Czar Coal Corporation v. Marshall Jarrell

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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 THE COURT . 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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 : March 20, 2008
NOT TO BE PUBLISHED
Auprmt Coutf laf
2007-SC-000233-WC
CZAR COAL CORPORATION APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. 2006-CA-001415-WC
WORKERS' COMPENSATION NO. 03-95660
MARSHALL JARRELL ;
HON . GRANT ROARK,
ADMINISTRATIVE LAW JUDGE ;
AND WORKERS' COMPENSATION BOARD
APPELLEES
AND
2007-SC-000234-WC
MARSHALL JARRELL APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. 2006-CA-001415-WC
WORKERS' COMPENSATION NO. 03-95660
CZAR COAL CORPORATION ;
HON . GRANT ROARK,
ADMINISTRATIVE LAW JUDGE ;
AND WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) found the claimant to be partially disabled by
a work-related back injury and psychiatric condition but chose the hypothetical
permanent impairment rating assigned by a psychiatrist who stated that he was not at
maximum medical improvement (MMI). The Workers' Compensation Board affirmed in
all respects, but the Court of Appeals vacated and remanded regarding the permanent
impairment rating for the psychiatric condition . We affirm.
The claimant was born in 1972. He completed high school with training in auto
mechanics and worked as a roof bolter in the defendant-employer's coal mine. He
sustained a work-related back injury on February 7, 2003, when a large slab of rock fell
from the roof of the mine and struck him . The claimant continued to work for ten to
twelve days with significant back pain, then underwent surgery in May 2003 for
herniated discs at two levels and again in September 2003 for recurrent herniations .
He received temporary total disability (TTD) benefits from February 14, 2003, through
May 9, 2005. His application alleged that he was permanently and totally disabled by
the back injury and a resulting psychiatric condition .
Dr. Wagner reported to the employer in June 2004 that x-rays revealed nerve
root compression and stenosis . He thought that with physical and aqua therapy the
claimant would reach MMI by August 31, 2004, and would retain a 12% permanent
impairment rating . He reported in November 2004 that the claimant would have
reached MMI in August 2004 even without the recommended therapies .
Dr. Witt began to treat the claimant at the Samaritan Pain Clinic in February
2005 for complaints of back and leg pain . He diagnosed post-laminectomy syndrome,
neuropathic pain in the left lower extremity L5-S1 nerve distribution, and lumbar
degenerative disc disease . Dr. Witt prescribed various conservative measures and
later scheduled a psychological evaluation, which Dr. Etscheidt performed in May 2005.
Dr. Etscheidt noted that the claimant was distressed because he had severe
financial pressures, a wife and two children to support, and was "raised to work every
day." He suggested a trial of Cymbalta (an antidepressant) and therapy to address
depression, anxiety, and sleep disturbances . Based on the evaluation, Dr. Witt
prescribed Cymbalta and added depressive disorder and anxiety state to his diagnosis .
Later, he also prescribed a Tempur-Pedic mattress to enable the claimant to get
restorative sleep, but the employer's carrier denied authorization . Dr. Witt testified
subsequently that the mattress had helped many other patients with mechanical back
pain and that he had recommended it along with other conservative measures with the
hope of avoiding the need for a spinal cord stimulator or fusion surgery. He thought
that the claimant could perform work that did not require heavy lifting, was impressed
with his high level of motivation, and thought him to be a good candidate for retraining .
Dr. Travis examined the claimant for the employer in April 2005. He assigned a
20% permanent impairment rating for the back condition, stating that there were no
objective findings on neurological evaluation but significant symptom magnification . He
recommended aggressive work hardening and a cognitive-based physical conditioning
program but suspected that the claimant's tendency to magnify his symptoms would
prevent him from attempting such a program.
Dr. Templin evaluated the claimant in May 2005 and diagnosed chronic low back
pain syndrome, herniated discs at L4-5 and L5-S1, recurrent herniation, and lumbar
radiculopathy . He assigned a 19% permanent impairment rating for the lumbar spine
and a 3% rating for pain, for a total of 21 % . He assigned numerous work restrictions
and stated that the claimant lacked the physical capacity to return to roof bolting.
Dr. Potter evaluated the claimant at his attorney's request in June 2005. He
reported that the claimant retained a 29% permanent impairment rating based on the
back injury. Dr. Potter assigned extensive restrictions and stated that the claimant
could not return to his former job.
Phil Pack, -M.S . in clinical psychology and a Licensed Psychological Practitioner,
evaluated the claimant in July 2005 . His evaluation included a history, mental status
examination, psychological and achievement tests, and a medical records review. He
noted that the insurance carrier had refused to approve Cymbalta and that the claimant
had received no psychological therapy. Testing revealed a high school reading level
and no signs of malingering, but it did reveal symptoms of depression and agitation. In
Mr. Pack's opinion, the claimant's condition did not result from the arousal of a pre-
existing dormant condition and he did not have an active psychological impairment
before the back injury. He thought that the injury caused depressive and pain disorders
for which recommended counseling . Using Chapter 14 of the AMA Guides to the
Evaluation of Permanent Impairment (Guides ), Fifth Edition, Table 14-1, he rated the
claimant on each of the four areas of functioning and assigned class II impairment,
which equates to a 10% permanent impairment rating .
Dr. Ruth, a psychiatrist, evaluated the claimant in October 2005. His evaluation
included a history, mental status examination, psychological tests, tests that assessed
the effort exerted during the assessment of cognitive functioning, and a- medical records
review. Dr. Ruth noted that test results weighed against malingering and were
0
consistent with the complaints of depression, anxiety, chronic pain, and irritability . Any
symptom exaggeration appeared to result from a sense of desperation . He noted the
claimant's frustration at what he perceived to be illogical and arbitrary decisions by the
insurance carrier to refuse to authorize treatment . Dr. Ruth diagnosed major
depression due to back and lower extremity pain, an anxiety disorder, and a learning
disorder . He stated that the claimant would benefit from a consultation with a
psychiatrist, a prescription for an antidepressant, and appointments for medication
maintenance for about two years . Cymbalta was among the antidepressants that he
suggested . Dr. Ruth found it impossible to assign a permanent psychiatric impairment
at that time because the claimant had not been treated for his symptoms and,
therefore, had not reached MMI . Although he explained that the Guides did not permit
permanent impairment to be assessed until MMI, he assigned what he called a
"hypothetical" permanent impairment rating of 10% based on the claimant's present
symptoms . He attributed a 6% impairment rating to emotional symptoms and a
learning disorder, which were pre-existing, non-work-related factors. He stated that the
impairment due to pre-existing conditions would not improve with treatment. He
thought that depressed affect, anxiety attacks, and instability due to the injury warranted
a 4% impairment rating that would improve by 50% with treatment .
The employer submitted an August 2005 vocational report from Dr. Crystal . It
indicated that the claimant was of average intelligence and read at a level sufficient for
a skilled trade. He thought that the claimant could perform low-stress, entry-level work
that required moderate physical exertion or some types of sedentary bench work. He
did not think that the claimant's pain was so severe as to prevent him from
concentrating sufficiently to work.
Dr. Weikel's 2005 vocational report indicated that the claimant was afraid to drive
while on medication, walked stiffly with a limp, and was trying to wean himself off pain
medication . He stated that he could sit for only fifteen minutes or stand for ten minutes
and that his condition had improved little since the injury. Dr. Weikel concluded that he
sustained a 100% loss of access to the labor market until his pain could be reduced .
The claimant testified that he did not think he had the physical ability to perform
any work. He stated that he had difficulty sleeping except for one night when he used a
friend's Tempur-Pedic mattress . He required medication to deal with his pain as well as
with stress and anxiety. He stated that he could not sit through three or four hours of
class a day but would undergo rehabilitation if his pain resolved .
Among the contested issues were extent and duration of disability and the
claimant's entitlement to additional TTD based on the psychiatric condition . The
employer argued that the claimant was not totally disabled, that the physical injury
caused a 20% permanent impairment rating, and that the 4% permanent impairment
rating that Dr. Ruth assigned to the psychiatric injury was more persuasive than the
10% rating that Mr. Pack assigned .
The AU noted that the claimant appeared to be credible and well-motivated . He
had ceased smoking, lost weight, and weaned himself off narcotic pain medication .
Nonetheless, he was relatively young, had a high school education, and appeared to be
"bright and responsive" at the hearing, all of which indicated an ability to be retrained for
more sedentary work. The AU determined from the medical evidence that the back
condition warranted a 21 % permanent impairment rating . Finding "Dr. Ruth's 4%
impairment rating most credible" regarding the psychiatric condition, the AU reasoned
that Mr. Pack "did not take into account the factors indicating a prior ratable psychiatric
condition that were noted by Dr. Ruth ." The AU determined that the claimant's
disability was only partial and awarded income benefits based on a combined values
rating of 24%, explaining that there were "some jobs to which [the claimant] could return
on a regular and sustained basis, even with his current limitations and pain."
Convinced that he could not return to work as a roof bolter, the AU awarded a triple
benefit under KRS 342 .730(1)(c)1 and ordered a rehabilitation assessment .
Among other things, the claimant's petition for reconsideration requested specific
findings regarding why the AU found him to be at MMI from the psychiatric condition
although Dr. Ruth stated that he was not. The AU denied the petition, reasoning that
MMI regarding the psychiatric claim was not listed as a contested issue. The AU noted
that Mr. Pack and Dr. Ruth both assigned permanent impairment ratings and that "no
such impairment rating could be provided unless each believed plaintiff was at MMI or,
at the very least, that plaintiffs impairment rating would not change significantly even
after reaching MMI ."
The employer asserts that the Court of Appeals invaded the ALJ's province as
the finder of fact when it held that the evidence compelled a finding in the claimant's
favor regarding the permanent impairment rating that the psychiatric injury caused . In
contrast, the claimant argues that the AU erred by relying on Dr. Ruth's opinion
because Dr. Ruth stated that he was not at MMI . In a cross-appeal, he asserts that he
is permanently and totally disabled and that speculation rather than substantial
evidence supports the finding that he is "capable of being retrained to other more
sedentary occupations ." In the alternative, he asserts that because Dr. Ruth found him
not to be at MMI regarding the psychiatric condition, he is entitled to TTD benefits until
he reaches that point .
The claimant had the burden to prove every element of his claim. As the
employer points out, KRS 342 .285(1) vests the AU with the sole authority to determine
the weight and credibility of evidence. Special Fund v. Francis , 708 S.W.2d 641, 643
(Ky. 1986), explains that if a party with the burden of proof fails to convince the finder of
fact, the party must show on appeal that the decision was unreasonable and that the
evidence compelled a favorable finding .
KRS 342 .0011(11)(b) and (c) require a finding of partial or total disability to be
supported by a permanent disability rating, which KRS 342.0011(35) and (36) require to
be based on a permanent impairment rating "as determined by" the Guides. The
Guides , Fifth Edition, page 2, state that impairment is considered to be permanent
when an individual reaches MMI, which means that it "is well stabilized and unlikely to
change substantially in the next year with or without medical treatment ." Page 19
indicates that a permanent impairment rating is not to be assigned until an individual
reaches MMI and is no longer expected to improve or deteriorate .
Mr. Pack noted that the employer's insurance carrier refused to approve
antidepressant medication and that the claimant had received no therapy for his
psychiatric injury. He reported that the injury caused a 10% permanent impairment
rating as determined by the Guides. The report was submitted, without objection, and
constituted substantial evidence that the psychiatric injury caused a 10% permanent
impairment rating .
Testifying on the employer's behalf, Dr. Ruth stated specifically that the claimant
was not at MMI because he had received no psychiatric treatment and, therefore, that ,
he could not assign a permanent impairment rating under the Guides . Nonetheless, he
assigned a "hypothetical" permanent impairment rating of 10%, attributed a 4% rating to
the injury, and expected it to improve by 50% with treatment .
The AU did not rely on Mr. Pack's testimony to determine that the claimant had
a 10% permanent impairment rating but then exclude a 6% rating based on Dr. Ruth's
testimony of a pre-existing impairment. Thus, it is unnecessary to consider if that
method would have been proper. The AU found Dr. Ruth's hypothetical 4%
impairment rating to be "most credible," which was unreasonable when even Dr. Ruth
acknowledged that the rating was not determined in accordance with the Guides . Mr.
Pack assigned the only permanent impairment rating for the injury that complied with
the Guides ; therefore, the AU erred by failing to rely on it when awarding permanent
income benefits .
The AU ordered a vocational rehabilitation assessment but also stated that
there were "some jobs to which plaintiff could return on a regular and sustained basis,
even with his current limitations and pain and, as such, he is not permanently, totally
disabled ." Although Dr. Potter imposed severe work restrictions, Dr. Travis thought that
the claimant could return to work if he alternated between sitting and standing and lifted
no more than 50 pounds. Dr. Weikel thought that he was unable to work, but Dr.
Crystal thought that he was of average intelligence, could read at the level necessary to
perform a skilled trade, and could perform work requiring a moderate level of exertion .
He did not think that the claimant's pain had reached a level that interfered with his
attention and concentration to the point that he could not work. Under the
circumstances, substantial evidence supported the decision to award partial rather than
total disability . The claimant's entitlement to permanent income benefits renders moot
his argument regarding additional TTD benefits .
The decision of the Court of Appeals is affirmed .
Lambert, C.J., and Cunningham, Minton, Noble, Schroder and Scott, J.J .,
concur. Abramson, J ., not sitting .
COUNSEL FOR APPELLANT,
CZAR COAL CORPORATION :
WALTER W . TURNER
JONES, WALTER, TURNER & SHELTON PLLC
151 NORTH EAGLE CREEK DRIVE
ONE FOUNTAIN PLAZA
SUITE 310
LEXINGTON, KY 40509
COUNSEL FOR APPELLEE,
MARSHALL JARRELL :
THOMAS W . MOAK
MOAK & NUNNERY, PSC
P.O. BOX 510
PRESTONSBURG, KY 41653