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RENDERED: SEPTEMBER 24, 2015
NOT TO BE PUBLISHED
oSouprattr Court of
LJ
2015-SC-000013-WC
HODGES TRUCKING COMPANY APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2013-CA-001318-WC
WORKERS' COMPENSATION NO. 07-86619
ROBERT W. WALDECK;
HONORABLE EDWARD D. HAYS,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Hodges Trucking Company, appeals a Court of Appeals
decision which affirmed in part, reversed in part, vacated in part, and
remanded an opinion of the Workers' Compensation Board ("Board") regarding
Appellee, Robert W. Waldeck's claim. Hodges argues in its appeal that: 1) the
wrong legal analysis was used to determine whether Waldeck was entitled to
permanent total disability ("PTD") benefits upon the reopening of his claim and
2) the Court of Appeals erred when it reversed the Board's finding that the
claim should be remanded to the Administrative Law Judge ("ALJ") for
consideration of whether Waldeck's PTD award should be reduced due to a
prior active disability. For the reasons set forth below, we affirm the Court of
Appeals.
Waldeck alleged that on May 29, 2007, he injured his back, both legs,
and hip when he fell while working for Hodges. He subsequently filed a Form
101 Application for Resolution of Injury Claim with the Department of Workers'
Claims. Waldeck did not make a claim for a psychological injury in his original
Form 101. The matter was assigned to ALJ Grant Roark. While Waldeck and
Hodges stipulated to many aspects of the claim, the parties could not agree
whether Waldeck was entitled to permanent disability benefits under KRS
342.730 or whether Waldeck's impairment was caused by a pre-existing active
condition. ALJ Roark held an evidentiary hearing at which Waldeck and his
wife were the only witnesses.
After a review of the record, ALJ Roark rendered an opinion and order
where he made the following findings of fact and conclusions of law: 1) that
Waldeck "had a pre-existing active lower back condition due to a 2004 injury
for which he underwent surgery . . . [leaving him] with a residual 10%
impairment rating under the 5th Edition of the AMA Guides"; 2) that based on
Dr. John Guarnaschelli's opinion, "Waldeck's current low back pain and need
for any additional treatment is attributable to his May 29, 2007, work incident
[at Hodges]"; 3) that Waldeck did not carry "his burden of proving he has any
permanent impairment rating associated with his claimed injury"; and 4) that
Waldeck reached maximum medical improvement ("MMI") as of September 25,
2008. Accordingly, ALJ Roark awarded Waldeck temporary total disability
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benefits from June 6, 2007, through September 24, 2008, and all reasonable
and necessary medical expenses for the cure or relief of the effects of his injury
in accordance with KRS 342.020. Neither party filed an appeal from ALJ
Roark's opinion and award.
On or about May 2, 2012, Waldeck filed a motion to reopen pursuant to
KRS 342.125. Waldeck alleged that subsequent to the rendering of ALJ
Roark's opinion and award, he came under the care of Dr. Christopher B.
Shields, a neurosurgeon. Dr. Shields diagnosed Waldeck with lower back pain
with components of L5 and S1 radiculopathy bilaterally for which he
recommended a laminectomy, foraminotomy, and facetectomy with fusion at
the L4-L5 interspace, and the L5-S1 interspace as treatment. Waldeck
underwent the proposed surgery which was paid for by Hodges.
Waldeck filed an affidavit to support reopening his claim, in which he
averred that he "continued to experience low back pain" and "began to
experience depression due to [his] chronic pain." Waldeck also attached a
report by Dr. Warren Bilkey, who believed that Waldeck's impairment had
increased post-surgery. Dr. Bilkey believed that Waldeck had a 29%
impairment, of which 10% was due to the prior 2004 injury. Thus, Dr. Bilkey
assigned Waldeck a 19% impairment attributable to the present work-related
injury.
Further, Waldeck filed an evaluation by Dr. Steven J. Simon, a licensed
clinical psychologist. Dr. Simon believed that Waldeck developed a mood
disorder with major depression secondary to his back injury and chronic pain.
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Dr. Simon assigned Waldeck a 20% psychiatric impairment related to the
initial work-related injury.
After the surgery, Waldeck admitted that he felt better. He indicated that
his legs no longer bothered him like before the surgery. However, he still
complained of pain in his lower back and hips.
The Chief A1.0 assigned ALJ Edward Hays to the matter. He sustained
the motion to reopen. After a review of the evidence ALJ Hays awarded
Waldeck PTD benefits. He found:
[I]t is clear that [Waldeck's]condition has substantially worsened
and in support of this finding, the ALJ finds that [Waldeck]now has
a 29% permanent impairment to the body as a whole based on the
AMA Guides, Fifth Edition, 10% of which was pre-existing active,
and 19% of which is the result of the injury. In addition thereto,
the ALI. finds [Waldeck] has a 5% impairment for work-related
depression. Thus, [Waldeck's] permanent impairment has
substantially worsened since the Opinion of Judge Roark.
ALJ Hays then determined that Waldeck was totally occupationally disabled
due to his limited work experience, physical restrictions, intelligence, and
residual chronic pain along with the fact he was forty-four years old. Hodges
filed a petition to reconsider arguing that ALJ Hays erred in assigning a
psychological impairment rating and in finding he was entitled to PTD benefits,
because Waldeck's condition had not worsened. A1.0 Hays denied the petition
for reconsideration, and Hodges appealed to the Board.
The Board affirmed ALJ Hays's findings regarding the worsening of
Waldeck's condition, his entitlement to PTD benefits, and the assigning of a
psychological impairment. However, the Board vacated the PTD award and
remanded for findings regarding Waldeck's low back injury which occurred in
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2004. If that injury resulted in any occupational disability, then that
percentage was to be deducted from Waldeck's PTD benefit award. Hodges
appealed to the Court of Appeals.
The Court of Appeals affirmed in part, reversed in part, vacated in part,
and remanded the Board's opinion. The Court of Appeals vacated the Board's
decision to the extent that it affirmed ALJ Hays's finding on the psychological
claim. On remand, the ALJ was to determine if Waldeck's psychological injury
claim had accrued and was known by him prior to rendition of ALJ Roark's
opinion and award. The Court of Appeals also sua sponte vacated the portion
of the Board's opinion which remanded the matter for further fact finding on
whether the prior pre-existing active impairment resulted in occupational
disability and should have been deducted from Waldeck's PTD award. Finally,
the Court of Appeals affirmed the portion of the Board's opinion which affirmed
the reopening of the claim and Waldeck's entitlement to PTD benefits. 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
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,
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or to reconsider precedent when such appears necessary, or to review a
question of constitutional magnitude." Id. As fact finder, the AIJ had sole
authority to determine the weight, credibility, substance, and inferences to be
drawn from the evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418,
419 (Ky. 1985). Keeping these standards in mind, we affirm the Court of
Appeals.
I. THE PROPER LEGAL ANALYSIS WAS USED TO FIND WALDECK WAS
ENTITLED TO PTD BENEFITS ON THE REOPENING OF HIS CLAIM
Hodges first argues that an incorrect legal analysis was used to find that
Waldeck was entitled to PTD benefits on the reopening of his claim. Hodges
admits that substantial evidence supports the finding that Waldeck's
permanent functional impairment rating has increased since Al,,J Roark's
opinion, order, and award but believes the impairment rating alone does not
entitle Waldeck to PTD benefits. Hodges argues that an analysis of Waldeck's
current condition and disability compared to his condition and disability at the
time of the rendition of AI,J Roark's opinion and award would show that
Waldeck's disability did not increase.
KRS 342.125(1)(d) provides that a workers' compensation award may be
reopened when there has been a "change of disability as shown by objective
medical evidence of worsening or improvement of impairment due to a
condition caused by the injury since the date of the award or order." "Evidence
of a post-award increase in the permanent impairment rating resulting from a
work-related condition provides the objective medical evidence of a worsening
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of impairment that KRS 342.125(1)(d) requires for reopening." James T.
English Tiucking v. Beeler, 375 S.W.3d 67, 70 (Ky. 2012) (citing Colwell v.
Dresser Instrument Division, 217 S.W.3d 213, 219 (Ky. 2007)).
Colwell, 217 S.W.3d at 219, provides that when making a claim for PTD
benefits on reopening, "the claimant's burden on the merits . . . [is] to prove by
objective medical evidence that she sustained a post-settlement worsening of
impairment from the injury; to prove that the change was permanent; and to
prove that it caused her to be totally and permanently disabled under the
standard described in Ira A. Watson Department Store v. Hamilton, [34 S.W.3d
48 (Ky. 2000)]." Hamilton states that a permanent impairment rating is a
prerequisite to a finding of PTD under KRS 342.0011(11)(c), but that other
factors should be considered. 34 S.W.3d at 51. These factors include an
analysis of the worker's post-injury physical, emotional, intellectual, and
vocational status and how they interact. The likelihood of whether the
particular worker will be able to find work consistently under normal
employment conditions should also be considered. Id. A worker's ability to
find work consistently under normal employment conditions is affected by
factors such as whether the individual will be able to work dependably and
whether any physical restrictions will interfere with vocation capabilities. Id.
In this matter, while ALJ Roark found that Waldeck suffered from a
work-related injury, he did not find that Waldeck merited a permanent
impairment rating. However, based on expert opinion, at the time of reopening,
substantial evidence supported AL I Hays's conclusion that Waldeck suffered
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an increased impairment rating and that the change was permanent. Hodges
admits the record supports this conclusion. The question then becomes
whether Waldeck is permanently and totally disabled per Hamilton.
ALJ Hays found that Waldeck had limited ability to find employment in
fields he had prior training and experience; noted that Dr. Loeb opined that
Waldeck cannot perform repetitive bending, stooping, or lifting greater than
twenty to twenty-five pounds and that Waldeck can no longer function as a
truck driver; and adopted Dr. Bilkey's finding that Waldeck can perform "light
duty" work only. These findings provide substantial evidence to support ALJ
Hays's conclusion that Waldeck was entitled to PTD benefits. He did not
misapply Hamilton in so finding. While Waldeck may have obtained relief due
to the surgery, that does not preclude the ALJ from finding he is permanently
and totally disabled.
Hodges also argues that ALJ Hays's finding, that Waldeck is entitled to
PTD benefits, should be reconsidered in light of the fact that the Court of
Appeals reversed and remanded on Waldeck's psychological claim. However,
ALJ Hays based the analysis of Waldeck's entitlement to PTD benefits on his
back injury and not the psychological impairment. Thus, we decline to reverse
the Court of Appeals.
II. THE COURT OF APPEALS DID NOT ERR BY REVERSING THE BOARD'S
DECISION TO REMAND FOR CONSIDERATION OF WALDECK'S PRIOR
DISABILITY
Hodges's last argument is that the Court of Appeals erred by reversing
the portion of the Board's opinion which remanded the matter to the ALJ for
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findings on whether Waldeck's award should be reduced due to a pre-existing
active disability. The Board held that, based on Roberts Brothers Coal Co. v.
Robinson, 113 S.W.3d 181 (Ky. 2003):
ALJ in this instance noted it is undisputed Waldeck
had a 10% pre-existing active impairment rating as determined by
ALJ Roark on March 2, 2009. However, he failed to determine
whether the pre-existing active impairment resulted in any
occupational disability. Since no claim was ever filed for the 2004
injury, and resulting surgery, there is no overlap in the award
period.
Since Waldeck's prior lumbar low back injury in 2004, which
resulted in surgery, was work-related, the ALJ must determine
whether the injury and impairment resulted in any occupational
disability. If so, that percentage must be deducted from the award
of PTD benefits.
The Court of Appeals reversed the Board because ALJ Hays made a finding that
all of Waldeck's current occupational disability is attributable to his 2007
injury. The court supported its ruling with Dr. Bilkey's opinion imposing
restrictions on Waldeck due to the 2007 work injury and ALJ Roark's prior
finding that after the 2004 injury Waldeck "returned to his roofing job without
restrictions." Thus, the Court of Appeals concluded that ALJ Hays's award was
not erroneous as a matter of law. Hodges argues that the Court of Appeals
erred because ALJ Roark and ALJ Hays did not make the factual findings
alleged in the opinion. We disagree.
For there to be an exclusion from a total disability award, it must be
shown that the pre-existing condition was symptomatic and restrictive and
affected the employee before the second work injury. Id. at 183. ALJ Hays
specifically noted that the findings contained in ALJ Roark's opinion, order,
and award were considered and are res judicata. ALJ Roark's opinion stated
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that he found Waldeck's then current back pain and disability were entirely
attributable to the work-related injury in this matter, and not the previous
2004 injury. ALJ Roark also found that Waldeck worked without restriction
after that injury. ALJ Hays then made the same finding based on Dr. Bilkey's
opinion and the restrictions placed upon Waldeck by him which, according to
the doctor, were attributable to the 2007 work-injury. Thus, the Court of
Appeals decision which held that the Board erred in remanding the claim to the
ALJ must be affirmed because findings were made by both ALJs that Waldeck's
current disability was entirely attributable to the 2007 injury.
III. THE COURT OF APPEALS DID NOT ERR BY REMANDING THIS
MATTER FOR ADDITIONAL FINDINGS OF FACT ON WALDECK'S
PSYCHOLOGICAL CLAIM
Waldeck argues in his reply brief that the Court of Appeals erred by
vacating the Board's decision to the extent it affirmed the ALJ's decision on his
psychological claim. The matter was remanded to the ALJ for further fact
finding on whether Waldeck knew or reasonably should have known that his
depression was causally related to his work injury and that he should have
pursued a claim for a psychological injury at that time. Waldeck argues that
there is no evidence that Waldeck's initial treatment was work-related until
diagnosed by Dr. Simon in August 2011.
However, Waldeck was not the prevailing party on this issue and did not
file a cross-appeal to challenge the Court of Appeals decision regarding the
psychological impairment. Therefore the issue is not properly preserved for
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review and we decline to address it. Fischer v. Fischer, 348 S.W.3d 582, 596
(Ky. 2011).
For the above stated reasons, we affirm the Court of Appeals.
All sitting. All concur.
COUNSEL FOR APPELLANT,
HODGES TRUCKING COMPANY:
Douglas Anthony U'Sellis
COUNSEL FOR APPELLEE,
ROBERT W. WALDECK:
James L. Kerr
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Hodges Trucking Company v. Robert W. Waldeck
Combined Opinion