disability benefits based upon his back
injury.
The ALJ carved out 15% of that disability as a pre-
existing active injury due to Johnson’s prior injuries and
complaints involving his lower back and the 10% permanent
partial disability award in the claim involving his right arm
and shoulder.
On July 16, 2003, the Board entered an order affirming
the ALJ’s decision.
This petition for review followed.
Aero contends that the ALJ erred by relying upon the
impairment rating of Dr. James Templin in finding that Johnson
1
These claims were dismissed on the basis that, pursuant to KRS 342.270,
Brown should have joined the claims in his December 2000 motion to reopen.
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is totally disabled as a result of his August 22, 2001, back
injury.
Aero alleges that Dr. Templin’s medical report
expressly attributes Johnson’s entire impairment rating to his
August 1994 injury and that, accordingly, Dr. Templin has not
assessed a valid permanent impairment attributable to any of the
injuries alleged by Johnson in the present application.
In his opinion and award the ALJ addressed the issue
of Johnson’s disability as a result of his August 22, 2001, back
injury as follows:
The next issue to be decided by the
Administrative Law Judge is the extent and
duration of Plaintiff’s disability as a
result of his work-related back injury.
Based upon the date of injury, Plaintiff
would be governed under the amendments found
under the 2000 amendments to the law.
Disability under those amendments are to be
determined by the use of impairment ratings
under the AMA Guides. The Administrative
Law Judge relied on the impairment ratings
under the AMA Guides. The Administrative
Law Judge relied on the impairment ratings
and restrictions by Dr. Mirani and Dr.
Templin, and Plaintiff’s credible testimony.
Plaintiff lacks the ability to perform
“work” in a competitive economy (not
limiting that analysis to the local
economy). Plaintiff is found to be totally
occupationally disabled under KRS
342.730(1)(a). This Administrative Law
Judge found the Plaintiff to be very
credible regarding both his pain and
restrictions. Based upon the totality of
the evidence, this Administrative Law Judge
does find that the Plaintiff is totally
disabled as a result of his injury.
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Prior active impairment has also been raised
as an issue. It is undisputed that the
Plaintiff did have a prior injury to his
right shoulder and bicep in 1994 for which
he received a 10% occupational disability by
Opinion and Award. It is further noted that
the Plaintiff did have some prior back pain,
for which surgery was recommended in 1998.
Plaintiff’s testimony was credible regarding
his prior problems. Dr. Templin found no
active impairment prior to the Plaintiff’s
injury. Dr. Wagner gave the Plaintiff a 5%
impairment rating for the back, which he
indicated was the same ongoing process that
was merely exacerbated by the 2001 back
injury. Dr. Mirani did not address prior
active impairment. The Administrative Law
Judge is bound by res judicata to the 10%
occupational disability awarded to the
Plaintiff for the 1994 injury. The
Administrative Law Judge further believes
that the Plaintiff was having problems with
his back prior to the 2001 injury sufficient
to support an active impairment of 5% as
given by Dr. Wagner; however, the 2001
injury was also sufficient cause for the
remainder of the Plaintiff’s current
disability. Therefore Plaintiff is found to
have a 15% (10% for right shoulder and 5%
for back) prior active disability in this
matter.
In his February 22, 2003, order denying Aero’s
petition for reconsideration, the ALJ further addressed this
issue as follows:
The Administrative Law Judge specifically
finds that the 2001 back injury was
sufficient to cause the Plaintiff to be
totally disabled, however, the
Administrative Law Judge was bound by res
judicata to carve out 10% prior active
impairment for the right shoulder pursuant
to a prior Opinion and Award and further
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believe[s] that a 5% prior active impairment
existed with regard to the back. Regardless
of the Plaintiff’s other physical problems,
the 2001 back injury would still have
resulted in a total occupational disability
for the Plaintiff.
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 (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, 47
(1974); Burton v. Foster Wheeler Corp., Ky. 72 S.W.3d 925, 929
(2002).
It is elementary that a claimant bears the burden of
proof and risk of nonpersuasion before the fact-finder with
regard to every element of the claim.
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Roark v. Alva Coal
Corporation, Ky., 371 S.W.2d 856, 857 (1963); Wolf Creek
Collieries v. Crum, Ky. App., 673 S.W.2d 735, 736 (1984);
Snawder v. Stice, Ky. App., 576 S.W.2d 276, 279 (1979).
Where the party with the burden of proof is successful before
the ALJ, the issue on appeal is whether substantial evidence
supported the ALJ's conclusion.
708 S.W.2d 641, 643 (1986).
Special Fund v. Francis, Ky.,
Substantial evidence has been
defined as some evidence of substance and 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, 369 (1971).
The sum and substance of Aero’s argument is as
follows:
In the report of Dr. James Templin filed
into evidence by Johnson’s counsel with a
service date of September 25, 2202 [sic],
Dr. Templin expressly attributes his entire
impairment rating to Johnson’s work related
August 19, 1994 injury. Accordingly, Dr.
Templin has not assessed a valid permanent
impairment which he has attributed to any of
the injuries alleged in this claim, and it
was error for the Administrative Law Judge
to rely on his impairment rating, for any of
his opinions for that matter, in concluding
that Johnson was totally disabled as a
result of his August 22, 2001 back injury.
The report referred to by Aero is contained in the
record on appeal at pages 000102 – 000118.
Aero does not refer
us to where in the report “Dr. Templin expressly attributes his
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entire impairment rating to Johnson’s work related August 19,
1994 injury.”
We are unable to locate such an express statement
in Dr. Templin’s report or to reconcile Aero’s claim with the
contents of the report.
We are, however, able to reconcile the
report with the ALJ’s summary of Dr. Templin’s impairment
rating: “[Dr. Templin] assessed a 29% impairment rating under
the Fifth Edition of the AMA Guides.
This impairment was
apportioned 8% impairment to the back; 8% impairment to the
right shoulder; 14% impairment to the upper extremities
bilaterally; and 3% impairment to the right knee.”
While these
assessments may indicate that Johnson’s 1994 arm and shoulder
injuries are totally disabling, this does not mean that Dr.
Templin found that the 8% impairment to Johnson’s back as a
result of his August 2001 injury was not totally disabling.
Further, we note that the ALJ did not rely solely upon
Dr. Templin’s report in assessing Johnson with a total
occupational disability; rather, he also relied upon the report
of Dr. Scott C. Mirani, who assessed an 8% impairment of the
whole person under the AMA Guides, and the testimony of Johnson
himself.
In addition, we agree with the Board’s discussion of
this issue:
[W]e find no merit in Aero Energy’s second
issue regarding the reliance by the ALJ on
the opinions of Dr. Templin. Our reading of
the opinion convinces us that, although not
stated as effectively as we would prefer,
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the ALJ relied upon Dr. Templin for the
primary purpose of establishing little if
any pre-existing active occupational
disability with regard to Johnson’s history
of low back complaints. We believe the
reference made by the ALJ to Dr. Templin’s
impairment rating and restrictions concerns
the fact that Dr. Templin conducted his
independent medical evaluation of Johnson in
April 2001, some four months prior to the
work-related low back injury that produced
his total disability. Although Dr.
Templin’s evaluation included extensive
examination and testing of Johnson’s low
back, the doctor assessed no impairment
rating and imposed no restrictions
attributable to that portion of the
respondent’s anatomy. Consequently, we
interpret the ALJ’s allusions to Dr. Templin
to be part of his basis for finding no more
than 5% disability due to pre-existing and
active, despite the fact that Johnson had a
long history of back problems.
Nevertheless, even if Aero Energy’s
accusations were true regarding the ALJ’s
reference to Dr. Templin, we would affirm.
As pointed out above, by way of Dr. Mirani’s
testimony, in combination [with] Johnson’s
own declarations, there is sufficient
evidence to support a finding of total and
permanent occupational disability in this
instance, independent of any opinion
expressed by Dr. Templin. Hence, the ALJ’s
mention of Dr. Templin, whether inopportune
or misplaced, as worst constitutes nothing
more than harmless error.
Aero also contends that the ALJ erred by not carving
out Johnson’s impairment rating for carpal tunnel syndrome from
the award.
The ALJ determined that Johnson’s carpal tunnel
syndrome injury was barred under KRS 342.270 for failure to join
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the claim upon the reopening of Claim No. 96-06095 in December
2000.
Dr. Templin assessed a 14% impairment rating for
Johnson’s bilateral carpal tunnel syndrome.
Aero argues that
because the ALJ expressly found that Johnson’s carpal tunnel
syndrome claim met the statutory definition of an injury, found
Dr. Templin persuasive in concluding that the syndrome was workrelated, found Johnson credible when he testified he had first
learned that his carpal tunnel syndrome was definitely workrelated on June 21, 2000, and had given due and timely notice of
the alleged injury, an additional 14%, representing Johnson’s
carpal tunnel impairment rating, should be carved out of the
total disability award and found to be noncompensable as a preexisting active condition.
A worker who has sustained both compensable and
noncompensable disability is entitled to receive income benefits
for the full extent to which compensable, work-related harmful
change causes a complete inability to work.
See International
Harvester Co. v. Poff, Ky., 331 S.W.2d 712 (1959).
“Therefore,
a worker with an AMA impairment from a nonwork-related condition
who sustains a work-related injury may receive income
benefits for total disability if there is substantial evidence
that the work-related harmful change, by itself, is sufficient
to cause an AMA impairment and to cause the worker to be unable
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to perform any work.”
503, 508-09 (2000).
Hill v. Sextet Min. Corp., Ky., 65 S.W.3d
We agree with the Board’s discussion of
this issue in its July 16, 2003, opinion:
Of course had ALJ Smith determined that
Johnson’s carpal tunnel syndrome, although
not compensable, was working in concert with
the effects of his low back injury rendering
him totally occupationally disabled, then
Aero Energy would be correct in its argument
that some consideration regarding the
occupational impact of Johnson’s carpal
tunnel injuries would be required by the
ALJ. Hill v. Sextet Mining Corp., Ky., 65
S.W.3d 503 (2001). Even so, the ALJ would
not be confined to a carve out based solely
on the exact percentage of impairment
assessed by a medical expert relative to
Johnson’s carpal tunnel syndrome. Rather,
because this is a total disability case, the
issue would be one measuring the existence
of any contributing occupational disability
generated by the effects of the carpal
tunnel syndrome, and would comprise a
determination to be made solely within the
ALJ’s wide-ranging discretion. Ira A.
Watson Department Stores v. Hamilton, Ky.,
34 S.W.3d 48 (2000); Osborne v. Johnson,
Ky., 432 S.W.2d 800(1968); Seventh Street
Road Tobacco Warehouse v. Stillwell, Ky.,
550 S.W.2d 469 (1976). Had the ALJ been
convinced that although Johnson’s carpal
tunnel syndrome resulted in a measurable
impairment rating under the AMA Guides, its
presence did not significantly impair his
ability to engage in his customary job
activities for Aero Energy, no carve out
would have been necessitated.
That having been said, contrary to Aero
Energy’s assertions, the above standard is
not the one applied by ALJ Smith in the
instant action. Instead, given the proof
before him, the ALJ determined that the most
credible evidence more appropriately fit
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within the long recognized and well
established “whole man doctrine.”
International Harvester Co. v. Poff, Ky.,
331 S.W.2d 712 (1959). Under that doctrine,
an employee who sustains a work-related
injury may receive income benefits for total
disability where the evidence establishes
that the work-related harmful change, in and
of itself, is sufficient to warrant an AMA
impairment rating and to render the employee
unable to perform any work, despite the
presence of a concurrent, noncompensable
source of impairment or disability. Hill v.
Sextet Mining Corp., supra.
The question then becomes is there
substantial evidence sufficient to support
the ALJ’s application of the whole man
doctrine in the case sub judice? Since we
find that to be more than ample evidence
within the record to provide for the
doctrine’s application, we affirm as to this
issue. . . .
. . . .
Consequently, given the record as a whole,
we find no fault with the ALJ’s
determination that Johnson is 100%
occupationally disabled when taking into
account his age, limited education, prior
work experience, and medical restrictions.
More importantly, we find more than enough
evidence to support the ALJ’s determination
that Johnson’s back injury, absent all other
alleged ailments, was sufficient to produce
the entire measure of his disability. Dr.
Mirani’s findings and conclusions, when
viewed in light of Johnson’s own testimony,
is certainly sufficient to support ALJ
Smith’s ruling regarding this issue.
The function of this court in reviewing the Board "is
to correct the Board only where the . . .
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Court perceives the
Board has overlooked or misconstrued controlling statute or
precedent, or committed an error in assessing the evidence so
flagrant as to cause gross injustice."
Western Baptist Hospital
v. Kelly, Ky., 827 S.W.2d 685, 687 (1992).
We do not find that
the Board has misconstrued the applicable law in this case or
committed an error in assessing the evidence so flagrant as to
cause an injustice.
For the foregoing reasons the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeffrey D. Damron
Baird & Baird, P.S.C.
Pikeville, Kentucky
William Grover Arnett
Salyersville, Kentucky
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