JOHNEY BALLARD v. GIPSON FARMS TRUCKING, LLC; HON. JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD AND GIPSON FARMS TRUCKING, LLC v. JOHNEY BALLARD; HON. JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
SEPTEMBER 15, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2006-CA-000318-WC
JOHNEY BALLARD
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-03-81696
GIPSON FARMS TRUCKING, LLC;
HON. JAMES L. KERR, ADMINISTRATIVE
LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
APPELLEES
AND
2006-CA-000347-WC
GIPSON FARMS TRUCKING, LLC
v.
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-03-81696
JOHNEY BALLARD; HON. JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
OPINION
AFFIRMING AND REMANDING
** ** ** ** **
CROSS-APPELLEES
BEFORE:
ABRAMSON AND VANMETER, JUDGES; KNOPF,1 SENIOR JUDGE.
KNOPF, SENIOR JUDGE:
Johney Ballard petitions for review of a
January 13, 2006, order by the Workers’ Compensation Board
(Board) which affirmed in part and reversed in part an award by
the administrative law judge (ALJ).
His employer, Gipson Farms
Trucking, LLC, cross-petitions for a review of the Board’s
opinion.
Finding that the Board’s opinion correctly analyzed
all of the disputed issues, we affirm and remand this matter to
the ALJ for further proceedings as set forth in the Board’s
opinion.
The Board’s opinion fully sets out the relevant facts
of this action as follows:
Ballard was born on December 9, 1966,
and resides in Graves County, Kentucky. He
completed the ninth grade. Ballard has been
certified as an EMT and has held a
commercial driver’s license. He went to
work driving a tractor-trailer for Gipson in
2002. On June 17, 2003, he fell
approximately five feet from a truck
fracturing the radial head of his left
elbow. He was taken to Redi-Care, where he
was treated by Dr. John Cecil, and
subsequently referred to an orthopedic
surgeon, Dr. Thane DeWeese.
Ballard first saw Dr. DeWeese on June
19, 2003. In addition to the non-displaced
radial head fracture, Dr. DeWeese diagnosed
a bony avulsion of about one-by-three
centimeters thickness off the lateral aspect
1
Senior Judge William L. Knopf sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of
the Kentucky Constitution and KRS 21.580.
- 2 -
of the proximal ulna consistent with a
lateral collateral ligament avulsion. Dr.
DeWeese placed Ballard in a long arm splint
and advised he could return to one-handed
work as of June 23, 2003. When Dr. DeWeese
saw Ballard in follow-up on June 26, 2003,
Ballard reported increased pain after
removing his splint. Dr. DeWeese placed him
in a long arm cast for three weeks. On July
7, 2003, Ballard reported a significant
decrease in his pain, even though he had
been using his left arm “aggressively,”
against the doctor’s instructions. Dr.
DeWeese removed the cast and recommended
light activity, including continued work
with restricted use of the left arm. He
referred Ballard for physical therapy.
Ballard began physical therapy on July
8, 2003, and attended nine sessions through
July 30, 2003, with little progress. He
reported continued pain and locking during
his last session.
Ballard next saw Dr. DeWeese on August
5, 2003. He reported continued discomfort
over the posterolateral aspect of the left
elbow, particularly after a long day at
work. Dr. DeWeese noted once again that
Ballard had been “very active with his left
arm at work despite instructions otherwise.”
Ballard reported stiffness, popping and
catching of the left elbow with activity,
including exercises performed at physical
therapy. Dr. DeWeese admonished Ballard
regarding overuse of the left arm. He
recommended Ballard continue range of motion
exercises and light activity.
Ballard’s complaints remained unchanged
at a follow-up visit on September 29, 2003.
Dr. DeWeese ordered a CT scan of the left
elbow. The CT scan revealed a small
articular fragment in the joint. Dr.
DeWeese recommended arthroscopic surgery,
which was carried out November 7, 2003. Dr.
DeWeese simultaneously performed a lateral
arthrotomy to remove bony tissue from the
proximal elbow. During the procedure,
Ballard was noted to have significant
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arthritic changes at the capitellum.
Following surgery, Ballard was issued a
sling and instructed not to use his left arm
for ten days.
On November 18, 2003, Ballard returned
to physical therapy. At that time he
continued to complain of severe pain and
significant loss of range of motion in the
left elbow. Ballard attended twelve therapy
sessions through December 2003, consistently
giving good effort and experiencing slow
improvement in range of motion and strength.
Thereafter, Ballard maintained, however,
that the physical therapy was exacerbating
his painful symptoms and stopped attending.
In response, Dr. DeWeese administered a left
radial capitello-corticosteroid injection.
This procedure was reported to have only
alleviated Ballard’s symptoms for “a day or
two.”
On January 27, 2004, Dr. DeWeese wrote
to a Dr. John Cecil for the purpose of
requesting a consultation on Ballard, and
copied the letter to Dr. Jeff Watson. Dr.
DeWeese noted that, after the November 2003
surgery, Ballard had “struggled postoperatively with continued pain, stiffness
and popping of the left elbow.” Dr. DeWeese
became concerned that Ballard was suffering
from posterior lateral instability or some
other type of instability that he was unable
to discern.
Dr. Watson did not identify instability
of the left elbow. Rather, in his office
note of February 24, 2004, Dr. Watson
diagnosed left radial capitellar post
traumatic arthritis as the cause of
Ballard’s ongoing complaints, which included
pain, swelling, stiffness, catching, and
popping.
On March 17, 2004, Dr. DeWeese
performed a radial head resection, during
which he confirmed a moderate amount of
arthritis in the left radial capitellum
joint. Ballard experienced modest
improvement after surgery, though his pain
persisted. During April 2004, Ballard
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experienced an unexpected and acute
worsening of symptoms, documented by his
physical therapist. On April 14, 2004,
Ballard reported his pain had migrated from
the elbow into his upper arm and was also
shooting into his wrist. He complained of
progressive numbness and tingling in the
fourth and fifth digits of his left hand, as
well as nocturnal numbness in the second and
third digits. The physical therapist
reported mottling and moderately impaired
sensation in the left forearm, and raised
the possibility of reflex sympathetic
dystrophy (“RSD”).
During Ballard’s follow-up visit with
Dr. DeWeese on May 11, 2004, he complained
of moderate to severe pain in the left
elbow, worse since surgery, and accompanied
by weakness, numbness, swelling, and
popping. Ballard exhibited a positive
Tinel’s sign and also complained of left
forearm pain and tenderness. Dr. DeWeese
found no objective signs of RSD, but instead
considered the possibility of radial or
cubital tunnel syndrome and nerve irritation
due to the radial head resection. On the
May 11, 2004, Dr. DeWeese wrote a letter to
Gipson’s workers’ compensation carrier in
which he related a diagnosis of “left
cubital tunnel syndrome of a month’s
duration.” Dr. DeWeese also advised of
Ballard’s “vague right radial forearm pain
which he felt could be representative of a
mild radial nerve entrapment syndrome.” Dr.
DeWeese excused Ballard from work for six
weeks pending completion of a home exercise
program and a follow-up examination.
On May 26, 2004, Gipson’s workers’
compensation carrier wrote to Dr. DeWeese
seeking clarification of Ballard’s diagnosis
and medical status. Dr. DeWeese responded
by confirming that Ballard’s ongoing
complaints of numbness and weakness in his
left hand were in the doctor’s opinion not
related to the work injury. Dr. DeWeese
further indicated that Ballard was at
maximum medical improvement (“MMI”) with
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respect to his left elbow. Dr. DeWeese
noted that Ballard was scheduled for an
appointment with Dr. William Gavigan for a
work status determination. Dr. DeWeese
recommended a Functional Capacity Evaluation
(“FCE”) to assist in that regard.
On June 22, 2004, Dr. DeWeese again
indicated that in his opinion Ballard was at
MMI with respect to the left elbow injury.
Dr. DeWeese described the fracture as stable
and documented full active range of motion
of the left elbow. He expressly indicated
that the diagnosis of cubital tunnel
syndrome was of “recent onset” and “not work
related.” Because Ballard had come under
the care of a pain management specialist,
Dr. Gay Richardson, Dr. DeWeese released him
to return only as needed.2
On December 10, 2004, Dr. DeWeese wrote
a letter to Ballard’s counsel addressing the
issue of causation, in which he again opined
that Ballard’s cubital tunnel syndrome ―
first diagnosed May 11, 2004, two months
after the radial head resection procedure ―
was not related to the elbow fracture
Ballard sustained at work or the subsequent
surgical procedures. Dr. DeWeese clarified
that his earlier statement with respect to
MMI pertained only to the radial head
fracture for which he had been treating
Ballard, and not to the cubital tunnel
syndrome for which Dr. Richardson undertook
care.
Dr. Richardson first saw Ballard on
June 8, 2004. On examination, Ballard
exhibited: (1) reduced extension at the
elbow and the wrist on the left side; and
(2) reduced motor strength on abduction of
the fingers, with almost no abduction of the
fifth digit. Dr. Richardson recorded that
Ballard could not close the fourth and fifth
digits of the left hand. Ballard had a
positive Tinel’s on the left with light
2
Ballard was referred to Dr. Richardson by his family physician,
Dr. Jeffrey Carrico. [footnote in original]
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tapping of the elbow over the ulnar nerve.
Sensation was decreased in an ulnar nerve
distribution below the elbow. Dr.
Richardson diagnosed probable left ulnar
neuropathy, status post resection of the
left radial capitellum joint, myofascial
pain syndrome, and disordered sleep. He
recommended EMG/NCV testing to evaluate
further and that Ballard remain off work in
the meantime.
Dr. Gavigan performed an independent
medical evaluation on June 30, 2004. Dr.
Gavigan’s findings on examination were
consistent with those of Dr. Richardson.
Dr. Gavigan found reduced range of motion in
the left elbow, decreased sensation in the
radial aspect of the fourth digit and no
sensation in the ulnar aspect of the fifth
digit. Tinel’s was negative. Dr. Gavigan
documented atrophy in the left proximal
forearm. By contrast, there was no
intrinsic muscle atrophy in the left hand,
though Ballard exhibited reduced grip
strength on active testing. Consequently,
Dr. Gavigan agreed that Ballard should
undergo an EMG study of the left arm “to
find out why he is having the numbness in
the fourth and fifth fingers. . . .” Though
he reviewed Dr. DeWeese’s records, including
operative notes, Dr. Gavigan did not
conclude that Ballard’s persistent
neurological deficits were related. Dr.
Gavigan offered no opinion with respect to
causation. He agreed with Dr. Richardson
that Ballard was not yet at MMI. Dr.
Gavigan stated, “He is 3 months post surgery
for the radial head resection. I think he
needs some more therapy or an FCE to see
where he is.” Dr. Gavigan opined that
Ballard could return to light work with
occasional use of the left hand, but
restricted lifting with the left arm to no
more than five pounds.
On July 8, 2004, Dr. Richardson
recorded Ballard had been unable to undergo
the recommended testing due to a conflict
with Gipson’s workers’ compensation carrier
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over compensability of the cubital tunnel
syndrome. Dr. Richardson noted that Dr.
DeWeese opined the condition was not workrelated. Having been advised that Ballard
had no history of hand numbness or weakness
at prior to the radial head resection, Dr.
Richardson concluded that “this nerve
problem is likely directly related to his
work related injury on 6/17/03.” Dr.
Richardson also noted that Dr. DeWeese
recommended an FCE. Because Dr. Richardson
believed Ballard was not yet at MMI with
respect to his diagnosis of ulnar
neuropathy, he opined an FCE was not
appropriate at that time. Dr. Richardson
recommended Ballard undergo the recommended
testing and appropriate treatment before
consideration be given to MMI and a return
to work.
On August 12, 2004, Dr. Richardson
issued a letter advising that Ballard could
not perform any job duties at that time. On
September 27, 2004, Ballard reported the
nerve testing still had not been authorized.
He complained that his symptoms had worsened
to include pain radiating into his shoulder
blade, making even basic activities of daily
living difficult. Ballard informed Dr.
Richardson that he was under significant
financial stress due to unemployment and
child support obligations. He reported that
his family physician, Dr. Jeff Carrico, had
increased his dose of Xanax and placed him
on an anti-depressant, which had improved
his mood. He further reported that he had
contemplated suicide and been placed under
custodial observation.
In December 2004, Dr. Richardson
recorded that Ballard was reporting a good
level of pain control. By contrast, Ballard
also reported continued numbness and
tingling and that he was beginning to
exhibit a claw hand due to retraction of the
digits. Ballard complained of persistent
difficulties with activities of daily
living. Dr. Richardson continued to keep
him off work pending further medical
- 8 -
treatment leading to MMI. In a letter dated
February 15, 2005, Dr. Richardson advised
that the recommended testing still had not
been completed. Nonetheless, Dr. Richardson
addressed the issue of permanent impairment,
assessing a 21% whole-body impairment rating
based on reduced range of motion at the
elbow and shoulder, combined with sensory
and motor deficits due to ulnar neuropathy.
Dr. Richardson opined that these conditions
were the result of the post-operative
formation of scar tissue and, therefore,
were related to the work injury of June 17,
2003.
The only other physician to address
permanent impairment was Dr. DeWeese, who
issued a Form 107 medical report on March 9,
2005. Dr. DeWeese assessed an 8% rating for
impairment related to Ballard’s elbow injury
and a 5% rating for impairment due to loss
of grip strength. These ratings related to
two primary diagnoses, status post left
radial head resection with residual elbow
stiffness and left cubital tunnel syndrome,
the latter of which Dr. DeWeese opined was
not work-related.
There was no permanent impairment
rating introduced into the record with
respect to Ballard’s psychological
condition, although Dr. Carrico issued a
letter dated January 17, 2005, in which he
opined that Ballard’s mental status had
declined as a result of his pain and
inability to work.
Ballard’s final hearing was held on
April 26, 2005. At that time, Ballard
testified he has been unable to return to
work and is drawing social security
disability benefits. Ballard stated he has
yet to undergo nerve conduction studies and
treatment for the numbness in his small and
ring fingers, and for the underside of his
left forearm, which he described as “dead.”
His only treatment for several months has
been prescription medication for the
treatment of his pain, anxiety and
depression. Ballard confirmed that Gipson’s
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workers’ compensation carrier had terminated
income and medical benefits following the
IME with Dr. Gavigan.
Ballard admitted he has been taking
Xanax for anxiety since about 1990. He
confirmed, however, that the dose has been
increased since the work injury at Gipson
and that Effexor has been added for the
treatment of depression. He also explained
that he is seeing a mental health counselor
after having a nervous breakdown. Ballard
stated he has been so delinquent regarding
his child support payments since the injury
that he is close to being arrested. Ballard
testified he has lost his vehicle and is
about to lose his trailer, as well. Ballard
stated he has applied for food stamps. He
further testified that he attempted suicide
in the year before his hearing. Ballard
indicated his mental health has improved
with medication. He stated that his mother
is helping pay for his prescriptions.
After considering the evidence, the ALJ found that
Ballard’s cubital tunnel syndrome was work-related.
Specifically, the ALJ was persuaded by Dr. Richardson that the
cubital tunnel syndrome arose as a consequence of the surgery.
Gipson did not contest the work-relatedness of the radial head
fracture and surgery.
The ALJ adopted the 8% impairment rating
assessed by Dr. DeWeese, applying that rating to Ballard’s
whole-body impairment.
The ALJ also enhanced Ballard’s award by
the 3-multiplier pursuant to KRS 342.730(1)(c)1. based on the
additional finding that Ballard lacks the physical capacity to
return to the type of work he was performing at the time of
injury.
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Again relying on Dr. DeWeese’s opinion, the ALJ found
that TTD benefits should have been terminated as of June 22,
2004, and provided for Gipson to take a credit for those
benefits paid beyond that date.
Finally, the ALJ concluded that
Ballard’s mental condition had deteriorated as a result of his
work-related injuries.
Consequently, the ALJ awarded medical
benefits related to the psychiatric condition, but no income
benefits because there was no permanent impairment rating of
record as to the psychiatric condition.
Gipson petitioned for reconsideration of the award of
medical benefits based on the psychiatric condition.
The ALJ
granted the petition and deleted that portion of the award.
Thereafter, Ballard appealed to the Board.
The Board first
found that the ALJ could properly award medical benefits for a
work-related psychiatric condition notwithstanding the lack of
an associated permanent impairment or disability rating.
The
Board also found that the ALJ exceeded his authority by deleting
that portion of the award on a petition for reconsideration.
Consequently, the Board reinstated the award of future medical
benefits for Ballard’s psychiatric condition.
The Board next found that the ALJ had erred in finding
that Ballard’s TTD benefits should have been terminated as of
June 22, 2004.
Although Dr. DeWeese declared Ballard at maximum
medical improvement (MMI) as of that date, he repeatedly stated
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that his opinion was limited to Ballard’s elbow injury and not
the cubital tunnel syndrome.
Furthermore, the ALJ rejected Dr.
DeWeese’s opinion that Ballard’s cubital tunnel syndrome was not
work-related.
As a result, the Board found that the ALJ erred
by accepting Dr. DeWeese’s opinion that Ballard’s cubital tunnel
syndrome had reached MMI as of June 22, 2004.
The Board
remanded this issue to the ALJ for additional findings as to
when Ballard reached MMI.
However, the Board found that the ALJ had not erred in
accepting Dr. DeWeese’s assessment of an 8% impairment rating.
Although Dr. DeWeese declined to express an opinion as to when
the cubital tunnel syndrome reached MMI, he did not specifically
exclude it in determining Ballard’s whole-body impairment
rating.
The Board concluded that the evidence did not compel a
finding that Ballard suffered additional whole-body impairment
from the cubital tunnel syndrome.
Therefore, the Board affirmed
the ALJ’s assessment of Ballard’s impairment rating.
In its cross-petition for review, Gipson first argues
that the Board improperly substituted its judgment for the factfinder as to when Ballard reached MMI.
We disagree.
The ALJ
may reject any testimony and believe or disbelieve various parts
of the evidence, regardless of whether it comes from the same
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witness or the same adversary party’s total proof.3
And, as
fact-finder, the ALJ has the sole authority to determine the
quality, character and substance of the evidence.4
Nevertheless,
we agree with the Board that the ALJ’s discretion to pick and
choose from the evidence does not extend so far as to allow the
ALJ to make conflicting findings of fact.
As the Board
correctly explained, “while a witness may be inconsistent, an
ALJ may not.”
Dr. DeWeese explicitly stated that his opinion
regarding MMI was limited to Ballard’s elbow injury alone.
He
did not offer an opinion regarding Ballard’s cubital tunnel
syndrome, except to say he did not believe the condition was
work-related.
However, the ALJ rejected Dr. Deweese’s opinion
and found the cubital tunnel syndrome to be work-related.
Consequently, the ALJ clearly erred by relying on Dr. DeWeese’s
opinion to determine that Ballard’s TTD ended as of June 22,
2004.
In his petition for review, Ballard argues that the
ALJ also erred by accepting Dr. DeWeese’s assessment of an 8%
impairment as relating to not only the elbow injury but also as
a whole-body impairment.
3
The Board noted that Dr. DeWeese
Magic Coal v. Fox, 19 S.W.3d 88, 96 (Ky. 2000).
4
Paramount Foods Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky.
1985).
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included the diagnosis of cubital tunnel syndrome in his Form
107 report.
Dr. DeWeese gave a rating for loss of grip strength
and included cubital tunnel syndrome as a non-work related
condition.
Consequently, the Board concluded that the ALJ could
reasonably find that the 8% impairment rating accounts for both
Ballard’s elbow injury and for the cubital tunnel syndrome.
Ballard contends that Dr. DeWeese’s impairment rating
related only to the elbow injury.
Ballard further argues that
Dr. DeWeese could not have assessed a whole-body impairment
rating because he was not yet at MMI.
Although the Board
concluded that the ALJ erred in finding that Ballard had reached
MMI as of June 22, 2004, the Board also found that the ALJ could
reasonably accept Dr. DeWeese’s functional impairment rating for
Ballard as of that date.
The AMA Guides to the Evaluation of Permanent
Impairment (AMA Guides) require that a patient's functional
impairment rating may only be measured if the patient being
examined has reached MMI.
Dr. DeWeese expressly stated that
Ballard’s cubital tunnel syndrome was not at MMI as of June 22,
2004, when he last saw Ballard.
Therefore, he was not in a
position to assess a functional impairment rating for that
condition.
Nevertheless, we do not agree with Ballard that the
evidence compels a finding of a higher impairment rating.
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Ballard urges that Dr. DeWeese’s 8% rating for the elbow injury
should be combined with Dr. Richardson’s 10% rating for the
cubital tunnel syndrome to arrive at a combined whole-body
impairment rating of 17%.
But while a fact-finder may not
disregard the uncontradicted conclusion of a medical expert, Dr.
Richardson’s conclusions were not uncontested.
The Board noted
that Dr. Richardson did not reference the AMA Guides to state
how she arrived at the 10% rating.
As the claimant, Ballard
bore the burden of proof and the risk of nonpersuasion before
the fact-finder with regard to every element of his claim.5
Thus, the ALJ could reasonably reject Dr. Richardson’s
functional impairment rating of Ballard’s cubital tunnel
syndrome.
Since no other physician assigned a credible rating
for that condition, the ALJ could reasonably conclude that
Ballard had only proven that he has an 8% functional impairment
rating.
Finally, Gipson argues that the Board erred in finding
that Ballard is entitled to an award of future medical benefits
arising as a result of his work-related psychiatric injury even
in the absence of any permanent impairment or disability rating
related to that condition.
Gipson urges that future medical
benefits may only be awarded upon a finding that the condition
5
Magic Coal Co. v. Fox, supra at 96.
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is permanent.
However, we find the Board’s analysis to be
persuasive, and we adopt the following portion of the Board’s
opinion.
In this instance, though not cited by
the parties, we find the Kentucky Supreme
Court’s holding in Coleman v. Emily
Enterprises, Inc., 58 S.W.2d 459 (Ky. 2001),
to be dispositive. In Coleman, supra, as in
the case sub judice, the record held
evidence of a permanent impairment rating
related to the claimant’s physical injury
but not his psychiatric condition. The ALJ
awarded income benefits commensurate with a
5.625% permanent disability rating for the
claimant’s physical injury and awarded past
and future medical benefits pursuant to KRS
342.020(2), that included treatment of the
related psychiatric condition.
The supreme court summarized the
contested findings of the ALJ as follows:
Although Dr. Pursley did not
consider plaintiff’s
psychological/psychiatric symptoms
work-related, the proof from Dr.
Coleman, one of plaintiff’s
treating physicians, established
that such symptoms indeed were
associated with the February 18,
1998, work injury and the
defendant-employer’s failure to
promptly provide medical care;
therefore, while the record
otherwise lacks proof that the
anxiety and depression [have]
produced permanent impairment or
disability, an award of medical
benefits therefor is warranted.
Id. at 461. (Emphasis added). Consequently,
the supreme court affirmed the award of
medical benefits for the work-related
psychiatric condition, notwithstanding the
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lack of a permanent impairment or disability
rating associated therewith.
We see no reason for a different
outcome here. There is substantial evidence
to support the ALJ’s finding that Ballard’s
upper extremity injury produced a permanent
impairment rating. There is also substantial
evidence to support the ALJ’s initial
inference that Ballard’s current
psychological problems are substantially
work-related and will require future
treatment. Ballard’s injury caused pain,
which in turn caused depression and worsened
his anxiety. The depression and anxiety are
“effects” of the injury, for which future
medical benefits are authorized by statute
in accordance with Coleman, supra.
Moreover, the ALJ found in favor of
Ballard on this issue in his original
decision. It was only on reconsideration at
the behest of Gipson that the ALJ modified
his decision on the merits of this issue and
withdrew that portion of the award, stating
that Gipson “shall not be responsible for
plaintiff’s psychological condition given
the lack of impairment or disability for
that condition.” (Emphasis added). KRS
342.281 defines the scope of modification
permitted on reconsideration by the factfinder, as follows: “The administrative law
judge shall be limited in the review to the
correction of errors patently appearing upon
the face of the award, order, or decision
and shall overrule the petition for
reconsideration or make any correction
within ten (10) days after submission.”
In reference to this provision, the
supreme court in Beth-Elkhorn Corp. v. Nash,
470 S.W.2d 329 (Ky. 1971), wrote, “This
statutory limitation is clear and positive.
It expresses a legislative policy that the
Board shall not have authority to reverse
itself on the merits of a claim.” Id. at
330. Citing to its prior decision in Nash,
supra, the supreme court reiterated, “The
petition may not be granted if it appears
that the Board has reconsidered the case on
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its merits and/or changed its factual
findings.” Wells v. Beth-Elkhorn Coal Corp,
708 S.W.2d 104, 106 (Ky. 1985). Most
recently, in Garrett Mining Co. v. Nye, 122
S.W.3d 513 (Ky. 2003), the supreme court
uniformly held:
KRS 342.281 provides that in
considering a petition for
reconsideration, "[t]he
administrative law judge shall be
limited in the review to the
correction of errors patently
appearing upon the face of the
award, order, or decision ...."
This language precludes an ALJ
(or, formerly, the "old" Board)
from reconsidering the case on the
merits and/or changing the
findings of fact. Wells v. BethElkhom Coal Corp., Ky.App., 708
S.W.2d 104, 106 (1985); see also,
Ford Furniture Co. v. Claywell,
Ky., 473 S.W.2d 821, 823 (1971)
(where record considered by "old"
Board supported its decision, KRS
342.281 could not be used to
reconsider case on the merits);
Beth-Elkhorn Corp. v. Nash, Ky.,
470 S.W.2d 329, 330 (1971) (after
dismissing employee’s claim, "old"
Board exceeded its authority by
awarding benefits on petition for
reconsideration).
We agree with the Board that there was substantial
evidence to support the ALJ’s initial conclusion that Ballard’s
current psychological problems are substantially work-related
and will require future treatment.
Furthermore, the ALJ was not
authorized to re-visit this issue in the petition for
reconsideration.
Therefore, the Board properly reinstated the
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ALJ’s original award of future medical benefits for the
treatment of Ballard’s psychiatric condition.
Accordingly, the January 13, 2006 opinion of the
Workers’ Compensation Board is affirmed and this matter is
remanded to the ALJ for additional proceedings as set out in the
Board’s opinion.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE:
BRIEF FOR APPELLEE/CROSSAPPELLANT:
Jeffrey A. Roberts
Murray, Kentucky
R. Christion Hutson
Whitlow, Roberts, Houston &
Straub, PLLC
Paducah, Kentucky
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