R & L Carriers v. Donald E. Gregory Jr ( 2008 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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ACTION.
RENDERED : May 22, 2008
NOT TO BE PUBLISHED
2007-SC-000341-WC
ON APPEAL FROM COURT OF APPEALS
V. 2006-CA-002013-WC & 2006-CA-002179-WC
WORKERS' COMPENSATION BOARD NO . 02-78593
DONALD E. GREGORY, JR.,
HON. HOWARD FRASIER, JR.,
ADMINISTRATIVE LAW JUDGE, AND
WORKERS' COMPENSATION BOARD APPELLEES
AND
2007-SC-000360-WC
DONALD E. GREGORY, JR. CROSS-APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. 2006-CA-002013-WC & 2006-CA-002179-WC
WORKERS' COMPENSATION BOARD NO. 02-78593
R & L CARRIERS
HON . HOWARD E . FRASIER, JR.,
ADMINISTRATIVE LAW JUDGE, AND
WORKERS' COMPENSATION BOARD CROSS-APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
KRS 342 .730(1)(b) provides a formula for calculating a basic income benefit for
permanent partial disability . KRS 342.730(1)(c)1 directs the benefit to be multiplied by
three if the worker does not retain the physical capacity to return to the type of work
performed at the time of injury . KRS 342 .730(1)(c)3 increases the multiplier based on
limited education.
An Administrative Law Judge (ALJ) awarded the claimant temporary total
disability (TTD), permanent partial disability, and rehabilitation benefits for a work-
related injury . Having found that the claimant sustained permanent impairment ratings
due to physical and psychiatric injuries and also that he lacked the physical capacity to
return to the type of work performed at the time of injury, the ALJ calculated separate
benefits for the injuries under KRS 342 .730(1)(b) and applied the KRS 342.730(1)(c)
multipliers to the benefit for the physical injury only. The Workers' Compensation Board
(Board) affirmed in all respects except the method for calculating the award . The Court
of Appeals found no legal or factual error and affirmed .
We affirm. The ALJ erred under KRS 342.0011(1) by viewing the physical and
psychiatric conditions as being separate injuries rather than harmful changes from the
same injury. KRS 342 .730(1)(b) requires the permanent impairment ratings that an
injury causes to be combined into a single permanent impairment rating for the purpose
of calculating the worker's disability rating and income benefit . KRS 342 .730(1)(c)1 and
3 apply to the benefit calculated under KRS 342 .730(1)(b) and, therefore, to the entire
disability that the injury causes . The employer has failed to show that the ALJ
committed any other legal or factual error. Likewise, the claimant has failed to show an
abuse of discretion in the order denying his motion to amend the claim in order to allege
a safety violation .
The claimant was born in 1981 and has a tenth-grade education . He worked for
the defendant-employer as a forklift driver. On July 12, 2002, the vehicle flipped and
landed on his right foot. The injury resulted in the amputation of a majority of the foot,
which caused a psychiatric condition .
The claimant filed an application for benefits in April 2004. After a number of
attempts to fit him with a suitable prosthesis failed, the ALJ entered an interlocutory
order on October 11, 2004, which held the claim in abeyance and awarded TTD
benefits "until such time as [the claimant] has been fitted with a workable prosthesis
and reaches MMI [maximum medical improvement] ." The ALJ removed the claim from
abeyance at the claimant's request in April 2005 and permitted additional discovery .
On August 1, 2005, after retaining new counsel, the claimant sought leave to amend
the claim to allege that the employer's safety violation caused the accident that resulted
in his injury . The ALJ denied the motion as untimely .
The ALJ determined ultimately that the claimant gave largely credible testimony
regarding the severity of his injury, his difficulty obtaining a suitable prosthesis, his
continuing psychological problems, and his continuing physical problems . He had,
however, shown little interest in attempting to find work within his restrictions, in
completing his GED, or in attempting to live independently . Relying on evidence from
the prosthetist, the ALJ found that the claimant did not reach MMI until February 25,
2005, and awarded TTD benefits to that date .
Addressing the extent and duration of disability, the ALJ found the claimant to be
partially disabled, with an 18% permanent impairment rating due to the physical injury
and a 10% rating due to a resulting psychiatric injury . The AU also found that
impairment from the physical injury prevented the claimant from returning to work as a
forklift driver but that impairment from the psychiatric injury did not. The AU concluded
on that basis that the multipliers found in KRS 342.730(1)(c) did not apply to the
psychiatric impairment . Based on the findings, the AU calculated benefits for the two
conditions separately under KRS 342 .730(1)(b), applying a factor of 1 .0 to the physical
impairment rating and a factor of 0 .85 to the psychiatric impairment rating. The ALJ
applied the KRS 342 .730(1)(c)1 and 3 to the injury benefit only and then added the
physical and psychiatric benefits .
I. Applying KRS 342 .730(1)(b) and (c)
KRS 342 .730(1) provides, in pertinent part, as follows :
1) Except as provided in KRS 342 .732, income benefits for
disability shall be paid to the employee as follows:
(b) For permanent partial disability, sixty-six and two-thirds
percent (66- 2/3%) of the employee's average weekly wage
but not more than seventy-five percent (75%) of the state
average weekly wage as determined by KRS 342 .740,
multiplied by the permanent impairment rating caused by the
injury or occupational disease as determined by "Guides to
the Evaluation of Permanent Impairment," American Medical
Association, latest edition available, times the factor set forth
in the table that follows :
AMA Impairment Factor
0 to 5% 0.65
6 to 10% 0.85
11 to 15% 1 .00
16 to 20% 1 .00
21 to 25% 1 .15
26 to 30% 1 .35
31 to 35% 1 .50
36% and above 1 .70
Any temporary total disability period within the maximum
period for permanent, partial disability benefits shall extend
the maximum period but shall not make payable a weekly
benefit exceeding that determined in subsection (1)(a) of this
section . Notwithstanding any section of this chapter to the
contrary, there shall be no minimum weekly income benefit
for permanent partial disability and medical benefits shall be
paid for the duration of the disability .
(c) 1 . If, due to an injury, an employee does not retain the
physical capacity to return to the type of work that the
employee performed at the time of injury, the benefit for
permanent partial disability shall be multiplied by three (3)
times the amount otherwise determined under paragraph (b)
of this subsection, but this provision shall not be construed
so as to extend the duration of payments ; or
3. Recognizing that limited education and advancing age
impact an employee's post-injury earning capacity, an
education and age factor, when applicable,
shall be added to the income benefit multiplier set forth in
paragraph (c)1 . of this subsection . If at the time of injury, the
employee had less than eight (8) years of formal education,
the multiplier shall be increased by four-tenths (0.4); if the
employee had less than twelve (12) years of education or a
high school General Educational Development diploma, the
multiplier shall be increased by two-tenths (0.2); if the
employee was age sixty (60) or older, the multiplier shall be
increased by six-tenths (0.6); if the employee was age fifty-
five (55) or older, the multiplier shall be increased by four-
tenths (0.4) ; or if the employee was age fifty (50) or older,
the multiplier shall be increased by two-tenths (0.2).
KRS 342 .730(1)(b) provides an income benefit that is based on "the permanent
impairment rating caused by the injury" as determined by the Guides to the Evaluation
of Permanent Impairment (Guides). KRS 342.0011(1) defines the term "injury" as
being a work-related traumatic event that produces a harmful change in the human
organism. In other words, it refers to the traumatic event . As illustrated in Thomas v.
United Parcel Service, 58 S .W.3d 455, 458-59 (Ky. 2001), the Fifth Edition of the
Guides contains a Combined Values Table on pages 604-06, which is used to combine
the permanent impairment ratings from multiple harmful changes into a single
permanent impairment rating for the injury . Reading the table and determining a
combined permanent impairment rating requires no medical expertise, just as reading a
conversion table required no medical expertise in Caldwell Tanks v. Roark, 104 S .W.3d
753 (Ky. 2003). The product of the permanent impairment rating and the statutory
factor is the worker's disability rating, which is used to calculate the basic income
benefit under KRS 342 .730(1)(b) and to determine the duration of the award under KRS
342.730(1)(d) . KRS 342.730(1)(c) applies to the entire benefit .
11. Psychiatric impairment
The employer complains that the ALJ relied on the permanent impairment rating
that Dr. Granacher assigned to the psychiatric condition but relied on Drs. Underwood
and Wagner when concluding that the impairment resulted entirely from the injury. Dr.
Granacher stated that the injury exacerbated a pre-existing anxiety disorder that made
the claimant susceptible to stress and resulted in a 10% permanent impairment rating.
He attributed a 5% rating to the injury and a 5% rating to pre-existing factors . Dr.
Underwood assigned a 16-18% rating and, like Dr. Wagner, attributed the entire
psychiatric impairment to the work-related injury .
The ALJ acknowledged that the claimant experienced events that were stressful
when in high school but noted that he had never been diagnosed with anxiety or
depression or received any counseling or other treatment until after the work-related
injury . Nor did any evidence indicate that symptoms he might have experienced when
in high school continued to exist when the injury occurred . Noting that even Dr.
Granacher did not state that a psychiatric impairment was active immediately before the
injury, the AU concluded that the injury and resulting amputation were what caused the
need for psychiatric treatment .
The claimant had the burden to prove every element of his claim, including the
amount of permanent impairment that the injury caused . KRS 342 .285 designates the
ALJ as the finder of fact, and nothing requires an ALJ to rely entirely on the opinions of
one physician . Special Fund v. Francis , 708 S.W.2d 641, 643 (Ky. 1986), explains that
a decision favoring the party with the burden of proof may not be disturbed if it is
reasonable under the evidence . The disputed finding may not be disturbed because no
overwhelming evidence required a finding that the injury caused less than a 10%
permanent impairment rating due to the psychiatric condition.
111. Post-injury physical capacity
The employer asserts that the claimant retained the physical capacity to return to
work as a forklift driver as shown by "undisputed medical evidence." Therefore, the ALJ
erred by applying the KRS 342.730(1)(c) multipliers . We disagree .
The employer bases the argument on a supplemental report from Dr. Sheridan,
which stated that the claimant's work restrictions would be lifted if he obtained an
appropriate prosthetic device. Dr. Sheridan's initial report indicated that the claimant
was at MMI and recommended extensive "permanent" work restrictions . Nothing in the
report indicated that the restrictions were temporary or conditioned on the lack of an
appropriate prosthesis . In fact, the report noted that the claimant had just received a
new prosthesis and contained nothing to indicate that it was not appropriate . It was
reasonable under the circumstances for the ALJ to rely on the initial report and infer
that even an appropriate prosthesis would not enable the claimant to function outside
the restrictions . The claimant testified that he could not.
Commonwealth, Transportation Cabinet v. Guffey, 42 S.W .3d 618, 621 (Ky.
2001), is but one in a line of cases indicating that a worker's testimony is competent
evidence of his physical condition and ability to perform various activities both before
and after a work-related injury. The AU found the claimant's testimony concerning the
physical requirements of his job and his ability to perform only some of them after the
injury to be credible and convincing. In reaching the conclusion, the ALJ noted that
none of the physicians who thought that he might be able to return to work without
restrictions evaluated him after he was fitted with the latest prosthesis . The decision
must be affirmed because no overwhelming evidence showed it to be unreasonable .
IV. Vocational Benefits
KRS 342 .710(1) states that a primary purpose of Chapter 342 is to restore
injured workers to gainful employment. Subsection (3) provides rehabilitation services
to those who are unable to perform work for which they have previous training or
experience . Wilson v. SKW Alloys, Inc ., 893 S .W.2d 800 (Ky. App . 1995), explains that
"work for which [an individual] has previous training or experience" means work that
bears a reasonable relationship to the individual's experience and background . The
term considers the type of work that the individual performed at the time of injury as well
as the individual's age, education, income level, earning capacity, vocational aptitude,
mental and physical abilities, and other relevant factors both at the time of injury and at
the time the individual reaches MMI.
The employer asserted that the claimant's request for rehabilitation services was
disingenuous ; that he retained the physical capacity to work as a forklift driver or
perform other work ; and that he had made no earnest attempt to find other work. The
claimant's previous work experience was as a landscaper, garbage tipper, concrete
laborer and manufacturing laborer. He worked part-time in high school as a cook and
cashier. Relying largely on the claimant's "credible" testimony of his physical
restrictions and difficulties with standing constantly and walking, the AU determined
that he was unable to perform work for which he had previous training or experience .
The decision must be affirmed because the employer has pointed to no overwhelming
evidence that shows it to be unreasonable .
V. TTD benefits
As construed in Central Kentucky Steel v. Wise, 19 S.W.3d 657, 659 (Ky. 2000),
and Magellan Behavioral Health v. Helms, 140 S .W.3d 579 (Ky. App. 2004), KRS
342.0011(11)(a) and KRS 342 .730(1)(a) entitle a worker to TTD benefits until the
worker reaches MMI or is able to return to customary work. We have affirmed findings
indicating that the claimant was unable to return to customary work; therefore, his right
to TTD benefits ended when he reached MMI . The Fifth Edition of the Guides, page
19, indicates that a medical condition is at MMI when it is "well stabilized and unlikely to
change substantially in the next year with or without medical treatment ." KRS
342.020(1) requires an employer to pay the expenses for reasonable and necessary
medical, surgical, and hospital treatment, including medical appliances. Thus, it views
a prosthesis as being a form of medical treatment .
The claimant had difficulty finding a suitable prosthesis and tried several different
models . His treating physician, Dr. Mook, noted continued problems with the prosthesis
on February 6, 2004 . Dr. Sheridan evaluated the claimant on February 10, 2004, and
found him to be at MMI "with or without an ideal prosthetic device." Dr. Mook noted on
September 17, 2004, that the claimant "needs his prosthesis to be working and fitting to
reach MMI ."
The interlocutory opinion and award rendered in October 2004 stated that the
claimant would not reach MMI until he obtained a suitable prosthesis . It ordered the
employer to 'pay TTD until that time, with the condition that benefits would be
suspended during any period that the claimant delayed the process . The employer
paid TTD until January 18, 2005, when the claimant received a new "shoe-n-shoe"
prosthesis . The AU relied ultimately on testimony from the prosthetist, who did not
advise the claimant to use the device on a full-time basis until February 25, 2005, and
did not release him to return on an "as needed" basis until July 28, 2005. The AU
determined that he reached MMI on February 25, 2005.
The employer asserts that the AU erred because the definition of MMI is purely
medical and does not have a functional or vocational component. KRS 342 .020(1)
considers medical appliances to be a form of medical treatment. Kentucky River
Enterprises, Inc. v. Elkins , 107 S .W.3d 206 (Ky. 2003), stands for the principle that the
proper interpretation of the Guides is a medical question . Dr. Mook stated that the
claimant would not reach MMI until his prosthesis worked and fit. Although Dr.
Sheridan disagreed, he failed to show that Dr. Mook misapplied the Guides or based
his opinion on vocational rather than medical considerations. The decision regarding
the date of MMI must be affirmed because no overwhelming evidence shows it to be
unreasonable or based on improper considerations .
10
VI. Denial of motion to amend
KRS 342 .165(1) permits the compensation for a work-related injury to be
increased by 30% if the accident that caused it resulted "in any degree" from the
employer's intentional failure to comply with a specific safety statute or regulation .
The claimant filed his application for benefits in April 2004. After retaining new
counsel, he sought leave to amend the claim on August 1, 2005, to allege a safety
violation by his employer. The order of September 1, 2005, denied the motion as
untimely. It explained that the facts concerning the allegation were known much earlier;
that the claimant made no showing of reasonable cause or excusable neglect for the
delay in raising the matter; and that a mere change of counsel was an insufficient basis
to permit an amendment at that time . The claimant argues presently that the AU erred
because the delay caused no apparent prejudice to the employer; that CR 15.01 would
have permitted the amendment ; and that the decision was contrary to the beneficent
purpose of the Workers' Compensation Act, particularly the purpose of KRS
342 .165(1).
CR 15 .01 provides as follows :
A party may amend his pleading once as a matter of course
at any time before a responsive pleading is served or, if the
pleading is one to which no responsive pleading is permitted
and the action has not been placed on the trial calendar, he
may so amend it at any time within 20 days after it is served .
Otherwise a party may amend his pleading only by leave of
court or by written consent of the adverse party; and leave
shall be freely given when justice so requires . A party shall
plead in response to an amended pleading within the time
remaining for response to the original pleading or within 10
days after service of the amended pleading, whichever
period may be longer, unless the court otherwise orders.
KRS 342.210(1) requires a worker to raise all accrued causes of action against
the employer during the pendency of a claim or waive them. Caldwell v. Bethlehem
Mines Corp., 455 S.W .2d 67, 68-69 (Ky. 1970), noted the court's liberal discretion
under CR 15 .01 and determined that there should be no less liberality in the rules of
procedure for workers' compensation cases. Sexton v. Sexton , 125 S .W .3d 258, 272
(Ky. 2004), explains that the test for an abuse of discretion is whether the decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
Although 803 KAR 25 :010 prescribes a schedule for taking proof and holding a
benefit review conference, an ALJ has some latitude to adjust to the circumstances . An
ALJ may hold a claim in abeyance until the worker reaches MMI, such as occurred in
this case, or an ALJ may extend the time for taking proof or reopen the proof when
circumstances warrant . The claimant did not move to amend his claim until more than
13 months after he filed an application for benefits. The only apparent reason for the
delay was that he retained new counsel, a reason insufficient to show that the decision
to deny the motion was an abuse of discretion .
VII. Conclusion
The claimant's injury produced both a physical and a psychiatric permanent
impairment rating . He was entitled to have his income benefit based on both of them .
On remand, the AU must consult the Guides and combine the 18% and 10%
permanent impairment ratings . The combined permanent impairment rating and
corresponding factor determine his disability rating for the purpose of calculating the
basic income benefit under KRS 342.730(1)(b) and determining the duration of his
award under KRS 342 .730(1)(d). After calculating the basic income benefit, the ALJ
must multiply it by 3.2 as required by KRS 342 .730(1)(c)1 and 3 and the facts .
12
The decision of the Court of Appeals is affirmed .
All sitting . All concur.
COUNSEL FOR APPELLANT,
R & L CARRIERS :
DAVID D . BLACK
DINSMORE & SHOHL LLP
1900 CHEMED CENTER
255 EAST FIFTH STREET
CINCINNATI, OH 45202
COUNSEL FOR APPELLEE,
DAVID E. GREGORY, JR. :
STUART E . ALEXANDER III
KATHLEEN M. W. SCHOEN
TILFORD, DOBBINS, ALEXANDER, BUCKAWAY & BLACK, LLP
401 WEST MAIN STREET
SUITE 1400
LOUISVILLE, KY 40202