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RENDERED: AUGUST 26, 2016; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
CHARLES SCOTT HOWARD APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-10-80391
CUMBERLAND
RIVER COAL
CORPORATION; J. GREGORY
ALLEN, ADMINISTRATIVE LAW
JUDGE; AND WORKERS’
COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, D. LAMBERT, AND VANMETER, JUDGES.
VANMETER, JUDGE: Charles Scott Howard petitions
this court for review of the October 16, 2015, opinion and order of the
Workers’ Compensation Board (“Board”).
For the following reasons, we affirm.
Howard, who was fifty-five years old at the time
of these proceedings, worked as an underground coal miner for thirty-four
years, and for the most recent nine years, he worked for the Cumberland River
Coal Company (“Cumberland”). During his
time at Cumberland, he operated most pieces of equipment used in coal extraction,
performed mine maintenance and tended belts.
In the last twelve years he was employed, Howard sustained several
injuries to his head and spine. On July
26, 2010, he was struck in the head and body by an unknown object and was
rendered unconscious. As a result, he
suffered injuries to his head, neck and lower back. Then, on March 4, 2013, and April 17, 2013,
Howard injured his right shoulder while installing roof bolts. Finally, Howard alleges injuries to his
lumbar spine consistent with cumulative trauma.
Howard was paid temporary total disability (“TTD”)
benefits from August 3, 2010, until May 16, 2011, after which he returned to
work at the same or similar type of work he performed before his first
injury. He continued to work until April
17, 2013, when he left work due to his shoulder injury. Howard underwent surgical rotator cuff repair
and again received TTD benefits from April 18, 2013, through November 24, 2013,
when he was found to be at maximum medical improvement (“MMI”) and released to
return to work at full duty by Dr. Keith Hall.
Dr. Hall assigned Howard’s right shoulder a 3% permanent impairment
rating. Howard worked until February 28,
2014, when he took several days of vacation.
During his vacation, Howard’s treating physician, Dr. Van S. Breeding,
provided Howard with a medical statement claiming that the ongoing effects of
injuries to his head, cervical and lumbar spines, and shoulder rendered him
unable to maintain regular employment.
Based on that opinion, Howard resigned from his job on March 13, 2014.
In addition to his treating physicians’ records,
Howard underwent an independent medical examination (“IME”) performed by Dr.
Robert C. Hoskins. Dr. Hoskins assessed
an 11% impairment to Howard’s lumbar spine due to cumulative trauma, an 8%
right shoulder impairment due to the injuries sustained in March and April
2013, and 6% cognitive and 2% pain impairments resulting from the July 26, 2010
head injury. Cumberland also submitted
an IME report from Dr. Gregory T. Snider.
Dr. Snider opined that Howard suffers a 5% impairment due to residual
brain injury caused by the July 26, 2010 injury, and a 1% impairment to the
right shoulder due to the March and April 2013 injuries. Dr. Snider assessed no spine impairment and stated
that he saw no reason to restrict Howard from returning to work.
In the Administrative Law Judge’s (“ALJ”) Opinion,
Award and Order dated April 14, 2015, the ALJ relied upon the opinions of
Howard’s treating physician, Dr. Hall, who diagnosed an acute right shoulder
injury with 3% impairment, and Dr. Snider’s assessment of a 5% impairment due
to Howard’s head injury. Howard appealed
the ALJ’s findings to the Board, making two arguments relevant to this appeal:
first, that the ALJ erred in relying on Dr. Hall’s impairment rating because it
did not comply with the AMA Guides to the
Evaluation of Permanent Impairment (5th ed. 2001); and second, that the
trial court erred by rejecting Dr. Hoskins’ opinion regarding causation of
Howard’s lumbar impairment in the absence of contrary expert evidence. The Board affirmed the ALJ’s opinion, finding
that because Howard had not objected to Dr. Hall’s noncompliance with the AMA
Guides before the ALJ, the issue was not preserved for the Board. The Board further noted that Dr. Hall’s
opinion was based on the AMA Guides, and the ALJ is free to choose among the
conflicting opinions of the experts.
Finally, since the ALJ set forth its rationale for rejecting Dr.
Hoskins’ opinion regarding Howard’s alleged cumulative trauma lumbar injury,
the Board found that such a choice was not erroneous.
On appeal, Howard makes two arguments. First, he argues that the Board erred by
refusing to reverse the ALJ’s opinion due to the ALJ’s reliance on Dr. Hall’s
opinion, which did not comply with the AMA Guides. He claims that a workers’ compensation
claimant has no duty to object to such a noncompliance, and the ALJ should not
be permitted to rely on a medical expert’s noncompliant opinion. Second, Howard maintains that the ALJ did not
provide sufficient rationale for refusing to credit Dr. Hoskins’ opinion
concerning causation of his lumbar impairment.
The well-established standard of review for the
appellate courts of a workers’ compensation decision “is to correct the
[Workers’ Compensation] 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.” E.g.,
W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992); Butler’s Fleet Serv. v. Martin, 173
S.W.3d 628, 631 (Ky. App. 2005); Wal-Mart
v. Southers, 152 S.W.3d 242, 245 (Ky. App. 2004). See
also Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986) (holding that
if the fact-finder finds in favor of the person having the burden of proof, the
burden on appeal is only to show that some substantial evidence supported the
decision); cf. Gray v. Trimmaster,
173 S.W.3d 236, 241 (Ky. 2005) (If the ALJ finds against the party having the
burden of proof, the appellant must “show that the ALJ misapplied the law or
that the evidence in her favor was so overwhelming that it compelled a
favorable finding[.]”).
First, Howard claims that he was not required to
object to the admission of a medical expert’s opinion noncompliant with the AMA
Guides, nor was he required to designate the noncompliance as a contested issue
to preserve the matter for appeal. Since
KRS[1] 342.730(1)(b) mandates use
of the AMA Guides in determining impairment and benefits awarded, Howard argues
that an evidentiary objection to noncompliance is unnecessary for appellate
preservation purposes and that an ALJ is not free to rely upon an AMA
noncompliant medical expert’s opinion.
However, we agree with the Board’s conclusion that Howard was required
to raise an objection if he believed that Dr. Hall’s impairment rating was not
compliant with the AMA Guides. 803 KAR[2] 25:010 §13(13) requires that all
contested issues be raised before the ALJ; per 803 KAR 25:010 §13(14),
only the issues listed as “contested” may proceed beyond the benefit review
conference. Since Howard did not raise
the issue before the ALJ, the Board correctly held that the ALJ could not
address that issue, nor could the Board.
Furthermore, failure to raise an issue before an administrative body
precludes that issue from judicial review.
Urella v. Ky. Bd. of Med.
Licensure, 939 S.W.2d 869, 873 (Ky. 1997).
Additionally, we agree with
the Board’s finding that Dr. Hall did in fact use the AMA Guides in assessing
his rating of Howard’s shoulder condition.
While Dr. Hoskins reached a different impairment rating conclusion based
on his interpretation of the AMA Guides, Dr. Hall’s rating is not thereby
rendered noncompliant. The ALJ was free
to weigh the evidence as he saw fit, and free to reject Dr. Hoskins’
conflicting opinion in favor of Dr. Hall’s impairment rating. While a party may point to evidence that would have supported
an alternate outcome, the ALJ’s failure to so rule is not a sufficient basis
for reversal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 47 (Ky. 1974). An ALJ has “sole discretion to determine the
quality, character, and substance of evidence.”
Gaines Gentry
Thoroughbreds/Fayette Farms v. Mandujano, 366 S.W.3d 456, 461 (Ky.
2012). Accordingly, this court will not
reweigh the evidence.
Next, Howard argues that the ALJ did not provide a
sufficient explanation for his rejection of Dr. Hoskins’ opinion regarding
causation of Howard’s lumbar impairment.[3] Again, this argument is nothing more than a
request to reweigh the evidence and find in Howard’s favor. An ALJ may refuse to rely upon uncontradicted
medical evidence as long as he provides a sufficient explanation for doing
so. Commonwealth
v. Workers’ Comp. Bd., 697 S.W.2d 540, 541 (Ky. App. 1985). In this case, the ALJ, after reviewing all of
the evidence, expert opinions, and treatment records, found that Howard failed
to prove that he suffered permanent impairment to his lumbar spine due to
repetitive trauma. The ALJ explained
that Dr. Hoskins had failed to detail Howard’s specific work activities at
Cumberland which had allegedly caused his injury. The burden is upon the claimant
to prove that the causation of his injury is work
connected. Jones
v. Newberg, 890 S.W.2d 284, 285 (Ky. 1994). Absent evidence of how Howard’s work duties
at Cumberland had cumulatively caused injury to his spine, we agree with the
ALJ that Howard failed to prove causation of his alleged cumulative trauma
injury.
For the above reasons, the opinion and order of
the Workers’ Compensation Board is affirmed.
acree, judge,
concurs.
D. lambert, judge, dissents and will not file A separate opinion.
|
BRIEF FOR APPELLANT: Sherry Brashear Harlan, Kentucky |
BRIEF FOR APPELLEE: Denise M. Davidson Hazard, Kentucky |
