Xenia R. Myers v. Merit Electronic, LLC ( 2020 )

RENDERED: OCTOBER 9, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0634-WC
XENIA R. MYERS APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-08-91428
MERIT ELECTRIC, LLC;
HON. BRENT E. DYE, ADMINISTRATIVE
LAW JUDGE; and WORKERS’ COMPENSATION
BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.
KRAMER, JUDGE: Xenia R. Myers appeals from a March 6, 2020 opinion of the
Workers’ Compensation Board (“Board”). In Western Baptist Hospital v. Kelly,
827 S.W.2d 685 (Ky. 1992), the Kentucky Supreme Court described the role of the
Court of Appeals in reviewing decisions of the Board: “The function of further
review of the WCB in the Court of Appeals is to correct the Board only where the
[] Court perceives the Board has overlooked or misconstrued controlling statutes or
precedent, or committed an error in assessing the evidence so flagrant as to cause
gross injustice.” Id. at 687-88. Here, the arguments Myers advances in this appeal
are duplicative of what she asserted before the Board. We have thoroughly
reviewed the record, the arguments of the parties, and the law. Upon our review,
we conclude that the Board’s dispositions of Myers’ arguments, as set forth in its
opinion, were not in error, but rather were indicative of a thorough understanding
of the underlying evidence and a correct application of the law. We therefore
affirm and adopt the Board’s opinion as follows:
Xenia R. Myers (“Myers”) seeks review of the October 1,
2018, Opinion, Award, and Order of Hon. Brent E. Dye,
Administrative Law Judge (“ALJ”) finding she sustained
a work-related injury on March 25, 2008, and awarding
income and medical benefits. Myers sustained a
horrendous work injury when her mini-excavator
overturned crushing her left foot. Ultimately, her left leg
below-the-knee had to be amputated. The ALJ awarded
periods of temporary total disability (“TTD”) benefits,
permanent partial disability (“PPD”) benefits, and
medical benefits. Myers also appeals from the October
30, 2019, Order denying her petition for
reconsideration.[FN]
[FN] In the same order, the ALJ granted the
Respondent’s petition for reconsideration
relating to the rendition date of the opinion.
On appeal, Myers challenges the decision on four
grounds. Myers first argues the ALJ erred in
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recalculating the impairment rating of Dr. Robert Jacob.
Myers then contends the ALJ incorrectly determined she
attained maximum medical improvement (“MMI”)
sometime after the surgery amputating her left leg.
Myers maintains the ALJ should have found she did not
attain MMI until sometime after her March 4, 2016,
revision surgery. Next, Myers argues the ALJ erred in
accepting Dr. Walter Butler’s 5% impairment rating for
the psychological injury and in rejecting the 50 to 55%
impairment rating assessed by Dr. William Wilkerson.
Finally, Myers argues the ALJ erred in not finding she is
totally occupationally disabled.
BACKGROUND
Myers’ May 8, 2015, Form 101 alleges she sustained a
work-related injury on March 25, 2008, in Cedar Park,
Texas, when a “mini-excavator slammed into a ditch and
jarred [her] foot out of the cab. Foot got crushed
between [the] side of ditch and mini excavator.” The
Form 101 states the doctors “tried to fix bones and tissue
in foot, eventually got MRSA and had to have
amputation. Now having issues with major scar tissue
where skin, muscle and blood was taken from for [sic]
the top of my foot.”
The medical records of Myers’ treating physicians were
introduced along with the reports of the doctors who
evaluated her physical and psychological condition and
provided impairment ratings pursuant to the 5th Edition of
the American Medical Association, Guides to the
Evaluation of Permanent Impairment (“AMA Guides”).
The September 4, 2018, Benefit Review Conference
Order & Memorandum (“BRC”) reflects the parties
stipulated Myers sustained a work-related injury and was
paid three periods of TTD benefits from March 26, 2008,
through May 25, 2014, from May 26, 2014, through
August 17, 2014, and from March 4, 2016, through July
14, 2016. The parties also stipulated Merit Electric paid
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medical expenses of $306,921.21, Myers’ pre-injury
average weekly wage, and she had not returned to work
since the injury. The parties further stipulated Myers
possesses a high school diploma and a real estate license
which had expired. The contested issues were as
follows: KRS[1] 342.730 benefits, credit for TTD
overpayment (duration), and KRS 342.165 safety
violation. Under “Other contested issues” is the
following: “(1) Compensability 2/27/13 & 4/10/15 travel
expenses, (2) + the requested credit period is 9/2/09-
8/17/14, & (3) Plaintiff’s failure to timely present any
medical reimbursements requests. The parties agree to
have a deposition in lieu of a hearing. Both parties are
alleging safety violations against each other. The
Plaintiff has 30 days to obtain a psychological permanent
impairment rating. If so, the Defendant may file the
applicable motion.”
Myers testified at an August 12, 2015, deposition and at a
September 4, 2018, deposition presided by the ALJ.
At her August 2015 deposition, Myers testified she has
lived in Mobile, Alabama, for almost two years. She has
a high school diploma from Walla Walla Valley
Academy in Washington state and her high school GPA
was 3.92. She attended technical school for three
months. While living in Oregon, Myers also obtained an
Oregon real estate license in 2000 which has expired.
Myers testified the first time she took the test to obtain an
Oregon real estate license she scored 95% and thereafter
received multiple employment offers from real estate
agencies. From the time she graduated from high school
in 1992 until she went to work for Phil Myers
Construction in December 2000, she worked at Ventura
Foods in Portland, Oregon.[FN]
[FN] Phil Myers is her father.
1
Kentucky Revised Statute.
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She worked briefly in the plastics department, filled in at
quality control, and then moved to supervisor of her
operating line. Because of harassment from another
employee, Myers left Ventura Foods at the end of 2000
to work for her father’s business from December 2000 to
October 2006 as a painter and trim carpenter. She also
worked as a project manager for nine months. She quit
because her father retired in October 2006.
Myers began working for Merit Electric in February or
March 2007 and served as an electrician’s helper. On-
the-job training was the only training she received. She
did not possess a journeymen’s license nor did she reach
apprentice status. During her tenure at Merit Electric,
she worked as an electrician’s helper. All of her
experience was hands-on with no other direct training
provided.
Myers acknowledged she had operated a mini excavator
and a tugger in the past. She described a tugger as a
heavy piece of equipment. Paul Reeves (“Reeves”) was
her foreman the entire time she worked for Merit
Electric. Because Reeves trusted Myers’ skills, he
allowed her to operate the mini excavator. Reeves knew
Myers was very particular and careful in performing her
work, and Reeves had trained Myers on how to operate
the mini excavator.
Myers provided a description of how the mini-excavator
turned over on March 25, 2008. Myers was treated in
Austin, Texas by Dr. Kelly Tjelmeland, a plastic surgeon,
and Dr. Mark Dalton, an orthopedic surgeon. Ultimately,
Dr. Dalton was required to amputate her leg on June 9,
2008. Dr. Dalton informed her she eventually would
have to undergo revision surgery. Myers underwent
physical therapy in Texas and obtained pain management
treatment in multiple states.
When she saw Dr. Sudhakar Madanagopal in Mobile,
Alabama, he proposed revision surgery.[FN]
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[FN] The Form 105 – Medical History
reflects Myers was treated by Dr. Dalton
from 2008 to 2010 and first saw Dr.
Madanagopal in March 2015. The medical
records establish that in late 2015 or early
2016, Dr. Madanagopal moved from the
University of South Alabama in Mobile,
Alabama to Huntsville, Alabama.
This was the surgery Dr. Dalton had previously
recommended.
Myers has not worked or looked for work since the
injury. At the time of her deposition, she was taking no
prescription medication. She estimated that since the
injury she has gained approximately 35 pounds. She is
unable to exercise explaining as follows:
Q: What would you try to do for exercise?
A: I’d walk around the block, take my dog
for a walk. And I can manage that for about
two weeks and then I’ve got blisters – so
many blisters that I can’t even wear my leg.
Q: Where are the blisters located?
A: On the scar tissue on the back of my leg.
Myers believes she is unable to perform desk work,
because sitting for more than a couple of hours causes
left leg pain which necessitates removal of the prosthetic
device and elevating [her] leg. Except for a September
2008 fall which bruised her leg, Myers has had no other
accidents. Although she experiences pain, she has
refused to take prescription medication. She believes she
is unable to perform sedentary work because she has a
hereditary circulation problem. She explained that when
she sits too long, the blood pools in her feet and builds up
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causing her knees to swell. Myers admitted a doctor has
never diagnosed this condition. Her doctors have
recommended work hardening training in which she is
interested.
Myers described her day-to-day activities as “not a lot.”
She and Reeves plan to remain in Mobile, Alabama.[FN]
[FN] Myers described Reeves as her
common-law husband since the state of
Alabama recognizes common-law marriage.
Myers further testified her only work experience has
been as a painter, carpenter, and electrician’s helper, and
she also worked as a cashier at McDonald’s for three
months. She has never possessed a commercial driver’s
license. All of her previous jobs entailed working on her
feet all day. Although she obtained an Oregon real estate
license, she has never worked as a real estate agent.
Myers believed she has “tons” of emotional problems as
a result of the amputation. She has a monthly
psychological counseling session.
At the December 4, 2018, deposition, Myers testified Dr.
Madanagopal performed a revision surgery in Huntsville,
Alabama, on March 4, 2016. The surgery consisted of
shortening the bone, modifying the skin flap, and
working on the nerve endings. Dr. Madanagopal is the
only physician to treat her since the revision surgery.
She last worked on the date of the injury. She reiterated
that most of her previous work entailed very heavy
physical labor. Myers believes she is unable to return to
work since it would cause excessive abuse of her left leg,
and being on her left leg for even one hour causes
extreme pain. She estimated that, at the most, she could
bear weight on her left leg for approximately two hours.
When she performs sedentary work, her right leg swells.
Myers testified both Drs. Tjelmeland and Dalton
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informed her revision surgery would eventually be
necessary.
At the time of her deposition, Myers was living in
Mobile, Alabama, where she and Reeves own a house.
She last saw Dr. Madanagopal in 2016.
Myers has not sought an Alabama real estate license.
She possesses an Alabama driver’s license with a
corrective lens restriction. Hanger Clinic in Mobile,
Alabama takes care of her prosthetic needs. Myers is
able to ambulate with her prosthetic device inside and
outside the house. Despite the report of Hanger Clinic to
the contrary, Myers denied walking on uneven terrain,
curbs, ramps, stairs, grass, and gravel daily. Myers
testified Josh Richardson (“Richardson”) at Hanger
Clinic, who authored the report, had never specifically
asked about her ability to walk using the prosthetics. She
acknowledged Richardson correctly stated in July 2017
that she performed yard work and pushed her lawn
mower. She denied seeing Richardson’s report.
Myers testified that she obtained a good result from the
revision surgery. She was treated for psychological
problems by Austin Pain Associates in 2008 and 2009
and has seen no one else seen that time for her
psychological problems. She has adhered to taking no
prescription medications except for when Dr.
Madanagopal placed her on Neurontin through December
2017. At the time of her deposition, she was not taking
any medication.
Myers does nothing other than yard work. She no longer
uses the push mower to mow her lawn and instead uses a
riding lawn mower. Even then, the vibration she
experiences while on the lawn mower bothers her leg.
She estimated she mows approximately once a week.
She previously walked a mile every other day for
approximately two weeks. However, before she can
resume walking, she has to let her leg heal. She
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estimated she drives a car once every couple of weeks.
Shopping hurts her leg. Myers’ left leg is always
uncomfortable and bothered her during the deposition.
Standing “really hurts” her leg. Myers is able to
negotiate her house stairs daily but because her bedroom
is upstairs she limits her trips on the stairs. She has
trouble sleeping more than five or six hours a night.
When she experiences a pain-producing event, she is able
to recuperate in approximately a day. She is unable to do
any of her previous work. The prosthetic device Myers
uses has three parts – the socket which she has had for
two years, a stem which she has had for two years, and
the foot she has had for seven years. Myers is capable of
performing laundry work, house cleaning, shopping,
climbing stairs, and ramps. She is unable to perform
gardening work. In the last two years, she has not
bicycled, danced, exercised, or taken long walks.
Relative to the issues on appeal, after summarizing the
evidence, the ALJ provided the following:
I. TTD Benefits
KRS 342.0011(11)(a) establishes TTD
means that “. . . the condition of an
employee who has not reached [MMI] from
an injury and has not reached a level of
improvement that would permit a return to
employment.” (emphasis added). The word
“and” indicates KRS 342.0011(11)(a)
contains a two-prong test, which claimants
must both satisfy, to receive TTD benefits.
Double L Const., Inc. v. Mitchell, 182
S.W.3d 509 (Ky. 2005); Magellan
Behavioral Health v. Helms, 140 S.W.3d
579 (Ky. App. 2004).
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A) MMI
A claimant’s condition reaches MMI, when
it stabilizes to the point that an impairment
is reasonably permanent. Tokico (USA),
Inc. v. Kelly, 281 S.W.3d 771 (Ky. 2009).
The MMI date is a medical question, and
reserved for medical expert witnesses. KY
River Enters., Inc. v. Elkins, 107 S.W.3d
206 (Ky. 2003); Lanter v. Kentucky State
Police, 171 S.W.3d 45, 52 (Ky. 2005).
However, under certain circumstances, an
ALJ may infer a claimant’s condition has
stabilized, and reached MMI. See Martin
County Coal Co. v. Goble, 449 S.W.3d 362
(Ky. 2014).
Just because a claimant requires additional
medical treatment does not mean he has not
reached MMI. W.L. Harper Const. Co. v.
Baker, 858 S.W.2d 202 (Ky. App. 1993).
Determining when the claimant’s condition
stabilized, and, thus, reached MMI, is not an
exact science. It depends, to a certain
extent, on the date a physician actually
examines the claimant.
Myers originally reached MMI on
September 2, 2009. This was approximately
a year and three months after Myers had her
left leg amputated. Dr. Jacob assigned this
date. He assigned it after reviewing Myers’
medical records. He noted that Myers’
activity levels had significantly increased
around this time. Dr. Jacob noted that a
North Carolina pain management provider
issued a similar opinion around this period.
Myers remained at MMI until January 8,
2015, when Dr. Madanagopal concretely
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recommended a revision and neuroma
excision procedure. Although previous
physicians had opined Myers would
potentially require this procedure, January 9,
2015 is when a physician formally
recommended it. Thus, it appears Myers
required (as opposed to desired) the surgery.
Dr. Madanagopal recommended it, because
Myers’ excessive skin, which produced a
posterior skin flap, caused significant
bruising, blisters, calluses, and pain. These
problems and symptoms caused Myers not
to have the ability to bear weight on her
stump. This, in turn, caused her not to have
the ability to wear her prosthesis. Myers
required the surgery to cure and stabilize
these problems.
The fact Myers required a non-elective
surgery, which was necessary to allow her to
wear the prosthesis and walk without
significant pain and problems, illustrates her
left leg condition was not stabilized and her
condition was likely to substantially change
with medical treatment. On May 6, 2015,
Dr. Madanagopal opined Myers was not at
MMI. He, however, did not indicate if
Myers had ever reached MMI and, if so,
when she originally reached it, as well as
when her left leg condition returned to a
non-MMI state. The ALJ finds this occurred
on January 8, 2015.
Unfortunately, Myers had difficulty
obtaining the surgical pre-authorization
approval. Myers underwent the procedure
on March 4, 2016. She reached MMI,
following her surgery, on September 6,
2016. This is the date Dr. Madanagopal,
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who performed the revision procedure,
assigned.
This date is more credible than the July 7,
2016 date that Dr. Jacob opined. Dr. Jacob
opined Myers reached MMI on July 7, 2016,
because Dr. Madanagopal released her on a
per-needed basis. Dr. Jacob noted Myers
never returned to Dr. Madanagopal.
However, although Dr. Madanagopal
released Myers on a per-needed basis, he
issued a work restriction form, indicating
Myers should remain off work for three
more months.
Dr. Madanagopal thus wanted Myers to
completely remain off work until
approximately October 7, 2016. This
implies Myers’ condition was still healing,
and had not completely stabilized. If it had,
Dr. Madanagopal would have indicated
Myers had permanent restrictions. Instead,
he did not complete the form’s restrictions
section, and issued a complete off-work
statement.
Dr. Madanagopal’s September 6, 2016 MMI
date is close to the October 7, 2016 date,
when Myers’ off-work statement expired.
Again, MMI is not an exact science. Based
on the evidence’s totality, the ALJ finds
Myers reached MMI on September 6, 2016.
B) Improvement level
KRS 342.0011(11)(a)’s second prong denies
TTD benefits to individuals who have not
yet reached MMI, or fully recovered, but
have improved to the extent they can return
to employment. Mitchell, supra. The
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Kentucky Supreme Court, in Central
Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky.
2000), interpreted KRS 342.0011(11)(a)’s
“return to employment” language. The
Wise Court stated, “[i]t would not be
reasonable to terminate the benefits of an
employee when he is released to perform
minimal work but not the type that is
customary or that he was performing at the
time of his injury.”
Thus, if “minimal work” is not the
claimant’s customary work, or the work she
performed when the injury occurred, then it
does not constitute the claimant’s condition
reaching an improvement level that would
permit a “return to employment” under KRS
342.0011(11)(a). In Livingood v.
Transfreight, 467 S.W.3d 249 (Ky. 2015),
the Supreme Court made it clear that Wise
does not stand for the principle that workers,
who are unable to perform their customary
work, after an injury, are always entitled to
TTD benefits.
Myers’ left leg condition never reached an
improvement level that would allow her to
return to her customary work before her two
MMI dates. The credible evidence shows
Myers performed electrical labor, which
required extensive activities. Merit’s owner
even conceded Myers’ job required heavy
labor. The ALJ finds, and as thoroughly
outlined below, that Myers does not retain
the physical capacity to perform her pre-
injury job, and has never had the capacity
since her work injury occurred.
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C) Weekly amount & duration
Myers’ $597.23 AWW produces a $398.15
weekly TTD rate. Merit owes this weekly
amount for two TTD periods. The first
period spans from March 26, 2008 through
September 1, 2009. The second period
spans from January 8, 2015 through
September 5, 2016. Pursuant to Triangle
Insulation v. Stratemeyer, 782 S.W.2d 628
(Ky. 1990), Merit is entitled to a full, dollar-
for-dollar, credit, for the voluntary TTD
benefits it has already paid, against any past-
due disability benefits owed.
II. Benefits per KRS 342.730, including
PTD
The claimant “. . . bears the burden of
proving each of the central elements of his
cause of action.” Burton v. Foster Wheeler
Corp., 72 S.W.3d 925 (Ky. 2002). The ALJ
must determine whether Myers has a PTD or
only permanent partial disability (“PPD”).
This analysis includes determining whether
she has a permanent impairment rating, and
analyzing not just her physical capacity to
perform the pre-injury work, but any work.
A) PTD benefits
Under KRS 342.0011(11)(c), an injured
worker has a PTD if “. . . due to an injury,
[she] has a permanent disability rating and
has a complete and permanent inability to
perform any type of work as a result of an
injury . . . [.]” KRS 342.0011(34) defines
work as “. . . providing services to another in
return for remuneration on a regular and
sustained basis in a competitive economy.”
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Myers has the burden of proving: (1) she
sustained an “injury;” (2) the injury
produced a permanent disability rating
{impairment rating x statutory factor}; (3)
she has a complete and permanent inability
to perform any type of work due to the
injury; and (4) the work injury caused the
PTD. City of Ashland v. Stumbo, 461
S.W.3d 392 (Ky. 2015).
i) Injury
Myers sustained work-related left leg and
psychological injuries. The parties’ experts
unanimously agreed. The parties also
entered into a binding stipulation. The ALJ
finds Myers can prove a PTD’s first
necessary element.
ii) Permanent disability rating
The injury produced a 33% (29% + 5%)
permanent impairment rating. A 33%
permanent impairment rating equates to a
49.50% disability rating (.33 x 1.50 x 1000).
Myers can satisfy the second PTD element,
and show her injury produced a permanent
disability rating.
1. Left leg injury
Myers’ left leg injury produced a 29%
permanent impairment rating. Drs. Jacob
and Hold agreed that Myers’ three inch
below-the-knee amputation produced a 28%
rating. They also assigned an additional 2%
rating for Myers’ continued nerve symptoms
and problems.
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Dr. Jacob found Myers’ experienced sural
nerve dysesthesias, and assigned an
additional 2% impairment rating. Dr. Jacob
found Myers had extra impairment ratings
for superficial peroneal and sural nerve
sensory deficits. The extra ratings Dr. Jacob
assigned equaled 2%. He actually assigned
a 1.5% rating, but the AMA Guides, Fifth
Edition, addresses fractional impairment
ratings, on page 20, under section 2.5d, and
states that “[t]he final calculated whole
person impairment rating . . . should be
rounded to the nearest whole number.”
Utilizing the combined value charts, these
ratings equal a 29% whole-person left leg
rating. Dr. Jacob, however, forgot to use the
chart and mistakenly assigned a 30% rating.
He simply added the 28% rating with the 2%
rating. However, the combined value is
actually 29%. ALJs may use the AMA
Guides’ combined value charts, to combine
multiple impairment ratings, because
medical expertise is not required to use
them. Caldwell Tanks v. Roark, 104 S.W.3d
753 (Ky. 2003).
Dr. Jacob’s rating is more persuasive than
the 29% rating Dr. Holt assigned. The
reason is he considered Myers’ activity
level, and assigned a severity multiplier. He
indicated Myers had a grade 3 sensory
deficit, and issued a 50% multiplier. Dr.
Holt did not perform this step.
Myers’ testimony supports Dr. Jacob’s
rating. Myers testified she experiences
ongoing left symptoms. These symptoms
include experiencing radiating-type burning
and pain. Activities, such as riding in a car
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and mowing grass (on a riding lawnmower),
aggravate her symptoms. However, Myers
testified she is also able to perform
activities, which include walking up to a
mile, mowing her grass, and climbing the
stairs to her second-floor bedroom.
Dr. Jacob evaluated Myers on two separate
occasions – occurring approximately three
years apart – before and after her revision
procedure. Dr. Holt only examined Myers
on one occasion. Considering Myers’
credible testimony and Dr. Jacobs’
experience, the ALJ finds his impairment
rating more persuasive.
2. Psychological injury
The left leg injury’s effects produced a 5%
psychological permanent impairment rating.
Dr. Butler assigned this rating. Dr. Butler’s
rating is more persuasive than the 50% to
55% rating Dr. Wilkerson assigned. The
reason is Dr. Butler rebutted Dr.
Wilkerson’s impairment rating. Moreover,
the credible evidence does not support Dr.
Wilkerson’s rating.
Dr. Butler credibly explained that “[a] 50%
to 55% whole person psychiatric impairment
rating in Kentucky practice suggests
profound, intractable, debilitating and totally
disabling psychiatric symptoms that would
warrant a nursing home level of care or one-
to-one 24/7 observation for safety.” The
evidence supports this statement, and the 5%
rating.
Myers has not received any psychological
medical treatment for approximately a
decade. Her last treatment occurred in either
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2008 or 2009. Myers is also not currently
using any anti-depressants, and has not done
so for approximately 10 years. Her
treatment lack cuts against Dr. Wilkerson’s
rating.
Myers admitted she essentially lives alone,
because her boyfriend/husband (Kentucky
does not recognize common-law marriages)
travels a lot, and works out-of-town. Myers
admitted she is able to care and provide for
herself. This includes performing
housework, mowing the yard, and
occasionally running errands. The fact
Myers essentially lives alone, and provides
for her own needs, cuts against Dr.
Wilkerson’s impairment rating. The ALJ
personally observed Myers, and heard her
testify for approximately one hour. She
presented well and successfully answered
questions. Based on the evidence’s totality,
the ALJ finds Dr. Butler’s 5% permanent
and ratable the most credible and persuasive.
iii) Complete inability to perform work
Myers cannot satisfy the test’s third-prong,
and show she has a complete and permanent
inability to perform any type of work. The
ALJ, in his analysis, must weigh and
balance the evidence, as to whether Myers
has the ability to provide services, for
income, on a regular and sustained basis, in
a competitive economy. McNutt Const. Co.
v. Scott, 40 S.W.3d 854 (Ky. 2001).
When determining whether Myers has the
ability to provide services, on a regular
basis, in a competitive economy, the ALJ
must examine and evaluate her
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dependability and any physiological
restrictions that would prohibit him from
using his skills and vocational capabilities.
Osborne v. Johnson, 432 S.W.2d 800 (Ky.
1968). The ALJ must also consider several
factors, including Myers’ age, education
level, intellect, vocational skills, and her
post-injury emotional, physical, intellectual,
and vocational, statuses, as well as how
these factors all interact. It further includes
the likelihood she can resume some type of
“work” under normal employment
conditions. Hamilton, supra.
Myers is only 45-years old, which is a
relatively young age. This is especially true
in today’s society, where individuals are
working into their late 60s and even early
70s. She has the ability and time to pursue a
new career path, or training. The ALJ finds
Myers’ age, when considering her intellect,
vocational skills, and physical abilities, is
not a limiting factor, and does not favor a
PTD finding.
There is not any evidence Myers is illiterate,
and cannot perform basic math. Instead, the
evidence shows the opposite. She has the
ability to read, write, and perform
calculations. She is a high school graduate,
and achieved a 3.92 grade point average.
Although it is currently expired, Myers
previously studied and obtained her real
estate license. She achieved a 95% score.
The ALJ heard Myers testify, and
successfully answered questions. There is
not any evidence that the injury’s effects
have significantly affected Myers’
intellectual abilities.
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Although Myers has never performed
sedentary work, she has supervisor work
experience. Myers has performed quality
control work, and supervised a line. She
instructed the line workers, and ensured the
line ran smoothly. This job required
performing paperwork and entering data.
Myers also supervised a building project for
approximately nine months. Her
supervisory experience will serve Myers
well.
Myers’ employment history primarily
includes performing construction, factory,
painting, carpentry, and electrical work.
The ALJ infers and finds that these jobs
required following directions, performing
calculations, measuring, working with
others, communicating, problem-solving,
utilizing judgment, and reading
plans/blueprints. Myers’ experience and
skills should transfer to other industries.
Although Myers does not have formal
vocational training, other than obtaining her
real estate license, she has real-world
experience, training and skills, which will
not prevent her from working.
Although Myers has restrictions/limitations,
they do not prevent her from working. Dr.
Holt, who is Myers’ own expert, stated that
“[s]he would be suitable for sedentary work
that would allow her to work at a desktop
level and would allow her to change
positions occasionally.” Dr. Jacob, who is
Merit’s expert, reached a similar conclusion.
Accordingly, the parties’ experts only
recommended sedentary
restrictions/limitations, and did not opine
Myers should not or could not physically
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perform any work. The ALJ finds Myers’
age, education, work experience, vocational
abilities, skills, and medical restrictions do
not prevent her from working. The ALJ
finds Myers does not have a PTD.
The ALJ determined Myers was entitled to PPD benefits
enhanced by the three multiplier set forth in KRS
342.730(1)(c)1. The ALJ concluded there had been no
safety violation on the part of Myers or Merit Electric.
The ALJ resolved the other contested issues listed in the
September 4, 2018 Order. Myers filed a petition for
reconsideration making the same arguments she now
makes on appeal. The October 30, 2019, Order denied
Myers’ petition for reconsideration as a re-argument of
the merits of the claim. Significantly, Myers did not
request additional findings of fact.
Myers first contends the ALJ should not have consulted
the combined values chart of the AMA Guides in
recalculating Dr. Jacob’s impairment rating from 30% to
29%. Myers asserts that, in amending Dr. Jacob’s
impairment rating, the ALJ acted outside the provisions
of KRS 342. Myers next argues she was entitled to PPD
benefits until she was placed at MMI following the
March 4, 2016, revision surgery. Myers asserts TTD
benefits “should continue until [her] condition is ‘not
expected to improve with further treatment.’” Further,
TTD benefits should not be terminated when she is
released to perform minimal work but not the type that is
customary. Myers maintains the medical records reveal
it was always anticipated she would require additional
medical treatment. She notes Dr. Madanagopal’s
assessment was that she would need revision surgery and
she was not at MMI. Myers argues because her medical
treatment was not complete until she underwent a
revision surgery, she was entitled to TTD benefits until
she reached MMI in either 2016 or 2017.
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Myers also contends the ALJ should have relied upon Dr.
Wilkerson’s impairment rating of 50 to 55% as opposed
to Dr. Butler’s 5% impairment rating. In Myers’ view,
Dr. Wilkerson’s opinion was based on careful
consideration and Dr. Butler’s opinions are not credible.
Finally, Myers contends she does not retain the capacity
to return to work. Myers argues her physical limitations
created an inability to perform any of the jobs outlined in
her deposition testimony. She contends the fact Merit
Electric’s carrier paid TTD from March 26, 2008, to May
25, 2014, demonstrates a “complete agreement” that she
is totally disabled and incapable of returning to work.
Myers posits if the carrier believed she was capable of
returning to work, her benefits would have been
terminated.
ANALYSIS
KRS 342.0011(35) mandates all impairment ratings to be
determined according to the AMA Guides. Thus, the
ALJ is charged with determining whether an impairment
rating is in accordance with the AMA Guides. The ALJ
accepted Dr. Jacob’s impairment rating for the left leg
injury, but concluded he had erred in calculating the
combined impairment rating. In his August 12, 2015,
report, Dr. Jacob opined Myers had a 28% whole person
impairment rating pursuant to the AMA Guides for the
below-the-knee amputation of greater than three-inch
stump. Because of “the neuromas of her superficial
peroneal and sural nerve,” the AMA Guides directs she
has “an impairment secondary to a nerve deficit” for
which he assessed an additional 2% impairment rating.
Dr. Jacob assessed a total partial impairment rating of
30%.
In his September 5, 2018, report, Dr. Jacob reaffirmed
the impairment rating as set forth in his August 12, 2015,
report. However, as noted by the ALJ, Dr. Jacob failed
to consult the combined values chart on page 604-605 of
the AMA Guides which directs as follows: “To combine
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any two impairment values, locate the larger of the
values on the side of the chart and read along that row
until you come to the column indicated by the smaller
value at the bottom of the chart. At the intersection of
the row and the column is the combined value.” Thus,
Myers’ 28% and 2% impairment ratings must be
combined. Pursuant to the combined values chart, Myers
has a 29% impairment rating. Within his discretion, the
ALJ is permitted to consult the AMA Guides in
determining if Dr. Jacob’s impairment rating is AMA
Guides compliant. Notably, the impairment ratings
assessed by Drs. Richard Holt and Jacob mirrored each
other. However, Dr. Holt used the combined values chart
and determined Myers’ combined impairment rating is
29%.
Myers’ reliance upon RCS Transportation v. Malin,
2010-CA-001229-WC, rendered September 23, 2011,
Designated Not To Be Published, is misplaced. In Malin,
the ALJ reassessed the impairment rating. Notably, in
Malin the Court of Appeals acknowledged the ALJ may
reference the AMA Guides in determining which
impairment rating is more credible or more accurate, but
he cannot recalculate the impairment rating. Slip Op. at
4. As pointed out in Malin, Caldwell Tanks v. Roark,
104 S.W.3d 753 (Ky. 2003) permits the action taken by
the ALJ in the case sub judice. In Roark, the Kentucky
Supreme Court explained:
Although medical expertise is required to
perform audiometric testing, it is apparent
that no medical expertise is required to read
this conversion table. For that reason, we
are of the opinion that when faced with
unrefuted evidence of increased hearing
impairment in the relevant period, the ALJ
was both authorized and required to consult
the appropriate edition of the Guides and to
convert the 1998 hearing impairment into an
AMA whole-body impairment.
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Id. at 757.
Here, Dr. Jacob failed to consult the combined values
chart. Thus, the ALJ is authorized to accept Dr. Jacob’s
impairment ratings of 28% and 2%. However, he may
also consult the AMA Guides in determining whether Dr.
Jacob’s combined impairment rating was in accordance
with the AMA Guides. In reviewing the combined
values chart, the ALJ determined it was not. The ALJ’s
ability to consult the combined values chart to determine
if the doctor had correctly utilized the chart was
specifically permitted in Pella Corporation v. Bernstein,
336 S.W.3d 451, 454 (Ky. 2011) wherein the Supreme
Court directed:
An ALJ may rely on at least some of the
conversion tables found in the Guides, such
as the tables used to combine whole-person
impairment ratings or to convert a binaural
hearing impairment to a whole-person
impairment.
The ALJ acted within his authority in finding Myers had
a combined 29% impairment rating pursuant to the AMA
Guides. The ALJ’s determination of Myers’ physical
impairment rating will remain undisturbed.
Myers’ second argument relates to the ALJ’s
determination she attained MMI on September 2, 2009,
following the June 2008 amputation surgery. Myers
contends she did not attain MMI until she underwent the
revision surgery in 2016 performed by Dr. Madanagopal.
We disagree. The date an injured worker reaches MMI
and the assessment of an impairment rating under the
AMA Guides are medical questions to be answered by
medical experts. Kroger v. Ligon, 338 S.W.3d 269 (Ky.
2011). Within his discretion, the ALJ relied upon Dr.
Jacob’s medical opinion in determining Myers reached
MMI on September 2, 2009. In his August 12, 2015,
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report, in support of his opinion Myers had reached MMI
on September 2, 2009, Dr. Jacob provided the following:
This is based on review of her medical
records and the opinion expressed by
Carolina Pain Management at that time. It is
further to be noted that by May 2009, she
was able to walk over 1900 feet without a
loss of balance. She was able to climb a
ladder and could carry 60 pounds 100 feet
and was wearing her prosthesis 90% of the
time. Although she may have been having
some stump issues and subsequently had
socket replacements, this is not relevant to
the fact that from the injury and the
amputation she had at that time reached
maximum medical improvement and the
need for additional medical care is
independent of that determination as is the
fact that she is now considering a stump
revision.
Myers’ assertion aside, the above opinion from Dr. Jacob
constitutes substantial evidence supporting the ALJ’s
determination that she first attained MMI after the work
injury on September 2, 2009.
As the claimant in a workers’ compensation proceeding,
Myers had the burden of proving each of the essential
elements of her claim, including her entitlement to TTD
benefits during the period in question. Snawder v. Stice,
576 S.W.2d 276 (Ky. App. 1979). Since Myers was
unsuccessful in convincing the ALJ she had not attained
MMI prior to the revision surgery in 2016, 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).
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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 that they must be reversed as a matter of law.
Ira A. Watson Department Store v. Hamilton, 34 S.W.3d
48 (Ky. 2000).
As fact-finder, the ALJ has the sole authority to
determine the weight, credibility and substance of the
evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky.
1993). Similarly, the ALJ has the discretion to determine
all reasonable inferences to be drawn from the evidence.
Miller v. East Kentucky Beverage/Pepsico, Inc., 951
S.W.2d 329 (Ky. 1997); Jackson v. General Refractories
Co., 581 S.W.2d 10 (Ky. 1979). The ALJ may 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. Magic
Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000). Although a
party may note evidence that would have supported a
different outcome than that 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). The Board, as an appellate tribunal, may not
usurp the ALJ’s role as fact-finder by superimposing its
own appraisals as to the weight and credibility to be
afforded the evidence or by noting reasonable inferences
that otherwise could have been drawn from the record.
Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999).
So long as the ALJ’s ruling with regard to an issue is
supported by substantial evidence, it may not be
disturbed on appeal. Special Fund v. Francis, 708
S.W.2d 641, 643 (Ky. 1986).
As previously pointed out, MMI is a medical
determination. Dr. Jacob provided an in-depth
explanation for his conclusion Myers attained MMI on
September 2, 2009. The fact Myers underwent a revision
surgery eight years after the accident does not mandate a
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finding she had not reached MMI prior to the revision
surgery.
In discussing the presence of MMI, the Court of Appeals
in W.L. Harper Const. Co., Inc. v. Baker, 858 S.W.2d
202, 204-205 (Ky. App. 1993) explained:
Larson provides further helpful explanation
regarding the issue of stabilization.
Specifically, he notes that the question may
be purely a medical issue in that the medical
evidence indicates recuperation is not yet
over, since further healing or strengthening
may be anticipated, and it is too early to
appraise the claimant’s permanent disability.
Larson, § 57.12(c). On the other hand, the
medical testimony may establish that the
claimant is as recovered as he will ever be,
and any lingering disability is permanent.
Id. Moreover, just because some treatment
is still necessary, such as drug treatment or
physical therapy, does not preclude a finding
that the condition is stabilized if the
underlying condition causing the disability
has become stable and no additional
treatment will improve the condition. Id.
However, if treatment is rendered in the
hope of improving the condition, the
subsequent discovery that no improvement
resulted does not bar a finding that the
healing period continued throughout the
treatment process. Id. It is further noted
that the persistence of pain alone, even when
the pain fluctuates, does not prevent a
finding that the healing period is over,
provided the underlying condition is stable,
and additional treatment will not be helpful.
Id. As the Board noted, since Kentucky
does not recognize the concept of temporary
partial disability, any discussion of TTD
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must be read in conjunction with the
definition of total occupational disability set
forth in Osborne v. Johnson, Ky., 432
S.W.2d 800, 803 (1968):
If the Board finds that the
workman is so physically
impaired that he is not capable
of performing any kind of work
of regular employment, or if the
board finds that regular
employment in the kind of
work the man can perform is
not available on the local labor
market, the man will be
considered to be totally
disabled. Otherwise he will be
considered to be only partially
disabled.
To summarize, TTD is payable until the
medical evidence establishes the recovery
process, including any treatment reasonably
rendered in an effort to improve the
claimant’s condition, is over, or the
underlying condition has stabilized such that
the claimant is capable of returning to his
job, or some other employment, of which he
is capable, which is available in the local
labor market. Moreover, as the Board noted,
the question presented is one of fact no
matter how TTD is defined.
The above language is applicable to Myers’ situation.
The ALJ noted Myers’ activity level had increased
around this time, and Dr. Jacob noted Carolina Pain
Management provided a similar opinion around this
period. The ALJ then determined Myers remained at
MMI from September 2, 2009, through January 8, 2015,
at which time Dr. Madanagopal concretely recommended
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a revision and neuroma excision procedure. Notably,
Myers does not take issue with the ALJ’s determination
she was not at MMI on January 8, 2015. The ALJ
determined that following her surgery on March 14,
2016, Myers again attained MMI on September 6, based
on Dr. Madanagopal’s assessment of MMI. Myers does
not challenge the finding she was not at MMI from
January 8, 2015, through September 6, 2016, as found by
the ALJ.
On September 3, 2018, Myers filed a signed but undated
medical questionnaire completed by Dr. Madanagopal in
which he indicated as follows:
1. Do you believe Xenia Myers is at
maximum medical improvement? Yes.
Date 9-6-2016.
2. If not, how long do you anticipate it will
be before she is at maximum medical
improvement? No response.
3. If so, what is her impairment rating?
Please ask IME to do impairment rating.
The ALJ could rely upon September 6, 2016, as the date
Myers attained MMI following revision surgery.
As noted by the Supreme Court in Tokico (USA), Inc. v.
Kelly, 281 S.W.3d 771, 775-776 (Ky. 2009):
MMI refers to the time at which a worker’s
condition stabilizes so that any impairment
may reasonably be viewed as being
permanent. [footnote omitted] The need for
additional treatment does not preclude a
finding that a worker is at MMI. [footnote
omitted]
...
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Although she received additional treatment
after his evaluation, we are not convinced
that the evidence compelled the ALJ to
determine that Dr. Sprague rated her
impairment prematurely or that Dr. Ruth’s
opinion was more credible.
The ALJ could reasonably infer Myers’ situation was
encompassed by Baker, supra, and Kelly, supra. Since
the date of MMI is supported by substantial evidence in
the form of medical opinions from Drs. Jacob and
Madanagopal, this Board has no authority to usurp the
ALJ’s reliance upon that medical evidence in
determining Myers’ entitlement to TTD benefits.
Consequently, the award of TTD benefits will remain
unaltered.
Similarly, we find no merit in Myers’ third argument the
ALJ erred in relying upon Dr. Butler’s opinion instead of
Dr. Wilkerson’s opinions. Dr. Butler’s May 15, 2019,
report sets out the medical records and testimony he
reviewed. Based on his interview, the information
reviewed, and the April 7, 2019, Independent
Psychological/ Neuropsychological Evaluation of Dr.
Wayne J. Harper, a licensed psychologist, Dr. Butler
concluded as follows:
. . . an appropriate whole person impairment
rating utilizing the 2nd Edition of the AMA
Guides, in my opinion, is in the high range
of Class 1 at five percent (5%).
This represents a whole person impairment
from all circumstances of ten-percent (10%),
a Class 2 rating, diminished by one-half to
take account of the pre-existing traumatic
circumstances unrelated to the workplace
accident of March 25, 2008, [with] a
resultant whole person impairment rating of
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five-percent (5%) directly attributable to the
workplace injury.
Dr. Butler’s opinions constitute substantial evidence
supporting the finding of a 5% impairment rating caused
by the work-related psychological injury. Contrary to
Myers’ assertion, the ALJ was free to rely upon Dr.
Butler’s opinions in reaching a determination regarding
the impairment rating attributable to her psychological
injury. Kentucky Utilities Co. v. Hammons, 145 S.W.2d
67, 71 (Ky. [] 1940) (citing American Rolling Mill Co. v.
Pack et al., 128 S.W.2d 187, 190 (Ky. [] 1939). While
Myers is correct that the contrary opinion espoused by
Dr. Wilkerson could have been relied on by the ALJ to
support a different outcome in her favor, in light of the
remaining record, the views articulated by Dr. Wilkerson
represent nothing more [than] conflicting evidence
compelling no particular result. Copar, Inc. v. Rogers,
127 S.W.3d 554 (Ky. 2003). As previously stated, where
the evidence with regard to an issue preserved for
determination is conflicting, the ALJ, as fact-finder, is
vested with the discretion to pick and choose whom and
what to believe. Caudill v. Maloney’s Discount Stores,
560 S.W.2d 15 (Ky. 1977). Consequently, we find no
error in the ALJ’s reliance upon Dr. Butler in
determining the impairment rating attributable to Myers’
psychological work injury.
Finally, we are unconvinced by Myers’ argument
asserting the ALJ erred in finding she was only partially
disabled and not totally permanently disabled. The ALJ
stated he considered Myers’ ability to provide services
for income on a regular sustained basis in a competitive
economy. He identified the factors he must consider in
determining Myers is not permanently totally
occupationally disabled. The ALJ concluded Myers’ age
does not favor a finding of permanent total disability.
Further, the ALJ found her education, intelligence, and
work experience mitigated against a finding of permanent
total disability. Myers also had supervisory experience
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which the ALJ believed would serve her well.
Significantly, the ALJ relied upon Dr. Holt’s opinion that
Myers would be “suitable for sedentary work that would
allow her to work at a desktop level and would allow her
to change positions occasionally.” As noted by the ALJ,
Dr. Jacob was of a similar opinion as reflected in his
August 15, 2015, report in which he stated as follows:
It is my further opinion that she is capable of
returning to work in the light physical
demand capacity. If she elects to proceed
with the stump revision and after an
anticipated six months of stump maturation
with a reconditioning program, she may be
able to work in the medium capacity.
According to the prosthetist, there are
prostheses available for individuals engaged
in the construction trades.
Dr. Jacob reiterated that opinion in his September 5,
2018, report:
Even in the absence of that according to the
comprehensive assessment as done by the
prosthetist one year ago, she is functioning
at a very good level from the amputation and
the prosthesis. She is capable of being
gainfully employed in the light to medium
category although I would avoid activities of
marked uneven ground, heights, or need for
repetitive stair climbing. As noted by the
prosthetist, she is an active community
ambulatory. It is my opinion she has had a
good result from the stump revision and her
stump today is markedly improved over her
status in 2015.
It is my opinion that she is capable of lift
and carry up to 30 pounds occasional and 20
pounds frequent. She may walk up to one
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mile at a normal cadence, and may stand for
2 hours with a 10 to 15 minute break.
Sitting is unlimited.
We disagree the actions of Merit Electric’s insurance
carrier somehow mandate a finding that Myers is totally
occupationally disabled. The ALJ is not required to
attribute any significance to the actions of the carrier in
adjusting the claim. Stated another way, the actions of
the carrier do not mandate a particular finding by the
ALJ. Rather, the ALJ’s determination is to be based
upon the lay and medical evidence. More importantly,
we note Myers did not question the sufficiency of the
ALJ’s analysis in determining the extent of her
occupational disability. Further, Myers did not request
additional findings of fact or a more explicit ruling in her
petition for reconsideration, as required by KRS 342.281
and KRS 342.285. As such, the issue is not properly
preserved for review by this Board. See Bullock v.
Goodwill Coal Co., 214 S.W.3d 890, 893 (Ky. 2007)
(failure to make statutorily-required findings of fact is a
patent error which must be requested in a petition for
reconsideration in order to preserve further judicial
review). That fact aside, the ALJ conducted the
appropriate analysis as required by the statute and case
law and substantial evidence supports the ALJ’s ultimate
determination as to the extent of Myers’ occupational
disability.
Having concluded the ALJ conducted the appropriate
analysis and his decision is supported by the record and
the opinions of Drs. Holt and Jacob, we are without
authority to disturb the ALJ’s decision that Myers is not
totally occupationally disabled. Special Fund v. Francis,
supra.
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As indicated, we find no error with the Board’s opinion and resolution
of the issues presented by Myers in this appeal, and we have adopted its analysis.
We therefore AFFIRM.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE MERIT
ELECTRIC, LLC:
S. Scott Marcum
Paducah, Kentucky R. Christion Hutson
Paducah, Kentucky
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