WENDELL R. RUSSELL v. SMALL TRUCKING CO., a/k/a STC, INC. A Subsidiary of WEST KENTUCKY PROPANE, GENERAL ACCIDENT INSURANCE CO.; DONALD G. SMITH, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: June 23, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-002054-WC
WENDELL R. RUSSELL
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-91216
v.
SMALL TRUCKING CO., a/k/a STC, INC.
A Subsidiary of WEST KENTUCKY PROPANE,
now known as UNITED PROPANE GAS CO.;
GENERAL ACCIDENT INSURANCE CO.;
DONALD G. SMITH,
Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, JOHNSON and KNOPF, Judges.
HUDDLESTON,
Judge:
Wendell
Russell
appeals
from
a
Workers’
Compensation Board opinion affirming the Administrative Law Judge’s
award of benefits to Russell for a permanent partial disability
based upon an 8% impairment rating.
The issues presented are:
(1)
whether Kentucky Revised Statute (KRS) 342.315 is unconstitutional
because it violates the doctrine of separation of powers; (2) if
KRS 342.315 is constitutional, whether the ALJ misinterpreted the
intent of the statute by giving an irrebuttable presumption to the
evaluation of a physician at a state medical school; and (3)
whether the ALJ erred in failing to submit a copy of the treating
physician’s report to the university evaluator.
I.
FACTS AND PROCEDURAL HISTORY
The facts in this case are not disputed.
Russell, a
forty-four year old male with an eighth-grade education, was
employed by Small Trucking Company.
Russell’s job primarily
involved
included
hauling
construction work.
injuring
his
left
propane
but
also
carpentry
and
In February 1997, Russell slipped and fell,
arm
while
working
in
Mt.
Vernon,
Indiana.
Russell attempted to return to work but was unable to use his hand.
He sought medical treatment from his family physician, who referred
him to Dr. David G. Yingling, a neurosurgeon.
Dr. Yingling
operated on Russell’s arm. Russell subsequently underwent physical
therapy and work hardening.
In August 1997, Russell returned to
work with Small Trucking, where he worked until November 1998, when
he found other employment.
According to Russell, he still experiences numbness in
the little and ring fingers of his left hand.
arm cramps when he drives.
He also suffers from
Russell has experienced a diminished
ability to grip with his left hand.
Dr. Yingling diagnosed Russell as having a left ulnar
neuropathy.
Following ulnar decompression surgery, Dr. Yingling
prescribed physical therapy for Russell.
Based on his evaluation,
Dr. Yingling assigned a 17% impairment under the American Medical
-2-
Association’s (AMA) Guide to the Evaluation of Permanent Impairment.
Dr. Christopher Sneed, a neurosurgeon, examined Russell
over one year after the accident.
Dr. Sneed diagnosed Russell’s
injury as ulnar neuropathy and assigned an 8% impairment to the
injury based on the AMA Guide.
Small Trucking made a request to the ALJ for a medical
evaluation
pursuant
evaluation.
to
KRS
342.315,
and
the
ALJ
ordered
the
In his order, the ALJ stated that all medical reports
in the record as of October 30, 1998, would be forwarded to the
designated evaluator.
In addition, the ALJ stated that if any
party wanted additional diagnostic test results or interpretations
to be considered by the evaluator, the documents were to be
submitted to the ALJ by November 9, 1998.
While the deposition of
Dr. Yingling was taken on November 3, no party requested that the
ALJ forward a transcript of the deposition to the evaluator.
Dr. Gregory Gleis, an orthopedic surgeon, who served as
the
evaluator,
examined
Russell
on
December
17.
Dr.
Gleis
diagnosed Russell’s injury as a left ulnar nerve contusion at the
elbow.
Based on this determination, Dr. Gleis assessed an 8%
impairment rating under the AMA Guide.
Dr. Gleis recommended that
Russell avoid all vibratory work involving his left hand, but
opined that he should be able to return to his previous work.
After reviewing the evidence, the ALJ concluded that
Russell
could
return
to
his
previous
work.
In
determining
Russell’s impairment rating, the ALJ declared that Russell had
failed to overcome the rebuttable presumption given to Dr. Gleis’s
-3-
evaluation.
Therefore, the ALJ awarded Russell benefits based on
an 8% impairment rating.
Russell
appealed
pursuant to KRS 342.285.
Board
affirmed
the
to
the
Workers’
Compensation
Board
After reviewing the ALJ’s decision, the
award.
The
Board
found
that
the
ALJ’s
interpretation of KRS 342.315 - that Russell had to overcome a
presumption that Dr. Gleis’s evaluation was valid - was consistent
with the language of the statute.
The Board also concluded that
the ALJ did not err in failing to forward a copy of Dr. Yingling’s
deposition to Dr. Gleis because the ALJ had no obligation to do so.
This appeal followed.
II.
CONSTITUTIONALITY OF KRS 342.315
Russell first argues that KRS 342.315 is unconstitutional
because it violates the separation of powers mandated by the
Kentucky Constitution.
There
is
“strong
presumption
in
favor
of
constitutionality and [we] should hold so if possible.”1
The
Workers’ Compensation Act, KRS 342.001-.990, provides a statutory
cause of action.
KRS
342.315
As part of the Act, the General Assembly enacted
directing
the
Commissioner
of
the
Department
of
Workers’ Claims to contract with the University of Kentucky and the
University
of
Louisville
claimants under the Act.2
medical
schools
for
evaluations
of
KRS 342.315(3) provides, in part, that:
1
Brooks v. Island Creek Coal Co., Ky. App., 678 S.W.2d 791,
792 (1984) (citing United Dry Forces v. Lewis, Ky., 619 S.W.2d 489
(1981); Sims v. Board of Educ. of Jefferson County, Ky., 290 S.W.2d
491 (1956)).
2
KRS 342.315(1).
-4-
The commissioner, an arbitrator, or an administrative law
judge may, upon the application of any party or upon his
own
motion,
direct
appointment
by
the
commissioner,
pursuant to subsection (1) of this section, of a medical
evaluator to make any necessary medical examination of
the employee. Such medical evaluator shall file with the
commissioner
within
fifteen
(15)
days
after
such
examination a written report.
While the ALJ has discretion in deciding whether to seek an
evaluation, an evaluator at either of the state medical schools
must conduct the evaluation.
When an evaluator at one of the medical schools conducts
an evaluation:
The clinical findings and opinions of the designated
evaluator
shall
be
afforded
presumptive
weight
by
arbitrators and administrative law judges and the burden
to overcome such findings and opinions shall fall on the
opponent
of
that
evidence.
When
arbitrators
or
administrative law judges reject the clinical findings
and opinions of the designated evaluator, they shall
specifically state in the order the reasons for rejecting
that evidence.3
Russell argues that KRS 342.315 is unconstitutional because of the
presumption that ALJs must afford the reports from university
evaluators.
3
KRS 342.315(2).
-5-
As the Act is structured, workers’ compensation claims
are
considered
in
administrative
proceedings.
The
judiciary
becomes involved only after a party takes an appeal from the
Workers’ Compensation Board to the Court of Appeals.4
Because
workers’ compensation claims are a creature of statute, it is
within the purview of the General Assembly to create presumptions
for considering evidence.
This statutory scheme clearly does not
violate the separation of powers by invading the province of the
Kentucky’s highest court in Commonwealth v. Kroger5
judiciary.
noted that it is within the power of the General Assembly to create
presumptions for statutory causes of action.
Thus, we find that
KRS 342.315 is constitutional.
III.
ALJ’S INTERPRETATION OF KRS 342.315
Russell also avers that the ALJ erred in interpreting KRS
342.315.
In particular, Russell claims that the ALJ used an
irrebuttable presumption that Dr. Gleis’s evaluation was correct.
However, the ALJ’s order specifically refutes this argument:
Dr. Gleis is to be afforded presumptive weight under KRS
342.315; therefore, [Russell] is found to have an 8%
impairment rating.
Although Dr. Yingling is [Russell]’s
treating physician, that alone is not enough to overcome
the presumption in KRS 342.315.
There must be direct
testimony contradicting the university evaluator or flaws
in the university report indicated by other medical
evidence.
4
See KRS 342.290.
5
276 Ky. 20, 122 S.W.2d 1006 (1938).
See also Ky. Const. § 111(2).
-6-
KRS
342.315
clearly
states
the
evaluation
of
the
university
evaluator is to be assigned a presumption of validity.
However,
the statute does not use the word “irrebuttable” nor can its
meaning be reasonably construed to mean that.
Here, the ALJ did not apply an irrebuttable presumption.
Instead, the ALJ considered the evaluations of Dr. Yingling and Dr.
Sneed, and found that their testimony did not refute Dr. Gleis’s
evaluation.
consider
It
the
physicians.6
is
the
reports
responsibility
and
evaluate
of
the
the
fact-finder
credibility
of
to
the
Like Dr. Glies, Dr. Sneed evaluated Russell over one
year after the accident. Dr. Yingling’s evaluation was done almost
immediately after the accident.
In considering the current state
of Russell’s injury, the ALJ found that Dr. Yingling’s testimony
did not refute Dr. Gleis’s conclusion.
The ALJ did not err in so
finding.
IV.
ALJ’S FAILURE TO FORWARD A TRANSCRIPT
OF DR. YINGLING’S DEPOSITION
Finally, Russell argues that the ALJ erred when he failed
to forward a copy of Dr. Yingling’s deposition to Dr. Gleis.
On October 30, 1998, the ALJ signed an order notifying
the parties that Russell was to be evaluated pursuant to KRS
342.315.
The ALJ also stated that certain documents in the record
would be forwarded to the evaluator.
6
If any of the parties wanted
See Gallatin County Bd. of Educ. v. Mann, Ky. App., 971
S.W.2d 295 (1998) (“In its role as a finder of fact, an
administrative agency is afforded great latitude in its evaluation
of the evidence heard and the credibility of witnesses, including
its findings and conclusions of fact.”) (citing Kentucky State
Racing Comm’n v. Fuller, Ky., 481 S.W.2d 298, 308 (1972)).
-7-
the evaluator to consider any additional diagnostic test results or
interpretations, the ALJ ordered them to submit that information to
the ALJ within ten days of the order.
On November 3, 1998, Russell took the deposition of Dr.
Yingling. Russell did not file a transcript of the deposition with
the Department of Workers’ Claims until November 23, 1998.
The
filing fell outside the time frame for submitting additional
information fixed in the ALJ’s October 30, 1998, order.
The ALJ is
allowed to conduct proceedings with some discretion as long as due
process is afforded all parties.7
The ALJ’s decision to impose a
deadline for submitting documents to be considered by the evaluator
was reasonable.
Because Russell was tardy in submitting the
deposition of Dr. Yingling, the ALJ had no responsibility to
forward the transcript to the evaluator.
IV.
We
affirm
the
We find no error.
CONCLUSION
Workers’
Compensation
Board’s
opinion
awarding Russell a permanent partial disability based upon an 8%
impairment rating.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Rodger W. Lofton
Paducah, Kentucky
Richard A. Vitale
O’BRYAN, BROWN & TONER
Louisville, Kentucky
7
See Kaelin v. City of Louisville, Ky., 643 S.W.2d 590
(1983) (discussing Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011,
25 L. Ed. 2d 287 (1970)).
-8-
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