PARCO CONSTRUCTION v. MITCHELL PENNINGTON; HON. ANDREW F. MANNO, ADMINISTRATIVE LAW JUDGE; AND THE WORKERS' COMPENSATION BOARD and MITCHELL PENNINGTON v. PARCO CONSTRUCTION; HON. ANDREW F. MANNO, ADMINISTRATIVE LAW JUDGE; AND THE WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 8, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-001054-WC
PARCO CONSTRUCTION
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-04-89703
MITCHELL PENNINGTON;
HON. ANDREW F. MANNO,
ADMINISTRATIVE LAW JUDGE; AND
THE WORKERS' COMPENSATION BOARD
AND
NO. 2006-CA-001122-WC
MITCHELL PENNINGTON
v.
APPELLEES
CROSS-APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-04-89703
PARCO CONSTRUCTION;
HON. ANDREW F. MANNO,
ADMINISTRATIVE LAW JUDGE; AND
THE WORKERS' COMPENSATION BOARD
OPINION
AFFIRMING
** ** ** ** **
CROSS-APPELLEES
BEFORE:
DIXON AND TAYLOR, JUDGES; KNOPF,1 SENIOR JUDGE.
TAYLOR, JUDGE:
Parco Construction petitions us to review an
opinion of the Workers’ Compensation Board (Board) entered on
April 7, 2006; Mitchell Pennington cross-petitions us to review
the same opinion.
In the April 7, 2006, opinion, the Board
affirmed the Administrative Law Judge’s (ALJ) decision that
Pennington suffered no permanent disability from his
psychological condition but awarded Pennington past and future
medical expenses for the psychological condition.
We affirm.
While in the employ of Parco, Pennington suffered a
work-related injury to his back.
Pennington filed a claim for
workers’ compensation benefits.
Therein, Pennington alleged to
have suffered a work-related physical injury to his back and, as
a result, suffered depression and anxiety.
The ALJ ultimately
awarded Pennington a permanent partial disability award of 13%
with application of the 3.2 multiplier as a result of the back
injury.
As to his psychological condition, the ALJ found
Pennington failed to prove a permanent impairment, but was
entitled to an award of past and future medical benefits.
Being
unsatisfied with the ALJ’s award, Parco and Pennington sought
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
Kentucky Revised Statutes 21.580.
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review with the Board.
April 7, 2006.
The Board affirmed the ALJ’s decision on
This review and cross-review follow.
In its petition, Parco contends the ALJ erred in
awarding future medical benefits for Pennington’s psychological
condition.
Specifically, Parco argues Pennington was not
entitled to an award of future medical benefits because he
failed to prove permanent impairment.
Simply put, Parco
contends that future medical benefits are available only where
the claimant suffered a permanent disabling injury.
Parco argues Kentucky Revised Statutes (KRS)
342.020(1) clearly states that a claimant is entitled to medical
benefits “at the time of the injury and thereafter during
disability.”
342.0011(11).
Parco cites to the 1996 amendment to KRS
In 1996, Parco maintains the legislature amended
the statute to specifically define disability as “‘temporary
total disability,’ ‘permanent partial disability’ and ‘permanent
total disability.’”
Parco’s Brief at 6.
As Pennington failed
to prove a permanent disabling injury, Parco contends that
Pennington’s psychological condition does not meet the
definition of disability as found in KRS 342.0011(11); thus,
future medical expenses are not recoverable.
We disagree.
It is been a long-standing rule that a claimant may
receive past and future medical expenses for a non-permanent
disabling injury.
Cavin v. Lake Constr. Co., 451 S.W.2d 159
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(Ky. 1970).
The 1996 amendment to KRS 342.020(1) does not
expressly condition a claimant’s right to receive past and
future medical benefits upon a permanent disabling injury.
Without such a clearly expressed condition, we will not imply
one.
Thus, we reject Parco’s claim that Pennington was not
entitled to an award of future medical benefits as a result of
his psychological condition.
In his cross-petition, Pennington argues the ALJ erred
by failing to find his psychological condition to be permanently
disabling.
Pennington points to the opinions of Dr. Andrew
Cooley and Dr. Tracy Eells.
Pennington claims that both
physicians assessed a 10% permanent impairment rating as a
result of his psychological condition.
As fact-finder, the ALJ has the sole providence to
judge the weight and credibility of evidence.
Adams, 920 S.W.2d 84 (Ky.App. 1996).
Leeco, Inc. v.
Where the claimant was
unsuccessful before the ALJ on appeal, he must show that the
evidence in his favor was so compelling that no reasonable
person could have failed to be persuaded by it.
Carnes v.
Termco Mfg. Co., 30 S.W.3d 172 (Ky. 2000).
In the case at hand, the record indicates that Dr.
Cooley and Dr. Eells did assess a 10% impairment rating to
Pennington for his psychological condition.
Because Pennington
had not received treatment for the psychological condition, Dr.
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Cooley and Dr. Eells opined that the 10% impairment rating could
not be considered permanent.
The evidence amply supports the
ALJ’s finding that Pennington did not suffer a permanent
disabling injury as a result of his psychological condition.
Pennington alternatively claims the ALJ erred by
failing to “abate” the claim until Pennington received the
necessary treatment for the psychological condition and reached
maximum medical improvement.
In considering this argument, the
Board concluded:
As to Pennington’s alternative argument
requesting abatement until such time as he
reaches MMI following the necessary
psychological treatment, we see no reason
the ALJ was compelled to grant such relief.
The record is devoid of any evidence
indicating that Pennington is currently
temporarily totally disabled as a result of
his work-related mental condition. To the
contrary, Dr. Cooley stated that from a
psychiatric standpoint he saw no reason that
Pennington could not perform any job for
which he has training and experience. For
that reason, despite the fact that
Pennington may not yet be at MMI from a
psychiatric/psychological standpoint, we
find nothing that would obligated[sic] the
ALJ to abate that portion of the claim or
take any action other than to award medical
benefits with respect to that aspect of the
case. That is exactly what the ALJ did in
this instance.
We agree with the Board’s reasoning and, likewise, conclude the
ALJ did not err in failing to abate Pennington’s claim.
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For the foregoing reasons, the decision of the
Workers’ Compensation Board is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT/
CROSS-APPELLE:
BRIEF FOR APPELLEE/CROSSAPPELLANT:
Rodney J. Mayer
U’SELLIS & KITCHEN, PSC
Louisville, Kentucky
Christopher P. Evensen
COTTON & EVENSEN PLLC
Louisville, Kentucky
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