Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  April 20, 2018

 

 

CLAIM NO. 201173481

 

 

SOUTHWIRE CO/KY ROD & CABLE                    PETITIONER

 

 

 

VS.        APPEAL FROM HON. JEANIE OWEN MILLER,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

SHONDESE FRAZIER

DR. SHILPI MITTAL

and HON. JEANIE OWEN MILLER,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

                       * * * * * *

 

 

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

 

STIVERS, Member. Southwire Co/Ky Rod & Cable (“Southwire”) seeks review of the November 21, 2017, Opinion, Order, and Award of Hon. Jeanie Owen Miller, Administrative Law Judge (“ALJ”), finding on reopening that Shondese Frazier (“Frazier”) is totally occupationally disabled and awarding permanent total disability (“PTD”) benefits commencing August 1, 2016. The ALJ also resolved a medical fee dispute filed by Southwire in Frazier’s favor. Southwire also appeals from the December 18, 2017, Order overruling its petition for reconsideration except for allowing it a credit for permanent partial disability (“PPD”) benefits it paid during the period Frazier was awarded PTD benefits.

          On appeal, Southwire challenges the ALJ’s decision on three grounds. First, it argues the claim was improperly reopened since Frazier failed to present a prima facie basis for reopening. Second, Southwire asserts the ALJ committed an abuse of discretion by ignoring the October 3, 2013, Opinion, Award, and Order of Hon. Edward Hays, Administrative Law Judge (“ALJ Hays”) and finding Frazier permanently totally disabled. Third, Southwire asserts the ALJ committed an abuse of discretion in finding Frazier permanently totally disabled.

          In an October 3, 2013, Opinion, Award, and Order, ALJ Hays found Frazier sustained a compensable work-related injury on September 23, 2011, “when he was struck on his forehead by a metal rod that was spinning at a high rate of speed.” ALJ Hays concluded Frazier had a 5% impairment rating based on the 5^th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”) resulting from the physical injury and a 5% impairment rating resulting from the psychological component of the claim. Frazier had a 10% impairment rating.

          Relying upon the work restrictions of Dr. Warren Bilkey, ALJ Hays enhanced Frazier’s award by the three multiplier pursuant to KRS 342.730(1)(c)1. Frazier’s award was also enhanced by 30% pursuant to KRS 342.165(1). ALJ Hays found Frazier was not totally disabled and did not have a permanent impairment for a cervical condition. He also referred Frazier for a vocational rehabilitation revaluation.

          ALJ Hays’ decision was not appealed.

          On August 1, 2016, Frazier filed a motion to reopen asserting his condition is more symptomatic and disabling and his limitations related to his injury have increased. He claimed he needs more assistance with his activities of daily living, has been unable to undergo a vocational rehabilitation evaluation, and is totally occupationally disabled. He attached his affidavit, a July 5, 2016, letter from Dr. Shilpi Mittal, and the third page of Dr. Mittal’s treatment note of July 20, 2016.

          Southwire filed an objection to the motion asserting Frazier had not made a prima facie showing for reopening since Dr. Mittal did not conclude his 10% impairment rating has increased. It contended the medical record and the report of Dr. Mittal did not reflect Frazier’s condition has changed since the October 3, 2013, Opinion, Award, and Order.

          By order dated August 30, 2016, Hon. Robert Swisher, former Chief Administrative Law Judge (“former CALJ Swisher”) concluded Frazier had set forth a prima facie case for reopening pursuant to KRS 342.125, and he sustained the motion to reopen to the extent the claim would be assigned to an ALJ for further adjudication.

          Southwire filed a petition for reconsideration asserting Frazier had not provided any probative medical proof establishing a change in disability as shown by objective medical evidence of a worsening due to a condition caused by the injury.

          By order dated October 5, 2016, the ALJ overruled Southwire’s petition for reconsideration concluding the motion was supported by Frazier’s affidavit and Dr. Mittal’s report.

          On December 19, 2016, Southwire filed a Form 112 challenging the reasonableness and work-relatedness of Dr. Mittal’s ongoing medical treatment and a motion to join the doctor.

          Frazier testified at a November 8, 2016, deposition and the September 19, 2017, hearing. At his deposition, Frazier testified he is a high school graduate and has mostly performed jobs requiring assembly line work. These jobs entailed lifting between 20 and 50 pounds. All required constant standing.

          Frazier began working for Southwire on July 19, 2004, as a general laborer. He took wires off bobbins and rolled the bobbins over on to a conveyor line. He estimated the bobbins weighed 100 pounds. Frazier moved to “draw machine operator,” the job he was performing at the time of the injury. He described that job as follows:

A: You would have to string up the machines. Well, first of all, you had to weld in the coils because you had big, regular coils. Then on various sizes of the wire, you’d have to string a machine up to whatever size the wire was. Then you’d have to put the wire onto the bobbins. Well, you would hook it up where the wire was going through the bobbins that’s running the machine. Then you have to do finish tags as far as on the raw product. Then you have to take the bobbins and roll them out where they could pick them up.

          Frazier was injured when a “wire whipped around and smacked [him] upside [his] head.” He returned to work performing light duty. Frazier estimated he was off work due to headaches once a month. He stopped working at Southwire on May 1, 2012, when light duty work was no longer available. Frazier has looked for manufacturing, production, and telemarketing jobs and believed he last applied for a job in June 2016. After the ALJ’s 2013 decision, he applied for and received unemployment benefits.

          Frazier was eventually referred to Vanderbilt University Medical Center (“Vanderbilt”) where he was initially treated by Dr. Elizabeth Ferluga. When she left Vanderbilt, Dr. Mittal began treating him. He provided a list of medications prescribed for his headaches. He estimated in the last three weeks to a month, the frequency of his headaches have increased. He uses a TENS unit for headaches. Frazier undergoes Botox injections every three months which do not help. Dr. Mittal referred him to the Vanderbilt Pain Clinic where he was seen by Dr. Tracy Jackson who performed nerve block injections. Drs. Mittal and Jackson remain his treating physicians. He sees Dr. Mittal every three months and Dr. Jackson every two to three months. On May 17, 2016, he underwent cervical fusion surgery performed by Dr. Clint Devin at Vanderbilt and returned to see him on November 21, 2016. Frazier offered the following testimony regarding the change in his physical condition:

A: Well, I mean my condition has definitely gotten worse, I mean as far as I’m having more frequent headaches. A lot of the sensations as far as with the weather, with the light, with the activity as far as me trying to do a lot of everyday things. And it’s even caused strain as far as like when I try to bathe, you know. It’s causing more strain on my head if I do a lot of movement.

Q: So head movement seems to aggravate your symptoms?

A: A lot.

Q: And I think you mentioned light and weather. How does the weather affect it? Is it cold weather brings on more?

A: Well, yeah, cold weather – Because I wear a hat constantly. The coldness, it just seems like the air aggravates it a lot. Rainy days, when it’s rainy, it causes an effect on me. And likewise with heat, a lot of heat causes a lot of pressure going on in my head as well.

Q: Okay. Now you mentioned your headaches sometimes goes from back to front and sometimes goes from front to back. What type of headaches do you have? Is it just pounding headaches, do you have pressure?

A: It varies. Sometimes it’s throbbing pain, sometimes it’s a lot of pressure. And then there’s sometimes, you know, it’s stabbing. It varies.

Q: Okay. Do these headaches come on on their own or are they –

A: Oh, yeah.

Q: You mentioned light, weather, movement of your head seems to aggravate it. Does noise seem to affect it?

A: A lot, a lot, yeah.

         Frazier’s daily activities occasionally included bathing, folding laundry, and dusting. He primarily sits around. He performs no yard work. He experiences headaches daily. He estimated his pain averages seven on a scale of one to ten. On bad days, his pain is ten plus. He experiences bad days approximately three times a week. When he has intense pain he will lie down in dark places or just sit quietly. Although he underwent a vocational evaluation, he is not interested in vocational rehabilitation because his headaches limit his concentration. The last couple of months he has experienced depression, leading Dr. Mittal to refer him to a psychologist. He explained how his treatment has increased. He does not take medications containing narcotics. He can read and look at a monitor for approximately three to four minutes. He does not go to movies because the light and sound bother him significantly.

          At the hearing, Frazier testified he has not worked since 2012. In the last couple of years, Dr. Mittal has increased his medications which only weaken his symptoms. His concentration level is “very little.” He can stand 20 to 25 minutes. His daily headaches have become more frequent and stronger.

          Frazier’s exercise consists mainly of walking. Frazier has applied for telemarketing, retail, and car sale jobs. He expressed a willingness to attempt to work forty hours a week. He has had no job interviews. He believes his headaches prevent him from working. He has little patience and does not go out in public or socialize.

          Frazier’s wife, Regina Frazier (“Regina”), testified at the hearing that she believes his condition has changed within the last two years as he has no interest in doing anything and they have no sex life. He is often frustrated because of his limitations. Sunlight and direct heat affect his eyes and head. Frazier cannot work all day around the house and she believes his attitude is declining.

          In addition to Dr. Joseph Zerga’s report, Southwire also introduced the March 23, 2016, records of Dr. Jackson. Frazier introduced the records of Drs. Mittal and Jackson, and the August 1, 2017, deposition of Dr. Jackson.

          The September 19, 2017, “Benefit Review Memorandum and Hearing Order,” reveals the parties stipulated the contested issues were as follows:

1. Reopening for worsening of condition/increase in occupational impairment (extent and duration)

2. Medical Fee Dispute regarding medical treatment by Dr. Shilpi Mittal, including Dr. Mittal’s office visits, medications lidocaine patches, promethazine, rizatriptan, tizanidine, lamotrigine, injective therapy, botox injections and acupuncture therapy.

          In her November 2017, decision, after discussing the medical and lay evidence, the ALJ provided the following findings of fact and conclusions of law:

     In the case at bar the plaintiff has the burden regarding questions of work-relatedness or causation of his present condition. When a worsening of condition and an increase in occupational disability is claimed, the burden remains with the plaintiff. See Griffith v Blair, 430 S.W.2d 337 (Ky. 1968) and Jude v Cubbage, 251 S.W.2d 584 (Ky. 1952).

     Here the plaintiff is claiming an increase of disability from an adjudicated permanent partial disability to a permanent total disability. For the reasons set out below, I find that Mr. Frazier now suffers from a permanent total disability and has successively proven his claim. For this finding I rely primarily on the opinions of Dr. Tracy Jackson.

     The landmark case regarding the issues of reopening for an increase in disability after the 1996 amendments to the Act, is Colwell v Dresser Instrument Division, 217 S.W.3d 213 (Ky. 2006). In Colwell, supra, the Kentucky Supreme Court distinguished the proof requirements in a reopening when the party is claiming permanent total disability verses an increase in a permanent partial disability. The differences are significant when applied to this case. The court states in pertinent part:

Confronted with that statement in Adkins v. R & S Body Co., 58 S.W.3d 428 (Ky. 2001), the court noted that although the purpose of an income benefit is to compensate an injured worker for a loss of earning capacity (occupational disability) and although the 1996 Act bases a worker's disability from an injury on the resulting AMA impairment rating, the rating is but one consideration in determining the amount of the worker's benefit. Therefore, although the formula found in KRS 342.730(1)(b) and (c) may imperfectly measure an individual worker's loss, it is not arbitrary and unconstitutional.

Ira A. Watson Department Store v. Hamilton, supra, and McNutt Construction/First General Services v. Scott, 40 S.W.3d 854 (Ky.2001), explain that a permanent impairment rating is prerequisite to a finding of permanent total disability under KRS 342.0011(11)(c) but that other factors also are relevant. Among them are a worker's post-injury physical, emotional, intellectual, and vocational status; how those factors interact; and the likelihood that the worker will be able to find work consistently under normal employment conditions.

KRS 342.125(1)(d) requires a change of disability to be shown by "objective medical evidence of a worsening ... of impairment." The statute does not refer to the Guides, to permanent impairment rating, or to permanent disability rating. We conclude, therefore, that although a greater permanent impairment rating is objective medical evidence of a worsening of impairment, it is not the only evidence by which the statute permits a worsening of impairment to be shown. Chapter 342 does not define the term "objective medical evidence;" however, KRS 342.0011(33) does define "objective medical findings" as being "information gained through direct observation and testing of the patient applying objective or standardized methods." See Staples, Inc. v. Konvelski, 56 S.W.3d 412 (Ky.2001); Gibbs v. Premier Scale Company/Indiana Scale Company, 50 S.W.3d 754 (Ky. 2001).

Mindful that KRS 342.0011(1) requires a harmful change in the human organism to be evidenced by objective medical findings in order to be compensable, we are convinced that KRS 342.125(1)(d) and KRS 342.730(1) require no less at reopening. If such findings demonstrate that an injured worker suffers a greater loss, loss of use, or derangement of a body part, organ system, or organ function due to a condition caused by the injury, they demonstrate a worsening of impairment. A worsening of impairment may or may not warrant increasing the worker's permanent impairment rating under the Guides.

Whether a worsening of impairment rises to the level of greater compensability is determined under KRS 342.730(1) and KRS 342.0011(11). KRS 342.730(1)(b) and KRS 342.0011(11)(b) require a worker who remains partially disabled to show a greater permanent impairment rating in order to obtain a greater award. But KRS 342.730(1)(a) and KRS 342.0011(11)(c) require a worker who was partially disabled at the time of the initial award and totally disabled at reopening to show only that a worsening of impairment due to the injury is permanent and causes the worker to be totally disabled. Id. (emphasis ours)

     Here I find that Dr. Jackson’s testimony provides persuasive medical proof that Mr. Frazier’s impairment has worsened. Dr. Jackson describes in detail the medical treatment over the last 4 years which has been successful only to the point that it “treats” Mr. Frazier’s headaches – it has not improved his condition. When asked specifically on cross-examination if the plaintiff’s symptoms have remained the same or have worsened, she states:

A. From what I remember the pain is in the same distribution and the quality goes up and down in terms of the severity, but overall, more importantly, his level of ability to function has gone down and down.

Q. How has his level of ability went down?

A. He just reports that he's not able to work and participate in his life the way that he would want to, that he really feels like this headache has reached the end of his ability to cope with it as effectively as he had in the past. (emphasis ours)

Additionally, Dr. Jackson did not just rely on Mr. Frazier’s “self-explanations” of his symptoms. Dr. Jackson discusses her objective medical findings regarding the diagnosis of Mr. Frazier’s condition.

Q. Now, the complaints that are being expressed by Mr. Frazier, is that something that you have been able to pick up on any diagnostic testing, or do you have to rely upon his self-explanations as to his pain complaints?

A. So the combinations of things. Certainly you rely on the patient's history, but his physical exam findings are very consistent with the reported mechanism of injury. He had some sensory deficit in those areas around what look like to be traumatic scarring from the area which was consistent. And then the way he describes his distribution of pain sort of is a testament to where those nerves from the face and the nerves to the head, where the trigeminal and the cervical nerves meet in the spinal cord he has some sensitivity there. So he has a lot of consistency in his story and what we're seeing in his symptoms based on that mechanism. (emphasis ours)

     Mr. Frazier testified his migraines are more frequent in the last couple of years. “Yeah, they are definitely more frequent.” As to intensity and duration he testified, “Well they shoot stronger now than they was before. It used to be they wasn’t quite as strong, you know, and then the time that I had to rest for them wasn’t as long.” (Frazier depo p. 16)

     His medications prescribed by Dr. Mittal have significantly increased since his claim ALJ Hays’ Opinion at which time he was being treated by Dr. Ferluga. When Ferluga was treating he would get approximately 10 or 12 injections of Botox at one time. Now he’s getting 28 to 30 injections at one time. (Frazier Depo. p. 41)

     His use of lidocaine patches has doubled. His prescription of lamotrigine has doubled in the last couple of years. He has doubled his use of the muscle relaxer, Tizanidine. “I really believe that Botox was helpful. It wasn’t something that lasted no three or four months, but it did last for a good, maybe two and a half months, you know… I was able to be more functionable.” (Hearing p. 11-12)

     “On a good day, I am able to maybe go and do a little exercise. I may be able to do a load of laundry at home, or, you know, pick up, sweep up or something. That’s on a good day.” On a bad day? “Oh, bad days, I can’t even hardly get out of bed. I go from the bed to the couch to the bathroom.” Asked what he does to treat his headache when he has a bad day, Frazier replied he goes to a dark area, like his completely darkened bedroom and lies down with a cold compress on his forehead. Mr. Frazier estimates he has two or three “bad days” a week. (Hearing p. 13-14)

     I found Mr. Frazier to be credible in his testimony. His testimony went without contradiction regarding the fact that he applied for at least 30-40 jobs in positions where he thought he could perform some work. This was in keeping with the findings by ALJ Hays and the testimony of expert witnesses during the first litigation. However, he has not been offered employment. Mr. Frazier testified if it was not for his post-traumatic headaches, he would be able to work. (Hearing p. 18)

     Regina Frazier, Plaintiff’s spouse testified. Mrs. Frazier testified their sexual relationship ended with Mr. Frazier’s head injury. Asked if she thought his condition was worse now than it was in 2013, Mrs. Frazier responded, “I see it declining. I really do see it.” (Hearing p. 28)

     After reviewing the medical evidence in this case and considering the testimony of the plaintiff along with the arguments of counsel, I find that Mr. Frazier has proven he is permanently totally disabled. The vocational factors the ALJ must consider are the plaintiff’s age, now 45, which is now considered an older worker (especially considering the labor intensive work he is trained to do). Even ALJ Hays found 4 years ago that Mr. Frazier did not have the physical capacity to return to the same type of job he was performing at the time of the injury. This factor has only worsened in 4 years – from the standpoint that there is convincing evidence that his physical pain has kept him from functioning in any work environment on a regular and sustained basis.

     Mr. Frazier’s education remains at a high school level without specialized training or vocational skills – as he has not been able to participate in any rehabilitation as ordered by ALJ Hays. The pain level of the headaches would keep him from returning to a regular and sustained work day. As Dr. Jackson opined Mr. Frazier’s ability to function has gone “down and down”. It is important to note that this has not been brought about by any lack of effort on Mr. Frazier’s part – as all the treating physicians have discussed that he is very compliant with medical instructions/treatment. He has not asked for opioids or other narcotic pain medicine. However, the medical treatment is only for “relief” and has not provided a “cure” or even an improvement of his symptoms.

     The medical opinion of Dr. Zerga reads much more like a vocational opinion than a medical opinion in that he concludes that Mr. Frazier is not 100% disabled. Dr. Zerga’s opinion regarding the medical treatment is not persuasive to the undersigned. The treating doctors are in a unique position to give an opinion regarding what medical treatment is effective for the “cure and/or relief” from the effects of the work injury, than is an evaluating physician. Certainly, the treating physicians have attempted to find an effective regime of medical treatment including botox injections, medical branch blocks, oral medications, lidocaine patches etc. The one treatment that, in Dr. Jackson’s opinion, might eliminate enough pain that he could function again – a nerve stimulator – was initially found not reasonable or necessary by ALJ Hays. However, Dr. Jackson testified that technology has improved and she still was of the opinion that a peripheral nerve stimulator would be beneficial to the plaintiff. Indeed, she opined that several physicians had come to the same conclusion and the stimulator, if successful, would be a more “durable” type of pain relief.[1]

          Southwire filed a petition for reconsideration asserting the ALJ erred in concluding Frazier sustained a worsening of condition. It pointed out a permanent impairment is a prerequisite to a finding of permanent total disability, and it asserted Frazier failed to present any evidence his impairment has changed. Therefore, it requested the ALJ find Frazier’s current impairment rating is 10% as found by ALJ Hays.

          In addition, it requested a finding as to Frazier’s restrictions at the time of ALJ Hays’ 2013 decision. Southwire cited to the various restrictions discussed by ALJ Hays in his decision which it contended are Frazier’s base line restrictions which he must demonstrate have changed. Southwire argued Frazier has presented no evidence of a change in his restrictions since Dr. Mittal did not comment upon Frazier’s permanent restrictions, and his ability to work. Further, Dr. Jackson did not provide any restrictions. Southwire requested a finding that Frazier’s physical restrictions in 2013 and currently are no different.

          Southwire also contended the ALJ’s decision that Frazier is not totally disabled is res judicata. It requested the ALJ reconsider the evidence and provide additional findings regarding Frazier’s impairment and restrictions at the time of ALJ Hays’ decision, his current impairment and restrictions, whether the doctrine of res judicata is applicable, what evidence the ALJ relied upon in determining Frazier’s condition has worsened, what evidence was relied upon in finding permanent total disability per Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000), why Dr. Zerga’s opinions were discounted, what medical evidence was relied upon in finding Frazier does not have the physical capacity to return to any job, and whether it is entitled to a credit for PPD benefit payments.

          The ALJ denied the petition for reconsideration, except for amending the opinion, order, and award for a credit of the amount of PPD benefit payments, concluding Southwire failed to identify any patent error on the face of the award and order.

          In support of its first argument, Southwire first observes Frazier filed a self-serving affidavit contending he is now permanently totally occupational disabled and the July 5, 2016, correspondence from Dr. Mittal noting Frazier’s quality of life had been affected by a combination of neck pain due to recent surgery and headaches. It contends Dr. Mittal’s July 20, 2016, treatment note only documents headaches and cervicalgia following a May 2016 cervical fusion. Thus, Southwire argues Frazier failed to file “objective evidence” with his motion to reopen demonstrating a worsening of his work-related condition. Since Frazier failed to establish a change in his impairment rating, restrictions, or in his ability “to perform any aspects at the time of reopening,” Southwire contends former CALJ Swisher committed reversible error in reopening the claim. Therefore, the claim should be remanded to the ALJ with instructions to deny the motion to reopen.

          Next, Southwire argues ALJ Hays’ finding concerning Frazier’s impairment rating, restrictions, and occupational disability is res judicata. It asserts substantial evidence does not demonstrate a change in his impairment or in his restrictions thereby allowing the ALJ to disturb ALJ Hays’ decision that Frazier is not permanently totally disabled. Consequently, the ALJ abused her discretion by ignoring the undisputed medical evidence introduced before ALJ Hays which is currently applicable.

          Finally, Southwire maintains the ALJ erred in finding Frazier totally disabled. First, it points out the ALJ did not determine, as requested in its petition for reconsideration, Frazier’s current impairment rating. It argues this is error since a finding of a permanent impairment rating must be addressed prior to a potential finding of permanent total occupational disability. As such, the ALJ erred by not finding Frazier’s impairment rating is 10%. Southwire also asserts Frazier presented no evidence of a change in his impairment or restrictions as found by ALJ Hays. Since Frazier’s self-described symptoms and limitations are exactly the same as described in 2013, and he did not demonstrate a greater loss of use he has failed to meet his burden of proof. Consequently, the finding of permanent total disability is an abuse of discretion.

          Significantly, although Southwire complains the ALJ did not address Frazier’s restrictions or the vocational evidence documenting he is able to return to various employment, it does not contend the ALJ did not perform the requisite analysis in determining Frazier is totally occupationally disabled.

          We find no merit in Southwire’s contention the claim was improperly reopened because Frazier failed to provide a prima facie basis for reopening. First, we note this issue was not preserved as a contested issue in the September 19, 2017, Benefit Review Memorandum and Hearing Order. The only issues identified by the parties were whether there was a “worsening of condition/increase in occupational impairment” and “the medical fee dispute regarding the medical treatment by Dr. Shilpi Mittal.” That being the case, Southwire waived its right to raise on appeal, for the first time, that Frazier failed to set forth a prima facie case for reopening.

          803 KAR 25:010 Section 13 (11) and (12) reads as follows:  

(11) If at the conclusion of the BRC the parties have not reached agreement on all the issues, the administrative law judge shall:

(a) Prepare a final BRC memorandum and order including stipulations and identification of all issues, which shall be signed by all parties or if represented, their counsel, and the administrative law judge; and

(b) Schedule a final hearing.

(12) Only contested issues shall be the subject of further proceedings.

          Further, we note that in its response to the motion to reopen, Southwire’s objection was based on Dr. Mittal’s failure to state Frazier’s impairment rating had increased. In its petition for reconsideration filed in response to former CALJ Swisher’s order, Southwire raised the lack of “medical proof establishing a ‘change in disability as shown by objective medical evidence of worsening due to a condition caused by the injury.’” However, a petition for reconsideration is not the vehicle to raise an objection which should have been raised initially. Southwire did not raise the issue again until on appeal.

          Nevertheless, we will address Southwire’s assertion objective medical evidence was not presented by Frazier in his motion to reopen. In Gibbs v. Premier Scale Company/Indiana Scale Company, 50 S.W.3d 754 (Ky. 2001), the Kentucky Supreme Court discussed what may constitute objective medical evidence as defined by KRS 342.0011(33) stating:

     In view of the evidence which was presented in this particular case, a question has arisen concerning whether a harmful change must be, or is capable of being, documented by means of sophisticated diagnostic tools such as the x-ray, CAT scan, EEG, or MRI in order to be compensable. Contrary to what some have asserted we are not persuaded that it must. Furthermore, at least to some extent, we view that question as being off the mark. Likewise, we are not persuaded that a harmful change must be both directly observed and apparent on testing in order to be compensable as an injury.

. . .

We know of no reason why the existence of a harmful change could not be established, indirectly, through information gained by direct observation and/or testing applying objective or standardized methods that demonstrated the existence of symptoms of such a change. Furthermore, we know of no reason why a diagnosis which was derived from symptoms that were confirmed by direct objective and/or testing applying objective standardized methods would not comply with the requirements of KRS 342.0011(1).

Id. at 762.      

          In the case sub judice, page three of Dr. Mittal’s record firmly demonstrates Frazier had intractable chronic migraines and was taking Lamactil and Venlafaxine. Several other medications administered in the past had failed and, as a result, Frazier’s headaches had worsened to the extent he was agreeable to the use of Botox in an effort to try to lessen the worsened headaches.

          This record reveals the medications Dr. Mittal prescribed for Frazier’s headaches had failed and his headaches had worsened necessitating a different treatment modality. This constitutes “information gained by direct observation and/or testing applying objective and standardized methods that demonstrated the existence of symptoms of such a change.” Id. Consequently, we affirm on this issue. 

          We find no merit in Southwire’s second argument that ALJ Hays’ decision is res judicata. As explained by the Court of Appeals in Napier v. St. Paul Travelers, 2010-CA-001825-WC, 2010-CA-001923-WC, 2010-CA-001995-WC, rendered February 3, 2012, Designated Not To Be Published, held:

We further note that the law of the case doctrine applies differently in a workers' compensation action compared to a judicial action. Whittaker v. Reeder, 30 S.W.3d 138, 143 (Ky.2000). Therefore, legal authority based upon judicial proceedings is not necessarily binding in a workers' compensation case. Id.

     When a change of condition occurs, a case may be reopened to decide if a previous award should be modified. Id.

Slip Op. at 6.

          In Colwell v. Dresser Instrument Division, 217 S.W.3d 213, 217 (Ky. 2006) the Supreme Court held as follows:

As amended effective December 12, 1996, KRS 342.125(1)(d) permits an award to be reopened upon evidence of a post-award “change of disability as shown by objective medical evidence of worsening or improvement of impairment ....” A finding of permanent partial or permanent total disability under KRS 342.0011(11)(b) or (c) must be supported by evidence of a permanent disability rating, which requires a permanent impairment rating as determined under the latest available edition of the Guides. KRS 342.0011(36) and KRS 342.730(1)(b) base a worker's permanent disability rating on the individual's AMA impairment rating and a statutory factor. However, KRS 342.0011(11)(c) and KRS 342.730(1)(a) base a finding of permanent total disability on different criteria. A totally disabling injury must result in a permanent impairment rating and a complete and permanent inability to work. See Copar, Inc. v. Rogers, 127 S.W.3d 554, 561–62 (Ky. 2003); Ira A. Watson Department Store v. Hamilton, supra.

          The Supreme Court held:

We conclude, therefore, that although a greater permanent impairment rating is objective medical evidence of a worsening of impairment, it is not the only evidence by which the statute permits a worsening of impairment to be shown. ... If such findings demonstrate that an injured worker suffers a greater loss, loss of use, or derangement of a body part, organ system, or organ function due to a condition caused by the injury, they demonstrate a worsening of impairment. A worsening of impairment may or may not warrant increasing the worker's permanent impairment rating under the Guides.

Whether a worsening of impairment rises to the level of greater compensability is determined under KRS 342.730(1) and KRS 342.0011(11). KRS 342.730(1)(b) and KRS 342.0011(11)(b) require a worker who remains partially disabled to show a greater permanent impairment rating in order to obtain a greater award. But KRS 342.730(1)(a) and KRS 342.0011(11)(c) require a worker who was partially disabled at the time of the initial award and totally disabled at reopening to show only that a worsening of impairment due to the injury is permanent and causes the worker to be totally disabled.

Id. at 218.

          In a reopening seeking an award of permanent total disability benefits, as opposed to a reopening seeking increased PPD benefits, establishing a greater impairment rating is unnecessary. Thus, Frazier was only required “to show a worsening of impairment due to the injury is permanent and causes [him] to be totally disabled.” Id. Since Frazier was seeking to increase his award to PTD benefits, he was not required to show an increased impairment rating.

          In LKLP CAC, Inc. v. Fleming, 520 S.W.3d 382 (Ky. 2017) the Supreme Court reaffirmed the Colwell holding stating:

To be clear, on reopening, an ALJ can find that a claimant's permanent impairment rating has increased; however, an ALJ on reopening cannot revisit a predecessor's finding regarding a claimant's permanent impairment rating. The initial permanent impairment rating is the baseline which the ALJ must use on reopening to determine if there has been any increase. We recognize that KRS 342.125 states that an ALJ on reopening can find an increase or decrease in “impairment.” However, as set forth below, “impairment” and “permanent impairment rating,” although related, are not the same.

. . .

On reopening, an ALJ may find that a claimant who was initially permanently partially disabled is permanently totally disabled if the claimant has established his impairment has increased to the extent that he is no longer able to work as defined in KRS 342.0011(34). Id. at 218. In such cases, the ALJ is not required to find, and the claimant is not required to establish, that he has an increase in permanent impairment rating. Id. On the other hand, in order to find that a claimant who was initially permanently partially disabled only has an increase in that partial disability, the ALJ must find that the claimant's impairment and permanent impairment rating have increased. Id. This is so because KRS 342.125 requires a claimant to show an increase of impairment on reopening and the extent of a claimant's permanent partial disability is inexorably tied to the claimant's permanent impairment rating. Id. See also, KRS 342.730(1)(b). In other words, to show a change from a permanent partial disability to a permanent total disability on reopening, a claimant need only show an increase in impairment, i.e., additional loss of the use of body part, organ, etc. However, to show an increase in permanent partial disability on reopening, a claimant must show both an increase in impairment and in permanent impairment rating.

Id. at 387-388.

          Based on the above-language, the ALJ was not required to make a finding as to Frazier’s current impairment rating.

          Southwire’s assertions to the contrary, substantial evidence supports the finding of total occupational disability. Dr. Jackson stated Frazier “has been really compliant.” Frazier had undergone physical therapy and had tried every class of medications other than opioids which was to his credit. In response to questions posed by Southwire on cross-examination, regarding Frazier’s present condition versus his condition at the time of ALJ Hays’ decision, Dr. Jackson explained:

Q: . . .

     When you first started treating Mr. Frazier in 2012 to when you last saw him in 2016, how, if any, have his symptoms changed, or is he still complaining of the same complaints?

A: From what I remember the pain is in the same distribution and the quality goes up and down in terms of severity, but overall, more importantly, his level of ability to function has gone down and down.

Q: How has his level of ability went down?

A: He just reports that he’s not able to work and participate in his life the way that he would want to, that he really feels like this headache had reached the end of his ability to cope with it as effectively as he had in the past. And I see a lot of patients with chronic pain, and he’s relatively resilient, his ability to cope, and so it’s just been increasingly frustrating to him, particularly given that he thinks this procedure and I think and several physicians think this procedure might help and he’s not been able to get it.

. . .

Q: Now, the complaints that are being expressed by Mr. Frazier, is that something that you have been able to pick up on any diagnostic testing, or do you have to rely upon his self-explanations as to his pain complaints?

A: So the combinations of things. Certainly you rely on the patient’s history, but his physical exam findings are very consistent with the reported mechanism of injury. He had some sensory deficit in those areas around what look like to be traumatic scarring from the area which was consistent.

     And then the way he describes his distribution of pain sort of is a testament to where those nerves from the face and nerves to the head, where the trigeminal and the cervical nerves meet in the spinal cord, he has some sensitivity there. So he has a lot of consistency in his story and what we’re seeing in his symptoms based on that mechanism.

     He’s honestly, it’s unusual to see this straightforward of a patient, particularly in -- straightforward meaning consistent; story makes sense; not on opioids – in the workers’ compensation population. He really is trying to do the right thing. I believe that, and I see a lot of people who aren’t.

          Frazier was only required to demonstrate by objective medical evidence that he had a worsening of impairment due to the injury which causes him to be totally occupationally disabled. Dr. Jackson’s testimony demonstrates objective medical evidence establishes Frazier has a worsening of impairment due to the injury. Consequently, Dr. Jackson’s testimony comprises substantial evidence supporting the ALJ’s determination Frazier is now totally occupationally disabled. We note the ALJ also relied upon Frazier’s credible testimony in resolving whether he was permanently totally disabled. Frazier’s testimony also constitutes substantial evidence supporting the ALJ’s findings. In McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 860 (Ky. 2001), the Supreme Court held:

A worker’s testimony is competent evidence of his physical condition and of his ability to perform various activities both before and after being injured. [citation omitted].

          As we held the opinions of Dr. Jackson and Frazier’s testimony constitute substantial evidence supporting the ALJ’s decision, and the ALJ was not required to make a finding as to Frazier’s current impairment rating, we find no merit in Southwire’s third argument the ALJ’s finding of permanent total disability constitutes an abuse of discretion. In McNutt Construction/First General Services v. Scott, supra, the Supreme Court set forth the analysis to be performed by the ALJ in resolving the issue of whether the claimant is totally occupationally disabled as follows:

An analysis of the factors set forth in KRS 342.0011(11)(b), (11)(c), and (34) clearly requires an individualized determination of what the worker is and is not able to do after recovering from the work injury. Consistent with Osborne v. Johnson, supra, it necessarily includes a consideration of factors such as the worker's post-injury physical, emotional, intellectual, and vocational status and how those factors interact. It also includes a consideration of the likelihood that the particular worker would be able to find work consistently under normal employment conditions. A worker's ability to do so is affected by factors such as whether the individual will be dependable and whether his physiological restrictions prohibit him from using the skills which are within his individual vocational capabilities. The definition of “work” clearly contemplates that a worker is not required to be homebound in order to be found to be totally occupationally disabled. See, Osborne v. Johnson, supra, at 803.

. . .

It is among the functions of the ALJ to translate the lay and medical evidence into a finding of occupational disability. Although the ALJ must necessarily consider the worker's medical condition when determining the extent of his occupational disability at a particular point in time, the ALJ is not required to rely upon the vocational opinions of either the medical experts or the vocational experts. See, Eaton Axle Corp. v. Nally, Ky., 688 S.W.2d 334 (1985); Seventh Street Road Tobacco Warehouse v. Stillwell, Ky., 550 S.W.2d 469 (1976). A worker's testimony is competent evidence of his physical condition and of his ability to perform various activities both before and after being injured. Hush v. Abrams, Ky., 584 S.W.2d 48 (1979).

Id. at 860.

          We note that Southwire does not contend the ALJ’s analysis does not comply with the requirements of McNutt Construction/First General Services v. Scott, supra. In determining Frazier was totally occupationally disabled, the ALJ considered his age, believed him to be an older worker, and also noted ALJ Hays had found him incapable of returning to the job he was performing at the time of the injury. The ALJ believed “this factor had worsened in four years” to the extent that his physical pain kept him from functioning in any work environment on a regular and sustained basis. She noted Frazier’s education level remained at a high school level without any training or vocational skills. Frazier had not been able to participate in rehabilitation and his pain level from the headaches kept him from returning to regular and sustained work. Relying upon Dr. Jackson, the ALJ noted Frazier’s ability to function had decreased and, just as important, his problems had not been brought about by any lack of effort on his part. The ALJ discounted Dr. Zerga’s opinions. Although the ALJ’s analysis is limited, we conclude she conducted the analysis mandated by McNutt Construction/First General Services v. Scott, supra. Having found substantial evidence in the form of testimony from Dr. Jackson and Frazier supports the ALJ’s decision, this Board must affirm.

          Accordingly, concerning the issues raised on appeal the November 21, 2017, Opinion, Order, and Award and the December 18, 2017, Order ruling on the petition for reconsideration are AFFIRMED.

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON JEREMY D MCGRAW

303 N HURSTBOURNE PKWY STE 110

LOUISVILLE KY 40222

COUNSEL FOR RESPONDENT:

HON DANIEL CASLIN 3201 ALVEY PARK DR W OWENSBORO KY 42303 RESPONDENT:   DR SHILPI MITTAL 1301 MEDICAL CENTER DR STE 3930 NASHVILLE TN 37232

ADMINISTRATIVE LAW JUDGE:

HON JEANIE OWEN MILLER

657 CHAMBERLIN AVE

FRANKFORT KY 40601