Workers’
Compensation Board
OPINION
ENTERED: October 7, 2016
CLAIM NO. 201481898
DANIEL MILLER PETITIONER
VS. APPEAL FROM HON. GRANT
S. ROARK,
ADMINISTRATIVE LAW JUDGE
HUBBLE MINING COMPANY
and HON. GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Daniel Miller (“Miller”) seeks review of the May 9, 2016, Opinion, Order, and
Award of Hon. Grant S. Roark, Administrative Law Judge (“ALJ”) finding he
sustained a 5% impairment rating for a facial injury and an 8% impairment
rating for a psychological injury as a result of a work-related injury occurring
on May 23, 2014, while in the employ of Hubble Mining Company (“Hubble”). The ALJ awarded temporary total disability
(“TTD”) benefits already paid, permanent partial disability (“PPD”), and
medical benefits. Miller also appeals
from the June 14, 2016, Order denying his petition for reconsideration.
On appeal, Miller asserts the ALJ erred in not awarding
additional TTD benefits and in failing to enhance his PPD benefits by the three
multiplier contained in KRS 342.730(1)(c)1.
Miller sustained a significant facial injury on May 23,
2014, while working in an underground coal mine. His Form 101 alleged a facial fracture, neck
injury, low back injury, closed head injury, and development of anxiety and
depression. The Form 101 identified the
facial injury as a maxillary wall fracture with infraorbital laceration with
numbness. Surgery was performed at
Pikeville Medical Center on the date of the injury by Dr. Joel Pessa to repair
the fracture and laceration.
In its Form 111, Hubble accepted the injury as compensable
but indicated there was a dispute concerning the amount of compensation
owed.
Regarding the alleged physical injuries, Hubble introduced
the reports of Drs. Daniel Primm and Joseph Zerga. Miller introduced the report of Dr. David Muffly
and the records of Pikeville Medical Center and Dr. Anbu Nadar.
Concerning the alleged psychological injury, Hubble
introduced a report and letter of Dr. Timothy Allen. Miller introduced the report of Dr. Leigh Ann
Ford and the records of Mountain Comprehensive Care Center.
Miller testified at a June 8, 2015, deposition and the
March 10, 2016, hearing. At his
deposition, Miller testified he last worked on the date of the injury. He is currently being treated by Dr. Angela
O’Quinn. At the time of the injury, he
was a miner operator. He described the
injury as follows:
Q: How did your injury happen, or your
accident?
A: A rock fell out of the top and
smacked me in the face.
Q: What part of your face?
A: Right in the main corner of my eye
(indicating).
Q: Right or left eye?
A: My right eye.
Q: Did the rock strike any other part
of your body?
A: No. Not that I remember.
Q: What position were you in when you
were struck by the rock?
A: I was squatting. And when I got done
squatting I started to raise up, you know. So I guess it hit me when I was
coming up, you know, so.
Q: When it struck you did it push you
back down?
A: I’d imagine so. I can’t really
remember anything else.
Miller believes he was knocked
unconscious. He was taken to Pikeville
Medical Center where surgery was performed that same day. His treatment for anxiety began shortly after
the injury. Miller testified he is
depressed and moody as a result of the injury.
He also has short-term memory loss.
Because of his emotional problems, the amount of sleep varies each night. He was taking Zoloft, Depakote, and
Ibuprofen. Miller testified he has neck
and back problems as a result of the injury.
Miller has not sought employment.
He provided the following testimony as to why he could not return to
work:
Q: What, Mr. Miller, would be the
primary reason for you that you have not gone back to work?
A: I would be scared to go back. And my
doctor said if I get hit again it would probably kill me, if I was to get
struck in the same place, so.
Q: You seem to be talking about coal
mining work in that response?
A: Yes.
Q: What about other work?
A: I can’t stand to lift on nothing,
you know. It makes my back start hurting.
At the hearing, Miller testified that
in addition to operating the miner, he also rock dusted, helped build braddishes,
and hung curtains. He lifted fifty pound
bags of rock dust and concrete blocks when building braddishes. Miller currently has problems with his right
eye which he described as squinting when out in the sun and an inability to see
as well as he did. Miller testified the
May 23, 2014, incident caused neck and lower back problems. He believes he can no longer operate a miner,
explaining as follows:
Q: Do you think you could go back and
run a miner?
A: Ain’t [sic] no way.
Q: Why not?
A: I’d be scared to death to go
underground. I am scared of the dark now. I don’t go around if it’s dark. It’s
got to be lit up, you know. Other than that, I don’t think I could see good
enough out of my one eye and I can’t stay focused good enough without being
afraid I’d hurt somebody and my back, you know. I couldn’t lift that heavy
cable with that mud on it all of the time.
Mountain Comprehensive Care provides the treatment for
Miller’s psychological problems, and Dr. Quinn treats his physical problems.
In his Findings of Fact and Conclusions of Law, based on
the opinions of Drs. Muffly and Primm, the ALJ determined, Miller did not
suffer a permanent neck injury and therefore dismissed his cervical injury claim. Based on the opinions of Dr. Primm, the ALJ
concluded Miller sustained only a temporary lumbar strain which fully resolved,
and dismissed the lumbar injury claim.
Since Drs. Ford and Allen did not diagnose a cognitive impairment, the
ALJ concluded Miller did not sustain a cognitive injury due to the
accident. Regarding Miller’s entitlement
to additional TTD benefits, the ALJ entered the following Findings of Fact and
Conclusions of Law:
Plaintiff also requests additional TTD benefits
beyond November 24, 2014 and argues Dr. Allen indicated plaintiff had not
reached MMI at the time of his examination and that additional psychological
treatment was needed. Plaintiff
therefore requests TTD be extended from November 24, 2014 and continuing until
he completes 20 therapy sessions for coping skills. However, it is noted that plaintiff’s expert,
Dr. Ford, did not indicate plaintiff was not at MMI when she examined plaintiff
in April, 2015. On this issue, the ALJ
is more persuaded that plaintiff reached MMI as of November 24, 2014 as
determined by Dr. Zerga. As such, he is
not entitled to any additional period of TTD benefits.
Based upon the opinion of Dr. Muffly, the
ALJ found Miller has a 5% impairment rating as a result of the facial
injury. Relying upon the impairment
rating of Dr. Ford, the ALJ concluded Miller has an 8% impairment rating due to
the psychological injury. This generated
a total impairment rating of 13%.
Regarding Miller’s entitlement to PPD benefits enhanced by the three
multiplier pursuant to KRS 342.730(1)(c)1, the ALJ entered the following
Findings of Facts and Conclusions of Law:
Moreover, the ALJ is persuaded by the opinions of
Dr. Primm, Dr. Zerga, Dr. Allen and Dr. Ford that plaintiff has no restrictions
to prevent him from returning to the kind of work he performed at the time of
his injury. It is noted that plaintiff
testified he did not believe he could return to work as a miner because he was
afraid. However, neither Dr. Allen nor
Dr. Ford assigned any psychological restrictions against such a return.
Accordingly, plaintiff is not entitled to application of the 3x multiplier in
KRS 342.730(1)(c)(1). Instead, his award of benefits is calculated as follows:
$1,072.15 x 2/3 = $714.77 → $576.80 (maximum
2014 PPD rate) x .13 = $74.98 per week.
Miller filed a petition for
reconsideration requesting the ALJ reconsider his determination he is not
entitled to additional TTD benefits.
Miller asserted Dr. Allen opined he had not reached maximum medical
improvement (“MMI”) at the time of his examination and additional psychological
treatment was needed. Miller maintained
Dr. Zerga, upon whom the ALJ relied in determining the MMI date, is not a
psychiatrist or psychologist but a neurologist.
Thus, Miller contended he was entitled to additional TTD benefits from
November 24, 2014, when he last received TTD benefits, through April 11, 2014,
the date Dr. Ford saw him and assessed an impairment rating for the
psychological injury which the ALJ accepted.
Miller asserted that there was no evidence he had reached MMI from a
psychological or psychiatrist standpoint prior to April 11, 2014.
Miller also requested the ALJ
reconsider his determination he was not entitled to the three multiplier simply
because “he is afraid.” Miller noted Dr.
Ford’s testing revealed his responses were consistent with someone experiencing
a severe level of anxiety. Miller noted
that as a result of her evaluation, Dr. Ford concluded Miller suffered from
significant anxiety and depression symptoms which are negatively impacting his
daily functioning. Miller noted the ALJ
relied upon Dr. Ford’s impairment rating and asserted her report also
establishes there is no way he can return to his prior work in underground
mining. Miller also maintained his
testimony establishes he is unable to return to work in the mines. Consequently, additional findings were needed
along with an award of additional TTD benefits, and enhancement of the TTD
benefits by the three multiplier.
In the June 14, 2016, Order denying the
petition for reconsideration, the ALJ concluded Miller’s petition for
reconsideration was merely a re-argument of the merits of the case.
Concerning the first argument that the ALJ
failed to award additional TTD benefits, Miller observes he filed a petition
for reconsideration regarding this issue which the ALJ did not address. Miller asserts Dr. Zerga, upon whom the ALJ
relied in determining he had reached MMI, is not a psychiatrist or a
psychologist but a neurologist. Miller
argues he is entitled to TTD benefits from November 24, 2014, when payment of his
TTD benefits ceased, through April 11, 2015, the date Dr. Ford evaluated him and
assessed an impairment rating which the ALJ adopted. Miller notes when he evaluated Miller in
mid-September 2015, Dr. Allen did not assess an impairment rating because he
believed Miller was not at MMI and was in need of sessions for coping
skills. Miller asserts Dr. Ford’s report
supports the fact that he was totally disabled up until the time she provided
the impairment rating. Thus, the ALJ
should have awarded additional TTD benefits from and after November 24,
2014.
Regarding Miller’s second argument, the ALJ
erroneously found he is not entitled to benefits enhanced by the three
multiplier, Miller asserts Dr. Ford’s findings reveal he would have trouble
functioning on a daily basis. Miller
notes the ALJ did not mention this fact in his opinion. Miller cites to his testimony he was afraid
to return to the mining industry because of the potential he would hurt himself
or others. Further, he is afraid of the
dark. Miller posits that given the
nature of the injury, he could not reasonably be expected to return to the job
he was performing when injured. Miller maintains
the findings of Dr. Ford are consistent with his testimony. Miller contends the medical evidence
overwhelmingly establishes he cannot function due to his anxiety and depression
and post-traumatic stress disorder. Therefore,
he cannot return to the work he was performing at the time of the injury. Miller concludes by arguing as follows:
The decision of the Administrative Law Judge merely
stating that he could go back to work because just being scared was not enough
is not supported by substantial evidence and clearly shows that a lot of the evidence
of Dr. Leigh Ann Ford and/or Dr. Allen was not properly considered in the
context of the Plaintiff’s own testimony which stated a lot of other reasons he
was scared.
As the claimant in a workers’
compensation proceeding, Miller had the burden of proving each of the essential
elements of his cause of action including his entitlement to additional TTD
benefits and income benefits enhanced by the three multiplier. Snawder v.
Stice, 576 S.W.2d 276 (Ky. App. 1979). Since Miller was unsuccessful in
that burden, the question on appeal is whether the evidence compels a different
result. Wolf
As fact-finder, the ALJ has the sole
authority to determine the weight, credibility and substance of the evidence. Square D Co. v. Tipton,
862 S.W.2d 308 (
Concerning Miller’s first argument, KRS
342.0011(11)(a) defines temporary total disability as follows:
‘Temporary total disability’
means 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.
The
above definition has been determined by our courts of justice to be a
codification of the principles originally espoused in W.L. Harper Const.
Co., Inc. v. Baker, 858 S.W.2d 202, 205 (Ky. App. 1993), wherein the Court
of Appeals stated generally:
TTD
is payable until the medical evidence establishes the recovery process,
including any treatment reasonably rendered in an effort to improve the
claimant's condition, is over, or the underlying condition has stabilized such
that the claimant is capable of returning to his job, or some other employment,
of which he is capable, which is available in the local labor market. Moreover,
. . . the question presented is one of fact no matter how TTD is defined.
In Central Kentucky Steel v. Wise,
19 S.W.3d 657 (Ky. 2000), the Supreme Court further explained that “[i]t would
not be reasonable to terminate the benefits of an employee when he is released
to perform minimal work but not the type that is customary or that he was
performing at the time of his injury.”
In Magellan Behavioral Health v. Helms, 140 S.W.3d 579 (Ky. App.
2004), the Court of Appeals instructed that until MMI is achieved, an employee
is entitled to a continuation of TTD benefits so long as she remains disabled
from her customary work or the work she was performing at the time of the
injury. The court in Helms, supra,
stated:
In order to be entitled to temporary total
disability benefits, the claimant must not have reached maximum medical
improvement and not have improved enough to return to work.
. . .
The second prong of KRS 342.0011(11)(a) operates to deny
eligibility to TTD to individuals who, though not at maximum medical
improvement, have improved enough following an injury that they can return to
work despite not yet being fully recovered.
In Central Kentucky Steel v. Wise, [footnote omitted] the
statutory phrase ‘return to employment’ was interpreted to mean a return to the
type of work which is customary for the injured employee or that which the
employee had been performing prior to being injured.
In
Double L Const., Inc. v. Mitchell, 182 S.W.3d 509, 513-514 (Ky.
2005), the Supreme Court further elaborated with regard to the standard for
awarding TTD as follows:
As defined by KRS 342.0011(11)(a), there are two requirements
for TTD: 1.) that the worker must not have reached MMI; and 2.) that the worker
must not have reached a level of improvement that would permit a return to
employ-ment. See Magellan Behavioral Health v. Helms,
140 S.W.3d 579, 581 (Ky. App. 2004). In the present case, the employer has made
an ‘all or nothing’ argument that is based entirely on the second requirement.
Yet, implicit in the Central Kentucky Steel v. Wise, supra, decision is that,
unlike the definition of permanent total disability, the definition of TTD does
not require a temporary inability to perform ‘any type of work.’ See KRS
342.0011(11)(c).
Central Kentucky Steel v. Wise, supra, stands for the
principle that if a worker has not reached MMI, a release to perform minimal
work rather than ‘the type that is customary or that he was performing at the
time of his injury’ does not constitute ‘a level of improvement that would
permit a return to employment’ for the purposes of KRS 342.0011(11)(a). 19
S.W.3d at 659.
In his November 17, 2014, report, Dr.
Zerga, upon whom the ALJ relied, set forth the following answers to questions
proposed by Hubble’s insurance carrier:[1]
1.
The diagnosis is status post orbital trauma and trauma to the right maxillary
sinus with penetration of maxillary sinus. This has been surgically corrected.
He is left with some minor scar, as well as numbness in the area of the wound.
He also has headaches, which are under control. In my opinion, I see no
evidence of any significant cognitive issues in this gentleman other than
anxiety. He has some minor complaints in his neck. He has non-radicular low
back pain without findings of radiculopathy.
2.
The objective findings are the medical records and the physical exam.
3. In
my opinion, he has reached maximum medical improvement.
. .
.
5.
In my opinion, he could be tapered off some of the medications he is on at this
time. The Flexeril could be tapered. The Depakote should be continued for
another four months. Ibuprofen can be tapered. Maxalt can be continued to be
used as a prn medication. I am not sure what the indications for the Zoloft are
at this point.
6. He
can return to work.
7. He
would have no restrictions in his work. I would acclimate him to the work
situation over a period of one week.
8. He
has no restrictions.
9. He
does not fall into a neat category as far as giving him an impairment rating. I
would arbitrarily give him 4 percent for the facial trauma and resulting
laceration.
10.
The objective medical findings is he had the injury.
11.
There is no portion of this that is age related.
12.
He is on several medications relative to the work injury. As I indicated above,
some of these can be tapered. Some of them should be continued for right now.
As of May 15, 2015, he will not need medications.
13.
Overall, I believe this claim has been handled. I don’t see any reason why he
can’t return to work.
Significantly, Dr. Zerga did not
qualify his opinion regarding MMI by stating his opinion as to MMI only related
to the alleged physical injuries. In
fact, Dr. Zerga opined that other than anxiety he saw no “significant cognitive
issues.” The fact that Dr. Zerga is a
neurologist and not a psychiatrist or psychologist does not cause his opinion regarding
MMI to be inadmissible. Rather, it
merely goes to the weight to be afforded his opinions on this issue. Further, we note Miller made no objection to
the competency of Dr. Zerga to express an opinion as to attainment of MMI both
for the physical and psychological injuries.
The ALJ could reasonably conclude Dr. Zerga believed Miller had attained
MMI both physically and psychologically at the time he saw Miller.
Assuming, arguendo, Dr. Zerga’s opinion regarding MMI had no bearing upon
whether Miller attained MMI for the psychological injury, Dr. Zerga’s opinion
regarding Miller’s ability to return to work defeats his entitlement to
additional TTD benefits as Miller did not meet the two prong test entitling him
to additional TTD benefits. Dr. Zerga
twice stated his belief Miller had no restrictions and was capable of returning
to work. Thus, Miller did not establish
he had not reached a level of improvement that would permit a return to
employment as required by the statute and case law. Dr. Zerga’s opinions defeat Miller’s
entitlement to additional TTD benefits because he failed to meet both parts of
the two prong test necessary for entitlement to TTD benefits.
In addressing Miller’s entitlement to
additional TTD benefits, the ALJ did not address the two prong test set forth
in the statute and relevant case law. Presumably,
since the ALJ found Miller had attained MMI when seen by Dr. Zerga, the ALJ
concluded no additional analysis was needed.
Further, Miller did not request an analysis of whether he had reached a
level of improvement which would permit a return to employment. We emphasize Miller had the burden of
establishing entitlement to TTD benefits by satisfying the two prong test required
by the statute and case law.
In addition, we note in the Form 107
attached to her report, Dr. Ford did not answer the question: “Does the
plaintiff retain the physical capacity to return to the type of work performed
at the time of the injury?” Consequently,
Miller did not establish through Dr. Ford that he had not reached a level of
improvement that would permit a return to employment. Even though Dr. Allen
opined Miller was not at MMI, he believed Miller had no psychiatric work
restrictions and could return to work while receiving ongoing psychotherapy
treatment. Dr. Allen’s statement does
not support an additional award of TTD benefits.
The opinions of Drs. Zerga constitute
substantial evidence supporting the ALJ’s determination Miller is not entitled
to an additional period of TTD benefits.
We find no merit in Miller’s second
argument asserting the ALJ erred in not enhancing his PPD benefits via the
three multiplier. The fact the ALJ
relied upon Dr. Ford’s impairment rating does not mandate he rely upon the
opinions of Dr. Ford in resolving another contested issue. As previously stated, an ALJ may rely upon
the opinion of a physician in resolving one contested issue but reject that
same physician’s opinion in resolving another contested issue. Further, we note Dr. Ford offered no opinion
in her report and in the Form 107 she completed as to whether Miller could
return to the type of work performed at the time of the injury. In determining Miller possessed the ability to
return to the type of work performed at the time of the injury, the ALJ relied
upon the opinions of Drs. Primm, Zerga, Allen, and Ford. The ALJ correctly noted Dr. Ford did not
assess any work restrictions. As
previously noted, Dr. Allen opined Miller possessed the ability to return to
work while receiving psychotherapy treatment.
In his report Dr. Zerga twice stated Miller can return to work.[2] The opinions of Drs. Allen and Zerga that
Miller had no limitations and could return to work constitute substantial
evidence supporting the ALJ’s decision not to enhance Miller’s benefits by the
three multiplier.
Because the ALJ’s decision on the two
issues raised by Miller on appeal are supported by substantial evidence and the
record does not compel the result Miller seeks on appeal, we are without
authority to disturb the ALJ’s decision on appeal. Special Fund v. Francis, supra.
Accordingly, the May 9, 2016, Opinion,
Order, and Award and the June 14, 2016, Order denying the petition for reconsideration
are AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON RANDY G CLARK
P O BOX 1529
PIKEVILLE KY 41502
COUNSEL
FOR RESPONDENT:
HON TERRI SMITH WALTERS
P O BOX 1167
PIKEVILLE KY 41502
ADMINISTRATIVE
LAW JUDGE:
HON GRANT S ROARK
657 CHAMBERLIN AVE
FRANKFORT KY 40601
[1] Dr. Zerga’s November 17, 2014, report did
not set out the questions he was answering.
[2] Since Dr. Primm’s opinion Miller had no
physical restrictions was expressed from an orthopedic standpoint which related
solely to Miller’s claim for alleged cervical and lumbar injuries which the ALJ
dismissed, his opinions have no bearing on the issue as framed by Miller on
appeal.