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October 7, 2016 201481898

Commonwealth of Kentucky 

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 Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Compelling evidence” is defined as evidence that is so overwhelming no reasonable person could reach the same conclusion as the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985). The function of the Board in reviewing the ALJ’s decision is limited to a determination of whether the findings made by the ALJ are so unreasonable under the evidence that they must be reversed as a matter of law.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

     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 (Ky. 1993). Similarly, the ALJ has the discretion to determine all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979).  The ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof.  Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000). Although a party may note evidence that would have supported a different outcome than that reached by an ALJ, such proof is not an adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).  The Board, as an appellate tribunal, may not usurp the ALJ’s role as fact-finder by superimposing its own appraisals as to the weight and credibility to be afforded the evidence or by noting reasonable inferences that otherwise could have been drawn from the record.  Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999).  So long as the ALJ’s ruling with regard to an issue is supported by substantial evidence, it may not be disturbed on appeal.  Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). 

          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.” Id. at 659. In other words, where a claimant has not reached MMI, TTD benefits are payable until such time as the claimant’s level of improvement permits a return to the type of work she was customarily performing at the time of the traumatic event. 

          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.

 

Id. at 580-581.

          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.