DONNIE KEVIN DAY v. HIGHLANDS MINING & PROCESSING; HON. W. BRUCE COWDEN, JR., ADMINISTRATIVE LAW JUDGE; AND THE WORKERS' COMPENSATION BOARD
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RENDERED:
SEPTEMBER 3, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2004-CA-000921-WC
DONNIE KEVIN DAY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-00-59819
v.
HIGHLANDS MINING & PROCESSING;
HON. W. BRUCE COWDEN, JR.,
ADMINISTRATIVE LAW JUDGE;
AND THE WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND KNOPF, JUDGES.
KNOPF, JUDGE:
Donnie Day appeals from a decision of the
Workers’ Compensation Board, entered April 14, 2004, reducing
his occupational disability rating from 25.3% to 13%.
The
Administrative Law Judge (ALJ) had initially arrived at the
latter figure, but upon Day’s motion for reconsideration had
determined that that finding was based on his (the ALJ’s)
improper reliance on certain medical records.
Aside from those
records, the ALJ believed, the evidence supported the higher
figure.
The Board determined that the ALJ’s use of the disputed
records had been proper and so reinstated the original award.
Day contends that the Board has misconstrued rules governing the
admission and use of medical opinion evidence.
Although our
reasoning differs somewhat from that of the Board, we affirm.
In December 2000, while working as a repairman for
appellee Highlands, Day, about twenty-seven years old at the
time, injured his lower back.
After a period of rest, he
attempted to return to work, but persistent pain forced him to
cease working in February 2001.
to relieve his symptoms.
Back surgery in May 2001 failed
Apparently he has not been able to
return to work since then.
In March 2002, Highlands referred Day to Dr. Gregory
Snider.
Following his examination and his subsequent review of
Day’s medical records, Dr. Snider opined that Day had reached
maximum medical improvement (MMI) in August 2002 and that the
workplace injury had left Day with a 13% whole-person
impairment.
Relying on Dr. Snider’s opinion that Day had
improved as much as possible, Highlands discontinued Day’s
temporary total disability (TTD) benefits as of September 1,
2002.
Day filed his compensation claim later that month and
2
sought both additional TTD benefits and benefits for permanent
disability.
Highlands attached Dr. Snider’s report to its
response to Day’s petition as proof that its termination of
Day’s TTD benefits had been lawful.
In support of his claim, Day submitted reports by two
doctors, both of whom opined that his workplace injury had left
him impaired, and one of whom, Dr. Christa Muckenhausen,
estimated that impairment as 22% of the whole person.
Apparently that impairment rating translates to a 25.3% partial
disability rating.
Highlands submitted the report of Dr.
Russell Travis, who assessed a 10% impairment.
In addition to
the two doctor reports permitted by KRS 342.033,1 Day filed
numerous treatment records, and “for statistical purposes”
adopted Dr. Snider’s report as evidence bearing on his TTD
claim.
In Day’s brief to the ALJ, however, he also referred to
Dr. Snider’s assessment of his impairment as evidence tending to
support his permanent disability claim.
The ALJ awarded Day permanent partial disability
benefits based on a 13% whole-person impairment.
He explained
that Dr. Snider’s impairment assessment seemed to him the
soundest of all those in the record.
1
Day sought reconsideration
The statute provides in part that “[i]n a claim for benefits,
no party may introduce direct testimony from more than two (2)
physicians without prior consent from the administrative law
judge.”
3
of the award and argued that the ALJ ought not to have relied on
Dr. Snider’s opinion because neither party had submitted Dr.
Snider’s report for that purpose, but only as background
evidence for the TTD issue.
The ALJ agreed with Day, withdrew
the first award, and issued a new award based on Dr.
Muckenhausen’s report.
Highlands appealed to the Board.
It argued that the
ALJ’s initial reliance on Dr. Snider’s opinion had not been
improper, and thus that the ALJ had erred by modifying the
award.
In agreeing with Highlands, the Board noted that
notwithstanding the statutory limit of two doctor reports,
parties commonly file extensive treatment records pursuant to
803 KAR 25:010 § 14(2).2
Although the rule makes clear that
doctor reports included in such filings need not be considered,
the ALJ’s discretion under KRS 342.033 to allow additional
reports authorized the ALJ, the Board believed, to rely on any
reports that appeared in the record for any purpose.
Parties
thus, according to the Board, file additional doctor reports at
their own risk.
Day contends that the Board has too laxly
construed the rule limiting the submission of doctor reports.
2
“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 KRS 342.033.”
4
We need not reach this question, however, because, as
our Supreme Court has recently reiterated, in general a party
waives its right to object to the admission of evidence by
failing to raise the objection at the time the evidence is
offered.
In Copar, Inc. v. Rogers,3 an employer challenged an
ALJ’s reliance on doctor opinions included, as in this case, in
reports filed as treatment history under 803 KAR 25:010 § 14.
The employer argued that the opinions did not satisfy
foundational requirements imposed by other rules.
Citing KRE
103, which requires contemporaneous objection to preserve
alleged evidentiary errors, the Court declined to address this
argument because the employer had acquiesced in the submission
of the reports.
Here, too, not only did Day not object to the
submission of Dr. Snider’s report, but he adopted the report as
his own evidence and urged the ALJ to consider it in support of
his permanent disability claim.
Only after the ALJ had entered
the award did Day assert the alleged evidentiary error.
Under
Copar and KRE 103, Day’s objection was untimely and thus did not
provide a proper basis for modifying the award.
The Board did
not err, therefore, by reinstating the original award.
Day also contends that the Board abused its discretion
by permitting Highlands to file a tardy brief.
3
Ky., 127 S.W.3d 554 (2003).
5
Apparently
Highlands filed its notice of appeal to the Board on time, but
missed the briefing deadline.
As Highlands correctly points
out, 803 KAR 25:010 § 21(11)4 vests the Board with broad
discretion to sanction tardy briefs as it deems appropriate.
Highlands explained its lapse as the result of an administrative
error, promptly responded when the oversight had been pointed
out, and the short delay in no way prejudiced Day.
The Board
did not abuse its discretion.
The Board having neither erred nor abused its
discretion, we affirm its April 14, 2004, order.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Sherry Brashear
Harlan, Kentucky
J. Gregory Allen
Riley & Allen, P.S.C.
Prestonsburg, Kentucky
4
“Sanctions. Failure of a party to file a brief conforming to
the requirements of this administrative regulation or failure of
a party to timely file a response may be grounds for the
imposition of one (1) or more of the following sanctions: (a)
Affirmation or reversal of the final order; (b) Rejection of a
brief that does not conform as to organization or content, with
leave to refile in proper for within ten (10) days of the date
returned. If timely refiling occurs, the filing shall date back
to the date of the original filing; (c) Striking of an untimely
response; (d) A fine of not more than $500; or (e) Dismissal.”
6
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