Jeff Pace v. Kentucky Darby Coal Co., Inc. ( 2016 )

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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
BEFORE THECOURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
.
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: DECEMBER 17, 2015
NOT TO BE PUBLISHED
,Suprrutt Court of 7,firTtiftlavr
2015-SC-000137-WC
LI
(D)AT
JEFF PACE APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2014-CA-000798-WC
WORKERS' COMPENSATION NO. 01-69052
KENTUCKY DARBY COAL CO., INC.;
HONORABLE GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Jeff Pace, appeals a Court of Appeals decision which affirmed
the Workers' Compensation Board's ("Board") opinion that affirmed the finding
he reached maximum medical improvement ("MMI") by January 2006. Pace
argues that the Administrative Law Judge ("ALJ") erred by finding he reached
MMI by January 2006 because there was no evidence he was able to return to
work by that time. For the below stated reasons, we affirm the Court of
Appeals.
Pace was injured on November 9, 2001, when a rock fell on him while
operating a continuous miner machine on behalf of his employer, Kentucky
Darby Coal Co., Inc. ("Darby"). The fallen rock caused multiple fractures in
Pace's pelvis and back. Darby paid Pace temporary total disability ("TTD")
benefits from November 15, 2001, through May 9, 2011.
Darby filed an application for an adjustment of injury claim on August
10, 2011. Darby admitted that Pace was injured while working for them, but
alleged he was not totally disabled during the time he received TTD benefits.
Darby presented evidence indicating Pace was working off and on from 2006
through 2011 while receiving TTD benefits. As such, Darby alleged Pace
committed fraud.
The report of Dr. Martin Fritzhand was submitted as part of the
proceeding. Dr. Fritzhand performed a thorough review of Pace's medical
condition and records while preparing his report. However, Dr. Fritzhand did
not specifically state why he believed Pace reached MMI as of January 2006.
The ALJ, after a review of the evidence, made the following findings:
[t]he parties also dispute the point at which [Pace] reached MMI.
[Pace] maintains he still has not reached MMI and is entitled to
additional TTD. However, the [ALJ] is persuaded by the opinion of
Dr. [Martin] Fritzhand that [Pace] reached MMI as of January,
2006. In reaching this conclusion, the [ALJ] is also persuaded by
the application [Pace] submitted to Black Mountain Coal in which
[Pace] indicated he had returned to work from 2006 through 2010,
which is consistent with Dr. Fritzhand's determination of MMI.
Accordingly, it is determined [Pace] reached MMI as of January 1,
2006.
The ALJ also made a finding that Pace worked in 2006.
Based on the finding that Pace reached MMI as of January 1, 2006, the
ALJ awarded him partial permanent disability ("PPD") benefits to run for 520
weeks from that date. But, the ALJ also awarded Darby a credit against the
2
past-due PPD benefits for the overpayment of TTD benefits which occurred
after January 1, 2006.
Pace filed a petition for reconsideration challenging the date the ALJ
found he reached MMI. The ALJ issued an order on petition for
reconsideration which reopened proof on the limited issue of whether Pace was
employed in 2006. Pace appealed this. order to the Board, but the Board
dismissed the appeal as interlocutory and remanded the matter to the ALJ. On
remand, Pace submitted additional evidence to the ALJ.
The ALJ issued a second order on petition for reconsideration in which
he changed his mind and found that Pace did not return to work in 2006.
However, he also found nothing in the newly submitted evidence to change his
previous finding that Pace reached MMI as of January 2006. In making this
finding, the ALJ again relied on Dr. Fritzhand's opinion. Therefore, the ALJ
again found that Darby was entitled to a credit against the past-due PPD
benefits for the TTD benefits paid to Pace after January 1, 2006. Pace
appealed to the Board who affirmed. The Court of Appeals also affirmed, and
this appeal followed.
The Board's review in this matter was limited to determining whether the
evidence is sufficient to support the ALJ's findings, or if the evidence compels a
different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky.' 1992).
Further, the function of the Court of Appeals is to "correct the Board only
where the Court perceives the Board has overlooked or misconstrued
controlling statutes or precedent, or committed an error in assessing the
3
evidence so flagrant as to cause gross injustice." Id. at 687-88. Finally, review
by this Court "is to address new or novel questions of statutory construction,
or to reconsider precedent when such appears necessary, or to review a
question of constitutional magnitude." Id. The AI,J, as fact-finder, has the sole
discretion to judge the credibility of testimony and weight of evidence.
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).
Additionally, where the party who bears the burden of proof is successful
before the ALJ, the question on appeal is whether the decision is supported by
substantial evidence. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky.
App. 1984). Substantial evidence is defined as evidence of relevant
consequence, having the fitness to induce conviction in the minds of
reasonable people. Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky.
1971).
Pace argues that the ALJ erred by finding that he reached MMI by
January 2006. He contends that since he did not return to work in 2006 he
had not reached MMI and therefore Darby should not receive a credit for TTD
benefits paid after January 2006. However, the ALJ in his second order on
petition for reconsideration stated that he based his conclusion on the date
Pace reached MMI on the opinion of Dr. Fritzhand and not on Pace's work
history. While Pace contends that Dr. Fritzhancl's opinion is insufficient
because he did not state why he found Pace reached MMI as of January 2006,
we note that the doctor's failure to provide his reasoning does not mandate
rejection of his opinion. See Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).
4
It is clear that Dr. Fritzhand thoroughly reviewed Pace's medical history in
preparing his report. Additionally, while Dr. Fritzhand's report indicates that he
thought Pace returned to work in 2006, there is no indication that the doctor
relied on that in determining the date Pace reached MMI. The ALJ's finding
that Pace reached MMI as of January 2006 is supported by substantial
evidence and shall not be disturbed on appeal.
There are two requirements for a worker to receive TTD benefits: 1) that
the worker must not have reached MMI; and 2) that the worker must not have
reached a level of improvement that would permit a return to employment.
KRS 342.0011(11)(a); Double L Construction, Inc. v. Mitchell, 182 S.W.3d 509,
513-14 (Ky. 2005). Thus, since Pace reached MMI on January 1, 2006, he was
not eligible for TTD benefits after that date, and the ALJ correctly awarded
Darby a credit.
For the above stated reasons, we affirm the decision of the Court of
Appeals.
Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ.,
sitting. All concur. Wright, J., not sitting.
COUNSEL FOR APPELLANT,
JEFF PACE:
Johnnie L. Turner
COUNSEL FOR APPELLEE,
KENTUCKY DARBY COAL CO., INC.:
James William Herald, III
5