Opinion
2023-CA-1478-WC
09-13-2024
RICHARD COLE APPELLANT v. KY FUELS CORP.; JONATHAN WEATHERBY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Dennis James Keenan South Williamson, Kentucky BRIEF FOR APPELLEE KY FUELS CORP. Steven L. Kimbler Lexington, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-13-67013
BRIEF FOR APPELLANT:
Dennis James Keenan
South Williamson, Kentucky
BRIEF FOR APPELLEE KY FUELS CORP.
Steven L. Kimbler
Lexington, Kentucky
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CALDWELL, JUDGES.
OPINION
ACREE, JUDGE:
Appellant, Richard Cole, appeals the Kentucky Workers' Compensation Board's (Board) November 17, 2023 opinion vacating and remanding an administrative law judge's (ALJ) August 23, 2023 opinion and award of permanent total disability benefits to Cole. We affirm.
This matter has come before this Court and the Kentucky Supreme Court on two previous occasions each. It now appears before this Court a third time.
KY Fuels Corp. v. Cole, No. 2019-CA-1519-WC, 2020 WL 6112924 (Ky. App. Oct. 16, 2020); Cole v. KY Fuels Corp., No. 2020-SC-0548-WC, 2021 WL 4489018 (Ky. Sep. 30, 2021); Cole v. KY Fuels Corp., No. 2022-CA-0558-WC, 2022 WL 3721740 (Ky. App. Aug. 26, 2022); Cole v. KY Fuels Corp., No. 2022-SC-0427-WC, 2023 WL 4037580 (Ky. Jun. 15, 2023).
While driving a truck for Appellee, a dip in the road caused the truck's air-controlled seat to suddenly deflate. Cole filed a workers' compensation claim for alleged injuries to his lower back, neck, and hip. In 2015, ALJ Polites found Cole's lumbar condition was a result of the work-related injury arousing a dormant degenerative spine issue. The ALJ awarded Cole permanent partial disability (PPD) based on a ten percent impairment rating, which was enhanced by the three-times multiplier as required by KRS 342.730(1). ALJ Polites dismissed the claim as related to the neck and hip injury.
Kentucky Revised Statutes.
Cole sought leave to reopen his claim in 2017, alleging his condition had worsened to the point of total disability. ALJ Weatherby awarded Cole permanent total disability (PTD) benefits in 2018. Appellee appealed to the Board, which determined the ALJ had failed to enter adequate findings regarding the work-relatedness of Cole's worsening condition. The Board remanded for further findings.
The ALJ entered further findings and analysis on remand and again concluded Cole was entitled to PTD benefits. Appellee appealed to the Board again. The Board affirmed. Appellee appealed to this Court, and we reversed. We determined the ALJ did not distinguish between Cole's work-related injury and his non-compensable medical conditions. We also determined the ALJ made no finding supported by medical evidence as to causation for Cole's PTD award. We reversed and remanded so the ALJ could make such findings. Cole appealed to the Supreme Court, which affirmed our decision.
On remand, the ALJ entered an amended opinion in 2022. Believing the ALJ failed to comply with the instructions on remand because the ALJ did not cite medical evidence demonstrating his work-related injury caused Cole's worsening condition, Appellee appealed to the Board. The Board agreed the ALJ failed to make this finding regarding causation. The Board remanded to the ALJ for additional findings and, because Cole's impairment had worsened, to enter an award based on a thirteen percent impairment rating.
Again, Cole appealed to this Court and, again, we determined the issue of whether objective medical evidence of a causal connection between Cole's worsening condition and his work-related injury was unresolved. We determined, therefore, that the ALJ failed to follow City of Ashland v. Stumbo, 461 S.W.3d 392, 396-97 (Ky. 2015), which provides a five-part test - one part of which is a causal connection between total disability and the workplace injury - to determine whether a workers' compensation claimant is permanently totally disabled. For a second time, the Supreme Court affirmed this Court. It directly addressed the ALJ's omission and provided explicit instructions upon remand:
As noted by the Court of Appeals, since 2017 the ALJ has been charged with citing objective medical evidence establishing Cole's worsened and now totally disabling condition was causally related to his work-related injury. At every stage of review since that time, KY Fuels Corp. has argued the ALJ has failed to fulfill this charge. The Board, the Court of Appeals, and this Court have agreed. Yet, after multiple remands setting forth explicit instructions to do so, the ALJ has failed to either identify the required medical proof of record establishing the causal connection necessary for an award of increased income benefits relative to the claimant's reopening or, in the absence thereof, to revisit the PTD award.
This case presents a sympathetic claimant suffering from myriad maladies - some work-related and others not. The ALJ has provided sufficient citation to evidence of record which supports its finding that Cole's worsened condition now renders him permanently and totally disabled. What remains missing, however, is a designation of medical evidence within the record which would support a finding that Cole's permanent and total disability has resulted from a worsened work-related injury exclusive of any consideration of nonwork-related conditions as required by KRS 342.730(1)(a). Without a specific citation to required medical evidence of record establishing such a causal connection, no award of PTD benefits is permissible because the ALJ would be unable to complete the five-step process mandated in Stumbo.
Therefore, we are again constrained to remand this matter to the Board with directions to remand to the ALJ for
additional findings. Upon such remand, the ALJ must enter findings sufficient to identify the particular objective medical evidence establishing the causal connection discussed herein which would authorize an award of PTD benefits. If no such medical evidence exists, the ALJ must reassess the claim based solely on the evidence of record, excluding consideration of any nonwork-related conditions.Cole v. KY Fuels Corp., No. 2022-SC-0427-WC, 2023 WL 4037580, at *3 (Ky. Jun. 15, 2023) (emphasis added).
On remand, the ALJ entered a third amended opinion and award on August 23, 2023. Appellee again appealed to the Board, arguing the ALJ failed to follow the Kentucky Supreme Court's instruction to cite medical evidence demonstrating that Cole's PTD award is work-related. The Board concluded the ALJ's opinion and award was deficient because it did not follow the Supreme Court's direction to demonstrate the causal connection between his deteriorating condition and the work-related injury. The Board again vacated and remanded. The Board instructed the ALJ to discuss Cole's unrelated conditions and whether they had any impact on his worsening condition. It also noted that any increase in Cole's disability award must be solely attributed to his worsening work-related injury, and required the ALJ to include evidence and analysis regarding causation as Stumbo requires.
Cole now appeals. He argues the Board erred in determining the ALJ did not follow the Supreme Court's instructions regarding entry of additional findings and analysis regarding causation.
The ALJ, as fact finder, "has the sole discretion to determine the quality, character, weight, credibility, and substance of the evidence, and to draw reasonable inferences from that evidence." Podgursky v. Decker, 520 S.W.3d 763, 766 (Ky. App. 2016) (citing Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985); McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 47 (Ky. 1974)). "As fact-finder, 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 party's total proof." Abel Verdon Const. v. Rivera, 348 S.W.3d 749, 753-54 (Ky. 2011) (citing Caudill v. Maloney's Disc. Stores, 560 S.W.2d 15, 16 (Ky. 1977)). This Court may only correct the Board 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).
We agree with the Board that the ALJ's opinion and award is deficient. KRS 342.0011 defines "permanent total disability" 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," and irrefutably presumes total disability for a list of injuries inapplicable to Cole. KRS 342.0011(11)(c). A "permanent disability rating" is "the permanent impairment rating selected by an administrative law judge times the factor set forth in the table that appears at KRS 342.730(1)(b)[.]" KRS 342.0011(36).
An ALJ must undertake a five-step analysis to determine total disability. Stumbo, 461 S.W.3d at 396. The ALJ must determine: (1) whether the claimant suffered a work-related injury; (2) what, if any, impairment rating the claimant has; (3) the permanent disability rating; (4) that the claimant cannot perform any type of work; and (5) the total disability is the result of the work-related injury. Stumbo, 461 S.W.3d at 396-97.
The fifth determination - whether a causal connection exists between the total disability and the work-related injury - is central to this appeal. We conclude that, once again, the ALJ omitted from the most recent amended opinion and award specific evidence of record supporting this causal link. As the Board did in its opinion vacating and remanding, a close examination of the ALJ's findings of fact reveals the ALJ made no finding of fact which would support the existence of the causal link at issue. The ALJ discussed the findings of Dr. Loeb and Dr. Nadar at length, including evidence related to the severity of Cole's worsening condition, Cole's credibility, and Cole's inability to perform work as he did previously.
The ALJ's findings of fact state that the findings of Dr. Nadar "noted the progression of Cole's work-related low back symptoms" and concluded, "based upon the report of Dr. Nadar, that Cole's limitations and increased restrictions related to his lumbar spine condition constitute a further arousal of his degenerative and congenital stenosis and are therefore causally work-related." However, the Board took a closer look at Dr. Nadar's conclusions and determined Dr. Nadar proffered no opinion regarding the cause of Cole's worsened condition. We agree.
Dr. Nadar did note that Cole did not have any prior problems to his neck and back prior to the injury despite the neck injury having been dismissed. However, the ALJ points to no specific finding of Dr. Nadar's to serve as the necessary substantial evidence that the work-related lumbar spine injury specifically caused the worsening of his condition and that Cole's nonwork-related conditions did not.
We agree with Appellee and the Board that the ALJ's opinion and award does not demonstrate that Cole's total disability was caused by his work-related injury. The Board did not overlook or misconstrue controlling statute or precedent - most notably Stumbo - or commit a flagrant error in reaching this conclusion. On remand, per the Supreme Court's instructions, the ALJ must identify specific medical evidence which establishes a causal connection between the work-related injury and Cole's worsened condition or, if no such evidence exists, to reassess the claim.
Based on the foregoing, we affirm the opinion of the Board.
ALL CONCUR.