*/
Workers’
Compensation Board
OPINION ENTERED: July
____, 2018
CLAIM
NO. 201701543
ADVANCED
PAVING & CONSTRUCTION PETITIONER
VS. APPEAL FROM HON. W. GREG HARVEY,
ADMINISTRATIVE
LAW JUDGE
FLOYD
METCALF AND
HON.
W. GREG HARVEY,
ADMINISTRATIVE
LAW JUDGE RESPONDENTS
AND
FLOYD
METCALF PETITIONER
VS.
ADVANCED
PAVING & CONSTRUCTION AND
HON.
W. GREG HARVEY,
ADMINISTRATIVE
LAW JUDGE RESPONDENTS
OPINION
AFFIRMING IN PART,
VACATING IN PART & REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and
RECHTER, Members.
ALVEY, Chairman. Advanced Paving & Construction
(“Advanced Paving”) and Floyd Metcalf (“Metcalf”) both appeal from the Opinion,
Award and Order rendered March 30, 2018 by Hon. W. Greg Harvey, Administrative
Law Judge (“ALJ”). The ALJ awarded
Metcalf permanent total disability (“PTD”) and medical benefits for a right eye
injury he sustained while working for Advanced Paving. The parties also appeal from the April 26,
2019 order on the petitions for reconsideration.
On appeal, Advanced
Paving argues the ALJ erred in finding Metcalf permanently and totally
occupationally disabled due to his right eye injury. It argues that injury alone did not result in
total occupational disability, and therefore a portion of his disability must
be apportioned to a pre-existing active condition. Metcalf argues the ALJ erred in applying the
tier-down provision of KRS 342.730(4) as it existed prior to the 1996 changes
to the Kentucky Workers’ Compensation Act.
He argues KRS 342.730(4) was held unconstitutional by the Kentucky
Supreme Court in Parker v. Webster County Coal, LLC (Dotiki Mine), 529
S.W.3d 759 (Ky. 2017), thereby invalidating all versions of that statute.
Regarding the issues
raised by Advanced Paving, we affirm.
The ALJ performed the appropriate analysis, and applied the applicable
law. Therefore, the award of PTD
benefits will not be disturbed. Likewise,
the ALJ was not compelled to carve out a portion of the award due to a
pre-existing active disability.
Regarding the ALJ’s determination of the applicability of the tier-down
provision contained in the 1994 version of KRS 342.730(4), we must vacate and
remand. We note the ALJ did not err in
applying the tier-down provision contained in the pre-1996 version of KRS
342.730(4) when he decided the claim.
However, effective July 14, 2018, the amended version of KRS 342.730(4)
is applicable to this claim. This recent
statutory change sets forth that income benefits awarded to Metcalf terminate
at age seventy. Therefore, we must
vacate and remand this claim to the ALJ for a determination regarding the
termination of Metcalf’s award.
Metcalf filed a Form 101
on September 6, 2017 alleging he was injured on November 9, 2015 when he was
struck by a rock chip in the right eye as he was operating a hoe ram on an
excavator. He later amended the claim to
reflect the correct injury date was November 9, 2016. Metcalf was born on March 15, 1965. In the Form 104, Metcalf noted his work
history consisted of working as a heavy equipment operator, maintenance person
for a water company, and as a trencher.
Metcalf testified by
deposition on October 23, 2017, and the hearing held January 30, 2018. In addition to the jobs listed in the Form
104, Metcalf has also worked as a laborer in a lumber yard, as a post driver
for a fencing company, and as a commercial painter. Metcalf has not worked since the November 2016
accident. He also testified he no longer
has a driver’s license because he cannot see.
He receives Social Security Disability benefits due to his work injury. Metcalf injured his left eye when he was a
child due to an incident involving a screwdriver. The remainder of the left eye was removed in
2012 and he received a prosthesis. This
was prior to his employment with Advanced Paving.
Metcalf began working
for Advanced Paving in April or May 2012.
He stated Advanced Paving performs site work consisting of installation
of underground utilities, road grade work, and dirt grading. His job duties included driving a dozer,
excavator, and off-road truck, as well as operating a high lift and hoe ram. He explained a hoe ram is essentially a
jackhammer on the arm of an excavator or track hoe. On November 9, 2016, Metcalf was operating a
hoe ram to break up rock or concrete, when a piece chipped and struck him in
the right eye. He has been unable to see
since the accident except for the occasional glimpse of shadows. He was not wearing safety glasses, or using a
windshield at the time of the accident.
Metcalf was treated by
Dr. Charles Barr at the University of Louisville Hospital. He underwent four surgeries. Dr. Barr referred Metcalf to Dr. William
Smiddy of Miami, Florida for a second opinion.
He saw Dr. Smiddy on one occasion.
No additional surgery has been recommended. Metcalf testified he is unable to do
housework, and someone helps him with his meals.
Metcalf filed the August
16, 2017 report prepared by Dr. Smiddy in support of his claim. Dr. Smiddy stated Metcalf had reached maximum
medical improvement as of the date of his examination, and assessed a 90%
impairment rating, although there is no designation that it was assessed
pursuant to the 5th Edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (“AMA Guides”). Dr. Smiddy diagnosed Metcalf with right eye
injuries consisting of a ruptured globe (corneal perforation) with intraocular
foreign body (“OFB”), retinal detachment, and proliferative
vitreoretinopathy. He also noted Metcalf
has a prosthesis in the left globe. He
determined no additional surgery would be helpful.
Dr. Richard Eiferman, a
clinical professor of Ophthalmology at the University of Louisville, evaluated
Metcalf at Advanced Paving’s request on November 25, 2017. In his report dated December 4, 2017, Dr.
Eiferman noted the history of Metcalf’s right eye being struck by an object,
and the subsequent treatment by Dr. Barr, who he stated is a retinal
specialist. He also noted Dr. Smiddy’s
opinion that Metcalf’s right eye was irreparably damaged, and no additional
surgery was required. He diagnosed Metcalf
as status post ruptured globe with an OFB, traumatic cataract, hyphema and
multiple retinal detachments. Dr.
Eiferman assessed a 96% impairment rating.
He apportioned 20% of this rating to Metcalf’s pre-existing left eye
condition. In a supplemental notation,
handwritten on a letter from defense counsel, dated December 7, 2017, Dr.
Eiferman noted he utilized table 2.1. At
the hearing held January 30, 2018, the parties stipulated the impairment rating
assessed by Dr. Eiferman was in accordance with the AMA Guides.
Ralph Phillip Swanson,
Jr. also testified at the hearing. He
was Metcalf’s project manager/supervisor on the date of the accident. He described the hoe ram, and its use. He also testified that the hoe ram Metcalf
was operating on the date of the accident was equipped with a windshield, which
could be pushed out of the way. He
additionally testified Metcalf had been trained on the use of the
windshield.
Advanced Paving alleged
Metcalf committed a safety violation by failing to use either safety glasses or
a wind guard. It argued by failing to do
so a rock struck him in the right eye.
Advanced Paving argued any award of income benefits to Metcalf should be
reduced by 15% pursuant to KRS 342.165.
A Benefit Review
Conference (“BRC”) was held on January 16, 2018. The BRC order and memorandum reflects the
contested issues included whether Metcalf retains the physical capacity to
return to the type of work performed at the time of the injury, current wages,
benefits per KRS 342.730(4), and benefits per KRS 342.732. On January 17, 2018, the ALJ entered an
amended BRC order changing the hearing date.
In his decision rendered
March 30, 2018, the ALJ noted it was undisputed that Metcalf sustained a
work-related right eye injury and he has a 76% impairment rating attributable
to that injury. The ALJ analyzed the claim
pursuant to the holding in Ira A. Watson Dept. Store v. Hamilton, 34
S.W.3d 48 (Ky. 2000), and followed the five-step analysis set forth in City
of Ashland v. Stumbo, 461 SW3d 392 (Ky. 2015). The ALJ specifically determined as follows:
the Kentucky Supreme Court laid out
a five-step analysis, which the ALJ must utilize in determining entitlement to
permanent total disability. Initially, the ALJ must determine if the claimant
suffered a work related injury. Next, the ALJ must determine what, if any, impairment
rating the claimant has. Third, the ALJ must determine what permanent
disability rating the claimant has. Then the ALJ must make a determination that
the claimant is unable to perform any type of work. (In making this
determination, the ALJ must state with some specificity the factors, which were
utilized in making the conclusion the claimant is permanently and totally
disabled). The ALJ must consider several factors including the worker’s age,
education level, vocational skills, medical restrictions, and the likelihood
that he can resume some type of “work” under normal employment conditions. See Ira
A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky., 2000). Finally,
the ALJ must determine the total disability is the result of the work injury.
Defendant
argues that the Plaintiff is not entitled to an award of permanent total
disability benefits because of the express exclusion of nonwork-related
impairment. KRS 342.730(1)(a) states:
…[n]onwork-related impairment and conditions compensable under
KRS 342.732 and hearing loss covered in KRS 342.7305 shall not be considered
in determining whether the employee is totally disabled for purposes of
this subsection. (emphasis added).
The General Assembly has directed
the undersigned to look only at the effects of work injuries in determining
whether Metcalf is totally disabled.
The
analysis then becomes whether or not the loss of Metcalf’s vision in his right
eye has rendered him permanently and totally occupationally disabled. It is
clear Metcalf suffered a work injury and has 76% whole person impairment
attributable to it. With 76% impairment, KRS 342.730(1)(b) would require use of
a grid factor of 1.70 resulting in a disability rating of 1.292. The
undersigned does not believe that there is any evidence that Metcalf, given his
lack of vision, lack of training in dealing with blindness, 10th grade
education and current age, has any prospect at performing work in a competitive
economy at this time. The first four of the five considerations set forth in City
of Ashland support a finding of total disability. However, the final
consideration is whether the work injury caused the total disability. The
Defendant in essence argues that but for the prior nonwork related loss of
vision in the left eye Metcalf would not be totally disabled.
In
support of this argument, the Defendant cites the language set forth above in
KRS 342.730(1)(a) and accurately states that Metcalf worked as a heavy
equipment operator for many years with one eye. Absent the nonwork related loss
of vision in the left eye, Defendant argues the November 9, 2015 incident would
not have caused him to be totally disabled as he would have had the use of his
left eye to continue performing his work. It cites the case of Young v.
Kentucky Baptist Hospital, 483, S.W.2d 148 (Ky. 1972) as authoritative as
the facts are similar. In Young, the claimant suffered the loss of
vision in his left eye at age 12. He then lost vision in his right eye in 1969
as the result of a work injury. The Court noted:
[a]ll parties in this case agree
that Myers is totally and permanently disabled and that he has complied with
the procedures for presentation of his claim. The real argument centers around
the apportionment of the liability for his compensation. Young, at 149.
The version of the Act in place at
the time contained a provision in KRS 342.120(3) that stated:
[The] employer shall be liable only
for the degree of disability which would have resulted from the latter injury
or occupational disease had there been no preexisting disability or dormant,
but aroused diseased condition." (emphasis added).
The Court was faced with
apportionment of the liability between the employer and the Special Fund. It
held the employer was only to pay 100 weeks for the work injury and 100 weeks
should be excluded for the prior nonwork related injury. The balance of the
claimant’s compensation was ordered to be paid by the Special Fund. Thus, the
Court reversed the Board’s decision that the employer would pay the entire
award.
The
Act is markedly different. The Special Fund does [not] have responsibility for
injuries occurring after December 12, 1996. This case is not a case of
apportionment but a case of whether or not Metcalf is entitled to a permanent
total disability award under the current version of the Act. For that reason,
the undersigned does not find Young authoritative.
Turning
to the current language in KRS 342,730(1)(a), the Defendant cites Spurlin v.
Adkins, 940 S.W.2d 900 (Ky. 1997) for the proposition that nonwork related
disability may not be considered in determining the extent of a worker’s
disability. In Spurlin, the ALJ found the claimant had 20% prior, active
disability and 80% occupational disability due to a work-related injury. Due to
the combined effects of the nonwork and work-related back injuries the claimant
was found permanently and totally disabled. The injury occurred in 1993 and the
Special Fund was a participant in the claim. The holding in Spurlin was
centered on the appropriate version of the statute to apply to the facts and
the Court’s decision did not center upon the question before the undersigned
here.
The
undersigned finds the Supreme Court of Kentucky’s holding in Roberts Bros.
Coal Co. v. Robinson, 113 S.W.3d 181 (Ky. 2003) instructive. In Robinson,
the Court held:
…awards under KRS 342.730(1)(a)
continue to be based upon a finding of disability. In contrast, an award of
permanent partial disability under KRS 342.730(1)(b) is based solely on a
finding that the injury resulted in a particular AMA impairment rating, with
the amount of disability being determined by statute.
In
other words, KRS 342.730(1)(a) requires the ALJ to determine the worker's
disability, while KRS 342.730(1)(b)requires the ALJ to determine the worker's
impairment. Impairment and disability are not synonymous. We conclude,
therefore, that an exclusion from a total disability award must be based upon
pre-existing disability, while an exclusion from a partial disability award
must be based upon pre-existing impairment. For that reason, if an individual
is working without restrictions at the time a work- related injury is
sustained, a finding of pre-existing impairment does not compel a finding of
pre-existing disability with regard to an award that is made under KRS 342.730(1)(a).
Roberts Bros. Coal Co. v. Robinson, 113 S.W.3d 181, 183 (Ky. 2003).
KRS
342.730(1)(a) purports to exclude nonwork related impairment from a
determination of whether or not Metcalf is permanently and totally
occupationally disabled. He certainly
meets the definition of one who is permanently and totally disabled. The
Court has instructed ALJs to address claims for permanent total benefits in
terms of disability and not impairment.
In
this case, the parties agree Metcalf had impairment for the loss of sight in
his left eye at age 12. The evidence indicates, however, that as a result of
that nonwork related injury Metcalf operated without any evidence of active
disability. He has a long work history and was not operating under restrictions
at the time of his work injury that cost him the sight in his right eye. This
is significant. A worker who has no occupational disability but has impairment
who then has a work injury that renders him totally disabled is entitled to
benefits pursuant to KRS 342.730(1)(a). If the undersigned were to hold
otherwise it would thwart the definition of permanent total disability found in
KRS 342.0011(11)(c):
…the condition of an employee, who,
due to an injury, has a permanent disability rating and has a complete and
permanent inability to perform any type of work as a result of an injury.
Here, the undersigned acknowledges
the impairment rating of 20% that resulted from the loss of vision in the left
eye at age 12. The ALJ is not persuaded that the evidence indicates Metcalf
suffered any disability as a result of that injury.
In
keeping with the Court’s instruction in Robinson, supra, the
undersigned finds the November 9, 2015 injury at work resulted in Metcalf being
rendered permanently and totally disabled. The prior nonwork related impairment
is irrelevant in that determination because it was not occupationally
disabling. The disability arose after the November 9, 2015 work injury.
This
claim is different than cases that deal with prior injuries to other parts of
the body such as the lumbar spine or knees. In those cases, prior nonwork
related impairment often carries with it some disability in the form of
permanent restrictions. This is not the case here where Metcalf had no
occupational disability from the loss of vision in his left eye.
The ALJ
additionally found Advanced Paving did not satisfy its burden of proving
Metcalf intentionally violated a safety rule pursuant to the holding in Cabinet
for Workforce Dev. V. Cummins, 950 S.W.2d 834 (Ky. 1977). Therefore, the award was not reduced by 15%
pursuant to KRS 342.165(1). The ALJ also
found Metcalf’s award is subject to the tier-down provision contained in the
1994 version of KRS 342.730(4).
Both Advanced Paving and Metcalf filed
petitions for reconsideration. Advanced
Paving argued the ALJ erred by rendering an award of PTD benefits. It argued that in order to award PTD
benefits, the ALJ must find the work injury in and of itself is totally
disabling. It argued merely losing sight
in the right eye did not render Metcalf permanently totally disabled. It argued Metcalf is entitled to an award of
$483.33, reduced by 15% for the safety violations, for a total of 520
weeks. Metcalf argued, as he does on
appeal, the ALJ erred in applying the tier-down provision contained in the 1994
version of KRS 342.730(4). The ALJ
denied the petitions in an order entered April 26, 2018. The ALJ cited to the holding in Inland
Steel Company v. Mullins, 367 S.W.3d 250 (Ky. 1963) which noted an employer
takes a claimant as it finds him.
We initially acknowledge that as the
claimant in a workers’ compensation proceeding, Metcalf had the burden of
proving each of the essential elements of his cause of action. See
KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since Metcalf was successful in his burden,
the question on appeal is whether substantial evidence of
record supports 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). 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). Because Advanced
Paving did not appeal the ALJ’s determination regarding the safety violation pursuant
to KRS 342.165(1), we need not engage in determining whether a contrary result
on this issue is compelled.
In this instance, the
ALJ outlined the evidence he reviewed, and provided the basis for his
determination that Metcalf is permanently totally disabled due to his right eye
injury. The ALJ performed the
appropriate analysis in accordance with the direction of the Kentucky Supreme
Court in City of Ashland v. Stumbo, supra. The ALJ also
set forth the distinction between disability and impairment as outlined in Roberts
Brothers Coal Co. v. Robinson, 113 S.W.3d 181 (Ky. 2003). We determine the ALJ properly analyzed the
claim, and his decision falls squarely within his discretion. The ALJ’s determinations are supported by
Metcalf’s testimony, along with the medical evidence, and his decision will
remain undisturbed.
That said, we note the
ALJ properly applied the tier-down provision contained in the 1994 version of
KRS 342.730(4) at the time he rendered his decision. However, House Bill 2 was signed by the
Governor on March 30, 2018, and effective July 14, 2018. Section 13 of that bill amended KRS
342.730(4). That statute now states as
follows:
All income benefits payable
pursuant to this chapter shall terminate as of the date upon which the employee
reaches the age of seventy (70), or four (4) years after the employee’s injury
or last exposure, whichever last occurs.
In like manner all income benefits payable pursuant to this chapter to
spouses and dependents shall terminate as of the date upon which the employee
would have reached as seventy (70) or four (4) years after the employee’s date
of injury or date of last exposure, whichever last occurs.
Section 20(2) & (3)
of House Bill 2 state as follows:
(2)
Sections 2, 4, 5 and subsection (7) of Section 13 of this Act are remedial and
shall apply to claims irrespective of the date of injury or last exposure,
provided that, as applied to any fully and finally adjudicated claim the amount
of indemnity ordered or awarded shall not be reduced and the duration of
medical benefits shall not be limited in any way.
(3)
Subsection (4) of Section 13 of this Act shall apply prospectively and
retroactively to all claims:
(a)
For which
the date of injury or date of last exposure occurred on or after December 12,
1996; and
(b)
That have
not been fully and finally adjudicated, or are in the appellate process, or for
which time to file an appeal has not lapsed, as of the effective date of this
Act.
As noted above, the ALJ
correctly found the tier-down provisions contained in the 1994 version of KRS
342.730(4) were applicable at the time he rendered his decision. However, based upon the statutory changes set
forth above, that limitation is no longer valid. We must therefore vacate the ALJ’s decision of
the applicability of the 1994 version of KRS 342.730(4), and remand for an amended award regarding the termination of
Metcalf’s award pursuant to the version of KRS 342.730(4) effective July 14,
2018.
Accordingly, the March
20, 2018 decision and the April 26, 2018 order on petitions for reconsideration
issued by Hon. W. Greg Harvey, Administrative Law Judge, are hereby AFFIRMED, IN PART, VACATED, IN PART, and REMANDED for an amended award as set
forth above.
ALL CONCUR.
COUNSEL FOR PETITIONER ADVANCED:
HON LYN DOUGLAS POWERS
1315 HERR LN, STE 210
LOUISVILLE, KY 40222
COUNSEL FOR RESPONDENT FLOYD METCALF:
HON WAYNE C DAUB
600 WEST MAIN ST, STE
300
LOUISVILLE, KY 40202
ADMINISTRATIVE LAW JUDGE:
HON W GREG HARVEY
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
