*/
200-CA-00(NP)

RENDERED:  APRIL 27, 2018; 10:00 A.M.

NOT TO BE PUBLISHED

 

Commonwealth of Kentucky

Court of Appeals

 

NO. 2017-CA-000015-WC


 

 

raymond bryant                                                                APPELLANT

 

 

 

                           PETITION FOR REVIEW OF A DECISION

v.                   OF THE WORKERS’ COMPENSATION BOARD

                                        ACTION NO. wc-13-64322

 

 

 

JESSAMINE CAR CARE; HON.
JOHN COLEMAN, ADMINISTRATIVE
LAW JUDGE; WORKERS’
COMPENSATION BOARD                                                         APPELLEES

 

AND

 

CROSS-APPEAL NO. 2017-CA-000035-WC

 

 

JESSAMINE CAR CARE                                              CROSS-APPELLANT

 

 

 

                    CROSS-PETITION FOR REVIEW OF A DECISION

v.                   OF THE WORKERS’ COMPENSATION BOARD

                                        ACTION NO. wc-13-64322

 

 

 

RAYMOND BRYANT; HON.
WILLIAM J. RUDLOFF; HON.
JOHN COLEMAN, ADMINISTRATIVE
LAW JUDGE; WORKERS’
COMPENSATION BOARD                                           CROSS-APPELLEES

 

 

 

OPINION

AFFIRMING

 

** ** ** ** **

 

BEFORE:  MAZE, Smallwood, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Raymond Bryant appeals and Jessamine Car Care cross-appeals from an Opinion of the Workers’ Compensation Board (“the Board”) entered on December 2, 2016.  Bryant argues that the Board improperly affirmed the decision of the Administrative Law Judge (“ALJ”) terminating Temporary Total Disability (“TTD”) benefits and denying the three multiplier.  In its cross-appeal, Jessamine Car Care maintains that the ALJ erred in 1) finding that an injury occurred on the date alleged, 2) holding that proper notice was given of the injury, and 3) failing to refer the claim to the Kentucky Department of Insurance for investigation.  We find no error and AFFIRM the Opinion of the Workers’ Compensation Board.

 

 

Facts

                   Bryant alleged via Form 101 that on June 11, 2013,[1] he injured his left arm and lower back while in the employ of Jessamine Car Care.  He asserted that while he was working with a fellow employee to remove a transmission from a hoisted Jeep Liberty, the vehicle’s transmission fell approximately five feet from a floor jack to the floor.  He alleged that as the transmission fell, his left arm became trapped under it and he was pulled to the ground.  Bryant stated in Form 101 that, “[W]ithin 5 minutes of the accident, I notified my supervisor, Mike Johns.  This was on 6/11/13.  I told Mr. Johns verbally what happened.”

                   Bryant stopped working after the incident, and was hopeful that he had not suffered a serious injury.  Said Bryant in a subsequent deposition, “ . . . I’d say that 80 percent of the mechanics out there are working somewhat hurt, whether its just a wrist or a smashed finger.  I mean, its just part of what comes with it generally.  But this is something I thought I could shake off.”  Bryant returned to work the following day, but was beginning to think that the injury was more serious than he first thought (“I thought something’s come undone”).  Mike Johns would later testify that he was aware of the incident, but was not told of any injury.  Owner Patty Johns would deny receiving any notice from Bryant that he was injured at work. 

Medical History

                   Bryant had a history of physical injuries including a broken neck from an automobile accident, and a subsequent lumbar strain treated by Dr. Madonna Hall.  Bryant’s initial treatment following the June 13, 2013, incident was on August 5, 2013, with Dr. Hall, where she noted that Bryant was having pain in his neck and hips.  Bryant saw Dr. Hall again on October 1, 2013, which was about five days after his employment with Jessamine Car Care was terminated.  At that visit, Bryant gave Dr. Hall a history of the work incident in June 2013, and stated that he had right side lower back pain since the accident.  Dr. Hall prescribed medication and advised not to work at his new construction job for two weeks.  Bryant continued his treatment with Dr. Hall, and alleged a worsening of the back pain through December 4, 2013, at which time Dr. Hall recommended physical therapy.

                   Bryant sought treatment at the St. Joseph Hospital emergency room on December 16, 2013.  Diagnostic studies revealed degenerative disc disease of the lumbar spine.  Dr. Harry Lockstadt examined Bryant about two weeks later, noted that Bryant’s discs looked normal and concluded that Bryant probably had a lumbar sprain involving the sacroiliac complex.  Like Dr. Hall, Dr. Lockstadt recommended physical therapy and placed Bryant on a lifting restriction of 15 pounds.  Dr. Lockstadt recommended against narcotic medication due to Bryant’s history of addition to non-prescription drugs.  In a May 29, 2014, deposition, Dr. Lockstadt discussed Bryant’s treatment history from 2005, and believed Bryant’s new symptoms involved a new pattern at L4 through S1.

                   Dr. John Vaughn evaluated Bryant on May 7, 2014, and diagnosed mechanical lower back pain and lumbar strain.  He noted that Bryant’s burning pain through the lower extremities was pre-existing.  Dr. Vaughn did not believe that Bryant had radiculopathy, recommended against any future injections or surgery, and assessed a 5% impairment for the lumbar strain.

                   On April 29, 2015, Bryant sought treatment again from Dr. Lockstadt, who concluded that Bryant had developed secondary osteophyte changes in the sacroiliac joint as a result of the lumbosacral strain.  Minimally invasive surgical arthrodesis to the right sacroiliac joint was recommended.  The surgery was subsequently performed, and after several months Dr. Lockstadt determined that Bryant could return to normal work activities.  Dr. Lockstadt assessed a 12% whole person impairment under the AMA Guides, and released Bryant to return to a medium work level lifting up to 50 pounds occasionally.

                   As of August 12, 2015, Bryant was very pleased with the results of the surgery.  As of the final hearing, he was looking for work but did not believe he could return to heavy mechanical work because it required too much squatting and heavy lifting.

Procedural History

                   The matter was assigned to ALJ William Rudloff, who conducted a benefit review conference on June 11, 2014.  The claim was bifurcated on the issues of notice and injury.  On June 20, 2014, a hearing was conducted and the claim was amended to reflect the date of injury as being June 13, 2014.  On July 28, 2014, ALJ Rudloff entered an Interlocutory Opinion and Award granting Bryant temporary total disability benefits beginning on September 26, 2013, (the date after his termination from employment) as well as medical benefits.

                   On September 8, 2014, Bryant’s first Petition for Reconsideration was denied.  A second Petition for Reconsideration was denied on September 27, 2014.  A Motion to Remove from Abeyance was filed on October 17, 2014, which included video evidence from August 2014, allegedly showing Bryant performing work activities for a different employer.

                   On April 10, 2015, ALJ Rudloff conducted a second benefit review conference adding additional issues to the claim.   Bryant then moved to hold the matter in abeyance noting that his treating physician had scheduled Bryant for a surgical procedure.  On May 14, 2015, ALJ Rudloff placed the matter in abeyance without reinstating the order for temporary total disability benefits.  Then, by order of the Chief Administrative Law Judge, the claim was reassigned to ALJ John B. Coleman.  The proof was reopened, a hearing conducted and an Opinion, Award and Order was rendered on May 11, 2016. 

                   ALJ Coleman’s Opinion addressed nine contested issues, including whether there was an injury as defined under the Act, the applicability if any of TTD and medical expenses, and whether Bryant had engaged in fraud.  ALJ Coleman determined in relevant part that there was an injury and proper notice, that medical costs were payable, the 2X multiplier was in effect beginning September 26, 2013, and that no award of TTD was payable as of August 26, 2014, when Dr. Lockstadt released Bryant from work restrictions.   ALJ Coleman went on to find that Bryant had not engaged in fraud because he was not receiving TTD for the timeframe he was depicted in the video engaged in other work activities.  And finally, ALJ Coleman was not convinced that Bryant refused to attend an Independent Medical Examination (“IME”), and did not assess costs or other remedies arising from this issue.

                   Both parties appealed from the ALJ’s decision to the Workers’ Compensation Board.  Bryant asserted that ALJ Coleman improperly terminated his TTD prior to him reaching maximum medical improvement (“MME”).  Jessamine Car Care cross-appealed and argued that Bryant did not sustain a work injury and did not give proper notice.  It also argued that the ALJ failed to properly find that Bryant refused to attend IME with Dr. Timothy Vaughn, and that the ALJ erred in not referring this claim to the Kentucky Department of Insurance for investigation of fraud or other offenses. 

                   On December 2, 2016, the Board rendered an Opinion Affirming On Appeal and Cross-Appeal which forms the basis of the instant appeal.  The Board first considered Bryant’s claim that ALJ Coleman erred in terminating Bryant’s TTD benefits on August 26, 2014, (i.e., “the date of a video”) instead of February 25, 2016, (the date Dr. Lockstadt determined Bryant had reached MMI).  In examining this issue, the ALJ determined that Bryant was able of performing regular work as of August 26, 2014, based on what was documented in the surveillance video.  The Board characterized this as substantial evidence in support of the ALJ’s decision to terminate Bryant’s TTD benefits as of that date, and accordingly did not disturb the ALJ’s determination on this issue.

                   Bryant also asserted before the Board that ALJ Coleman would have awarded the three multiplier had he properly applied Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003).  The Board affirmed the ALJ on this issue upon finding that the ALJ’s Fawbush analysis, i.e., that Bryant had the ability to return to work in a supervisory capacity at the same or greater wage, was supported by substantial evidence.  Accordingly, the Board found no error in the ALJ’s conclusion that the three multiplier was not implicated.

                   As to Jessamine Car Care’s cross-appeal, the Board noted that ALJ Rudloff[2] determined Bryant’s testimony regarding the events of June 13, 2013, to be credible, and chose to rely on Bryant’s testimony over the testimony of Patty and Mike Johns who claimed that Jeep Liberty in question was not worked on until June 14, 2013.  Because ALJ Rudloff was vested with the authority to judge the weight and credibility of the evidence, and as some evidence existed to support the ALJ’s conclusion on this issue, the Board refused to disturb the ALJ’s finding on this issue.  For the same reason, the Board found no basis for reversing the ALJ’s conclusion that Bryant gave timely notice of the injury.

                   The Board next considered Jessamine Car Care’s argument that even if Bryant was otherwise entitled to benefits, KRS 342.205(3) should apply to bar him from receiving benefits based on his refusal to attend Dr. Vaughn’s IME scheduled for June 15, 2015.  After a thorough analysis of this issue, the Board noted that Jessamine Car Care did not file a Petition for Reconsideration on this issue.  In the absence of said petition, the Board determined that it was limited to a determination of whether there was substantial evidence in the record to support the ALJ’s conclusion.  It answered this question in the affirmative, and found no error.

                   Jessamine Car Care’s final argument before the Board was its contention that the ALJ erred in failing to refer the claim to the Kentucky Department of Insurance for a fraud investigation.  The Board determined that the ALJ has discretion in making such a referral, and concluded the record supported the ALJ’s finding that Bryant was not receiving TTD benefits at the time he was videotaped allegedly working for another employer.  Bryant now appeals, and Jessamine Car Care cross-appeals, from the thorough 51-page Opinion of the Workers’ Compensation Board rendered on December 2, 2016. 

ANALYSIS AND OPINION

                   As an appellate court, we will only reverse the Board if it has overlooked or misconstrued the law or flagrantly erred in its evaluation of the evidence causing gross injustice.  W. Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky. 1992).  And, we note that it is within the sole province of the ALJ as fact-finder to determine the credibility and weight of evidence presented below.  Id.  Additionally, this Court reviews any issues of law de novo.  Com., ex rel. Stumbo v. Ky. Pub. Serv. Comm’n, 243 S.W.3d 374 (Ky. App. 2007).

                   The only substantive argument presented in Bryant’s two-page brief is that the Board “rubber stamped” the ALJ’s decision to terminate Bryant’s TTD benefits.  Bryant very briefly argues that the ALJ improperly terminated TTD benefits without any substantial evidence, and should have implicated the three multiplier.   Bryant, however, does not cite to the record nor direct our attention to any statutory law or case law in support of this argument.  Because the ALJ relied on substantial evidence in the form of the surveillance video to conclude that Bryant was able to perform the type of work he was engaged in at the time of his injury, or in the alternative, supervisory work based on Bryant’s level of technical training, the Board properly determined that the ALJ’s conclusion on termination of TTD benefits was supported by substantial evidence.  Further, Bryant has offered no compelling argument that he was entitled to the three multiplier.  Thus, we find no error in the Board’s ruling regarding those issues raised by Bryant in his appeal.

                   In its cross-appeal, Jessamine Car Care first argues that the Board erred in affirming the ALJ’s conclusions that 1) an injury occurred on June 11, 2013, or June 13, 2013, and 2) that proper notice was given to either Mike or Patty Johns.  Jessamine Car Care notes that Bryant initially asserted that the injury occurred on June 11, 2013, and that he was allowed to amend that date to June 13, 2013.  Jessamine Car Care argues that it was impossible for an injury to have occurred on either date, as the uncontroverted evidence shows that the Jeep’s transmission was not repaired until June 14, 2013.  Jessamine Car Care goes on to argue that because no injury could have occurred prior to June 14, 2013, and because the business records indicate that the Jeep was repaired on June 14, 2013, the ALJ erred in finding that an injury occurred and notice was give on June 13, 2013.

                   The focus of Jessamine Car Care’s argument on this issue is that the record is void of any evidence that an injury occurred and notice was given on June 13, 2013.  The record refutes this contention.  While it is true that some evidence (i.e., the business records) indicates that the injury occurred, if at all, on June 14, 2013, other evidence was adduced in the form of Bryant’s testimony that the injury occurred and notice was give on June 13, 2013.  ALJ Rudloff determined Bryant’s testimony regarding the events of June 13, 2013, to be credible and gave greater weight to his testimony than that of the Johns.  If the ALJ’s ruling is supported by substantial evidence of record, it may not be disturbed on appeal.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).  Substantial evidence is evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable men.  Smyzer v. B.F. Goodrich Chemical Company, 474 S.W.2d 367 (Ky. 1971).  And finally, neither the Board nor this Court may usurp the ALJ’s role as fact finder as to judging the weight and credibility of the evidence.  Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  Given the foregoing, and because substantial evidence is found in the record to support the ALJ’s conclusion that the injury occurred and notice was given on June 13, 2013, we find no error in the Board’s decision not to disturb the ALJ’s Opinion on this issue.

                   Jessamine Car Care’s final argument on appeal is that the Board erred in failing to conclude that the ALJ acted erroneously in not referring the claim to the Kentucky Department of Insurance for investigation.  Jessamine Car Care notes that during the same time frame Bryant claimed he was unable to work thus entitling him to TTD benefits, he was videotaped by a private investigator working at a garage several days consecutively.  Jessamine Car Care directs our attention to KRS 304.47-020(1) in support of its claim that Bryant engaged in a fraudulent insurance act under the facts at bar.  However, a close examination of KRS Chapter 304 reveals that the ALJ has no affirmative duty to refer a claim to the Kentucky Department of Insurance.  Further, it is uncontroverted that Bryant was not receiving TTD benefits at the time he was videotaped working at another garage.  Though Jessamine Car Care maintains that Bryant’s intent to receive TTD during that time period should be sufficient to compel the ALJ to refer the matter to the Department of Insurance, it has cited no statutory law or case law placing upon the ALJ an affirmative duty to make such a referral.  As such, we have no basis for finding error in the Board’s affirmation of the ALJ on this issue.

                   For the forgoing reasons, we affirm the Opinion of the Workers’ Compensation Board entered on December 2, 2016.

 

 

                   ALL CONCUR.

BRIEF FOR APPELLANT/CROSS-APPELLEE, RAYMOND BRYANT:

 

Kenneth B. Fouts, II

Lexington, Kentucky

 

 

BRIEF FOR APPELLEE/CROSS-APPELLANT, JESSAMINE CAR CARE:

 

Greg Little

Lexington, Kentucky

 



[1] Raymond Bryant was later granted leave to amend the date to June 13, 2013.  Mike Johns and Patty Johns, the owners of Jessamine Car Care, maintain that the Jeep Liberty was not repaired until June 14, 2013.

[2] This issue arises from Administrative Law Judge William J. Rudloff’s July 28, 2014, Interlocutory Opinion and Order, September 8, 2014, Interlocutory Opinion and Order, and October 13, 2014, Order on Reconsideration.