DAVIS CONSTRUCTION V RAMON GARCIA ; HON . DONALD G . SMITH, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINIONIS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PR OCED URE PR OMUL GA TED B Y THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITY INANY OTHER
CASE INANY CO UR T OF THIS STA TE.
RENDERED : MAY 22, 2003
NOT TO BE PUBLI
2002-SC-0521-WC
DAVIS CONSTRUCTION
V
APPELLANT
APPEAL FROM COURT OF APPEALS
2001-CA-2589-WC
WORKERS' COMPENSATION BOARD NO . 00-95997
RAMON GARCIA ; HON . DONALD G . SMITH,
ADMINISTRATIVE LAW JUDGE ; AND
WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The Court of Appeals has determined that the Workers' Compensation Board
(Board) properly affirmed the claimant's total disability award. Appealing, the employer
asserts that there were no objective medical findings of a harmful change in the human
organism and no substantial evidence of the requisite AMA impairment . It maintains,
therefore, that the claimant failed to meet his burden of proving that he was
permanently and totally disabled . We have concluded, however, that the finding of
permanent, total disability was reasonable under the evidence and that it was properly
affirmed on appeal .
The claimant was born in 1969, and the parties stipulated that he had a thirdgrade education . He spoke very poor English and testified through an interpreter . His
work history included various jobs within the construction industry, heavy manual labor,
and farm work . On February 2, 2000, while working as a construction laborer, he
tripped on some bars and fell backwards . He was carrying a heavy mold that was used
to form concrete . The mold fell on top of him, and he began to experience neck, back,
and stomach pain for which he was sent to the hospital . Treatment was conservative,
including medication and physical therapy . The claimant did not return to work after the
accident and testified that he continued to have headaches, back pain, and pain and
numbness on the right side. He did not think that he could return to any of his previous
work or that his education, training, or experience qualified him for anything other than
heavy manual labor.
The sole medical testimony was offered in the form of several reports from
Dr. Davies, the claimant's treating neurosurgeon . He diagnosed a cervical and lumbar
strain that he related to the incident at work. MRI and CT testing revealed no significant
pathology . Although testing did reveal minimal degenerative changes, Dr. Davies did
not think that they accounted for any of the claimant's symptoms . On physical
examination, he observed some limitation on range of motion in the neck and back,
positive straight leg raising, and evidence of mild muscle spasm, although he found no
evidence of weakness in the upper or lower extremities .
When the claimant's condition did not improve as rapidly as expected, Dr. Davies
ordered a course of physical therapy which, like his own examination, revealed some
limitation in range of motion . The therapist also reported equal and reactive reflexes
and consistent muscle testing . The therapy report of June 23, 2000, noted that
although the claimant complained of continued symptoms, the complaints were "vague
and inconsistent from treatment to treatment ." Dr. Davies determined that the claimant
reached maximum medical improvement (MMI) on August 15, 2000 . In subsequent
reports, he assigned a 5% whole-body impairment, indicating that the rating was
performed under the AMA Guides to the Evaluation of Permanent Impairment (Guides ),
and he recommended that the claimant avoid heavy bending, lifting, twisting of the neck
or lower back, and overhead activities. In his opinion, the claimant could not return to
the type of work that he had done previously, was capable of only sedentary work, and
might benefit from vocational rehabilitation .
When the claim came before the Administrative Law Judge (ALJ), the only
matter at issue was the extent and duration of disability, including the duration of
temporary total disability (TTD) . After reviewing the lay and medical evidence, the ALJ
determined that the claimant had a 5% AMA impairment and lacked the ability to
perform work in a competitive economy. Thus, he was found to be totally disabled . In
reaching this conclusion, the ALJ noted that the claimant was a very credible witness
with regard to his pain and restrictions and that his testimony was supported by that of
Dr . Davies . In view of the finding of permanent, total disability, any question concerning
the duration of TTD was found to be moot. Finally, noting that the claimant had only a
third-grade education and no specialized training, the ALJ ordered an evaluation for the
purposes of vocational rehabilitation .
Although the parties stipulated to a work-related injury on February 2, 2000, the
employer has maintained on appeal that there were no objective medical findings of a
harmful change in the human organism . Furthermore, the employer has asserted that
Dr. Davies's testimony was insufficient to support a finding that the claimant has a 5%
impairment under the latest edition of the Guides because it does not specify the basis
for assigning the impairment or the edition under which it was assigned .
For the purposes of Chapter 342, the word "injury" is a term of art. Under the
version of KRS 342.0011(1) that was effective on February 2, 2000, an "injury" is "any
work-related traumatic event . . . which is the proximate cause producing a harmful
change in the human organism evidenced by objective medical findings." Thus, having
stipulated to an injury, the employer may not now argue that the claimant failed to prove
an injury . Furthermore, even had there been no such stipulation, we are persuaded
that Dr. Davies' uncontroverted testimony provided substantial evidence that the workrelated incident proximately caused a harmful change in the human organism as shown
by objective medical findings . See Staples v. Konvelski , Ky., 56 S .W.3d 412 (2001).
Workers' compensation proceedings are adversarial . The claimant had the
burden of proving every element of his claim, including the extent and duration of
disability ; whereas, the employer had the opportunity to go forward with its own medical
evidence and to cross-examine the claimant and Dr. Davies. As the finder of fact, the
AU had the sole authority to draw reasonable inferences from the evidence, to weigh
conflicting evidence, and to judge the credibility 'of witnesses. KRS 342 .285(1).
The sole evidence in this claim was given by the claimant and Dr. Davies, and
the AU was persuaded that their testimonies were credible. A finding of permanent,
total disability under KRS 342 .0011(11)(c) requires a permanent disability rating which,
according to KRS 342.0011(35) and (36), requires a whole-body impairment under the
latest edition of the Guides .
No percentage is specified .
Dr. Davies testified that the claimant had a 5% whole-body impairment under the
Guides , and there was no medical evidence that the claimant would not have an
impairment under the latest edition of the Guides . We are persuaded, therefore, that it
was reasonable for the AU to rely upon Dr. Davies and to conclude that the claimant
had met his burden of proof. Furthermore, the credible testimonies of the claimant and
Dr. Davies provided substantial evidence from which the ALJ could reasonably
conclude that the claimant was permanently and totally disabled by his injury because
he had reached MMI, had the requisite AMA impairment, and had a complete and
permanent inability to perform any type of work as a result of his injury . Ira A . Watson
Dept. Stores v. Hamilton , Ky., 34 S .W.3d 48 (2000) ; Special Fund v. Francis , Ky., 708
S.W .2d 641, 643 (1986). Under those circumstances, the findings were properly
affirmed on appeal .
The decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
Steven C . Jackson
P.O. Box 7766
Paducah, KY 42002-7766
COUNSEL FOR APPELLEE:
Mark Edwards
James Grant King
Megibow & Edwards, PSC
P .O . Box 1676
Paducah, KY 42002-1676
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