Opinion
NO. 2012-CA-001461-WC
04-19-2013
FREEDOM ENERGY-MASSEY COAL, AS INSURED BY BRICKSTREET MUTUAL INSURANCE COMPANY APPELLANT v. FREEDOM ENERGY-MASSEY COAL, AS SELF-INSURED; STEPHEN WEIR; HONORABLE CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKER'S COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: A. Stuart Bennett Lexington, Kentucky BRIEF FOR APPELLEE FREEDOM ENERGY-MASSEY COAL AS SELF-INSURED: Jeffrey D. Damron Pikeville, Kentucky BRIEF FOR APPELLEE STEPHEN WEIR: Glenn Martin Hammond Pikeville, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-11-00716
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; TAYLOR AND VANMETER, JUDGES. VANMETER, JUDGE: Freedom Energy - Massey Coal, as insured by Brickstreet Mutual Insurance Co. ("Freedom/Brickstreet"), petitions for review of an opinion of the Workers' Compensation Board ("Board") which affirmed in part, vacated in part, and remanded Stephen Weir's workers' compensation claim to the Administrative Law Judge ("ALJ"). For the following reasons, we affirm.
Weir filed a Form 101 alleging work-related injuries to both knees occurring on December 4, 2009. He was examined on that date by Dr. Keith Hall, an orthopedic surgeon. Initially, Weir was treated conservatively and returned to work wearing a knee brace on his right knee. The pain persisted and Dr. Hall recommended a total right knee replacement and restricted Weir from working as of September 28, 2010. Weir filed a second Form 101 alleging injuries to his left knee, back and hands occurring on September 28, 2010. Weir underwent a total right knee replacement. Following that surgery, Dr. Hall recommended a left knee replacement. On December 4, 2009, Freedom Energy-Massey Coal was self-insured ("Freedom/Self") and insured by Brickstreet Mutual Insurance Co. on September 28, 2010.
The ALJ rendered his Opinion, Order and Award on March 21, 2012. The claims related to Weir's low back and hands were dismissed. The ALJ determined that Weir was totally and permanently disabled due to the right knee replacement surgery. The ALJ further determined that the left knee resulted in a compensable, permanent injury manifesting on December 4, 2009. Weir was awarded total income benefits and all past, present and future reasonable and necessary medical expenses for both knees. Freedom/Self filed a petition for reconsideration, which the ALJ denied.
Freedom/Self then appealed the matter to the Board. Freedom/Self did not argue that Weir is not totally disabled due to his right knee injury; instead, its appeal to the Board concerned whether Freedom/Brickstreet should be responsible for any share of the permanent total disability ("PTD") benefits. Specifically, it maintained the ALJ erred by determining the manifestation of the left knee injury occurred on December 4, 2009, rather than September 28, 2010. The Board determined that the ALJ properly exercised his discretion by determining that the left knee injury manifested on December 4, 2009, but held that the ALJ failed to make a determination as to the extent of that injury. Relying on the holding in Brummitt v. Se. Kentucky Rehab. Indus., 156 S.W.3d 276 (Ky. 2005), the Board remanded the matter to the ALJ to determine the extent of Weir's left knee injury, i.e., whether the injury that manifested on December 4, 2009, caused a partial or total disability, and if partial, did the subsequent nine months of work cause additional injury to the left knee. If so, the Board directed the ALJ to make a finding as to which carrier is responsible for the additional injury. This petition for review of the Board's opinion followed.
Freedom/Brickstreet argues the Board erred by vacating and remanding the ALJ's award because the ALJ sufficiently determined the injury manifested on December 4, 2009, and thus Freedom/Self is liable for all PTD benefits. We disagree.
The standard for reviewing a decision of the Board "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." W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). The ALJ is the finder of fact and "has the sole authority to determine the quality, character, and substance of the evidence." Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993) (citation omitted). We review the ALJ's findings of fact under a clearly erroneous standard of review. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
The Board reversed the ALJ based on the holding in Brummitt which states that when an employee "continues to perform the same repetitive activity after a gradual injury becomes manifest, additional incidents of workplace trauma may well cause additional harmful changes." 156 S.W.3d at 279. Brummitt involved an employee who filed a claim for benefits alleging work-related injuries to her wrists and hands that manifested in April, 2000. Id. at 277. The injury was treated conservatively and the employee continued to work. Id. The employee was later diagnosed with bilateral carpal tunnel syndrome, and moved to amend the date of injury to October, 2000, the date of diagnosis. Id. at 278. The issue of responsibility for compensation arose because the employer was insured by two different carriers in April and October, 2000. Id. at 277. The ALJ determined that despite the formal diagnosis, the employee was told her injuries were caused by her work in April, 2000, and thus the insurance carrier as of that date was responsible for compensation. Id. at 278.
On appeal, the Kentucky Supreme Court reversed the ALJ's determination, finding the ALJ erred by treating the injury as one of a single traumatic event, rather than a gradual injury arising from "minitrauma." Id. at 279. The court found the ALJ erred by determining the April manifestation date precluded an award for the effects of any trauma incurred afterwards as a result of the employee's continued work. Id. The court remanded the case to the ALJ to determine whether any work-related trauma occurred after April, 2000, to cause a "harmful change" pursuant to KRS 342.0011(1), and if so, which carrier was responsible at that time. Id.
Kentucky Revised Statutes.
Defines an injury as being a work-related traumatic event that causes a harmful change in the human organism.
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Like the Board, we find the case at hand sufficiently analogous to, and thus guided by, the Brummitt opinion. Here, the ALJ determined that a permanent injury to Weir's left knee manifested on December 4, 2009; however, the ALJ failed to address whether that injury was "partial" or "total." The medical records indicate Weir was treated conservatively and permitted to return to the same work activity that he performed prior to December 4, 2009. On remand, the ALJ may very well determine the left knee injury resulted in a total disability as of December 4, 2009, and thus any subsequent trauma would be inconsequential; however, such a determination was not made in this case and is necessary. Despite Freedom/Brickstreet's argument to the contrary, the ALJ's finding that Weir's right knee replacement resulted in a total and permanent disability is not dispositive of the issue presented. If Weir suffered additional injuries to his left knee between December 4, 2009, and September 28, 2010, during a period in which Freedom/Brickstreet was the carrier, it must share the appropriate cost of compensation irrespective of the right knee injury. Accordingly, the Board properly vacated the award in part and remanded this claim to the ALJ to make a finding regarding the extent of Weir's left knee injury.
The opinion of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: A. Stuart Bennett
Lexington, Kentucky
BRIEF FOR APPELLEE
FREEDOM ENERGY-MASSEY
COAL AS SELF-INSURED:
Jeffrey D. Damron
Pikeville, Kentucky
BRIEF FOR APPELLEE STEPHEN
WEIR:
Glenn Martin Hammond
Pikeville, Kentucky