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