Opinion
NO. 2012-CA-002173-WC
06-28-2013
PERDUE FARMS, INC. APPELLANT v. JAMES STEWART; HON. R. SCOTT BORDERS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: John C. Morton Henderson, Kentucky BRIEF FOR APPELLEE: Daniel Caslin Owensboro, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-09-78604
OPINION
AFFIRMING
BEFORE: ACREE; CHIEF JUDGE; DIXON AND THOMPSON, JUDGES. THOMPSON, JUDGE: Perdue Farms, Inc. appeals from an opinion of the Workers' Compensation Board affirming an opinion and order of the Administrative Law Judge (ALJ) awarding total and permanent disability benefits and medical benefits to James Stewart. Perdue argues that the ALJ's award is not supported by substantial evidence. Stewart argues that there is substantial evidence to support the award and that pursuant to Kentucky Revised Statutes (KRS) 342.310, he is entitled to sanctions against Perdue for filing a frivolous appeal.
At the time of the injury, Stewart was forty-six years old and had not completed the ninth grade. His work history consisted of driving trucks, operating heavy equipment, and performing manual labor. He began working as a truck driver for Perdue in 2003.
On September 2, 2009, during the course of his employment with Perdue, Stewart was injured when he was involved in a motor vehicle accident while operating a Perdue farm truck. He was taken to the hospital by ambulance and underwent surgery to his neck and left shoulder.
Stewart testified that he continues to experience pain in his neck, left shoulder, and upper back and engages in minimal physical activity. He testified that because of bouncing caused by driving a truck, he cannot work as an over-the-road truck driver. He acknowledged that he had been able to perform some service work on his personal vehicle. Although he has occasionally driven a truck owned by a friend, Brian Stone, and routinely visited Stone at his salvage yard, he denied that since his accident he has been employed. Stewart explained Stone has loaned him money and allows him to reside in a house he owns with the understanding he would repay Stone.
A private investigator hired by Perdue observed Stewart on nine days and obtained a surveillance video. He observed Stewart traveling to the salvage yard on a regular basis and leaving the salvage yard driving a tow truck and returning with a vehicle attached. Additionally, the video surveillance showed Stewart pumping gas and repairing vehicles at the salvage yard.
Stone testified that he owns Stone Auto Towing and confirmed that Stewart does not work for him or his business. As a favor, Stewart has occasionally driven one of Stones's trucks.
Three physicians provided impairment ratings based on the 5th Edition of the American Medical Guides to the Evaluation of Permanent Impairment (AMA Guides). Dr. Jules Barefoot assessed an impairment rating of 28% for the cervical spine, 7% for the low back condition, and 14% for the left shoulder for a total combined impairment of 42%. He opined that Stewart could not return to his prior employment. Dr. Barefoot did not view the surveillance video.
Dr. David Eggers, who treated only Stewart's cervical injury, assessed impairment for the cervical condition of 28%. Dr. Dennis J. Beck assessed an 11% functional impairment for the left shoulder. Both doctors reviewed the surveillance video and opined that Stewart could return to work as a truck driver.
The ALJ was persuaded by Dr. Barefoot's assessment. He found the surveillance video was not indicative of Stewart's ability to maintain employment and it was insignificant that Dr. Barefoot did not view the video. Ultimately, the ALJ concluded that Stewart was permanently and totally disabled.
Perdue appealed to the Board arguing that there was no substantial evidence in the record to support the ALJ's award. After the Board affirmed, it appealed to this Court.
In Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 51 (Ky. 2000), our Supreme Court explained that "determining 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." It pointed out that the 1996 amendments to the statute did not legislatively overrule the judicial definition of occupational disability set forth in Osborne v. Johnson, 432 S.W.2d 800 (Ky. 1968):
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.Hamilton, 34 S.W.3d at 51.
The Court clarified that it is the ALJ's function, as sole fact-finder, "to translate the lay and medical evidence into a finding of occupational disability." Id. at 52. Consequently, "KRS 342.285(2) provides that the Board shall not reweigh the evidence and substitute its judgment for that of the ALJ with regard to a question of fact." Id. The standard of appellate review was summarized in Hamilton as follows:
Where the ALJ determines that a worker has satisfied his burden of proof with regard to a question of fact, the issue on appeal is whether substantial evidence supported the determination. Substantial evidence has been defined as some evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable people. Although a party may note evidence which would have supported a conclusion contrary to the ALJ's decision, such evidence is not an adequate basis for reversal on appeal. The crux of the inquiry on appeal is whether the finding which was made is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law.Id. (citations omitted).
In this case, the ALJ considered Stewart's testimony and the medical evidence. A worker's testimony is competent evidence of his physical condition and of his ability to perform various activities both before and after being injured. Id. Although there was conflicting testimony regarding the degree of his medical impairment, it was for the ALJ to determine which evidence to believe.
Despite this well established standard of review and our deference to the ALJ's findings of fact, Perdue argues that Dr. Barefoot's testimony cannot be considered substantial evidence because he did not view the surveillance video tape and obtain a complete history. We disagree. This case is not similar to Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004), where the Court held it was error for the ALJ to rely on a medical opinion because the claimant concealed a prior injury.
Stewart did not conceal a prior injury or affirmatively give false information. Although Dr. Barefoot did not view the surveillance video, he conducted his own physical examination of Stewart. As the Board properly pointed out, the fact that Dr. Barefoot did not review the surveillance video goes to the weight to be afforded his testimony, a function of the ALJ. The ALJ viewed the tape and concluded that Stewart's activities on the tape were not inconsistent with his testimony regarding his physical limitations and found Dr. Barefoot's medical opinion persuasive. Having reviewed the evidence and the arguments of the parties, we conclude that Perdue has not demonstrated that the finding of permanent total disability was so unreasonable that it must be viewed as erroneous as a matter of law.
Likewise, we are persuaded that there is substantial evidence to support the ALJ's determination that Stewart sustained a permanent impairment as a result of his lower back injury. Again, we point out that although there was contrary medical evidence, Dr. Barefoot testified that Stewart suffered a 7% permanent impairment as a result of his lower back injury. Moreover, Stewart's testimony that he continues to have back pain was properly considered by the ALJ. There was substantial evidence to support the ALJ's finding.
Perdue also contends that the ALJ did not state sufficient evidentiary basis for each legal conclusion. The ALJ is required to set forth adequate findings of facts "so that both sides may be dealt with fairly and be properly apprised of the basis for the decision." Shields v. Pittsburgh and Midway Coal Min. Co., 634 S.W.2d 440, 444 (Ky.App. 1982). Here, the ALJ provided the evidentiary basis to support his determination that Stewart was totally and permanently occupationally disabled. He specifically relied on Stewart's and Dr. Barefoot's testimony and stated his reasons for not being persuaded by the surveillance video tape as evidence that Stewart cannot return to work in his prior employment.
Finally, we address Stewart's request for sanctions pursuant to KRS 342.310. Costs may be assessed against a party in a worker's compensation claim if it is determined that "such proceedings have been brought, prosecuted, or defended without reasonable ground[.]" Although we affirm the Board's opinion, we do not believe sanctions are appropriate because the record contains evidence that would have permitted a contrary decision.
The opinion of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: John C. Morton
Henderson, Kentucky
BRIEF FOR APPELLEE: Daniel Caslin
Owensboro, Kentucky