BARRY BORDERS V. BUSH & BURCHETT; HONORABLE DOUGLAS GOTT, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARDAnnotate this Case
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RENDERED: AUGUST 25, 2011
NOT TO BE PUBLISHED
(Court of ilfirttfurku
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2010-CA-000486-WC
WORKERS' COMPENSATION NO. 04-95838
BUSH & BURCHETT;
HONORABLE DOUGLAS GOTT,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
An Administrative Law Judge (ALJ) determined in this reopening that the
claimant experienced greater permanent disability from his cervical injury; that
he lacked the physical capacity to return to the type of work performed at the
time of the injury; but that his work-related disability remained partial rather
than total. The Workers' Compensation Board and Court of Appeals affirmed.
Appealing, the claimant asserts that the ALJ erred by refusing to make
the specific findings requested in his petition for reconsideration and, as a
consequence, failed to support the finding that his disability remained partial
with sufficient factual findings. He also asserts that the medical evidence
compelled a finding of total disability.
We affirm. The AU recited sufficient facts to reveal the basis for
concluding that the claimant's work-related disability remained partial. The
Court of Appeals did not err by affirming the conclusion because substantial
evidence supported it.
The claimant was born in 1954. He is a high school graduate and
certified welder with some coursework in electricity. The claimant had
experience working on an assembly line that built mining equipment as well as
working for various employers as a heavy equipment mechanic and operator,
welder, truck driver, and electrician's helper. He began to work for the
defendant in 1995 as a mechanic and welder, working both in the shop and in
the field. He testified that the job required heavy manual labor, including
The claimant's application for benefits alleged that he sustained cervical
and lumbar spine injuries in separate work-related accidents. His cervical
spine injury occurred on June 1, 2003, when he ran into a ditch while driving
his truck on a mining road and was thrown against the top of the cab. His
neck became sore and painful after the incident, but he continued to work.
The lumbar spine injury occurred on June 19, 2003, when he was lifting a
steel strap that weighed approximately 250 pounds. He stated that he missed
about five days' work then returned to his normal duties with the assistance of
co-workers. He worked until July 3, 2003, when he determined that his
injuries prevented him from continuing to do so.
The claimant alleged that his injuries were permanently and totally
disabling and testified subsequently that they produced a dull headache that
radiated from the base of his skull into his shoulders and between his shoulder
blades; constant lower back pain that radiated into his left hip and leg; and
depression due to his inability to recover from his injuries sufficiently to return
to work. He filed a social security disability claim based on the same
The claimant based his argument that the injuries were totally disabling
on Ira A. Watson Department Store v. Hamilton' in which the court addressed
the partial versus total disability analysis under the post-1996 versions of KRS
342.0011(11) and KRS 342.730(1). The court explained that the statutes
require an individualized determination of what the worker is and is not able to
do after recovering from a work-related injury. The analysis of whether the
worker is totally disabled also includes a consideration of some of the Osborne
v. Johnson2 factors that were codified in the pre 1996 version of Chapter 342.
In February 2005 an ALJ rendered a decision finding that the claimant's
cervical injury produced a 5% permanent impairment rating but did not
prevent him from returning to his previous work; that it was partially disabling
as of June 2, 2003; and that it entitled him to double benefits during periods
that he failed to earn the same or a greater wage. The M.0 also determined
that the lumbar injury produced a period of temporary total disability (TTD)
34 S.W.3d 48, 51-52 (Ky. 2000).
432 S.W.2d 800 (Ky. 1968).
from June 20, 2003 through June 7, 2004; an 8% permanent impairment
rating; and prevented the claimant from returning to the type of work he
performed at the time of the injury.
The ALJ entered separate partial disability awards for the cervical and
lumbar conditions and dismissed the psychological claim having found that the
claimant's depression was unrelated to his injuries. The opinion and award
did not contain the analysis described in Watson v. Hamilton or address the
claimant's argument that he was totally disabled. No timely petition for
reconsideration or appeal was filed and the decision became final.
The claimant filed the motion to reopen that is the subject of this appeal
on January 16, 2009. He based the motion on a worsening of condition and a
complete inability to work due to increased pain in his neck, shoulders, and
lower back as well as radiating pain and numbness in his arms and legs. The
motion to reopen was granted to the extent that the matter was assigned to an
ALJ for the taking of further proof and a decision on the merits.
The claimant supported his allegation that he had become totally
disabled from his injuries since 2005 with a decision rendered on October 31,
2008 that found him to be disabled as of July 3, 2003 under sections 216(i)
and 223(d) of the Social Security Act. 3 He also testified and submitted medical
The social security decision states that "[d]isability is defined as the inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment or combination of impairments that can be expected
to result in death or that has lasted or can be expected to last for a continuous
period of not less than 12 months."
evidence, some from physicians who testified both in the initial claim and at
Dr. Potter evaluated the claimant at both relevant points in time. He
assigned the 8% permanent impairment rating for the lumbar spine that the
AU relied upon when awarding benefits in 2005 and was the only physician to
assign impairment ratings at reopening. He prepared two reports at reopening,
the first shortly before the claimant had surgery for a herniated C6-7 disc and
the second after he recovered.
In January 2009 Dr. Potter assigned a 7% rating based on the cervical
spine; continued to assign an 8% rating based on the lumbar spine; and
assigned a 3% rating based on headaches and periscapular myofascial pain,
which yielded a combined rating of 17% using the Combined Values Table. He
attributed the claimant's current complaints to the work-related injuries and
opined that his condition had deteriorated since 2005, stating that his pain,
restrictions, and occupational disability had increased. He noted that cervical
and lumbar epidural steroid injections were beneficial but that subsequent
pain management was denied.
Dr. Potter reported in May 2009 that the claimant's impairment rating
based on the cervical spine was at least 25% since the February 2009 fusion
surgery. He thought it could be as much as 28% depending on the amount of
pain the claimant experienced and its impact on his activities of daily living.
Dr. Bell, a pain management specialist, noted when he first saw the
claimant in June 2007 that he complained of constant neck and shoulder pain.
that radiated into his arms with activity. Dr. Bell administered cervical and
lumbar epidural steroid injections in October 2007, noting subsequently that
the claimant's pain levels improved. He administered additional injections in
January 2008. In an April 2008 report for the social security claim, he
responded "yes" to the question, "Were the claimant's impairment(s) singly or
in combination of such a nature so as to disable the claimant from engaging in
substantial gainful activities?"
Dr. Kousa, the claimant's primary care physician, noted that he rated his
pain at ten on a scale of one to ten when seen shortly after his lumbar injury in
June 2003. The claimant rated his pain at a level of eight in September 2007.
Dr. Kousa opined that he had reached maximum medical improvement; noted
that his medications impaired his cognition and mental capacity; and stated,
"Mr. Borders remains unable to perform gainful employment." He noted in
November 2008 that the claimant's pain had increased since he stopped seeing
Dr. Bell and that his current pain medications provided inadequate relief.
Dr. Ravvin, a neurosurgeon, first saw the claimant in June 2003 on
referral from Dr. Kousa for complaints of neck and shoulder pain, headaches,
and radiating low back pain such that "he could hardly walk." The claimant
returned in January 2009, complaining of increased neck pain that radiated
down the right upper extremity. Dr. Ravvin performed a microdiskectomy and
fusion in February 2009 to address a herniated C6-7 disc.
The claimant testified when deposed in April 2009 that the surgery
alleviated the "excruciating" right arm pain but that he still experienced some
pain, numbness, and tingling in the arm. He also continued to experience
neck and shoulder pain that he rated at four on a ten-point scale, stating that
it was "nothing like it was before." He stated that his current pain level was
"about the same" as it was in 2004 and that his current complaints were
essentially the same.
The claimant testified in September 2009 at the hearing that his
condition worsened gradually after 2005 and became more symptomatic with
less activity. He stated that his neck was worse than his lower back and that
the surgery helped relieve his neck pain initially, but his current pain was "just
like it was before." When questioned about the statement, he testified that the
pain in his neck and shoulder blades was "increasing where the injections have
worn off" but that he no longer experienced the sharp pain that radiated into
his right hand and fingers that he had experienced before the surgery. He
complained of pain across his back and down his left leg, which he stated was
increasing gradually but was not as severe as it had been previously.
The claimant acknowledged that he had made no attempt to work since
the lumbar injury. He stated that he did not think he could perform any type
of work, even a light duty job such as working at the counter of an auto parts
store, because he could not stand for an extended period of time without
relaxing his back and propping up his neck.
The AI,J found that the permanent impairment rating produced by the
cervical injury increased to 26% due to the surgery and that the claimant
lacked the physical capacity to return to his former work but remained only
partially disabled. Thus, the ALJ awarded TTD benefits from the date of the
cervical spine surgery through May 13, 2009; suspended the existing partial
disability award during the period of TTD; and awarded triple partial disability
benefits based on a 26% impairment rating from May 14, 2009 through the
balance of the compensable period. The award for the lumbar injury remained
The ALJ compared the evidence from 2005 with the evidence at
reopening and listed numerous reasons for finding that the claimant remained
partially disabled. They included the fact that his permanent impairment
rating from the lumbar injury was no greater than in 2005; that any increase
in the restrictions Dr. Potter assigned was minimal; and that Dr. Ravvin
appeared to have considered the claimant to be unable to work since the time
he was injured. The listed reasons also included the claimant's testimony that
his medications were the same as in 2005; his testimony concerning his
limitations due to the lumbar injury, which indicated that they were no more
severe than what he described in 2004 and in some respects better; and,
finally, the lack of a significant difference between his testimony that his
symptoms prevented him from performing any work in 2004 and his testimony
The claimant filed a petition for reconsideration in which he asserted that
the uncontradicted medical evidence showed he was totally occupationally
disabled and requested the ALJ to reconsider the decision. He also requested
specific findings "as to what if any jobs the Plaintiff could possibly do given his
age, education and current restrictions" and asserted that the ALJ was
"required to come forth with some positive evidence" of work he could perform.
The AU denied the petition, after which the claimant appealed.
I. THE SUFFICIENCY OF THE FACTUAL FINDINGS.
The claimant argues that the ALJ failed to support the conclusion that
he was only partially disabled with sufficient factual findings. We disagree.
The claimant bases the argument on the ALJ's refusal to make the
specific findings requested in his petition for reconsideration and "come forth
with some positive evidence" of jobs he could perform. He relies on Shields v.
Pittsburg and Midway Coal Mining Co., 4 which stands for the principle that an
ALJ must recite sufficient evidence to explain the basis for the ultimate finding
and, thus, permit a meaningful appellate review. Nothing in the decision or in
Chapter 342 permits much less requires an ALJ to produce evidence to support
In the present case the ALT recited the evidence thoroughly; found that
the permanent impairment rating from the claimant's cervical injury increased;
and listed numerous reasons for finding insufficient evidence to support a
finding that his work-related disability increased from partial to total between
the 2005 award and the motion to reopen. The recitation of the evidence and
rationale stated for the ultimate finding provided an adequate basis for review.
634 S.W.2d 440, 444 (Ky. App. 1982).
II. THE FINDING OF PARTIAL DISABILITY.
The claimant argues that the ALJ erred by denying his request for total
disability benefits. He relies on his restrictions; the finding of increased
impairment to the cervical spine; and on statements that Drs. Bell and Kousa
made after 2005, which indicated that he remained unable to perform gainful
employment. He notes that the employer failed to offer any contrary evidence
and asserts that the medical evidence compels a finding of total disability.
KRS 342.285 provides that an ALJ's decision is "conclusive and binding
as to all questions of fact" and, together with KRS 342.290, prohibits the Board
or a reviewing court from substituting its judgment for the ALJ's "as to the
weight of evidence on questions of fact." The ALI has the sole discretion to
determine the quality, character, and substance of evidence. 5 As fact-finder,
an ALJ may reject any testimony and believe or disbelieve various parts of the
evidence, regardless of whether it comes from the same witness or the same
party's total proof. 6 The courts have construed KRS 342.285 to require a party
who fails to convince the ALJ to show on appeal that the decision was clearly
erroneous because overwhelming favorable evidence compelled a favorable
finding, i.e., no reasonable person could have failed to be persuaded by the
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).
Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
evidence. 7 Evidence that would have supported but not compelled a different
decision is an inadequate basis for reversal on appea1. 8
KRS 342.0011(11) defines partial and total disability as follows:
(b) "Permanent partial disability" means the condition
of an employee who, due to an injury, has a
permanent disability rating but retains the ability to
(c) "Permanent total disability" means the condition of
an employee who, due to an injury, has a permanent
disability rating and has a complete and permanent
inability to perform any type of work as a result of an
KRS 342.730(1) prohibits non-work-related impairment to be considered when
determining that a worker is totally or partially disabled. 9
The claimant was found to be partially disabled in 2005 and bore the
burden of proving that his disability had become total at reopening. 19 The ALJ
determined that he failed to do so, largely because he had claimed to be totally
disabled in 2005; because he made no attempt to work at any time after the
injury; and because his present complaints and restrictions were not
significantly greater than in 2005 although his impairment rating from the
cervical condition was greater. The social security disability determination was
made under standards different from those found in Chapter 342 and, thus,
Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986); Mosley v. Ford Motor Co.,
968 S.W.2d 675 (Ky. App. 1998); REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky.
McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).
KRS 342.730(1)(a) and (e).
Griffith v. Blair, 430 S.W.2d 337, 339 (Ky. 1968).
failed to show that he became totally disabled after 2005. Although the
claimant offered some evidence of increased disability under the applicable
standards, it was not so overwhelming as to compel a finding that he became
totally disabled during the interval between his 2005 award and the reopening.
The decision of the Court of Appeals is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT,
Thomas Wayne Moak
268 East Friend Street
P.O. Box 510
Prestonsburg, KY 41653
COUNSEL FOR APPELLEE,
BUSH 86 BURCHETT:
Frederick Allon Bailey
Casey Bailey 86 Maines, PLLC
3151 Beaumont Centre Circle
Lexington, KY 40513