OPINION ENTERED: DECEMBER 31, 2008
CLAIM NO. 04-82591
CHESTER DAVIS PETITIONER
VS. APPEAL FROM HON. GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE
WARRIOR COAL, LLC
and HON. GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
AFFIRMING
* * * * * *
BEFORE: GARDNER, Chairman, COWDEN and STIVERS, Members.
STIVERS, Member. Chester Davis (“Davis”) appeals from the order of the Hon. Grant S. Roark, Administrative Law Judge (“ALJ”) overruling his motion pursuant to KRS 342.040 for an award of 18% interest on all past due benefits and an amended motion for interest and sanctions pursuant to 803 KAR 25:010 section 24. Davis filed these motions post opinion and award against Warrior Coal, LLC (“Warrior”).
Since the sole issue before us is the propriety of the ALJ’s order overruling Davis’ motion, only a brief recitation of the facts is necessary. It is apparent Davis sustained a severe injury to his lower left leg on June 21, 2004. Since the ALJ’s recitation of the medical testimony and the proof thoroughly discusses the proof before him we adopt it as our own.
SUMMARY OF EVIDENCE
Plaintiff had undergone surgery to put the bones in his left leg back together with a wire cage and a rod that was replaced three times. Plaintiff had received a transplant of muscle from his back to replace the muscle on the front of his leg. A muscle had been removed from his left wrist to cover the leg. There was a void in his back where the muscle was removed, and he had a scar on his right knee.
In November 2005, Dr. Dennis Beck placed plaintiff at maximum medical improvement and assigned a 15% whole person impairment for tibial shaft fracture mal alignment [sic] and mild knee and ankle range of motion deficiencies. Dr. Davis indicated that he would continue to treat plaintiff. Dr. Davis assigned restrictions of no stooping, crawling or bending; no lifting over fifty pounds; no activity that would require extremes of range of motion of the left knee and ankle; and no standing for more than thirty minutes to one hour at a time, with breaks every two to four hours during the day for swelling control and pain relief. The most strenuous physical activities of plaintiff’s job included crouching, bending, lifting heavy objects, and working in small tight areas.
In August 2007, Dr. Ross Marburger assigned 47% whole person impairment for range of motion and strength loss at the knee and ankle, scar impairment of the shoulder and back, sensory loss in the superficial peroneal nerve, chronic osteomyelitis, and scar impairment and disfigurement of the leg.
Based on the results of a work capacity evaluation, Joyce Tolen, PT, concluded that plaintiff demonstrated the ability to work within the light to medium work category and that he demonstrated cardiovascular fitness in the same category. Plaintiff provided a valid effort during the evaluation.
Dr. Frank Sewell, who performed an independent medical evaluation in March 2008 at defendant’s request, indicated by way of history that plaintiff sustained [sic] injury when a 600 pound mining jack fell from approximately six feet and landed on his left lower leg. Plaintiff sustained a compound fracture of the lower tibia and fibula, plus a degloving injury to the skin over and lateral to the tibia. There were pieces of coal throughout the wound and in the medullary canal. The wound was debrided, irrigated, and partially closed. Plaintiff underwent extensive treatment from June 23, 2004 through September 2007, returning to the operating room twenty five times. Dr. Sewell stated,
You can expect the complicated and protracted clinical course from the severe and dirty injury to the poorest healing part of the body. And it actually has not ended. Indeed he will see Dr. Marburger again and surgery will be scheduled to remove more exostosis plus soft tissue according to the patient. Although the patient has met the criteria for maximum medical improvement, nevertheless further complications in this area could occur at any time for the rest of his life. The instigating factor could be a very minor trauma to this area, say, from a fall, an upper respiratory infection, especially a Streptococcal one, fever with a viral infection, or anything else that would lower the resistance of his immune system. In addition [to] the stiffness, loss of mobility, and (sic) probably the pain will increase with age and inactivity. The inactivity caused by all this will cause further loss in strength and loss of mobility. Finally, of course, there is a very real possibility of addiction to pain medications.
Dr. Sewell assigned a 33% WPI, related to the work injury and recommended that plaintiff undergo a below the knee amputation. However, he strongly recommended that plaintiff seek a second, and possibly a third, opinion. Dr. Sewell stated that plaintiff’s lower leg did not function as a lower leg and functioned, instead, as a reservoir for infection and pain. Dr. Sewell felt that plaintiff would be able to exercise, be pain free, and return to productive employment if the knee were amputated and replaced with a prosthetic device.
Hearing Testimony. Plaintiff had undergone twenty five surgeries under anesthesia. Plaintiff testified that his left leg remained consistently swollen and that it swelled if he rode in a vehicle very far or stood on his leg for thirty minutes. The swelling resulted in a constant feeling of pressure and pain. Walking a hundred feet was painful for him and resulted in increased pain. Plaintiff experienced regular pain every day that ranged between five and eight on a scale of ten. However, plaintiff also experienced daily pain rated at ten on a scale of ten. Plaintiff testified that if he stayed stationary and seated all day, the pain remained at about five, which was the level of pain to which he awoke every day. However, if plaintiff sat for too long, he experienced stiffness in the knee and ankle. Plaintiff experienced regular breakage and drainage of the skin graft. Plaintiff was only able to stand on his left foot for approximately four seconds, so he generally placed most of his weight on his right leg. Plaintiff medicated with Lortab, Tylenol, and Advil. He had not experienced much improvement in his pain and swelling during the previous six months. Plaintiff testified that he did not know if he could physically withstand the process of vocational rehabilitation at this time. Plaintiff had been a coal miner all his life.
The ALJ then determined that Davis was totally occupationally disabled and awarded benefits of $588.33 per week. The BRC order reflects the two issues before the ALJ was extent and duration and average weekly wage. No issue was raised about Warrior defending this case without a reasonable foundation nor did Davis seek to have interest on the past due benefits paid at the rate of 18% per annum pursuant to KRS 342.040.
On appeal Davis argues Warrior’s failure to timely pay benefits from August 15, 2007, the date of termination of the TTD, through the final award, was without reasonable foundation. Davis asserts even if the ALJ used the impairment rating of Warrior’s doctor and awarded permanent partial disability benefits, pursuant to KRS 342.730(1)(c)and (d), Davis would have received the same weekly monetary award as he would have if he was adjudged to have been permanently totally disabled. The only difference in either award would have been in duration. Thus Warrior terminated income benefits without a reasonable foundation.
Davis’ second ground for relief is based on the fact he had not received his awarded benefits by September 8, 2008, some 42 days after the award was entered by the ALJ. Davis points out even if Warrior had appealed the ALJ’s decision, Warrior should have expected it would have been ordered to pay benefits pending appeal. The only issue on appeal would be the duration of benefits and not the amount. Therefore, Davis posits he is entitled to 18% interest on all unpaid income benefits awarded by the ALJ.
In a five line argument, Davis also argues 803 KAR 25:010 (24) authorizes an award of sanctions if the claim is defended without reasonable foundation and that the non-payment of benefits which were clearly due is in essence defending without foundation. Davis asserts the filings of Warrior in this claim established Davis’ right to benefits yet at the same time Warrior was refusing to pay the benefits.
First, we point out the issue of sanctions and entitlement to 18% interest on all past due benefits was not preserved as an issue to be decided by the ALJ, either in the BRC order or at the hearing. The administrative regulation pertaining to benefit review conference is 803 KAR 25:010 section 13 (14), which plainly provides “Only contested issues shall be the subject of further proceedings.” The only issues listed at the BRC order and memorandum was extent and duration and average weekly wage. Therefore, since that issue was not preserved for a decision by the ALJ we deem Davis’ request for sanctions not to be timely and thus waived. That said, we point out in the recent case of Joyce White, Dr. Brent Babot, and Thomas W. Davis, ALJ v. Cumberland Valley Manor and Hon. John Coleman, 2008-CA-000442-WC, rendered September 26, 2008, designated not to be published, the Court of Appeals stated the failure of the parties to raise the issue of attorney’s fees pursuant to KRS 342.310 at the BRC did not preclude the ALJ from assessing attorney fees sua sponte. Although that case dealt with the request of an award of attorney fees pursuant to KRS 342.310, we deem the provision in KRS 342.040 allowing 18% interest on past due benefits to be a sanction statute similar to KRS 342.310. KRS 342.040 (1) permits the ALJ, if he determines a denial, delay or termination in the payment of income benefits was without foundation, to order interest to be paid on all unpaid benefits at 18%. The court of appeals went on to hold costs including attorney fees may be assessed by the ALJ at any time during litigation. That same reasoning would also apply to interest assessed pursuant to section KRS 342.040 (1) as well as sanctions imposed pursuant to 803 KAR 25:010 (24), which appears to mirror KRS 342.310.
Clearly, the ALJ in this case chose not to impose either sanctions or interest at 18% on the unpaid benefits. In reviewing the file we note the determination of the ALJ in denying Davis’ motion is supported by the record in that Davis’ own doctor, Dr. Beck, assessed a 15% whole person impairment and determined likewise Davis had reached MMI in November of 2005. Thus, Warrior would have been justified, pursuant to KRS 342.0011(11)(a), in terminating Davis’ TTD benefits as of November of 2005. KRS 342.0011(11)(a) defines temporarily total disability as “the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment.” Therefore, once Dr. Beck determined Davis had reached MMI in November of 2005, he would have been disqualified from receiving additional TTD benefits. Further, we find Davis’ argument he would have received the same amount whether he received permanent partial disability or total disability benefits not to be totally accurate. Davis bases this assertion on the assumption the ALJ would have either accepted Dr. Marburger’s or Dr. Sewell’s impairment rating in awarding permanent partial benefits. However, if the ALJ had adopted Dr. Beck’s impairment rating, the PPD benefits Davis would have received would have been far less than the weekly benefit of $588.00.
We also point out that Davis filed no petition for reconsideration requesting the ALJ to impose 18% on all unpaid benefits and/or sanction the employer based on the fact Warrior defended without reasonable grounds. It appears the sole reason for Davis’ motion is the fact that a check was not received by Davis within a short period AFTER the award became final. In light of the fact the motion and amended motion were filed after the award became final it is questionable whether the ALJ retained jurisdiction of the matter. Another forum may have been more appropriate for an attempt to punish Warrior for failure to make timely payment.
Accordingly, the order of the ALJ denying sanctions and 18% interest on all past due installments of income benefits is AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON LARRY HICKS
130 DUDLEY RD STE 250
EDGEWOOD KY 41017
COUNSEL FOR RESPONDENT:
HON DAVID DEEP
2225 LEXINGTON ROAD
LOUISVILLE KY 40206-2818
ADMINISTRATIVE LAW JUDGE:
HON GRANT S ROARK
410 WEST CHESTNUT ST
SEVENTH FLOOR
LOUISVILLE KY 40202
