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January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  April 27, 2018

 

 

CLAIM NO. 201572964

 

 

PATRICK TURNER                                 PETITIONER

 

 

 

VS.                         

APPEAL FROM HON. JANE RICE WILLIAMS,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

RICKY BLEDSOE TRUCKING

AND HON. JANE RICE WILLIAMS,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING IN PART

VACATING IN PART

AND REMANDING

 

                       * * * * * *

 

 

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

 

 

RECHTER, Member.  Patrick Turner (“Turner”) appeals from the June 19, 2017 Opinion and Order, the October 26, 2017 Opinion, Award and Order, and the November 21, 2017 Order rendered by Hon. Jane Rice Williams, Administrative Law Judge (“ALJ”).  On appeal, Turner raises issues concerning the ALJ’s calculation of his average weekly wage (“AWW”), the failure to award benefits for injury to the central nervous system from a traumatic brain injury, the ALJ’s reliance on the opinion of Dr. David Shraberg, and the failure to enhance benefits by the three multiplier pursuant to KRS 342.730(1)(c)1.  We affirm in part, vacate in part and remand.

          Turner began working for Ricky Bledsoe Trucking (“RBT”) in May 2015, although the precise date of his employment was contested.  He initially worked part-time as a fill-in driver, then became a full-time driver in June 2015.  Turner alleged injuries to his head, neck, shoulder and ribs on August 13, 2015 as a result of a motor vehicle accident.  Turner was in the passenger seat of a truck while instructing another driver, when the driver lost control and the truck flipped.

          Turner immediately treated at Cumberland County Hospital where he was diagnosed with an intracranial hemorrhage confirmed by a CT scan.  He was transferred by air to the University of Louisville Hospital.  Dr. Jiyao Zou performed shoulder surgery on August 14, 2015.  A CT scan of the head confirmed multiple bilateral cerebral hemorrhagic contusion/petechial hemorrhages, but no new hemorrhages.  He was discharged August 16, 2015.  

          Dr. David Jenkinson performed an independent medical evaluation (“IME”) on May 23, 2016.  Dr. Jenkinson diagnosed a fracture dislocation of the left shoulder and a closed head injury with no apparent residuals.  Relying on the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”), Dr. Jenkinson assigned a 14% impairment rating for the shoulder injury.  He recommended no restrictions but noted Turner has some limited range of motion in his left arm.  Dr. Jenkinson opined Turner’s limitations would not prevent a return to truck driving.

          Dr. Timothy S. Allen performed an independent psychiatric evaluation (“IPE”) on July 14 and 15, 2016 and prepared a report dated July 25, 2016.  Dr. Allen diagnosed mild neurocognitive disorder and major depressive disorder, mild, recurrent.  Regarding physical injuries, Dr. Allen diagnosed a mild traumatic brain injury, complicated by intracranial hemorrhage and status post left humerus fracture with surgical repair.  Dr. Allen opined Turner has measureable deficits of attention, processing speed, and executive function consistent with permanent impairment from the traumatic brain injury.  He noted Turner had pre-existing major depressive disorder, and experienced an exacerbation of depressed mood after the work injury with persistent symptoms.  Dr. Allen assigned a 10% impairment rating due to psychiatric causes, one half related to the pre-existing condition and one half attributable to the work injury.  Additionally, he felt Turner has a 14% impairment of the central nervous system due to mental status changes related to the accident.   

          Dr. Frank Burke performed an IME on August 22, 2016.  Turner complained of shoulder pain with any reaching to the front or sides, and significant restrictions of motion in all planes.  Dr. Burke noted “persistence of a grossly shrunk shoulder” with numbness and tingling in his ulnar three fingers.  He diagnosed a comminuted fracture dislocation of the left shoulder, rupture of the conjoined tendon, and development of neurologic injury involving the left shoulder, possibly a brachial plexus injury or an auxiliary nerve injury with significant residuals.  Dr. Burke assessed a 20% whole person impairment rating for the injury to the upper extremity pursuant to the AMA Guides.  Additionally, he assigned a 2% impairment rating for the forehead scar for a combined 22% impairment rating.    

          Dr. Shraberg conducted an IPE at RBT’s request on November 10, 2016.  He noted Turner had a pre-accident history of chronic anxiety and depression.  Dr. Shraberg diagnosed a traumatic brain injury, mild to moderate, with bilateral punctate hemorrhages.  He further noted Turner had an uneventful recovery from the closed head injury.  Dr. Shraberg found Turner has an adjustment disorder of adult life associated with recurrent marital dysfunction, transient litigation, and ongoing litigation (self-limited with no permanent impairment).  He concluded Turner manifests no evidence of a permanent neurocognitive disorder from the closed head injury. 

          Dr. Shraberg reviewed Dr. Allen’s report and was critical of his “over reliance on pencil and paper tests” which actually demonstrate no deterioration in functioning from the premorbid level.  Dr. Shraberg noted records of Cumberland Family Medical Center referenced prescriptions over the years for Sertraline and Brintellix, two antidepressant medications.  Turner had also taken BuSpar in the past.  Turner presently takes BuSpar at a lower level than he had in the past.  Dr. Shraberg found no evidence of slowed motor speed on neurological examination, and believed all post concussive symptoms have resolved.  He assigned a 0% permanent neuropsychiatric impairment.

          Dr. Allen issued a December 9, 2016 addendum after reviewing Dr. Shraberg’s report.  Dr. Allen continued to believe Turner has evidence of acquired impairments of executive functioning and selective attention consistent with a traumatic brain injury that occurred in the accident. 

          The parties did not stipulate Turner’s AWW, and a significant portion of the deposition testimony concerned this issue.  Turner testified he was paid in cash and by check.  He indicated that once he reached $700.00 in a week he was paid in cash for the remainder of his work.  Turner also testified he received cash payments for hauling loads of waste and other materials that were not included in billing records.

          Ricky Bledsoe (“Bledsoe”), the owner of RBT, testified by deposition and offered a different explanation of Turner’s compensation arrangement.  Bledsoe stated Turner began working as a part-time, “fill-in” driver in May 2015.  Turner began working full-time in June 2015 but, according to Bledsoe, there were weeks RBT had little or no work.  Turner was paid 25% of what the truck made, based upon an hourly rate at some jobs and on tonnage at other jobs.  Bledsoe acknowledged he sometimes advanced Turner cash during the week, which was later deducted from his paycheck.  Bledsoe had no records documenting this arrangement, but recalled two occasions Turner was advanced money.  He denied that Turner hauled waste loads or any other loads not accounted for in the records.         

          Turner and Bledsoe acknowledged Turner did not work the three weeks following a wreck on June 12, 2015 because the truck was destroyed, but offered contradictory characterizations of this period.  According to Bledsoe, it took several weeks for RBT to receive insurance proceeds and to purchase a replacement truck.  Bledsoe testified he informed Turner there was no available work, but that “he never did fire him.”  Bledsoe’s understanding was that Turner would return once a replacement truck was purchased.  Turner testified that Bledsoe was unclear whether he intended to replace the wrecked truck.  For this reason, Turner was unsure he could return to RBT and testified he looked for alternate employment during this three-week period. 

          RBT submitted a wage certification calculating Turner’s AWW as $327.38.  The form reflects weeks from May 14, 2015 through August 6, 2015.  No checks were issued for May 28, June 25, and July 2, 2015.  RBT submitted no evidence documenting cash payments to Turner. 

          The claim was bifurcated on the issue of AWW.  In a June 19, 2017 Opinion and Order, the ALJ made the following findings:

     The first factual issue to address concerns when Turner began working for Bledsoe so that it may be determined which portion of the AWW statute governs. Plaintiff consistently testified he was employed 3 – 4 months prior to the injury. He did not testify to working less than a thirteen week period prior to the injury until his final hearing. Less than 13 weeks would mean he did not begin working until after May 14, 2015. Defendant Employer testified he began in early May and has provided documentation of payment as early as May 15, 2015. Bledsoe testified he paid on Fridays for wages earned the prior week. May 15, 2015 was a Friday. The check that day would be for work the prior week, May 4 – 8. Plaintiff has no documentation to prove any portion of his testimony including when he began working for Bledsoe. Unfortunately for Plaintiff, he has the burden of proving every aspect of his claim and has failed in that burden. Therefore, the wage will be determined pursuant to KRS 342.140(d) which states:

 

(1) If at the time of the injury which resulted in death or disability or the last date of injurious exposure preceding death or disability from an occupational disease:

(d) The wages were fixed by the day, hour, or by the output of the employee, the average weekly wage shall be the wage most favorable to the employee computed by dividing by thirteen (13) the wages (not including overtime or premium pay) of said employee earned in the employ of the employer in the first, second, third, or fourth period of thirteen (13) consecutive calendar weeks in the fifty-two (52) weeks immediately preceding the injury.

 

     Section (e) does not govern the circumstances of this claim as it governs where an employee has been employed by the employer less than thirteen (13) calendar weeks.

 

     There is no question that both sides have presented weak and confusing support for their arguments and there are unanswered questions. With the evidence provided, the wage calculation provided by Defendant Employer is supported by more substantive evidence. Plaintiff’s testimony changed and is not supported by any documentation.

 

     Defendant Employer has provided documentation for the calculation it proposes in the form of checks to Plaintiff. Calculating the wages earned in the 13 calendar weeks preceding the injury, Plaintiff’s AWW is $327.38.

 

          The claim then proceeded to adjudication on the remaining issues.  In the October 26, 2017 Opinion, Award and Order, the ALJ entered the following conclusions:

     The medical evidence has been carefully considered along with the testimony of Plaintiff who provided something less than reliable testimony as he did appear to exaggerate and was less than accurate in testifying he had no prior psychiatric condition or treatment. The opinion of Dr. Shraberg is more persuasive than that of Dr. Allen regarding psychological impairment. Plaintiff clearly had prior psychological problems and treatment having been diagnosed on several occasions and treated for major depressive disorder including one month prior to the work injury. While there would have no doubt been some added anxiety in the months following the injury, the evidence is not persuasive that Plaintiff has permanent additional psychological impairment as a result of his work injury. Any additional injury was temporary and he would have reached MMI by the time of his evaluation with Dr. Shraberg on November 10, 2016. He has continued to maintain his CDL by stating he does not suffer anxiety or psychological problems. (Interestingly, this was not true even prior to the work injury.) Any psychological problems were preexisting and active at the time of the work injury, as is well documented in the medical records.

 

     Regarding traumatic brain injury, Dr. Shraberg is more persuasive and is relied upon rather than Dr. Allen. Plaintiff did have a traumatic brain injury and post concussive symptoms, which have resolved. No impairment is assigned for traumatic brain injury and no further treatment is needed.

 

. . . .

 

     It is found herein that Plaintiff suffers no permanent psychological impairment as a result of the work injury. Dr. Shraberg found 0% impairment and is persuasive and relied upon herein. As discussed above, Dr. Allen is not persuasive regarding additional psychological impairment.

 

     Dr. Jenkinson is found reliable concerning the whole person impairment for the shoulder injury. Plaintiff reached MMI by May 23, 2016. Dr. Jenkinson assessed 14% and found no permanent impairment related to the head laceration. The reports post surgery revealed fixation intact. Dr. Burke’s opinion of 22% with a portion related to the head laceration is not persuasive. Again, Plaintiff’s testimony comes across as exaggerated and less than accurate. His testimony regarding the condition of his left arm and any limitation that would keep him from working was not persuasive. He has permanent impairment of his left shoulder and Dr. Jenkinson found his reduced range of motion would diminish his ability to reach behind his back or above shoulder level, However, he is right hand dominate. He has continued to work and to pursue work. He has been ruled fit to maintain a CDL. Based on this analysis, the evidence is more persuasive that Plaintiff is able to return to his same work as a truck driver and is not entitled to multipliers.    

 

Turner filed a petition for reconsideration making the same arguments he raises on appeal.  By order dated November 21, 2017, the ALJ overruled Turner’s petition for reconsideration as a re-argument of the merits. 

          On appeal, Turner first challenges the calculation of his AWW, advancing several reasons the ALJ’s determination is incorrect.  Turner asserts his employment was effectively terminated following the June 12, 2015 accident and he was rehired three weeks later.  If true, Turner was employed by RBT less than 13 weeks immediately preceding the work injury and his AWW should be calculated pursuant to KRS 342.140(e). 

          Also concerning the calculation of AWW, Turner argues the ALJ improperly disregarded the fact he received some cash wages, both as payment for undocumented loads and as cash advances.  Though Bledsoe denied Turner was paid cash after his paycheck reached a certain weekly amount, he acknowledged at least two occasions when Turner received cash advances mid-week which were later deducted from his paycheck.  Turner argues the ALJ failed to take these cash payments into account when calculating his AWW. 

          Furthermore, Turner claims he was prevented from fully discovering evidence which would support his claim the cash advances and cash payments were in excess of what Bledsoe admitted.  During the course of the litigation of this claim, Turner requested RBT’s accounting records to determine if cash deposits or withdrawals were made during the period of Turner’s employment.  RBT did not produce these documents.  Turner filed a motion to compel.  RBT objected, stating counsel requested the documents and “the employer has not provided anything in addition to or in supplement to Plaintiff’s paychecks already provided.”  The ALJ denied the motion to compel, evidently accepting RBT’s assertion all available documents had been produced.  Turner argues RBT should not be permitted to benefit from its failure or refusal to proffer banking and accounting records that might substantiate his claim cash was withdrawn and paid to him as wages.

          The parties agree there was a period of three weeks in June 2015 during which Turner did not receive a paycheck from RBT.  Bledsoe contends he and Turner had a mutual understanding he would return to work when a replacement truck was procured.  Turner argues his future at RBT was unclear and he sought other employment.  Thus, the evidence could support, though does not compel, a finding the employment relationship terminated after the accident but resumed once RBT was able to purchase another truck.   

          The ALJ did not make a specific finding of fact as to whether the employment relationship continued during this three-week hiatus.  Rather, her analysis focused on the commencement date of Turner’s employment with RBT in May 2015, and whether his initial part-time status dictated a later commencement date.  We recognize the ALJ determined Turner worked more than thirteen weeks prior to the work injury, a finding which conceivably embodies Turner’s argument concerning the three-week period of no work.  However, we believe an express consideration of this argument is warranted by the circumstances of this claim, particularly given the conflicting testimony on this issue.  If the employment relationship terminated during this period, Turner worked for RBT less than thirteen weeks immediately prior to the work injury.  In that situation, Turner’s AWW should be calculated pursuant to KRS 342.140(1)(e).  For this reason, we must vacate the ALJ’s calculation of AWW pursuant to KRS 342.140(1)(d) and remand the claim for further findings of fact.  

          Regarding the alleged cash payments, the ALJ addressed this argument in the June 19, 2017 Opinion and Order.  She noted Bledsoe acknowledged cash advances were sometimes made to Turner.  However, it appears the ALJ found insufficient evidence to make a determination regarding the exact date or amount of such cash advances: “With the evidence provided the wage calculation provided by Defendant Employer is supported by more substantive evidence.” 

          We cannot conclude the ALJ’s refusal to include the alleged cash payments in the calculation of AWW constitutes an abuse of discretion.  As she noted, the evidence was “weak and confusing.”  Neither Bledsoe nor Turner provided exact amounts or dates that cash payments or advances were made.  Their testimony conflicted as to whether Turner was ever paid wages in cash.  Turner did not submit any evidence of cash payments, such as receipts, bank deposit slips, or tax returns, to substantiate his claims.  Where the evidence is contradictory, the ALJ has the discretion to determine the weight and credibility of the proof.  Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).  We find no abuse of discretion in the ALJ’s decision to rely solely on the paychecks issued by RBT to Turner in calculating AWW.

          Turner’s next claim of error challenges the impairment rating relied upon by the ALJ.  Turner contends he sustained a significant central nervous system impairment/depression impairment arising from the injury.  He avers Dr. Allen’s opinion regarding the traumatic brain injury must be accepted because RBT did not preserve causation of the central nervous system impairment as an issue.  Rather, it only preserved the issue of “causation of psyche” at the BRC. 

          In a related argument, Turner claims Dr. Shraberg’s opinion cannot constitute substantial evidence because it is not supported by a correct history or by the test results he obtained, and is inconsistent.  Turner contends Dr. Shraberg ignored the objective findings on psychological testing made by Dr. Allen’s psychologists and Dr. Shraberg’s own psychologist. 

          As the claimant, Turner bore the burden of proving each of the essential elements of his cause of action.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Because he was unsuccessful in that burden, the question on appeal is whether the evidence compels a different result.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).  Compelling evidence” is defined as evidence that is so overwhelming, no reasonable person could reach the same conclusion as the ALJ.  REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985).  The function of the Board in reviewing the ALJ’s decision is limited to a determination of whether the findings made by the ALJ are so unreasonable under the evidence they must be reversed as a matter of law.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

          The evidence does not compel a finding that Turner sustained a permanent injury related to the central nervous system/closed head injury.  To be sure, the medical experts agree Turner sustained a closed head injury.  Dr. Shraberg concluded it produced no permanent injury or impairment, specifically stating Turner’s closed head injury resolved with no evidence of a permanent neurocognitive disorder.  Acting within her discretion, the ALJ found Dr. Shraberg most persuasive regarding the traumatic brain injury and whether it caused lasting psychological or physiological injuries.  We find no error in this regard.    

          We likewise disagree with Turner’s assertion that Dr. Shraberg ignored relevant history and test results.  In formulating his opinion, Dr. Shraberg indicated he reviewed Dr. Allen’s report, including the testing.  Dr. Shraberg simply had a difference of opinion with Dr. Allen.  Again, we note where the evidence is conflicting the ALJ has discretion to determine whom and what to believe. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000).  The ALJ was well within her role as fact-finder in choosing to rely on the Dr. Shraberg’s report.  McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). 

          Finally, Turner argues the ALJ failed to properly analyze whether he is entitled to enhanced benefits.  An employee’s benefits are multiplied by three if he does not retain the physical capacity to return to the type of work that he performed at the time of the injury.  KRS 342.730(1)(c)1.  Turner contends his part-time post-injury employment as a truck driver does not establish that he will be able to perform this work on a sustained basis.  Dr. Allen’s assessment of impairments of attention, processing speed, and executive function indicate it would be unsafe for Turner to work as a truck driver. 

          The ALJ determined Turner is not entitled to enhanced benefits and this finding is supported by substantial evidence.  The ALJ’s opinion demonstrates she weighed the physicians’ opinions and Turner’s testimony in considering this issue.  She specifically found Turner was not credible concerning the effect of his left shoulder on his ability to work, noting Turner is right hand dominant, has engaged in truck driving post-injury, and was determined fit for a commercial driver’s license.  The ALJ accepted Dr. Shraberg’s opinion regarding the lack of restrictions for the psychological condition and traumatic brain injury.  Dr. Jenkinson likewise opined Turner could return to truck driving. 

          Based on this proof, the ALJ could reasonably conclude the limitation on Turner’s ability to reach behind or over shoulder level with the left arm would not preclude work as a truck driver.  While Turner has identified evidence supporting a different conclusion, there was substantial evidence presented to support the conclusion he can return to truck driving on a sustained basis.  As such, the ALJ acted within her discretion to determine which evidence to rely upon, and it cannot be said the ALJ’s conclusions are so unreasonable as to compel a different result.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

          Accordingly, the June 19, 2017 Opinion and Order, the October 26, 2017 Opinion, Award and Order, and the November 21, 2017 Order rendered by Hon. Jane Rice Williams, Administrative Law Judge, are hereby AFFIRMED IN PART, VACATED IN PART, and this claim is REMANDED for additional findings and entry of an amended opinion and award in conformity with the views expressed herein. 

          ALL CONCUR.


 

 

COUNSEL FOR PETITIONER:

 

HON JACKSON W WATTS

131 MORGAN ST

VERSAILLES, KY 40383

 

COUNSEL FOR RESPONDENT:

 

HON W BARRY LEWIS

151 E MAIN ST #100

PO BOX 800

HAZARD, KY 41702

 

ADMINISTRATIVE LAW JUDGE:

 

HON JANE RICE WILLIAMS

ADMINISTRATIVE LAW JUDGE

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601