Flat Rock Furniture v. Steven Neeley

llleoRTANT NoTlcE
`` NoT To BE P'uBLlsHED 0PlNloN
THls 0PlNloN ls DEslGNATED “NoT To BE PuBLlsHED.”
PuRsuANT To THE RuLEs oF clvlL PRocEDuRE
PRoMuLGATED Bv THE suPREME couRT, cR 76-.28(4)(€),
THls 0PlNloN ls NoT To BE PuBLlsHED AND sHALL NoT BE
clTED oR usED As BlNDlNG PREcEDENT lN ANv oTHER
cAsE lN ANY-couRT oF THls sTATE; HoWEvER,
uNPuBLlsHED I2010 WL 1041054, at *5 (Ky. App. Mar. 19,
20101
Puckett involved the ALJ's decision dismissing the claimant’s workers'
compensation case due to failure to submit objective medical evidence. The
0ourt of Appeals affirmed the denial of the claimant’s motion to reopen the
case and, in so holding, excluded a medical report that failed to comply With
the applicable provisions of 803 KAR 25:010 Section 10. Unlike _Puckett,
however, the facts of the present case demonstrate that Neeley substantially
complied with the applicable regulations
First, Flat Rock failed to object to Dr. Sanders’ report that was attached
to Neeley’s Form 101. Second, the record demonstrates that Flat Rock is well
aware of Dr. Sanders and her qualifications ln fact, Flat Rock submitted Dr.
Sanders’ index number in a separate letter drafted and signed by Dr. Sanders
summarizing the November_27, 2012 examination. ``Third, the handwritten
portion of Dr. Sanders’ report was legible. It is clear that the purpose of 803
KAR 25:010 has been satisfied here.
Moreover, the report contested by Flat Rock is only one of numerous,
detailed medical reports considered by the ALJ in reaching his final
determination. The ALJ also assigned great weight to Neeley’s live testimony-.
There is no reversible error.
Lastly, Flat Rock also takes issue with a medical record referenced by the
' ALJ in his opinion as being dated Januaiy 20, 2013. The actual record to
which the ALJ was referring was dated June 20, 2013. This is clearly a clerical
error and, therefore, does not require reversal.
Miscanstruing the Evidence
Next, Flat Rock argues that the ALJ flagrantly misconstrued the
evidence. As previously noted, several physicians involved in this case
provided reports contesting the severity of Neeley’s injury and how that
impacted his ability to return to work. I-Iowev``er, they all agreed that Neeley
had suffered a significant injury to his right eye. Both parties also stipulated '
that Neeley suffered a 17% whole person impairment rating. Furthermore, it is
clear from the ALJ’s opinion that he afforded great weight to Neeley’s live
testimony at the final hearing in this case. As stated in his Amended Opinion
and Order on Remand, the ALJ specifically based his decision on the following
considerations: -
l took into consideration [Neeley’s] sworn testimony that he has
``lost the vision in his right eye, has double and triple vision, is light
sensitive in his left eye, does not. drive a motor vehicle and cannot
return to any employment l took into consideration the fact that
he graduated from high school many years a``go and has absolutely
no specialized or vocational training. I reached the reasonable
assumption and determination that if Mr. Neeley went out into the
highly competitive job market, he will have an extremely difficult
time in finding any regular gainful employment Based upon all of
the above factors, l make the determination that Mr. Neeley cannot
find work consistently under regular work circumstances and Work
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dependably. I make the determination that he is permanently and
totally disabled.
lt is well-settled that “[t]he ALJ has the sole discretion to determine the quality,
character, and substance of the evidence and 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.” Toyota Motor
Manufacturing, Kentucky, Inc. 1). Tudor, 491 S.W.Sd 496, 503 (Ky. 2016);
Therefore, the ALJ’s reliance on the above cited evidence was proper and
constitutes substantial evidence supporting an award of Pl``D benefits
Flat Rock also argues that-the ALJ erroneously determined that Neeley
sustained an injury to his left eye. As previously noted, one of the reasons the
Board originally reversed and remanded this case for additional information
WaS due to the mischaracterization of evidence concerning Neeley’s alleged
injury to his left eye. ln his amended order,' the ALJ concluded in part that
“Dr. Sanders was Mr. Neeley’s treating eye'specialist. She stated that he has
right eye pain and photophobia in his left eye.”
After considering the Al.J’s corrected order, the Board and the Court of
Appeals expressed additional concerns about the ALJ’s treatment of this
evidence concerning Neeley’s alleged left eye injury. Nevertheless, both panels
affirmed the ALJ’s revised order.
We agree with Neeley concerning the evidence indicating a serious injury
to his right eye. However, the parties have failed to specifically cite any record
indicating Dr. Sanders’ diagnosis of or reference to any ailment involving
Neeley’s left eye. However, other records indicate an impairment to Neeley’s left
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eye. For example, Dr. Ralph Crystal, a vocational consultant, indicated that
Neeley reportedly experienced optic nerve pain in both eyes and light sensitivity
in his left eye. Neeley echoed these concerns in his final hearing testimony. In
addition, Flat Rock concedes on page 19 of its brief that “[a]fter the injury,
Neeley began to complain to Dr. Sanders of debilitating symptoms in his M;
eye, consisting of extreme light sensitivity.” Moreover, the ALJ’s ultimate
decision to award PTD benefits was clearly based on the severe injury to
Neeley’s right eye. Therefore, we cannot conclude that the ALJ lacked
_ substantial information for his decision to award PTD benefits
Maximum Medical Improvement
For its final argument, Flat Rock asserts temporary restrictions do not
support a PTD finding. Flat Rock specifically argues that the medical evidence
the ALJ relied on to support a finding of PTD Was dated before Neeley had
reached maximum medical improvement (MMI). lt is undisputed that Neeley’s
MMI occurred December 4, 2013. The Board aptly addressed this issue as
follows:
We first note that there is no blanket prohibition against reliance
upon a physician’s statement made prior to the attainment of
maximum medical improvement The particular statement was
made by Dr. Sanders in the November 27, 2012 report. She
indicated her concern Neeley would ever be able to return to work
“unless he experiences spontaneous improvement.” When
considered in conjunction with Neeley’s ongoing treatment after
this statement was made, we believe it is probative of Dr. Sanders’
impression of his overall condition. Stated otherwise, Dr. Sanders’
subsequent medical records indicate Neeley never did experience
“spontaneous improvement”. Rather, his condition worsened and
required further surgical intervention
The Court of Appeals adopted the Board’s reasoning. ln further support of its
conclusion, the Court of Appeals cited our case of Amold v. Toyota Motor Mfg.,
375 lS.W.3d 56 (Ky. 2012)'. Therein, we stated that “[a]lthough causation and
the date of MMI are medical questions, a worker’s testimony may provide
adequate support for a finding concerning his inability to work at a particular
point in time.” Id. at'61. As previously noted, both parties stipulated that
Neeley suffered a 17% whole person impairment rating and that the ALJ gave
great weight to Neeley’s live testimony. The ALJ also considered numerous
medical records Therefore, there was substantial evidence supporting the
A»LJ’s determination.
Conclusion
For the foregoing reasons, we hereby affirm the Court of Appeals’
decision, affirming the decisions issued by the Board and the ALJ.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Thomas Clarke Donkin
QUINTAIROS, PRIETO, WOOD 85 BOYER, P.A.
COUNSEL FOR APPELLEE, STEVEN NEELEY:
McKinnley Morgan
MORGAN, COLL'INS 85 YEAST