UNITED PARCEL SERVICE V. DONNA BOND; HONORABLE MARCEL SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
February 4, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001447-WC
UNITED PARCEL SERVICE
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
CLAIM NO. WC-02-73489
V.
DONNA BOND;
HONORABLE MARCEL SMITH,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND MINTON, JUDGES.
MINTON, JUDGE:
Donna Bond injured her back while working for
United Parcel Service.
The Administrative Law Judge awarded her
permanent partial occupational disability benefits as a result,
which UPS has not contested on appeal.
UPS does contest the
award of additional temporary total disability benefits based on
a supplemental medical report introduced at the initial hearing
for “statistical purposes.”
The specific question we are asked
to review is whether the ALJ abused his discretion by relying
upon these records as an evidentiary basis for the award of the
additional TTD benefits.
We do not believe the ALJ’s decision
amounts to an abuse of discretion; so we affirm.
Bond began working for UPS in May 1997.
Although
initially employed as a package handler, she was eventually
transferred to a position in the “small sort” department.
On
June 24, 2002, Bond felt a “snap” in her back when she bent over
to pick up a tote filled with packages.
She was sent to the
company doctors at BaptistWorx and was kept off work for three
days.
Bond returned to work, restricted to light duty, until
July 29, 2002, when she was again taken off work until
August 27, 2002.
She received TTD benefits during her absence.
In September 2002, BaptistWorx referred Bond to
Dr. John Gormley, who returned Bond to work with light duty
restrictions until March 21, 2003.
Dr. Gormley further
restricted Bond from all work activities from March 21, 2003,
through May 19, 2003.
Bond was not paid TTD benefits for this
period.
Upon her return to UPS, Bond was reassigned to a less
physically demanding job in the “induct” department.
But on
September 3, 2003, Bond was informed that although her
employment relationship with UPS would continue, she could not
return to work until all restrictions were lifted.
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At the benefits hearing, Bond introduced the testimony
of Dr. S. Pearson Auerbach.
Dr. Auerbach assessed Bond with a
permanent functional impairment rating of 5 percent to the body
as a whole and interpreted her diagnostic studies as showing
significant degenerative disc disease and some midline disc
bulging.
In contrast, UPS introduced the testimony of
Dr. Thomas Loeb.
Dr. Loeb diagnosed Bond with “lumbosacral
strain with preexisting facet arthritis at L4-5 and L5-S1
bilaterally.”
He assessed Bond with a 0 percent permanent
functional impairment but stated she should not lift more than
70 pounds.
Bond testified at the hearing that Dr. Gormley had
kept her off work from March 21, 2003, through May 19, 2003, and
that she had provided “off-duty work slips” to UPS for that
period.
She further testified that neither UPS nor its workers’
compensation provider had paid her TTD benefits during that
period.
Evidence of the work slips provided by Dr. Gormley was
introduced at the hearing “for statistical purposes.”
Counsel
for UPS did not object to the introduction of the work slips,
stating that he “would stipulate that they’re [sic] records of
who they say they are and what they say.”
Although UPS did not
stipulate that Bond “actually provided them to her employer at
the time she said she did,” counsel stated he “didn’t have a
problem with them being admitted as an exhibit.”
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In his Opinion and Award, the ALJ awarded Bond
benefits based upon a 5 percent functional impairment rating.
With regard to the issue of Bond’s TTD benefits, the ALJ also
found:
Although not specifically raised as an
issue, the Plaintiff seeks additional
temporary total disability benefits in her
brief. The Plaintiff relies on the medical
records of Dr. Gormley attached to the
hearing transcript. The Defendant asserts
in its brief that the Plaintiff cannot rely
on the records of Dr. Gormley, although they
did not object to the submission of these
records as an exhibit at the hearing for
statistical content. The Plaintiff’s
credible testimony was that she did provide
the Defendant with a copy of these off work
slips during her treatment. The
Administrative Law Judge does find the fact
that Dr. Gormley took the Plaintiff off work
as statistical in nature and supported by
the Plaintiff’s testimony. The Defendant
was also aware of this upon receipt of the
notices. Therefore the Administrative Law
Judge does believe that the Plaintiff would
be entitled to additional temporary total
disability benefits from March 21, 2003
through May 19, 2003.
UPS petitioned for reconsideration, solely on the
question of whether Bond was owed additional TTD benefits.
petition was denied.
The
On appeal, UPS argued that the ALJ abused
his discretion in awarding Bond additional TTD benefits because
reliance on Dr. Gormley’s records was prohibited by 803 KAR1
25:010, Section 14(2).
1
The Workers’ Compensation Board
Kentucky Administrative Regulations.
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disagreed, stating that “the decision upon which evidence to
rely rests solely with the ALJ.
Nothing in the regulation
limits the ALJ’s consideration to historical and statistical
content only.”
The Board further held:
UPS’s argument that it did not object to the
introduction of the evidence because Bond’s
attorney stated the records were for
”statistical content only” is without merit.
As previously stated, there is nothing in
the statute or the regulations which
precludes the ALJ from considering the
physician’s opinion contained in records
filed by a party pursuant to 808 [sic] KAR
25:010, Section 14(2).
Therefore, the ALJ’s decision was affirmed.
UPS claims that the ALJ “committed reversible error by
awarding additional TTD benefits from March 21, 2003 through
May 19, 2003.”
We disagree.
When evaluating an appeal in a workers’ compensation
decision, it is well-settled that “the ALJ, as fact-finder, has
the sole authority to judge the weight, credibility and
inferences to be drawn from the record.”2
The decision of the
ALJ may be appealed to the Board; but “no new evidence may be
introduced before the Board, and the Board may not substitute
its judgment for that of the ALJ concerning the weight of
evidence on questions of fact.”3
The role of this Court in
2
Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329, 331
(Ky. 1997).
3
Smith v. Dixie Fuel Co., 900 S.W.2d 609, 612 (Ky. 1995).
-5-
reviewing decisions of the Board “is to correct the Board only
when we perceive that the Board has overlooked or misconstrued
controlling law or committed an error in assessing the evidence
so flagrant as to cause gross injustice.”4
If a decision is made
in favor of the claimant, the question on appeal “is whether the
decision . . . is supported by substantial evidence.”5
The term
“substantial evidence” has been defined as “evidence of
substance and relevant consequence having the fitness to induce
conviction in the minds of reasonable men.”6
With this standard in mind, we turn to UPS’s claim.
The basis for UPS’s argument is its interpretation of 803 KAR
25:010, Section 14(2).
That section provides:
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 KRS7 342.033.
4
Daniel v. Armco Steel Company, L.P., 913 S.W.2d 797, 798 (Ky.App.
1995), quoting Western Baptist Hospital v. Kelly, 827 S.W.2d 685,
687-688 (Ky. 1992).
5
Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky.App. 1984).
6
Smyzer v. B.F. Goodrich Chemical Company, 474 S.W.2d 367, 369 (Ky.
1971).
7
Kentucky Revised Statutes.
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With regard to the number of physician’s opinions that may be
introduced, KRS 342.033 states, “[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.”
In its argument, UPS focuses primarily on the words in
803 KAR 25:010, Section 14(2), that state, “[a]n opinion of a
physician which is expressed in these records shall not be
considered by an administrative law judge . . . .”
If this
phrase marked the end of the regulation, we would be inclined to
agree with UPS that the ALJ had erroneously considered
Dr. Gormley’s report.
But the regulation continues with the
words “in violation of the limitation on the number of
physician’s opinions established in KRS 342.033.”
KRS 342.033
clearly limits a party to direct testimony from two physicians.
In this case, Bond only offered the direct testimony of one
physician, Dr. Auerbach.
Therefore, the ALJ’s consideration of
Dr. Gormley’s report did not violate KRS 342.033.
And since the
relevant provision of 803 KAR 25:010, Section 14(2), states that
consideration of additional reports is only impermissible if it
violates KRS 342.033, we do not agree with UPS that the ALJ’s
consideration of Dr. Gormley’s report was in error.
UPS further argues that “[t]he last minute
introduction of Dr. Gormley’s records by ambush at the Hearing
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did not afford [it] an opportunity to cross-examine
Dr. Gormley.”
We believe this argument would carry more weight
if cross-examination of Dr. Gormley were necessitated by
introduction of the medical evidence.
But the only evidence
actually ascertained by the records was corroboration of the
fact that Bond was off work from March 21, 2003, through May 19,
2003.
Dr. Gormley’s report did not provide an analysis of
Bond’s medical condition, nor did the ALJ consider it as proof
of Bond’s disability.
Rather, Dr. Gormley’s report was used for
statistical purposes to prove that Bond was off work for the
stated period and that he provided Bond with off-duty work
slips.
We believe this evidence, along with Bond’s credible
testimony that she provided the slips to UPS, was substantial
enough to justify the ALJ’s decision to award Bond additional
TTD benefits.
For these reasons, the decision of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE DONNA BOND:
Anthony K. Finaldi
Louisville, Kentucky
Ched Jennings
Louisville, Kentucky
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