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RENDERED: DECEMBER 3, 1999; 10:00 a.m. NOT TO BE PUBLISHED

C ommonwealth O f K entucky C ourt O f A ppeals
NO. 1999-CA-000637-WC

TORIE MINING, INC.

APPELLANT

v.

PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD NO. 97-85465

STEVEN KIDD; DENIS S. KLINE, Administrative Law Judge; and WORKERS' COMPENSATION BOARD

APPELLEES

OPINION AFFIRMING ** ** ** ** ** BEFORE: DYCHE, SCHRODER and HUDDLESTON, Judges.

HUDDLESTON, Judge: Following an injury at work, Steven Kidd sought workers' compensation benefits. The Administrative Law Judge who

heard Kidd's claim found that while he may be able to do light jobs, he is unemployable due to his physiological and psychological restrictions. The Workers' Compensation Board affirmed the ALJ's

award of total occupational disability. Kidd worked as a scoop operator for Torie Mining, Inc. While working with a roof bolter, his gloved hand became tangled in

the machinery, twisting his arm.

The twisting caused a compound

fracture of the right arm, torn tendons and a broken wrist. Kidd had multiple surgeries following the accident and underwent physical therapy. The independent medical examiner who

evaluated Kidd observed that despite an "excellent" effort at recovery, he was "still markedly limited in the ability to use the right upper extremity." The ALJ found that Kidd's main impediment was a fear of re-injury. The psychological evidence indicated that because of

his injuries, Kidd suffered from depression, post traumatic stress disorder and anxiety disorder. An occupational rehabilitation

consultant who evaluated Kidd determined that he was basically unemployable. The Board affirmed the ALJ's award of total occupational disability. Kidd total Torie Mining argued that the ALJ erred by awarding occupation disability benefits as some evidence

suggested that he could do light jobs.

The Board observed that the

1996 changes to the Workers' Compensation Act divided disability into "temporary total disability," "permanent partial disability" and "permanent total disability" and that under the Act, the fact finder has much broader discretion when assessing permanent total disability. The Board determined that "[t]he evidence . . . as

analyzed by the ALJ does support the ALJ's conclusion that the medical, lay and vocational testimony support the inability of this individual at this time to be competitive for work . . . ." As we find that the Board's well-written opinion

expresses our view of this matter, we adopt it as our own:

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LOVAN, MEMBER.

Torie Mining, Inc. ("Torie"), appeals

from the decision of Hon. Denis S. Kline, Administrative Law Judge ("ALJ"), awarding Steven Kidd ("Kidd") a total occupational disability. On January, 15, 1997, Kidd was working for Torie and had been hired primarily as scoop operator. On that

date, he was assisting with the roof bolter when his glove became entangled in part of the roof bolting machinery. was Unable to disentangle himself, his right arm resulting in a significant compound He

twisted,

fracture, tearing of tendons and breaking his wrist. has not worked since the incident.

Temporary total disability benefits and medical benefits treatment. were paid and Kidd continues to undergo

His work has primarily consisted of manual He testified that he

labor in the coal mining industry.

continues to experience problems with his right upper extremity and has developed psychological difficulties in the form of depression, nightmares, difficulty sleeping, and flashbacks to the incident. He has an ongoing fear Kidd the

that his right arm will in some way be reinjured. does not believe that he presently possesses

capability of returning to any of the work that he has performed in the past and is unaware of any work that he has the physical or mental capabilities to perform at this time. family and He experiences difficulty relating to his other individuals and tends to keep to

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himself.

He

finds

it

difficult

to

cope

with

his

inability to work and expresses a desire to better himself. disability. Although three issues were presented to the ALJ, the only issue to be addressed by us on appeal relates to the ALJ's finding Kidd presently permanently, totally He is presently receiving Social Security

occupationally disabled. The medical evidence concerning Kidd's physiological condition came from Dr. Christopher Prevel, a physician at the University of Kentucky Medical Center, and Dr. Thomas Harter, who examined Kidd at the request of Torie. Dr. Prevel took over the care of Kidd when his initial treating physician left the University. Dr. Prevel

assigned a 46% functional impairment to the body as a whole as a result of the injury. While he indicated that in his opinion Kidd had reached maximum medical

improvement, he continued to exhibit loss of strength and range of motion in his elbow, wrist, and hand. He did

not believe Kidd had the physical capability of returning to any of his prior employment, although he acknowledged there may be some light sedentary activities in which Kidd could engage. He strongly encouraged Kidd to

participate in vocational rehabilitation. Dr. Harter also noted that there was significant limitation of motion and strength in the hand, wrist and elbow of the right upper extremity. He assigned a 34%

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functional impairment.

This assessment of impairment

only considered limitation of motion to a small degree and he believed that if one were to use a range of motion assessment, the impairment could certainly be greater. His evidence was not significantly different from that of Dr. Prevel in that he did not believe it was likely that Kidd possessed the physical capability of returning to the mining industry, although he did believe he had the physical capacity to engage in sedentary labor. Psychological testimony was presented from Dr.

Robert Granacher and Dr. William Weitzel. assessed a 25% impairment based upon

Dr. Granacher a Class III

psychiatric impairment.

He was of the opinion that the

psychiatric disorder developed as a direct result of the injury and believed that it was important that Kidd participate in psychiatric treatment. treatment, He noted including had a He

pharmacological

Kidd

preoccupation with pain and resulting depression.

believed it would be appropriate for Kidd to be directed to a pain center staffed by "knowledgeable pain

physicians".

He further indicated that individuals with

"complex injures [sic] of this type often end up with a psychiatric disorder". He believed that treatment of the condition was paramount before Kidd could be expected to be fully functional. Dr. Weitzel assessed a 15% functional impairment, one-half of which was due directly to the injury and the

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remainder to the arousal of a pre-existing condition. He diagnosed depression anxiety and evidence of resolving symptomatology from post-traumatic stress disorder. believed the post-traumatic stress disorder He

should

respond to treatment but that Kidd "needs immediate attention to the way he is dealing with his right upper extremity injury and he needs to be fully informed of what is possible and what his long term limitations will be". type Dr. Weitzel did not believe Kidd was receiving the of guidance that he needed. Kidd exhibited

recurrent and intrusive recollections of the injury and experienced occasional nightmares. Vocational testimony was presented by Dr. Ralph Crystal and Joe Woolwine. Dr. Crystal found Kidd to have a reading ability at the middle of the 10th grade, spelling at the end of the 4th grade and math at the end of the 3rd grade. He believed there were jobs within

Kidd's region that he could probably perform based upon his physical and psychological limitations. He

encouraged vocational rehabilitation. opinion Kidd could engage in

He was of the laboring

sedentary

activities. Joe probably Woolwine engage also in acknowledged sedentary to that Kidd could

light

laboring

activities. He did testify at one point that he believed Kidd was presently totally occupationally disabled. He

noted that the combination of the physical injury with

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the psychological difficulties would likely limit Kidd from engaging in working activities at this time. Unlike others, he did not believe Kidd was a good candidate for vocational rehabilitation. The ALJ, after the [sic] considering the entirety of the evidence and addressing the issue of total

disability, stated "I believe it is clear that he is. While there may be some very light jobs that he could perform with his current restrictions, I believe he would be placed at such a competitive disadvantage, when

compared with workers of similar age, education and experience, that he would be, for all practical purposes, unemployable." The ALJ went on to state that he believed with vocational rehabilitation that the permanency of the total disability could be overcome. The employer challenges the ALJ's findings arguing that since there is some evidence of record indicating that light and sedentary jobs could be available to Kidd that under the changes in the Workers' Compensation Act effective December 12, 1996, an award of permanent total disability benefits is inappropriate. We have previously addressed similar arguments in other cases, initially in Ira a. Watson Dept. Store vs. David Hamilton, Claim No. 97-90489, rendered November 13, 1998. This Board strives for consistency, particularly In

when we believe that our prior decision is correct.

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rendering the opinion herein, we will borrow liberally from our discussion in Ira Watson. Since December 12, 1996, many things in the Kentucky Workers' Compensation Act have changed. Some things have not. It is the interaction of what has changed and what

has not that must be analyzed in the instant appeal. One thing that has not changed is that the burden of proof rests with the to injured worker When, to establish the his party

entitlement

benefits.

however,

without the burden of proof is unsuccessful before the ALJ, in this case Torie, we must view the evidence of record and the law to determine whether there was

substantial evidence of probative value to support the ALJ's ultimate conclusion. Paramount Foods, Inc., vs.

Burkhardt, Ky., 695 SW2d 418 (1985). Prior to December 12, 1996, there was a single definition of disability contained in KRS 342.0011(11). Effective December 12, 1996, the Legislature created three specific subsections defining "temporary total disability", "permanent partial disability" and

"permanent total disability".

While additional sections

of the Act severely limit an adjudicator's ability to assess occupational disability in permanent partial

disability cases, the adjudicator has more discretion to evaluate the evidence in determining total occupational disability. The determination of permanent total

disability continues to be a factual finding. The strict

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restrictions referred to by Torie apply only to the determination of permanent partial disability in

accordance with KRS 342.730(1)(b).

If, however, the

adjudicator decides that an individual is permanently and totally disabled, those mathematical factors are not applicable. Permanent total disability is defined as:

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... "Work" is defined in KRS 342.0011(34) as follows: "Work" means providing services to another in

return for remuneration on a regular and sustained basis in a competitive economy. These two provisions of the Act mandate two specific findings by an adjudicator in assessing a total

disability award.

First, the adjudicator must conclude

that the evidence establishes that there is a "permanent disability rating". Here, there is no serious challenge

but that Kidd has a 34% or greater impairment rating from his physiological injury and a 15 to 25% impairment as a result of the psychiatric aspects of this injury. The

second aspect of the analysis requires the adjudicator to determine whether there has been a complete and permanent inability to perform any type of work as a result of the injury. This portion of the definition of permanent

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total disability provides discretion with an ALJ or Arbitrator as he or she interprets the evidence in light of the definition of "work". While permanent partial disability assessments

provide for very little discretion on the part of the fact finder, total disability assessments are not so strictly limited. Although the full impact of Osborne

vs. Johnson, Ky., 432 SW2d 800 (1968) has been modified, it is not totally court for that gone.1 (footnote supplied.) the The are no In

Osborne,

the

thoroughly

analyzed

needed court not longer

requirements emphasized

finding medical While that

disability. percentages statement is

determinative.

controlling for permanent partial disability, it remains applicable to permanent total disability. The statute,

as it existed at the time of the decision in Osborne and thereafter until December 12, 1996, also required the fact finder to analyze the worker's competitive abilities based upon the "local labor market". However, with the

changes in the Kentucky Workers' Compensation Act as effective December 12, 1996, the local labor market analysis is no longer appropriate. The ALJ in the

instant action in concluding Kidd was experiencing total occupational disability did not limit his assessment to the local labor market and, therefore, appropriately

Legislative amendments since Osborne to Ky. Rev. Stat. (KRS) 342.730 have made disability ratings determinative for permanent partial disability awards. -10-

1

disregarded that aspect of Osborne.

We believe that the

Legislature's definition of "work" as set out above follows a great deal of the language used by the court in Osborne, particularly in their quotations from Larson. Larson noted that if the worker's physical condition is such as to disqualify him for regular employment in the labor market, then total disability may be found. Osborne at 803. See

The court went on to state also at page

803 "if the Board finds the workman is so physically impaired that he is not capable of performing any kind of work of regular employment . . . the man will be

considered to be totally disabled". court further states at 803:

In a footnote, the

We are talking about hired employment, not selfemployment. We do not believe the law contemplates

that consideration shall be given to the workman's ability to sell apples or pencils on the street. In defining normal employment conditions, the court adopted Larson's test of probable dependability to sell services in a competitive labor market. This definition

considers whether the individual will be dependable, whether his physiological restrictions prohibit him from using skills within his individual vocational

capabilities and accepts that one is not required to be homebound disabled. to be determined totally occupationally

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Here, we have an individual who has significant physiological impairment and psychiatric impairment under the AMA Guidelines. We have vocational testimony that

offers the belief Kidd is presently totally disabled, although we have medical testimony and vocational

testimony stating he might be able to engage in light and sedentary labor. The evidence, however, as analyzed by

the ALJ does support the ALJ's conclusion that the medical, inability lay of and this vocational individual testimony at this support time to the be

competitive for work, employment of a regular nature in a competitive market. It was within the ALJ's authority

and discretion to consider this evidence in this finding. See Caudill vs. Maloney's Discount Stores, Ky., 560 SW2d 15 (1977); Eaton Axle Corporation vs. Nally, Ky., 688 SW2d 334 (1985); and Smyzer vs. B.F. Goodrich Chemical Co., Ky., 474 SW2d 367 (1971). evidence may have supported a While arguably the finding of permanent

partial disability, we agree with the ALJ that it clearly supports a finding of total occupational disability at this time. With proper medical and psychiatric treatment coupled with efforts at vocational rehabilitation, Kidd may overcome the level of disability that he now

experiences.

Until or if that occurs, Kidd is entitled

to a finding of total disability. While things have changed, the Board now has no greater authority to second guess an ALJ's reliance upon

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evidence of record than it did prior to December 12, 1996. See McCloud vs. Beth-Elkhorn Corp., Ky., 514 SW2d The statutory analysis of disability offered

46 (1974).

by the Kentucky Legislature in reality provides a greater degree of discretion with the fact finder on assessments of total occupational disability than it does on partial occupational disability. Legislature manner. Accordingly, the decision of Hon. Denis S. Kline, Administrative Law Judge, is hereby AFFIRMED and this appeal is DISMISSED. We have reviewed the Board's opinion in accord with the dictates of Western Baptist Hospital v. Kelly.2 In Western, the created this We can only presume that the discretion in a purposeful

Supreme Court discussed the standard of review applicable to 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.3

2

Ky., 827 S.W.2d 685 (1992). Id. at 687. -13-

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Finding that the Board has not overlooked or misconstrued controlling law or erred in assessing the evidence, we affirm its decision. ALL CONCUR. BRIEF FOR APPELLANT: Paul E. Jones BAIRD, BAIRD, BAIRD & JONES, P.S.C. Pikeville, Kentucky BRIEF FOR APPELLEE: Miller Kent Carter BRANHAM & CARTER, P.S.C. Pikeville, Kentucky

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