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February 3, 2017 201502142

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  FEBRUARY 3, 2017

 

 

CLAIM NO. 201502142

 

 

HOWELL & HOWELL CONTRACTORS, INC.              PETITIONER

 

 

 

VS.          APPEAL FROM HON. R. ROLAND CASE,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

PATRICK MARSHALL and

HON. R. ROLAND CASE,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

ALVEY, Chairman.  Howell & Howell Contractors, Inc. (“Howell”) appeal from the Opinion, Award, and Order rendered August 23, 2016 by Hon. Roland Case, Administrative Law Judge (“ALJ”) awarding Patrick Marshall (“Marshall”) permanent partial disability benefits increased by the three multiplier pursuant to KRS 342.730(1)(c)1 and medical benefits for a seizure disorder caused by a work accident occurring on December 30, 2013.  Howell also appeals from the October 17, 2016 order overruling its petition for reconsideration. 

          On appeal, Howell argues the finding Marshall lacks the physical capacity to return to the type of work he was performing at the time of his injury is not supported by substantial evidence.  Because we determine substantial evidence supports the ALJ’s determination, we affirm.  

          Marshall filed a Form 101 stating on December 30, 2013 he suffered cervical, thoracic, lumbar and head injuries.  He alleged this occurred “while standing next to disabled vehicle, another motorist struck Plaintiff’s vehicle knocking plaintiff unconscious and to the ground.” 

          Marshall testified by deposition on April 11, 2016, and at the hearing held June 24, 2016.  Marshall completed the 9th grade and earned his GED.  He later completed a four year program to become a journeyman painter.  Marshall began working for Howell, an industrial and commercial painting company, in September 2005 as a third year apprentice painter, and subsequently became a journeyman painter.  Marshall testified his job duties and physical requirements depended on the job site to which he was assigned.  Marshall explained that in addition to working as a foreman or in quality control, at times he worked as a working foreman or journeyman painter.  As a journeyman painter for Howell, he painted offices and power plants, performed work in lifts and on scaffolding, climbed ladders, and occasionally operated equipment such as sandblasters, sprayers and needle guns.  He also used paintbrushes, scrapers, and roller poles. 

          Marshall testified that at the time of the accident, his position was “journeyman painter, foreman, QC.”  He was working on an industrial painting job for Howell at the Ghent Power Plant in Carrollton, Kentucky.  For that particular job he was a “foreman, quality control” and used instrumentation to check “millages.”  He worked on ladders, scaffolding, and lifts “at times” for this job, but did not use power or vibratory tools. 

          On December 30, 2013, while driving the company vehicle to the job site, he slid on black ice and hit a guardrail.  Marshall struck his head on the windshield, but did not lose consciousness.  He exited the vehicle to call his superintendent.  Another car slid into the company vehicle where Marshall was standing, striking him. 

          Marshall lost consciousness after he was struck and next remembers waking up in the hospital.  Marshall was treated for a concussion and discharged.  Several months following the accident, Marshall experienced numbness and tingling in his left hand.  His symptoms gradually spread into the left arm, the left side of his face, and into his left leg.  Marshall sought treatment for his symptoms in August 2014, and was referred to Dr. Joseph Seipel, a neurologist.  By this time, his symptoms occurred at various times throughout the day, and he experienced up to fifteen episodes daily. 

          Dr. Seipel diagnosed sensory seizures and prescribed Keppra.  Marshall currently takes four pills a day, for a total of 2000 milligrams daily.  He testified his seizures are mostly controlled, but still occur occasionally, stating, “It’s not something that happens every day.  But, from time to time.  Yeah.  I do.”  Marshall anticipates taking Keppra indefinitely.  His seizures last from thirty seconds to one minute.  When he has a seizure, he has to stop what he is doing and wait for it to pass. 

          At his deposition, Marshall testified he missed one week of work after the accident.  He returned to his previous job duties, explaining the particular job he performed at the Ghent power plant was considered light duty anyway.  “. . . All I had to do was go around and check millages and tell people what to do.  I didn’t basically have to do hands-on work, do anything . . . I didn’t actually have to use the materials of nothin’; I just did the readings.”  Marshall testified he continued to perform the same work tasks after the date of the injury which he had previously performed, including “QA/QC” and as a foreman.  However, he avoids using vibratory tools, including sandblasting and needle sanding, due to his sensory seizures.  Likewise, he avoids working at heights if possible.  If he is required to perform elevated job tasks, he ties off.  Based upon his restrictions, he does not believe he can perform all job tasks required of a journeyman painter.  Marshall stated he continues to work for Howell who has tried to accommodate his restrictions. 

          Mike Dudukovich (“Dudukovich”), Howell’s general manager, also testified at the hearing.  Marshall has been a foreman there for several years where he sets up projects, supervises personnel, performs quality control inspections, orders materials, maintains equipment, communicates with customers and the owner’s representative, and coordinates jobs.  Marshall’s job duties have not changed since the December 30, 2013 accident.  Dudukovich stated Marshall was assigned restrictions only a couple of months ago.  Prior to the imposition of those restrictions, Marshall neither reported problems performing his job nor requested job modifications or accommodations.  Dudukovich stated the recently assigned restrictions have not prevented Marshall from continuing to perform his job and he is qualified to work as a working foreman or in quality control.  Dudukovich acknowledged Marshall has, “probably been on a sandblasting job.  He’s - - he’s probably not one of our go to sandblasters.”  However, he did not sandblast on a regular basis prior to his accident.  He also acknowledged Marshall was a working foreman, and performed labor tasks if they were shorthanded or someone called in.  Dudukovich agreed with Marshall’s description of his job duties and responsibilities. 

          Gregory Mullins (“Mullins”), Howell’s general superintendent, also testified at the hearing.  Mullins confirmed Marshall is a foreman, and his job duties have not changed since the accident.  Mullins also testified Marshall worked for a period of time without restriction.  During the time he worked without restrictions, Mullins did not notice any problems with Marshall’s work activities or performance compared with his pre-injury duties.  Mullins stated Howell has accommodated the recently assigned restrictions.  Mullins acknowledged he did not work with Marshall on a daily basis, but visited occasionally.  Mullins agreed a journeyman painter had to operate a sandblaster and needle gun, work at heights, use vibratory or power tools, and occasionally operate a heavy truck.

          The medical records demonstrate Marshall was initially treated in the emergency department at King’s Daughters’ Healthcare, and then transferred to the emergency department at the University of Louisville on December 30, 2013.  Marshall was diagnosed with acute back pain; thoracic, cervical and lumbar strain; contusion; head injury; concussion with amnesia and loss of consciousness; and abrasion to head.  Marshall did not seek treatment again until August 27, 2014, when he complained to Dr. Robert Receveur of a tingling and shocking sensation in his left arm and leg. 

          Marshall was referred to a neurologist and began treating with Dr. Joseph Seipel in November 2014.  He noted several months after the accident Marshall began experiencing episodes of tingling in left hand, which gradually spread into his left elbow, shoulder, chest and leg, neck and face.  Dr. Seipel noted Marshall experienced several episodes per day, sometimes up to fifteen, each lasting about twenty seconds.  Dr. Seipel ultimately diagnosed focal sensory seizure disorder secondary to a closed head injury sustained during the December 30, 2013 accident.  Dr. Seipel prescribed Keppra.  In the last treatment note of record dated October 14, 2015, Dr. Seipel stated Marshall was doing well with Keppra, but has brief seizures in his left hand if he delays in taking his medication.  Marshall reported the frequency and duration of seizures have decreased, and he has no problems with work performance.  Dr. Seipel diagnosed seizure disorder, deteriorated.  He prescribed 500 milligrams of Keppra, two per day, but noted he may increase to five per day if needed and advised Marshall to follow-up in one year. 

          Marshall filed the March 9, 2016 report of Dr. Blaine Lisner who diagnosed a sensory type seizure caused by the closed head injury, trauma to the head and probably brain, and concussion suffered as a result of the December 30, 2013 work accident.  Dr. Lisner assessed a 6% impairment rating pursuant to the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”).  Dr. Lisner stated Marshall is at maximum medical improvement and, except for the prescription of Keppra, needs no additional treatment.  Dr. Lisner stated as follows regarding Marshall’s physical ability to return to work and restrictions:

In this case, Mr. Marshall has responded very well to the Keppra 500 mg; however, certain tasks in his work routine, primarily working on a scaffold and/or, driving a heavy truck as he did prior to the motor vehicle accident and his ability not only to operate a motor vehicle but more so some of the working environment is limited.

 

. . . .

 

The patient did indicate that he works as a foreman, but there are certain duties he cannot perform.  He cannot be on scaffolding, he feels he probably should not engage in sandblasting because of the vibratory nature of the tools he would use, and I’m in agreement with that.  He has stated that he is no longer confident driving a heavy truck like he used to be able to until his work accident of 12/20/2013, which I would advise him to not do so as to not create risk for himself or to others.

 

The limitations or restrictions on his jobs are the ones he is already following. The patient really shouldn’t be on top of scaffolding.  It’s unlikely, the seizures, being sensory in their presentation, would change over to a motor presentation, but I would advise caution to the patient in this regard.  If this even happened on one occasion, it could precipitate a situation where the patient is in physical danger.  Therefore the patient should avoid working on raised surface, and using tools that have repetitive movements such as drills, or sandblasting equipment, because these could activate sensory seizure.

 

          Howell filed the March 31, 2016 report of Dr. Joseph Zerga, who also testified by deposition on April 25, 2016.  He diagnosed sensory seizures following trauma to the right side of the brain.  He noted Marshall started having Jacksonian March sensory symptoms, which went away once he was prescribed Keppra.  Dr. Zerga opined Marshall’s condition was caused by the December 30, 2013 work accident.  He assessed a 4% impairment rating pursuant to the AMA Guides and stated no additional treatment or evaluation was necessary.  Dr. Zerga stated as follows regarding restrictions and Marshall’s ability to return to work: 

He would have lifelong restrictions of working around machinery or heights.  If he has a seizure, by Kentucky law he has to go three months without driving.  Every time he has a seizure the clock starts again.  He is functioning well at work.  He has taken appropriate precautions.  He can do his current job, which is the same job he was doing at the time of the injury.

 

          Dr. Zerga’s testimony is consistent with his report.  Dr. Zerga testified Marshall’s seizure disorder is permanent and he will likely require Keppra as a lifetime medication to control his symptoms.  If Marshall ceases taking Keppra, his symptoms will likely return.  Sensory seizure disorders like Marshall’s do not cause loss of consciousness, but have symptoms of numbness.  Typically, focal sensory seizures are stable and do not progress.  Dr. Zerga stated Marshall’s sensory seizures do not impair his consciousness or his ability to function, and does not put him at risk for injury when he has an episode.  Dr. Zerga recommended follow-up visits two times per year for medication refills. 

          Dr. Zerga noted the Keppra is working well for Marshall.  Dr. Zerga testified the restrictions he assessed are based upon a worst-case scenario of having a seizure accompanied by an alteration or loss of consciousness, which is extremely unlikely to occur.  Dr. Zerga explained the restrictions are relative, and stated it would be an acceptable risk if Marshall climbs a ladder occasionally.  Considering the restrictions and Marshall’s current symptoms, Dr. Zerga did not anticipate any problems which would preclude him from doing his job. 

     In the August 23, 2016 opinion, the ALJ found Marshall sustained a work-related injury on December 30, 2013.  Pursuant to the stipulations reflected in the Benefit Review Conference Order and Memorandum, the ALJ found Marshall’s pre-injury average weekly wage was $837.34 and his post-injury average weekly wage is only $782.40.  The ALJ noted Marshall is not entitled to temporary total disability benefits since he only missed one week of work. The ALJ adopted Dr. Lisner’s 6% impairment rating.  In finding the three multiplier applicable, the ALJ stated as follows:

The remaining issue for the ALJ to decide is whether or not the plaintiff is entitled to the 3 factor. The plaintiff has returned to work but is earning a lower average weekly wage. This is due at least in part and in fact mainly because of the seasonal nature of the plaintiff’s work and the fact that he is no longer working as much overtime at least in part for personal reasons rather than restrictions. The plaintiff testified he did have to work at heights at times and would be working on ladders and scaffolding. He also noted he had to use vibratory power tools. He also noted he would have to work around machinery. Dr. Lisner indicated the plaintiff should not work on top of scaffolding and should avoid working on a raised surface and using tools that had repetitive movements such as drills or sandblasting equipment because those could activate a sensory seizure. Dr. Zerga felt the plaintiff would have lifelong restrictions of working around machinery or heights. Both physicians, however, felt the plaintiff could continue doing the job he was doing at the present time. The issue is whether or not the plaintiff has the physical capacity to return to the type of work that he was performing at the time of his injuries. The restrictions of no working at heights or on scaffolding would prevent the plaintiff from returning to the full activities he was performing at the time of his injury. Although, the plaintiff has returned to work and is working satisfactory the restriction of not working at heights or on scaffolding would be inconsistent with the work he was performing at the time of the injury. Additionally, this is certainly a significant restriction when considering the plaintiff’s customary occupation as a journeyman painter. A painter would be expected to be able to work at heights or on scaffolding at times. The defendant employer is to be admired for accommodating the plaintiff’s restrictions. The plaintiff is to be admired for returning to work. After carefully considering the testimony of Dr. Zerga and the report of Dr. Lisner and particularly the restrictions of both physicians recommended to the plaintiff the ALJ concludes the plaintiff does not retain the physical capacity to return to the type of work he was performing at the time of the injury. The lifetime restriction for a painter not to work at heights or on scaffolding certainly is a significant restriction. It does not appear it limits the plaintiff at the present time in his present job. However, the plaintiff is only 35 years old and it is likely that at some point in his career those restrictions will affect his ability to obtain and keep employment.

 

          Howell filed a petition for reconsideration essentially making the same arguments it now raises on appeal.  The ALJ summarily overruled its petition in the October 17, 2016 Order. 

          On appeal, Howell argues Marshall failed to prove he lacks the physical capacity to return to the type of work he was performing at the time of his injury, and the ALJ’s determination is not supported by substantial evidence.  Howell asserts Marshall continued to work his job as foreman after the December 30, 2013 accident and he was under no restrictions until he was evaluated by Dr. Lisner on March 9, 2016.  Regardless, Howell asserts Marshall continued to work as foreman and it is accommodating his recent restrictions.  In support of its argument, Howell cites to the portion of Marshall’s deposition testimony in which he agreed his job duties have not changed since his injury other than avoidance of working with vibratory equipment.  Howell also cites to the testimony provided by Mullins and Dudukovich.  Howell points to Dr. Zerga’s testimony who stated the likelihood of Marshall’s sensory seizures progressing to motor seizures is rare, as well as Dr. Lisner’s opinion that this is unlikely to happen.  Howell argues this remote likelihood does not entitle Marshall to the three multiplier since his current condition does not prevent him from performing the duties of a foreman. 

          Marshall, as the claimant in a workers’ compensation proceeding, had the burden of proving each of the essential elements of his cause of action, including entitlement to the three multiplier pursuant to KRS 342.730(1)(c)1. See KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Since he was successful in that burden, the question on appeal is whether there is substantial evidence of record to support the ALJ’s decision.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).  Substantial evidence” is defined as evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable persons.  Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).  

          In rendering a decision, KRS 342.285 grants an ALJ as fact-finder the sole discretion to determine the quality, character, and substance of evidence.  Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).  An ALJ may draw reasonable inferences from the evidence, 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.  Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).  Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000).  An ALJ is vested with broad authority to decide questions involving causation.  Dravo Lime Co. v. Eakins, 156 S.W.3d 283 (Ky. 2003).  Although a party may note evidence supporting a different outcome than 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).  Rather, it must be shown there was no evidence of substantial probative value to support the decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). 

          The function of the Board in reviewing an ALJ’s decision is limited to a determination of whether the findings made 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).  The Board, as an appellate tribunal, may not usurp the ALJ's role as fact-finder by superimposing its own appraisals as to weight and credibility or by noting other conclusions or reasonable inferences that otherwise could have been drawn from the evidence.  Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).

          The sole issue on appeal is whether substantial evidence supports the ALJ’s determination the three multiplier is applicable.  KRS 342.730(1)(c)1 provides, “If, due to an injury, an employee does not retain the physical capacity to return to the type of work that the employee performed at the time of injury, the benefit for permanent partial disability shall be multiplied by three (3) times the amount otherwise determined under paragraph (b) of this subsection . . . .”  A worker's post-injury physical capacity and ability to perform the same type of work as at the time of injury are matters of fact to be determined by the ALJ.  Ford Motor Company v. Forman, 142 S.W.3d 141, 144 (Ky. 2004).  The Kentucky Supreme Court has construed, “the type of work that the employee performed at the time of injury” to mean the actual jobs that the individual performed.  Id. at 145.  The phrase also has been construed to refer broadly to the various jobs or tasks that the worker performed for the employer at the time of injury rather than to refer narrowly to the job or task being performed when the injury occurred.  Miller v. Square D. Company, 254 S.W.3d 810, 814 (Ky. 2008).

          Substantial evidence supports the ALJ’s determination Marshall does not have the physical capacity to return to the type of work that he was performing at the time of his injuries in light of the restrictions imposed by Drs. Lisner and Zerga, as well as Marshall’s testimony.  In his report, Dr. Lisner restricted Marshall from working on scaffolding, raised surfaces, and using tools requiring repetitive movements such as drills or sandblasting equipment.  Dr. Lisner stated although Marshall has responded well to Keppra, he is limited in performing certain work tasks he performed prior to the accident, primarily working on scaffolding and driving a heavy truck. 

          In his report, Dr. Zerga assigned “lifelong restrictions of working around machinery or heights.”  Dr. Zerga noted Marshall is functioning well at work and takes appropriate precautions.  Dr. Zerga opined Marshall is capable of performing his current job, which is the same job he was doing at the time of the accident.  

          Marshall testified that prior to his work accident, his job duties varied depending on the particular job site.  Marshall explained he was not always a foreman or in quality control, and at times worked as a working foreman or journeyman painter.  At the time of the accident, he was working on the Ghent power plant as a foreman and quality control.  He used instrumentation to check millages and worked at heights, but did not use vibratory or power tools.

          At his deposition, Marshall stated he was able to return to resume his previous job duties at the Ghent power plant since he was primarily checking millages.  Although Marshall testified he attempted to perform any job, he also stated he avoids using vibratory tools, such as the sandblaster and needle gun.  He admitted to working at heights since the accident and has been tied off every time.  At the hearing, when asked if he strictly followed Dr. Zerga’s and Dr. Lisner’s restrictions, he stated he would not be able to perform all the job duties required as a journeyman painter.  Marshall agreed working around machinery, on heights, raised surfaces, scaffolding, and operating tools with repetitive movements or vibrations, including a sandblaster, are typical job duties of a journeyman painter.  

          The restrictions imposed by Drs. Lisner and Zerga, as well as Marshall’s testimony, constitute substantial evidence supporting the ALJ’s decision.  Although Howell is able to point to portions of the evidence in support of its position, this is not sufficient to require reversal on appeal.  McCloud v. Beth-Elkhorn Corp., supra.  The ALJ weighed the evidence and provided a sufficient analysis in support of his determination the three multiplier is applicable to the case sub judice.  We will not disturb the ALJ’s decision on appeal.

          Accordingly, the August 23, 2016 Opinion, Award, and Order and the October 17, 2016 Order on Petition for Reconsideration rendered by Hon. Roland Case, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.

 

 


 

 

COUNSEL FOR PETITIONER:

 

HON WARD BALLERSTEDT

1315 HERR LANE, STE 210

LOUISVILLE, KY 40222

 

COUNSEL FOR RESPONDENT:

 

HON PAUL A BRIZENDINE

300 MISSOURI AVE, STE 200

JEFFERSONVILLE, IN 47130

 

ADMINISTRATIVE LAW JUDGE:

 

HON R ROLAND CASE

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601