BRITTHAVEN OF BENTON APPELLANT v. VICKI SMITH; HON. LAWRENCE F. SMITH, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
-- August 31, 2012
BRIEF FOR APPELLANT: Samuel J. Bach Henderson, Kentucky BRIEF FOR APPELLEE, VICKIE SMITH: Jeffery A. Roberts Murray, Kentucky
NOT TO BE PUBLISHED
Britthaven of Benton (“Britthaven”) appeals the November 21, 2011, opinion of the Workers' Compensation Board (“Board”). That opinion affirmed in part, vacated in part, and remanded the May 31, 2011, opinion, order, and award of Administrative Law Judge (“ALJ”) Lawrence F. Smith that awarded total permanent disability benefits to Vicki Smith. We affirm.
On October 18, 2006, Smith was injured when she slipped and fell on a wet floor during the course of her employment with Britthaven. Smith suffered injury to her neck, left shoulder, left anterior chest wall, left upper arm, left elbow, and left wrist, and also began suffering from headaches. Smith received treatment from Dr. Rex E.H. Arendall, II and eventually underwent cervical fusion surgery. Following her surgery, Smith continued to suffer from neck and arm pain and headaches. She testified that she has trouble sitting or standing for long periods of time; can only drive short distances; does not sleep well, due to ongoing neck pain; cannot lift with her left arm without experiencing pain; and cannot bend over without experiencing dizziness and headaches. Smith also testified that she suffers from migraine headaches and depression from the effects of her injuries.
On April 28, 2008, Smith filed an application for resolution of injury claim. Britthaven accepted Smith's claim as compensable but disputed the amount of compensation owed. A formal hearing was held on March 29, 2011. Following the hearing, the ALJ rendered his opinion, order, and award, in which he awarded Smith permanent total disability benefits and compensation for medical treatment.
Britthaven filed a motion for reconsideration in which it alleged that the ALJ erred when it failed to abide by Dr. Arendall's testimony regarding Smith's ability to return to work. The motion was denied. Britthaven then sought review of the ALJ's award by the Board. In an opinion entered on November 21, 2011, the Board affirmed the ALJ's opinion and award, as it pertained to a finding of permanent total disability. However, the Board, acting sua sponte, vacated and remanded with instructions to enter a findings regarding Smith's entitlement to, and the appropriate award of, total temporary disability (“TTD”) benefits. This appeal followed.
An ALJ's decision is “conclusive and binding as to all questions of fact,” and “[t]he Board shall not substitute its judgment for that of the [ALJ] as to the weight of evidence on questions of fact[.]” Kentucky Revised Statutes (KRS) 342.285(1) and (2).
When the decision of the fact-finder favors the person with the burden of proof, his only burden on appeal is to show that there was some evidence of substance to support the finding, meaning evidence which would permit a fact-finder to reasonably find as it did.
Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky.1986). Our review is therefore limited to that of the Board and “to errors of law arising before the Board.” Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky.1999); KRS 342.290. Hence, our review “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.” Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687–88 (Ky.1992).
Britthaven's first argument is that the ALJ's finding that Smith is totally disabled was not supported by substantial evidence. For purposes of reviewing whether an ALJ's findings are supported by substantial evidence, “[s]ubstantial evidence means evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.” Smyzer v. B.F. Goodrich Chem. Co., 474 S.W.2d 367, 369 (Ky.1971) (citation omitted). As the finder of fact, the ALJ “has the sole discretion to determine the quality, character, weight, credibility, and substance of the evidence, and to draw reasonable inferences from the evidence. Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky.App.2009)(emphasis added). Moreover, an 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.” Jones v. Brasch–Barry Gen. Contractors, 189 S.W.3d 149, 152 (Ky.App.2006)(footnote omitted).
In support of his finding that Smith is totally permanently disabled, the ALJ stated that he was most persuaded by the opinion of Dr. Arendall, who assessed Smith with a 28 percent whole person impairment. Dr. Arendall opined that Smith had a less than successful outcome from her surgery and that Smith could return to work with restrictions on lifting, walking, sitting, standing, moving her head, twisting, climbing, reaching, and crouching. He further opined that, in addition to normal required breaks, that she would require three or four additional ten to fifteen minute breaks.
The ALJ references KRS 342.0011(11)(c), which defines permanent total disability as having “a permanent disability rating and [having] a complete and permanent inability to perform any type of work as a result of an injury [.]” In addition, the ALJ cites to Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48 (Ky.2000), which stated:
An analysis of the factors set forth in KRS 342.0011(11)(b), (11)(c), and (34) clearly requires an individualized determination of what the worker is and is not able to do after recovering from the work injury. Consistent with Osborne v. Johnson, supra, it necessarily includes a consideration of factors such as the worker's post-injury physical, emotional, intellectual, and vocational status and how those factors interact. It also includes a consideration of the likelihood that the particular worker would be able to find work consistently under normal employment conditions. A worker's ability to do so is affected by factors such as whether the individual will be able to work dependably and whether the worker's physical restrictions will interfere with vocational capabilities. The definition of “work” clearly contemplates that a worker is not required to be homebound in order to be found to be totally occupationally disabled.
Id. at 51. (emphasis added) (citation omitted).
Smith finished high school and has taken some college courses. Her work history includes stocking and cashiering at a convenience store, working in healthcare, and working in sales. Under the Hamilton analysis, it is reasonable for the ALJ to conclude, based upon reasonable inferences from the evidence, that Smith's ongoing physical restrictions, combined with her educational level and past work-history, make it impossible for her to return to any duties which she has performed in the past. Accordingly, we hold that the ALJ's finding of permanent total disability is supported by substantial evidence and the Board did not err in failing to find otherwise.
Britthaven further argues that the ALJ cannot disregard undisputed medical evidence. More precisely, Britthaven argues that the ALJ disregarded Dr. Arendall's opinion that Smith could return to work. We disagree that the ALJ's findings disregard, or otherwise contradict, Dr. Arden's opinion. In fact, the ALJ's findings consider the totality of Dr. Arden's opinion, including the physical restrictions he placed upon Smith's employment, to come to a reasonable inference regarding her ability to find a job within those confines as well as the confines of her education and experience. Bowerman, 297 S.W.3d 858. Accordingly, Britthaven's argument is without merit.
Britthaven's final argument is that the Board abused its discretion when it remanded the claim for a determination of TTD benefits sua sponte. The underpayment of TTD benefits was listed in the ALJ's opinion as a contested issue. However, the ALJ did not fully adjudicate the issue as it pertained to TTD benefits for the period of time between June 8, 2008, and March 9, 2010. As an issue pertaining to the calculation of a claimant's award, the Board is authorized to address the issue sua sponte. See, e.g., Whittaker v. Reeder, 30 S.W.3d 138 (Ky.2000); George Humfleet Mobile Homes v. Christman, 125 S.W.3d 288 (Ky.2004). Consequently, we find no error with the Board's consideration of the issue.
For the foregoing reasons, the November 21, 2011, opinion of the Workers' Compensation Board is affirmed.