Opinion
NO. 2018-CA-001196-WC NO. 2018-CA-001263-WC
03-27-2020
ADVANCED PAVING & CONSTRUCTION APPELLANT v. FLOYD METCALF; HON. W. GREG HARVEY, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES AND FLOYD METCALF CROSS-APPELLANT v. ADVANCED PAVING & CONSTRUCTION; HON. W. GREG HARVEY, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD CROSS-APPELLEES
BRIEFS FOR APPELLANT/CROSS-APPELLEE ADVANCED PAVING & CONSTRUCTION: Lyn Douglas Powers Louisville, Kentucky BRIEFS FOR APPELLEE/CROSS-APPELLANT FLOYD METCALF: Wayne C. Daub Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-17-01543 CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-17-01543 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, KRAMER, AND L. THOMPSON, JUDGES. KRAMER, JUDGE: Advanced Paving & Construction ("Advanced") and Floyd Metcalf appeal the decision of the Workers' Compensation Board ("the Board") which affirmed the finding of the Administrative Law Judge ("ALJ") that Metcalf is permanently and totally disabled as a result of a work-related injury to his right eye that resulted in blindness. The Board also vacated and remanded the ALJ's decision as it relates to the application of KRS 342.730(4). After careful review, we affirm.
Kentucky Revised Statute.
Metcalf began his employment with Advanced in 2012, and primarily operated heavy machinery in his job duties. His prior work history was similar in that he had worked in maintenance and/or construction most of his life. On or about November 9, 2016, Metcalf was on a jobsite operating a backhoe with a hoe-ram attached when a piece of rock hit him in the right eye. He was fifty-one years old at the time of the accident. Although he has had four surgeries since the accident, he suffers a near total loss of vision in his right eye. Metcalf had previously sustained an injury to his left eye at age twelve, which left him blind in that eye. The left eye was replaced with a prosthetic in 2012, prior to his employment with Advanced.
The parties stipulated to the impairment ratings assigned to Metcalf by Dr. Richard Eiferman. Metcalf suffers from 96% whole person impairment due to a near total loss of vision in both eyes. Dr. Eiferman attributed 20% of the impairment to the loss of Metcalf's vision in his left eye in 1977, at age twelve. The remaining 76% impairment is attributable to the November 9, 2016 injury.
The ALJ found that Metcalf is permanently and totally disabled after performing a five-step analysis pursuant to City of Ashland v. Stumbo, 461 S.W.3d 392, 396-97 (Ky. 2015). Although 20% of the impairment resulted from Metcalf's prior injury at age twelve, the ALJ was not persuaded that Metcalf suffered any occupational disability from the childhood injury because he worked for Advanced without any restrictions prior to the November 9, 2016 accident.
The ALJ ordered that Metcalf shall receive permanent total disability benefits (PTD) on a weekly basis "for so long as he remains disabled, subject to the tier down provision in the 1994 version of KRS 342.730(4)." The parties filed petitions for reconsideration. Metcalf argued that, because the Kentucky Supreme Court had recently held the then-current version of KRS 342.730(4) unconstitutional, neither the current nor former version of the subsection applied. See Parker v. Webster County Coal, LLC (Dotiki Mine), 529 S.W.3d 759, 767 (Ky. 2017). In short, Metcalf argued that he is entitled to receive full PTD for the remainder of his natural life. For its part, Advanced argued that Metcalf was not permanently and totally disabled as a result of the November 9, 2016 accident. The ALJ entered an order denying both petitions. Both parties appealed to the Board. The Board affirmed in part, but vacated and remanded the portion of the ALJ's decision regarding KRS 342.730(4), noting that
the ALJ did not err in applying the tier-down provision contained in the pre-1996 version of KRS 342.730(4) when he decided the claim. However, effective July 14, 2018, the amended version of KRS 342.730(4) is applicable to this claim. This recent statutory change sets forth that income benefits awarded to Metcalf terminate at age seventy. Therefore, we must vacate and remand this claim to the ALJ for a determination regarding the termination of Metcalf's award.
The parties now appeal to this Court. Advanced argues that Metcalf is not permanently and totally disabled as a result of the November 9, 2016 accident, and that the ALJ is required to carve-out the award of benefits to account for "the combined effects of pre-existing, non-work-related impairment and work-related impairment." Metcalf argues the ALJ erred by applying the pre-1996 version of KRS 342.730(4) and, similarly, the Board erred in remanding the case to the ALJ for a determination of benefits pursuant to the version of KRS 342.730(4) effective July 14, 2018 (i.e., the current version). He argues that he is entitled to lifetime benefits.
"On appellate review, the ALJ's findings of fact are entitled to considerable deference and will not be set aside unless the evidence compels a contrary finding. Bullock v. Peabody Coal Co., 882 S.W.2d 676 (Ky. 1994). However, the ALJ's and the Board's application of the law are reviewed de novo. Combs v. Gaffney, 282 S.W.2d 817 (Ky. 1955); Hardy-Burlingham Mining Co. v. Hurt, 238 Ky. 589, 38 S.W.2d 460 (1931); Sears Roebuck & Co. v. Dennis, 131 S.W.3d 351 (Ky. App. 2004)." Finley v. DBM Techs., 217 S.W.3d 261, 264-65 (Ky. App. 2007).
Turning to the issues before us, we first address Advanced's appeal (2018-CA-001196-WC). Advanced asserts the ALJ erred by awarding PTD to Metcalf because Metcalf simply "is not permanently totally disabled." KRS 342.0011(11)(c) 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[.]" 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[.]" "[D]etermining whether a particular worker has sustained a partial or total occupational disability as defined by KRS 342.0011(11) clearly requires a weighing of the evidence concerning whether the worker will be able to earn an income by providing services on a regular and sustained basis in a competitive economy." Ira A. Watson Dep't Store v. Hamilton, 34 S.W.3d 48, 51 (Ky. 2000). Further, analysis of whether a claimant is permanently totally disabled
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.Id.
In support of its position that Metcalf is employable despite near total blindness, Advanced points to the report of Dr. Eiferman, who evaluated Metcalf at Advanced's request. His report states, in relevant part, "I would also recommend referring [Metcalf] to the Kentucky Industries for the Blind for vocational rehabilitation. I believe he can be actively and productively employed at some capacity." Other evidence before the ALJ consisted of Metcalf's medical records from Dr. William Smiddy. Dr. Smiddy diagnosed Metcalf with a ruptured globe in the right eye, retinal detachment in the right eye, and proliferative vitreoretinopathy. Dr. Smiddy's report stated that he "could not recommend further surgical intervention since the macula is irreparably consumed by this process[.]" His report also contains a handwritten notation that states "[Patient] is functionally blind. I do not see [how] he can work at all." Dr. Smiddy also checked a box on his reporting form that indicates, "[t]he injured worker's functional limitations and restrictions, identified in detail below, are of such severity that he/she cannot perform activities, even at a sedentary level[.]"
The ALJ also heard Metcalf's testimony regarding his vision. The ALJ summarized Metcalf's testimony thusly:
During the hearing, Metcalf was asked what he was able to see, if anything:
Q: Tell me about your right eye. Obviously, you don't have a prosthetic. What can you see, if anything, with your right eye? Can you explain—and you can tell me like you have before as to lights and darks and whatever you want to tell me.
A: Sometimes I don't know if it's daylight or dark and the sun . . .
Q: Do you want to take a minute?
[ALJ]: Take your time. We're not in a hurry.
A: Bits and pieces.
Q: Okay. Can you see outside at all?
A: If the sun is just right. If it ain't too bright or not too cloudy and I'm at home, you know.
Q: Can you see a little bit?
A: (Nodding head.)
Q: What can you see? And I'm not trying to torture you. Okay. We all know that you've got a very serious injury. But it's helpful if you could kind of tell us a little bit and then I'll quit. Okay?(Emphasis in original.)
A: Yeah. On good moments I might see my sidewalk or my porch.
Q: Okay. Other than that, when it's not a good moment, what do you see?
A: Nothing. Black.
Q: Okay.
A: I can't see no faces in here.
An ALJ may reject any testimony and believe or disbelieve any parts of the evidence. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). Where conflicting medical evidence is concerned, the question of who to believe is one exclusively for the fact-finder. Yocom v. Gentry, 535 S.W.2d 850, 851 (Ky. 1976). "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). "Substantial 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 Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971). The existence of evidence that would have supported a different result is not a basis for reversal on appeal. See McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). In this instance, the ALJ had the discretion to believe or disregard any of the evidence before him and obviously did not find credible or chose to disregard Dr. Eiferman's opinion that Metcalf can be "actively and productively employed at some capacity." The ALJ found no evidence that "Metcalf, given his lack of vision, lack of training in dealing with blindness, 10th grade education, and current age, has any prospect at performing work in a competitive economy." We discern no reason to disturb the ALJ's findings.
Advanced argues that "it is obvious that [Metcalf] was not able to perform any task or function that required perfect, near perfect, or correctable vision" prior to his accident. However, Advanced's argument is far from "obvious." The record before us shows Advanced presented no evidence that Metcalf was unable to perform any work-related duties assigned to him prior to November 9, 2016. In fact, the ALJ found that Metcalf "has a long work history and was not operating under restrictions at the time of his work injury that cost him the sight in his right eye."
Accordingly, the evidence in the record before us does not compel a finding contrary to the ALJ's conclusion that Metcalf is permanently and totally disabled.
Advanced next argues that the ALJ erred in rendering an award of PTD without a carve-out for prior non-work-related impairment because, Advanced contends, the ALJ failed to conduct the proper legal analysis. Advanced argues that "the effects of the work accident alone [did] not cause a complete and total inability to return to any work . . . Non-work-related impairment must, therefore, be carved-out of any award of total disability." We disagree.
Advanced also argues that the ALJ failed to conduct an analysis pursuant to Osborne v. Johnson, 432 S.W.2d 800 (Ky. 1968). However, as Advanced did not make this argument to the ALJ or the Board, we shall not consider it. It is simply a repackaging of Advanced's argument that the ALJ failed to consider Metcalf's non-work-related impairment.
The ALJ conducted a five-step analysis pursuant to Stumbo, 461 S.W.3d at 396-97, to determine whether Metcalf is totally disabled. First, the ALJ determined Metcalf suffered a work-related injury. Advanced does not contest this. Second, the ALJ determined Metcalf has an impairment rating of 76% assigned by Dr. Eiferman, and attributable to the November 9, 2016 accident. This was based upon a stipulation by the parties regarding Dr. Eiferman's report. Third, the ALJ determined Metcalf has a permanent disability rating of 1.292. Advanced does not contest this. For the fourth step, the ALJ determined that Metcalf is unable to perform any type of work. "The ALJ must set forth, with some specificity, what factors he or she considered and how those factors led to the conclusion that the claimant is totally and permanently disabled." Id. We have already addressed the ALJ's determination that Metcalf is totally and permanently disabled in this opinion and shall not revisit it here, except to reiterate that we discern no error. Finally, the ALJ determined Metcalf's total disability is the result of the work injury. We find Advanced's argument that the ALJ failed to perform the proper analysis regarding the fifth step without merit. The ALJ undertook an extensive analysis which we incorporate herein:
[T]he final consideration is whether the work injury caused the total disability. [Advanced] in essence argues that but for the prior nonwork related loss of vision in the left eye Metcalf would not be totally disabled.
In support of this argument, [Advanced] cites the language set forth above in KRS 342.730(1)(a) and accurately states that Metcalf worked as a heavy equipment operator for many years with one eye. Absent the nonwork related loss of vision in the left eye, [Advanced] argues the November 9, 201[6] incident would not have caused him to be totally disabled as he would have had the use of his left eye to continue performing his work. It cites the case of Young v. Kentucky Baptist Hospital, 483 S.W.2d 148 (Ky. 1972) as authoritative as the facts are similar. In Young, the claimant suffered the loss of vision in his left eye at age 12. He then lost vision in his right eye in 1969 as a result of a work injury. The Court noted:
[a]ll parties in this case agree that Myers is totally and permanently disabled and that he has complied with the procedures for presentation of his claim. The real argument centers around the apportionment of the liability for his compensation. Young, at 149.
The version of the Act in place at the time contained a provision in KRS 342.120(3) that stated:
[The] employer shall be liable only for the degree of disability which would have resulted from the latter injury or occupational disease had there been no preexisting disability or dormant, but aroused condition." (emphasis added).
The Court was faced with apportionment of the liability between the employer and the Special Fund. It held the employer was only to pay 100 weeks for the work injury and 100 weeks should be excluded for the prior nonwork related injury. The balance of the claimant's compensation was ordered to be paid by the Special Fund. Thus, the Court reversed the Board's decision that the employer would pay the entire award.
The Act is markedly different. The Special Fund does not have responsibility for injuries occurring after December 12, 1996. This case is not a case of apportionment but a case of whether Metcalf is entitled to a permanent total disability award under the current version of the Act. For that reason, the undersigned does not find Young authoritative.
Turning to the current language in KRS 342.730(1)(a), [Advanced] cites Spurlin v. Adkins, 940 S.W.2d 900 (Ky. 1997) for the proposition that nonwork related disability may not be considered in determining the extent of a worker's disability. In Spurlin, the ALJ found the claimant had 20% prior, active disability and 80% occupational disability due to a work-related injury. Due to the combined effects of the nonwork and work-related back injuries the claimant was found permanently and totally disabled. The injury occurred in 1993 and the Special Fund was a participant in the claim. The holding in Spurlin was centered on the appropriate version of the statute to apply to the facts and the Court's decision did not center upon the question before the undersigned here.
The undersigned finds the Supreme Court of Kentucky's holding in Roberts Bros. Coal Co. v. Robinson, 113 S.W.3d 181 (Ky. 2003) instructive. In Robinson, the Court held:
. . . awards under KRS 342.730(1)(a) continue to be based upon a finding of disability. In contrast, an award of permanent partial disability under KRS 342.730(1)(b) is based solely on a finding that the injury resulted in a particular AMA impairment rating, with the amount of disability being determined by statute.
In other words, KRS 342.730(1)(a) requires the ALJ to determine the worker's disability, while KRS 342.730(1)(b) requires the ALJ to determine the worker's impairment. Impairment and disability are not synonymous. We conclude, therefore, that an exclusion from a total disability award must be based upon pre-existing disability, while an exclusion from a partial disability award must be based upon pre-existing impairment. For that reason, if an individual is working without restrictions at the time a work-related injury is sustained, a finding of pre-existing impairment does not compel a finding of pre-existing disability with regard to an award that is made under KRS 342.730(1)(a). Roberts Bros. Coal Co. v. Robinson, 113 S.W.3d 181, 183 (Ky. 2003).
KRS 342.730(1)(a) purports to exclude nonwork related impairment from a determination of whether or not Metcalf is permanently and totally occupationally disabled. He certainly meets the definition of one who is permanently and totally disabled. The Court has instructed ALJs to address claims for permanent total benefits in terms of disability and not impairment.
In this case, the parties agree Metcalf had impairment for the loss of sight in his left eye at age 12. The evidence indicates, however, that as a result of that nonwork related injury Metcalf operated without any evidence of active disability. He has a long work history and was not operating under restrictions at the time of his work injury that cost him the sight in his right eye. This is significant. A worker who has no occupational disability but has impairment who then has a work injury that renders him totally disabled is entitled to benefits pursuant to KRS 342.730(1)(a). If the undersigned were to hold otherwise it would thwart the definition of permanent total disability found in KRS 342.0011(11)(c).
. . . .
Here, the undersigned acknowledges the impairment rating of 20% that resulted from the loss of vision in the left eye at age 12. The ALJ is not persuaded that the evidence indicates Metcalf suffered any disability as a result of that injury.
In keeping with the Court's instruction in Robinson, supra, the undersigned finds the November 9, 201[6] injury at work resulted in Metcalf being rendered permanently and totally disabled. The prior nonwork related impairment is irrelevant in that determination because it was not occupationally disabling. The disability arose after the November 9, 201[6] work injury.
This claim is different than cases that deal with prior injuries to other parts of the body such as the lumbar spine or knees. In those cases, prior nonwork related impairment often carries with it some disability in the form of permanent restrictions. This is not the case here where Metcalf had no occupational disability from the loss of vision in his left eye.
In the order denying Advanced's petition for reconsideration, the ALJ again addressed Advanced's argument that "had [Metcalf] not had pre-existing impairment, the work injury would not have rendered him totally disabled." The ALJ pointed out that Metcalf was working without any restrictions whatsoever prior to the November 9, 2016 accident. The ALJ also cited to Inland Steel Company v. Mullins, 367 S.W.2d 250 (Ky. 1963), which held
Assuming, however, [the claimant's] state of health was to some extent below par, such a condition of debility or frailty would not exclude him from a full recovery of the compensation payments allowed him by law. We have said that industry takes a man as it finds him, and this Court has held that the Workmen's Compensation Act is not limited in its application to employees in good health.Id. at 253 (citations omitted).
The ALJ pointed out that Advanced "took Metcalf as it found him, with vision in one eye." Metcalf worked for Advanced without restrictions or accommodations until the date of the accident. As the ALJ succinctly pointed out, "one minute he was working without occupational disability and the next he is totally disabled due to his lack of vision." Advanced argues that Metcalf had a pre-existing, active impairment due to the loss of vision in his left eye, but it has presented no evidence that Metcalf had a pre-existing disability due to the loss of vision in his left eye prior to the accident. As discussed at length by the ALJ and reiterated by the Board, this distinction is crucial. See Robinson, 113 S.W.3d at 183. Accordingly, we find no error.
We now turn our attention to the subject of Metcalf's appeal (2018-CA-001263-WC) and the application of KRS 342.730(4) by the ALJ. The current version of the statutory provision reads as follows:
All income benefits payable pursuant to this chapter shall terminate as of the date upon which the employee reaches the age of seventy (70), or four (4) years after the employee's injury or last exposure, whichever last occurs. In like manner all income benefits payable pursuant to this chapter to spouses and dependents shall terminate as of the date upon which the employee would have reached age seventy (70) or four (4) years after the employee's date of injury or date of last exposure, whichever last occurs.
The Board vacated and remanded the ALJ's determination that Metcalf's PTD shall be subjected to a tier down provision because, during the course of Metcalf's appeal, the latest version of KRS 342.730(4) became effective. We agree with the Board.
This Court held the instant action in abeyance pending finality of Holcim v. Swinford, 581 S.W.3d 37 (Ky. 2019). In Holcim, one of the issues before the Kentucky Supreme Court was whether the most recent version of KRS 342.730(4) was retroactive. The Supreme Court noted that "portions of the Act passed by the General Assembly were completely omitted from the official version of the Kentucky Revised Statutes." Id. at 43. The Supreme Court then pointed to a Legislative Research Commission note that appears below the official version of KRS 342.730(4), which states, in relevant part,
Rendition of this opinion was further delayed due to Metcalf's filing of a motion to allow an additional party, which was denied.
Subsection (4) of Section 13 of this Act shall apply prospectively and retroactively to all claims: (a) For which the date of injury or date of last exposure occurred on or after December 12, 1996; and (b) That have not been fully and finally adjudicated, or are in the appellate process, or for which time to file an appeal has not lapsed, as of the effective date of this Act.
Accordingly, the Supreme Court ruled that the current version of KRS 342.730(4) is retroactive, specifically stating
With no mention of retroactivity or any language from which retroactivity may be inferred, the express language of KRS 342.730(4) does not make the statute retroactive. However, the Legislative Research Commission note following the statute references the Act from which the statute was enacted and, as discussed, is exempt from the codification requirements, as it is temporary in nature. Thus, the legislature has made a declaration concerning retroactivity in this case.Id. at 44.
Since the newly-enacted amendment applies retroactively, it must be used to determine the duration of Swinford's benefits. We remand this matter to the ALJ to apply the time limits set out in the 2018 amendment to KRS 342.730(4).
Due to the retroactivity of the statute, Metcalf's arguments to this Court are moot. We shall not address them except to hold that the current version of KRS 342.730(4) is applicable to Metcalf's PTD.
Accordingly, we affirm the Board that Metcalf is permanently and totally disabled and his PTD shall not be subject to a carve-out for a pre-existing impairment. We also affirm the Board's decision to vacate and remand to the ALJ regarding the application of KRS 342.730(4) pursuant to Holcim.
ALL CONCUR. BRIEFS FOR APPELLANT/CROSS-
APPELLEE ADVANCED PAVING
& CONSTRUCTION: Lyn Douglas Powers
Louisville, Kentucky BRIEFS FOR APPELLEE/CROSS-
APPELLANT FLOYD METCALF: Wayne C. Daub
Louisville, Kentucky