BOWERMAN (RANDY) VS. COMPENSATION BLACK EQUIPMENT COMPANY , ET AL.
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RENDERED: OCTOBER 2, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000828-WC
RANDY BOWERMAN
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-05-88276
BLACK EQUIPMENT COMPANY;
ACUITY INSURANCE;
HON. MARCEL SMITH,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CAPERTON, KELLER, AND NICKELL, JUDGES.
NICKELL, JUDGE: Randy Bowerman (Bowerman) appeals from the opinion of
the Workers’ Compensation Board (Board) affirming the opinion and award of
Administrative Law Judge Marcel Smith (ALJ). Bowerman presents two
arguments on appeal. First, he argues the ALJ improperly denied an award of
temporary total disability (TTD) benefits when placing his claim in abeyance
pending his reaching maximum medical improvement (MMI) in her November 14,
2005, interlocutory opinion, order, and award (interlocutory opinion). Second, he
argues the ALJ, in her August 20, 2007, final opinion and award (final opinion),
erroneously reversed her earlier interlocutory factual findings rendered when she
placed his claim in abeyance. Conversely, Black Equipment Company (Black)
argues the ALJ was not bound by her interlocutory findings and her final opinion
was supported by substantial evidence. For the following reasons, we reverse.
I. PROCEDURAL HISTORY
This claim did not follow the typical procedural path; and thus we
provide the following procedural summary. Bowerman timely filed his claim for
workers’ compensation benefits on April 22, 2005. Pursuant to the scheduling
order issued by the Office of Workers’ Claims, the parties presented proof and
attended a benefit review conference on September 7, 2005.
Following a hearing held on September 21, 2005, the ALJ rendered an
interlocutory opinion on November 14, 2005. After thoroughly summarizing the
conflicting evidence, the ALJ found Bowerman had not reached MMI but had
achieved a level of improvement permitting his return to some form of work,
ordered payment of medical benefits, and placed the claim in abeyance pending
MMI and the assignment of any permanent impairment rating in accordance with
the appropriate edition of the American Medical Association’s Guides to the
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Evaluation of Permanent Impairment (AMA Guides). Inexplicably, copies of the
ALJ’s interlocutory opinion were not forwarded to counsel. On March 16, 2006,
the ALJ reissued her interlocutory opinion and directed that copies be sent to
counsel, granting either party leave to file an appeal.
Bowerman sought reconsideration on March 24, 2006, but the ALJ
denied his petition. Bowerman filed an appeal with the Board, and on June 7,
2006, the Board dismissed that appeal because it was “taken from an interlocutory
order and not a final and appealable order.”
Bowerman subsequently filed a motion to remove his claim from
abeyance. On November 1, 2006, the ALJ ordered the claim removed from
abeyance and scheduled additional proof time. On June 21, 2007, a second benefit
review conference was held, immediately followed by a second formal hearing.
The ALJ issued her final opinion on August 20, 2007. Without
explanation, and based on the same evidence considered prior to entry of her
interlocutory opinion, the ALJ reversed her previous factual determinations by
finding Bowerman had reached MMI and could return to all former work activities
as of September 6, 2005. Based on her new findings, in addition to permanent
partial disability (PPD) benefits and medical benefits, the ALJ awarded TTD
benefits from October 22, 2004, through October 24, 2004, and from April 27,
2005, through September 6, 2005.
On August 30, 2007, Bowerman filed a second petition for
reconsideration, asserting the ALJ found Bowerman had not reached MMI and
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could engage in only some limited work activities at the time she entered her
interlocutory opinion, and that the factual findings contained in her final opinion
should be consistent with her previous determinations. The ALJ denied
Bowerman’s second petition for reconsideration on October 30, 2007, and
Bowerman timely appealed to the Board. On March 28, 2008, the Board affirmed
the ALJ’s final opinion. This appeal followed.
II. SUMMARY OF FACTS
A. THE INTERLOCUTORY OPINION PHASE
Bowerman testified by deposition on June 21, 2005, and in person at
the September 21, 2005, hearing. Prior to his employment as a mechanic for Black
in 2004, Bowerman was employed in various laboring jobs, including work as a
cook, a salesman and installer for a fence company, a welder and fabricator, a
mechanic for Wal-Mart, and a mechanic for a heavy equipment company.
While working as a mechanic for Black on October 14, 2004,
Bowerman suffered a work-related back injury as he repaired a forklift. Following
the injury, Bowerman was able to return to some light work activities, and
continued working at Black in this capacity until April 22, 2005, when he received
medical advice to refrain from all work activities.
Bowerman was initially referred by Black to the physicians at
Occunet, a local walk-in medical clinic. Black’s workers’ compensation carrier
subsequently referred him to Dr. Richard A. Berkman (Dr. Berkman), a
neurosurgeon. Bowerman filed copies of Dr. Berkman’s medical records into
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evidence. Dr. Berkman first examined Bowerman on December 7, 2004. Based
on an MRI scan, Dr. Berkman diagnosed a bulging disc at L5-S1, with moderate to
severe degeneration, and a sizable disc rupture at L4-5, with moderate disc
degeneration. Dr. Berkman prescribed physical therapy and an epidural steroid
block, but ultimately recommended surgery. During the course of treatment, Dr.
Berkman maintained Bowerman on restricted work duty.
On March 8, 2005, Dr. Berkman opined Bowerman had reached MMI
from a nonsurgical standpoint, and imposed permanent physical restrictions of no
bending or lifting over thirty pounds, occasional bending or lifting of up to thirty
pounds, frequent lifting of up to fifteen pounds, and bending up to thirty degrees at
the waist. Dr. Berkman acknowledged as reasonable Bowerman’s plan to seek a
second opinion regarding surgery from Dr. Theodore E. C. Davies (Dr. Davies), a
neurosurgeon.
Dr. Davies testified by deposition on June 27, 2005, and Bowerman
filed copies of his medical records into evidence. Dr. Davies first examined
Bowerman on April 22, 2005. He reviewed Bowerman’s MRI scan and concurred
with Dr. Berkman’s diagnosis. Dr. Davies noted the two-week course of physical
therapy prescribed by Dr. Berkman had resulted in some improvement, but the
epidural steroid injection had failed to provide any relief. Because Bowerman
desired to avoid surgery, Dr. Davies recommended additional physical therapy in
the hope Bowerman might obtain additional improvement. If such conservative
measures failed, however, surgical intervention at L4-5 would be considered.
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Black’s workers’ compensation carrier subsequently paid for only part
of the physical therapy prescribed by Dr. Davies. Even so, improvement was
noted and Dr. Davies was hopeful Bowerman might return to work upon
completion of the conservative medical treatment. Bowerman had remained on
off-work status since his initial office visit with Dr. Davies on April 22, 2005, and
was not expected to reach MMI until the full benefit of physical therapy was
realized.
Once Bowerman reached MMI, Dr. Davies opined he would qualify,
with or without surgery, for a permanent impairment rating of ten to thirteen
percent under the AMA Guides. In the meantime, Dr. Davies was agreeable to
Bowerman engaging in light work duty, such as answering a telephone, so long as
he was allowed to rest and change positions at will, including, sitting, walking,
standing and lying down.
Black referred Bowerman to Dr. Thomas J. O’Brien (Dr. O’Brien), an
orthopaedic surgeon, for an independent medical evaluation to be performed on
September 6, 2005. A copy of his report was filed into evidence. Based on his
review of the MRI scan, which demonstrated a decreased disc signal at L4-5, and
to a lesser degree at L5-S1, Dr. O’Brien diagnosed an L4-5 degenerative disc
bulge, rather than a disc herniation, which he opined was aggravated and became
symptomatic following the work-related back injury on October 14, 2004. Dr.
O’Brien opined Bowerman required “no further formal treatment,” including
surgery, physical therapy, steroid injection therapy, or other conservative
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modalities. Instead, Dr. O’Brien recommended Bowerman simply perform a “selfdirected back exercise regimen.”
Dr. O’Brien stated Bowerman “does not require any permanent lifting
restrictions,” and “it is safe for him to pursue all activities.” Finally, Dr. O’Brien
opined Bowerman’s condition qualified for a five percent permanent impairment
rating under the AMA Guides.
At the hearing on September 21, 2005, the ALJ identified three
contested issues, including extent and duration of any disability, entitlement to any
additional period of TTD benefits, and the necessity of further physical therapy.
The ALJ noted Black had paid two days of TTD benefits.
Bowerman provided additional testimony indicating Black’s workers’
compensation carrier had recently authorized additional physical therapy, and that
he had appointments scheduled with the physical therapist and Dr. Davies.
Bowerman stated physical therapy had provided some improvement, but that Dr.
Davies had not yet released him to return to work. He reported the light work
activities he had engaged in for Black following his work-related injury had
aggravated his back condition, and Dr. Davies had taken him off all work activities
to expedite the healing process.
At the conclusion of the hearing, the ALJ allowed an additional period
for submission of rebuttal evidence. On October 11, 2005, Bowerman filed a copy
of an undated termination letter he had recently received from Black. The letter
indicated his employment had been terminated because Black “had given you the
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opportunity to return back to work doing light duty within your restrictions and
you have chosen not to accept this opportunity,” and “since you have refused the
light duty work that we have available.”
The parties thereafter filed their respective briefs, and the ALJ issued
her interlocutory opinion. After providing a detailed summary of the conflicting
evidence, particularly the conflicting medical opinions of Drs. Berkman, Davies,
and O’Brien, the ALJ found:
[t]aking plaintiff’s post-injury physical, emotional,
intellectual and vocation (sic) status to the extent the
evidence (sic) and considering how these factors interact,
I find plaintiff is able to earn an income by providing
services on a regular and sustained basis in a competitive
economy, I find that plaintiff is able to find work
consistently under normal employment conditions. He is
not totally disabled. McNutt Construction [/First General
Services] vs. Scott, Ky., 40 S.W.3d 854 (2001).
More specifically, the ALJ made the following factual findings:
I am persuaded by Dr. Davies that plaintiff has not
reached maximum medical improvement. However, I
find as stated above, that he reached a level of
improvement that permitted his return to some form of
work on October 25, 2004.
I am persuaded by Dr. Davies that an impairment rating
must wait until plaintiff reaches maximum medical
improvement. I am persuaded that additional physical
therapy is reasonable and necessary. Therefore, it is
appropriate to place this case in abeyance and award the
additional physical therapy, (although no TTD).
As previously noted, for reasons unclear from the record, neither
Bowerman nor Black received a copy of the interlocutory opinion. After the ALJ
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reissued her interlocutory opinion, Bowerman filed a timely petition for
reconsideration raising two arguments. First, he argued the ALJ had used the
incorrect statutory standard and legal authority for determining his entitlement to
additional TTD benefits. Second, he argued application of the correct statutory
standard and legal authority compelled an award of additional TTD benefits. In
support, Bowerman noted the ALJ had abated his claim after adopting the medical
opinions of Dr. Davies and specifically finding Bowerman had not reached MMI,
remained off work pursuant to medical advice, and required further medical
treatment.
The ALJ’s May 3, 2006, order denying Bowerman’s petition for
reconsideration reiterated her original factual findings stating:
this Administrative Law Judge is not persuaded by
plaintiff’s argument that 803 KAR1 25:010 § 12(5)
prohibits placing a claim in abeyance without awarding
temporary total disability benefits.
Having found that plaintiff has not reached maximum
medical improvement, this Administrative Law Judge
also found that plaintiff is presently able to work.
Plaintiff’s condition does not meet the definition of
temporary total disability found in KRS2 342.0011
(11)(a). Although plaintiff has not reached maximum
medical improvement, I found and still find that plaintiff
has reached a level of improvement that would permit a
return to employment. Therefore, plaintiff is not entitled
to temporary total disability benefits.
1
Kentucky Administrative Regulations (footnote added).
2
Kentucky Revised Statutes (footnote added).
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In determining Bowerman was “presently able to work” and could “return to
employment,” the ALJ did not specify whether she was referring to his customary
work activities performed at the time of his work-related injury or merely to some
limited light work duties such as those he briefly performed for Black following
the work-related injury but prior to his medical treatment by Dr. Davies.
Bowerman appealed the interlocutory opinion to the Board. However,
because the ALJ’s interlocutory opinion was not a final and appealable order, the
Board dismissed Bowerman’s appeal on June 7, 2006.
B THE FINAL OPINION PHASE
The final opinion phase of this claim began when Bowerman filed a
motion to remove his claim from abeyance on October 2, 2006. The ALJ granted
the motion on November 1, 2006, and established a schedule for submission of
proof.
Both Bowerman and Black chose to file only updated medical records
from Dr. Davies, presumably because he was the treating neurosurgeon whose
medical opinions the ALJ had found most persuasive. These updated medical
records did not contradict the medical opinions previously expressed by Dr.
Davies, indicating Bowerman had not reached MMI and had remained on off-work
status since the original hearing on September 21, 2005. Significantly, no
additional proof was submitted regarding Bowerman’s condition prior to entry of
the ALJ’s interlocutory opinion.
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Black submitted three updated medical records. In a May 8, 2006,
letter to Black’s workers’ compensation carrier, Dr. Davies stated Bowerman could
be considered at MMI as of his examination on November 16, 2005. Even so, Dr.
Davies opined Bowerman “would need to work at the limitations” and might
require periodic “physical therapy or other evaluation and treatment if he becomes
more symptomatic.”
When Bowerman returned on June 5, 2006, Dr. Davies noted a
reduction in Bowerman’s low back pain. Based on examination, Dr. Davies
recommended continued home exercises and prescribed more pain medication.
Finally, on December 8, 2006, Bowerman returned to Dr. Davies for a
follow-up office examination. Dr. Davies noted Bowerman “has been doing well
since I have last seen him,” but that he “has been off work” and “is unable to get a
job with any kind of restrictions placed upon him.” Concluding Bowerman did not
require surgery, Dr. Davies proceeded to release him “for regular duty to be seen
as necessary.”
Bowerman filed two updated medical records. In an examination
record dated October 5, 2005, Dr. Davies noted Bowerman had continued to
improve with physical therapy. He prescribed additional physical therapy and
referred Bowerman for vocational evaluation and retraining.
Finally, when Bowerman returned on November 16, 2005, Dr. Davies
noted he no longer worked at Black and was pursuing a GED. Based on
examination, Dr. Davies opined Bowerman was “capable of some work duty,” but
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“should start at light duty.” Specifically, Dr. Davies stated Bowerman “may
resume work activities if it (sic) is available for him,” but restricted any lifting to
twenty pounds or less.
On June 21, 2007, a second benefit review conference was held,
followed immediately by a second formal hearing. Bowerman testified Dr. Davies
had not advised him to return to work following the November 16, 2005, office
visit. In May of 2006, Dr. Davies had agreed he could seek light work but
Bowerman was unable to find employment. Bowerman testified Dr. Davies
released him on December 8, 2006, to return to regular work duty with no
restrictions. Since that time, Bowerman had worked for a short time in March and
April of 2007 as a mechanic and was continuing to interview for other jobs. At the
conclusion of the hearing, the ALJ confirmed the contested issues consisted of the
extent and duration of any disability and Bowerman’s entitlement to TTD benefits.
After briefing by the parties, the ALJ rendered her final opinion on
August 20, 2007. In her opening paragraph, the ALJ referenced her November 14,
2005, interlocutory opinion, indicating that her findings and rulings were
“incorporated herein as if restated at length.” The ALJ proceeded to summarize
the evidence submitted after she had removed Bowerman’s claim from abeyance.
The ALJ then rendered additional findings of fact and conclusions of
law. In addressing the issue of TTD benefits, the ALJ summarized all relevant
proof, noting:
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[t]hese benefits were paid at the rate of $413.33 per week
from October 22, 2004[,] through October 24, 2004.
Plaintiff returned to work for defendant on October 25,
2004[,] through April 26, 2005. Dr. Berkman placed
plaintiff at maximum medical improvement on March 8,
2005. Dr. O’Brien saw plaintiff on September 6, 2005[,]
and assessed an impairment rating. Dr. Davies placed
plaintiff at maximum medical improvement and released
him to return to work without restrictions in December of
2006.
Absent any new evidence concerning Bowerman’s condition prior to entry of her
interlocutory opinion, the ALJ abandoned her factual findings rendered twenty-one
months earlier, stating instead:
[c]onsidering the evidence in its entirety, I am persuaded
by Dr. O’Brien with regard to this issue and find that
plaintiff had reached maximum medical improvement to
the point that an impairment rating could be assessed. I
find that plaintiff is entitled to additional temporary total
disability benefits from April 27, 2005[,] through
September 6, 2005.
Clearly these new factual findings in the ALJ’s final opinion contradicted those
rendered in her interlocutory opinion. These new factual findings also created an
internal inconsistency, because the ALJ had incorporated and adopted her former
findings by reference in her final opinion.
Bowerman filed a second petition for reconsideration on August 31,
2007, asserting the ALJ should have awarded him TTD benefits from the date Dr.
Davies took him off work (April 22, 2005) until the date Dr. Davies pronounced
him at MMI (December 8, 2006). In support of his contention, Bowerman argued
the ALJ’s final award should have been consistent with her previous factual
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findings regarding his not having attained MMI and his inability to return to
regular work activities. The ALJ summarily denied Bowerman’s second petition
for reconsideration on October 30, 2007.
Bowerman filed a timely appeal with the Board, which affirmed the
ALJ in an opinion rendered on March 28, 2008. In pertinent part, the Board stated:
[i[t is equally clear in her subsequent opinion addressing
the remaining issues, the ALJ made a contradictory
finding. In her original opinion dated November 14,
2005[,] citing Dr. Davies’ report, the ALJ found
Bowerman had not reached maximum medical
improvement. However, in an opinion and award dated
August 20, 2007, relying on Dr. O’Brien’s medical
report, the ALJ found that Bowerman had indeed reached
maximum medical improvement on September 6, 2005.
The ALJ, however, was not bound by the interlocutory
decision she had made earlier when she finally decided
the merits of the claim and was free to reverse or modify
her earlier findings.
The Board further held there was substantial evidence in the record “to support the
ALJ’s findings contained in her August 20, 2007, opinion and award.”
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III. STANDARD OF REVIEW
Appellate review of any workers’ compensation decision is limited to
correction of the ALJ when the ALJ 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). Our standard of review differs in regard to appeals of an ALJ’s
decision concerning a question of law or a mixed question of law and fact vis-à-vis
an ALJ’s decision regarding a question of fact.
The first instance concerns questions of law or mixed questions of law
and fact. As a reviewing court, we are bound neither by an ALJ’s decisions on
questions of law or an ALJ’s interpretation and application of the law to the facts.
In either case, our standard of review is de novo. Carroll v. Meredith, 59 S.W.3d
484, 489 (Ky. App. 2001); Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998).
De novo review allows appellate courts greater latitude in reviewing an ALJ’s
decision. Purchase Transportation Services v. Estate of Wilson, 39 S.W.3d 816,
817-18 (Ky. 2001); Uninsured Employers' Fund v. Garland, 805 S.W.2d 116, 117
(Ky. 1991).
The second instance concerns questions of fact. KRS 342.285
designates the ALJ as finder of fact, and has been construed to mean that the factfinder has the sole discretion to determine the quality, character, weight,
credibility, and substance of the evidence, and to draw reasonable inferences from
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the evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky.
1985); McCloud v. Beth-Elkhorn Corporation, 514 S.W.2d 46, 47 (Ky. 1974).
Moreover, an ALJ has sole discretion to decide whom and what to believe, and
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 adversary party's
total proof. Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
KRS 342.285 also establishes a “clearly erroneous” standard of
review for appeals concerning factual findings rendered by an ALJ, and is
determined based on reasonableness. Special Fund v. Francis, 708 S.W.2d 641,
643 (Ky. 1986). Although an ALJ must recite sufficient facts to permit meaningful
appellate review, KRS 342.285 provides that an ALJ's decision is “conclusive and
binding as to all questions of fact,” and that the Board “shall not substitute its
judgment for that of the [ALJ] as to the weight of evidence on questions of fact[.]”
Shields v. Pittsburgh & Midway Coal Mining Co., 634 S.W.2d 440, 441 (Ky. App.
1982). In short, appellate courts may not second-guess or disturb discretionary
decisions of an ALJ unless those decisions amount to an abuse of discretion.
Medley v. Board of Education, Shelby County, 168 S.W.3d 398, 406 (Ky. App.
2004). Discretion is abused only when an ALJ's decision is arbitrary,
unreasonable, unfair, or unsupported by sound legal principles. Downing v.
Downing, 45 S.W.3d 449, 454 (Ky. App. 2001).
IV. LEGAL ANALYSIS
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With the foregoing standards in mind, we will address the two issues
presented in Bowerman’s appeal. First and foremost, we must determine whether
the ALJ’s discretion as finder of fact extended to rendering a final opinion in
which she completely abandoned and reversed dispositive factual findings initially
determined by her in the interlocutory opinion which favored Bowerman and were
supported by substantial evidence,3 absent a showing of new evidence, fraud, or
mistake. Second, we must determine whether the ALJ erred in denying additional
TTD benefits when, as initially determined in the interlocutory opinion, Bowerman
was found not to have reached MMI and his claim was abated pending completion
of medical treatment recommended by his treating physician, reaching MMI, and
assignment of an impairment rating. We hold that Bowerman’s two arguments
mandate reversal of the Board’s affirmation of the ALJ’s interlocutory and final
opinions.
A. THE ALJ WAS WITHOUT AUTHORITY TO REVERSE
PRIOR FACTUAL FINDINGS REGARDING THE MERITS
OF BOWERMAN’S CLAIM
The primary issue before us is whether an ALJ, as finder of fact, may
reverse a dispositive interlocutory factual finding on the merits in a subsequent
final opinion, absent a showing of new evidence, fraud, or mistake. Though this
appears to be a matter of first impression, our review of relevant legal authority
leads us to conclude the reversal of prior dispositive factual findings rendered by
3
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. Smyzer
v. B.F. Goodrich Chemical Company, 474 S.W.2d 367, 369 (Ky. 1971).
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an ALJ in an interlocutory opinion, absent introduction of new evidence, fraud, or
mistake, is arbitrary, unreasonable, unfair, and unsupported by sound legal
principles. In such instances, the ALJ exceeds the exercise of reasonable
discretion, operates outside the bounds of statutory authority, and must be
reversed. In affirming the ALJ’s final opinion, we believe the Board
misinterpreted its own cited legal authority and overlooked legal authority drawn
from analogous circumstances involving petitions for reconsideration and motions
for reopening.
1. THE ALJ’S REVERSAL OF INTERLOCUTORY
FACTUAL FINDINGS REGARDING THE MERITS
OF BOWERMAN’S CLAIM WAS AN ABUSE OF
DISCRETION WHICH COMPELS REVERSAL
The question presented on appeal is whether the ALJ’s reversal of her
initial factual findings in her final opinion was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles. Downing. If so, the ALJ abused her
discretion and reversal is mandated. Medley.
Generally, “arbitrariness” arises when an ALJ renders a decision on
less than substantial evidence, fails to afford procedural due process to an affected
party, or exceeds her statutory authority. K & P Grocery, Inc. v. Commonwealth,
Cabinet for Health Services, 103 S.W.3d 701, 703 (Ky. App. 2002). Arbitrariness
is one of five reasons identified in KRS 342.285(2) authorizing reversal of an
ALJ’s decision.4
4
The five instances identified in KRS 342.285(2) are:
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As used in the statute, an arbitrary decision is synonymous with one
that is “capricious” or “characterized by abuse of discretion or clearly unwarranted
exercise of discretion.” A capricious decision is defined as one “contrary to the
evidence or established rules of law[,]” or arbitrary, while a capricious fact-finder
would be defined as being “characterized by or guided by unpredictable or
impulsive behavior.”5 These terms are also synonymous with an “unreasonable”
decision, which is defined as one “[n]ot guided by reason; irrational or
capricious.”6
Based on KRS 342.285(2) and the foregoing definitions of terms
contained therein, we hold the ALJ’s unexplained turnabout regarding her initial
factual findings to be arbitrary, capricious, and so unreasonable as to be erroneous
(a) The administrative law judge acted without or in
excess of his powers;
(b) The order, decision, or award was procured by
fraud;
(c) The order, decision, or award is not in
conformity to the provisions of this chapter;
(d) The order, decision, or award is clearly
erroneous on the basis of the reliable, probative, and
material evidence contained in the whole record; or
(e) The order, decision, or award is arbitrary or
capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion.
(emphasis added).
5
Black’s Law Dictionary 224 (8th ed. 2004).
6
Black’s Law Dictionary 1574 (8th ed. 2004).
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as a matter of law. Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky.
2000). Thus, the ALJ’s reversal of previously adjudicated factual findings
represents an abuse of her discretion as fact-finder, and because she thereby acted
in excess of her statutory authority, reversal is mandated.
It is of no consequence that the Board held Dr. O’Brien’s medical
opinions to be substantial evidence supporting the opposite factual findings
rendered in the ALJ’s final opinion since she essentially performed an
unauthorized “second review” of the questions of fact underpinning Bowerman’s
claim for TTD benefits rather than merely substituting and applying the correct
statutory definition of TTD to the underlying facts as already adjudicated.
Peabody Coal Co. v. Guthrie, 351 S.W.2d 168, 170 (Ky. 1961) (citing Black
Mountain Corporation v. Gilbert, 296 Ky. 514, 177 S.W.2d 894, 896-97 (1944)
(overruled on other grounds by E. & L. Transport Co. v. Hayes, 341 S.W.2d 240
(Ky. 1960))) (holding trier had jurisdiction to correct award where claimant had
been declared totally disabled but benefits had been awarded for wrong statutory
period, and by doing so, trier had not engaged in unauthorized second review of
case). We hold the ALJ’s unauthorized second review of the merits of a claim for
compensation benefits is an egregious error constituting manifest injustice.
Durham v. Copley, 818 S.W.2d 610, 612 (Ky. 1991). Legal consequences
streaming from an ALJ’s factual determinations must not be left to ebb and flow
according to the changing current of the ALJ’s mere whim as fact-finder. Thus,
absent newly discovered evidence, fraud, or mistake, parties have a reasonable
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expectation that they may rely on factual findings that have been fully and fairly
adjudicated by an ALJ, even when rendered in an interlocutory decision. See
Garrett Mining Co. v. Nye, 122 S.W.3d 513, 522 (Ky. 2003).
2. IN AFFIRMING THE ALJ’S FINAL OPINION
THE BOARD MISCONSTRUED LEGAL AUTHORITY
In its decision of March 28, 2008, the Board affirmed the ALJ’s
reversal, offering the following blanket legal analysis:
[t]he ALJ, however, was not bound by the interlocutory
decision she had made earlier when she finally decided
the merits of the claim and was free to reverse or modify
her earlier decision. See Union Light, Heat and Power
Company vs. Public Service Commission, 271 S.W.2d
361 (Ky. 1954) and Western [K]raft Paper Group vs.
Dept. for Natural Resources Environmental Protection,
632 S.W.2d 454 (Ky. App. 1982). See also Vendome
Copper Brass Works, Inc. v. Schehr, 2006-SC-000831WC, 2007 WL 2743286 (rendered September 20, 2007,
and designated not-to-be-published).7
Our reading of the cited cases leads us to conclude the Board misconstrued its own
legal authority. Analysis of these cases reveals an important legal distinction
between an ALJ’s authority to reverse prior determinations relating to dispositive
findings of fact concerning the merits of a claim vis-à-vis prior determinations
relating to application of law to those factual findings. This distinction supports
reversal, rather than affirmation, of the ALJ’s final opinion.
First, in Union Light, a utility moved to set aside and vacate an order
of the Public Service Commission (PSC) which had reversed its earlier order
7
Citation to an unpublished opinion is forbidden by CR 76.28(4). Although Vendome is
unpublished, the Board apparently cited it due to the absence of applicable published case law.
CR 76.28(4)(c). (Footnote added.)
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allowing a rate increase. Concluding the PSC’s prior order had “traveled the
wrong route” because the original decision was based “upon [the] violation of a
rule which was in fact invalid,” the Court held the PSC’s subsequent order setting
aside the prior order was proper. The Court reasoned:
[f]urthermore, we know of no rule of law that denies to a
court the right to revoke an order and substitute in lieu
thereof a new and different one, provided that court has
not lost jurisdiction over the case involved. An
administrative agency unquestionably has the authority,
just as has a court, to reconsider and change its orders
during the time it retains control over any question under
submission to it. It has been held that an administrative
agency has the power to amend or correct its records by
nunc pro tunc entries. 42 Am.Jur., Public Administrative
Law, Section [75], page 391.
Union Light 271 S.W.2d at 365-366. Of consequence, however, is the fact that the
court in Union Light approved the PSC’s reversal of its original incorrect
application of an invalid statutory rule, and not a reversal of any original factual
findings regarding the merits.
Second, citing the holding in Union Light, this Court likewise held in
Western Kraft that the Department for Natural Resources and Environmental
Protection properly reconsidered and changed a prior order after determining the
agency had incorrectly interpreted and applied the relevant statutory provision.
Again, however, reversal of the prior administrative order did not change any
previous factual findings regarding the merits.
Third and finally, in the unreported case of Vendome, the Supreme
Court of Kentucky affirmed an ALJ’s award of compensation benefits in a final
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opinion containing a factual finding that the claimant’s back injury had resulted in
a thirteen percent permanent impairment rating under the AMA Guides. The
ALJ’s finding in the final opinion was based on the medical opinion of the
claimant’s treating physician. However, in an interlocutory opinion, the ALJ had
denied surgical treatment recommended by the claimant’s treating physician as
being neither reasonable nor necessary.
Vendome is similar to the present case in that it involved an ALJ’s
discretion to choose between conflicting medical evidence pertaining to factual
issues which were addressed in an interlocutory opinion vis-à-vis a final opinion.
Any similarities end at that point. In Vendome, the ALJ considered one issue
(reasonableness and necessity of recommended medical treatment) in the
interlocutory opinion, and rejected the medical opinion of the treating physician
regarding that question of fact. Later, in the final opinion, the ALJ addressed a
second issue (diagnosis and permanent impairment), and adopted the medical
opinions of the treating physician concerning those questions of fact.
The questions of fact addressed in the interlocutory opinion and the
final opinion were entirely distinct, the ALJ’s final opinion did not reverse factual
findings made previously in the interlocutory opinion, and the interlocutory and
final opinions were consistent. In underscoring the importance of consistency
regarding factual findings the Supreme Court held:
[i]n any event, there was no inconsistency between the
interlocutory and final decisions. The diagnosis and
treatment of a medical condition are different matters. A
-23-
physician may diagnose a condition properly yet
prescribe an unreasonable or unnecessary method for
treating it. Thus, an ALJ’s reservations concerning the
wisdom of a treatment that a physician proposes do not
necessarily imply reservations concerning the physician’s
diagnosis.
Vendome, 2007 WL 2743286 at *3 (emphasis added).
We conclude Vendome simply recognized the well-established
principle that an ALJ has sole discretion to decide whom and what to believe, and
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 adversary party's
total proof. Caudill, 560 S.W.2d at 16. Thus, the ALJ had authority to reject
medical opinions of the treating physician concerning one factual question
addressed in an interlocutory opinion while adopting the physician’s opinions
regarding a separate factual question addressed in a final opinion.
Though Vendome followed the principle announced in Union Light
that an ALJ is free to reverse or modify an earlier decision so long as she retains
jurisdiction, our reading of Vendome convinces us the Supreme Court nevertheless
ruled that an ALJ’s adjudicated factual findings must remain consistent in
subsequent decisions. This is particularly true where, as in Bowerman’s appeal,
the conflicting evidence concerning a particular question of fact has remained
unchanged, the parties had fully presented their respective arguments, and the
ALJ’s original factual findings were supported by substantial evidence.
-24-
In the present case, the ALJ initially assigned greater weight to the
medical opinions of Dr. Davies and found Bowerman: had not reached MMI as of
the November 14, 2005, hearing when the ALJ entered her interlocutory opinion;
did not yet qualify for assignment of a permanent impairment rating; and could
perform only “some” work activities as of October 25, 2004. Later, in her final
opinion, based on the same evidence, the ALJ revisited the same factual questions
and reversed her original determinations. She now assigned greater weight to the
medical opinions of Dr. O’Brien and found Bowerman: had reached MMI as of
September 6, 2005, qualified for an AMA impairment rating, and could pursue all
work activities. Unlike Vendome, the ALJ in Bowerman’s claim rendered a final
opinion with factual findings inconsistent with those previously adjudicated in her
interlocutory opinion regarding the same factual questions and based on the same
evidence. To do so was arbitrary, unreasonable, unfair, and unsupported by sound
legal principles, and was an abuse of the ALJ’s discretion.
Based on the foregoing legal analysis, we hold the Board
misconstrued the legal authority cited in its affirmance of the ALJ’s final opinion.
Instead, a correct construction of the foregoing cases supports reversal and remand.
3. ANALOGOUS LEGAL AUTHORITY SUPPORTS
PROSCRIPTION OF AN ALJ FROM REVERSING
HER PRIOR DISPOSITIVE FACTUAL FINDINGS
While an ALJ’s discretion as fact-finder is expansive, it is not
limitless.8 Reason, logic, and sound principles of justice dictate that findings
8
For example, the Supreme Court of Kentucky held in Ira A. Watson, 34 S.W.3d at 51, that an
ALJ has “very limited discretion” when determining the extent of a worker’s permanent, partial
-25-
regarding questions of fact, once fully litigated by the parties and properly
adjudicated by the fact-finder, should not be subject to change absent new
evidence, fraud, or mistake, regardless of whether rendered in an interlocutory
order or a final decision. See Garrett Mining, 122 S.W.3d at 522.
Our holding is supported by a line of legal authority pertaining to
limitations imposed upon an ALJ’s analogous discretion to reverse prior factual
findings arising when presented with petitions for reconsideration and motions for
reopening. The import of this analogous legal authority further convinces us that
the ALJ in the present appeal exceeded her discretionary authority to reverse her
prior factual findings regarding the merits of Bowerman’s claim, even though she
retained jurisdiction over the case.
Kentucky Wagon Mfg. Co. v. Esters, 221 Ky. 63, 297 S.W. 811
(1927), affirmed the fact-finder’s refusal to reopen an employee’s claim for
compensation where: the claimant had not introduced requisite medical evidence in
the original action to prove his injury was work-related; the fact-finder had
rendered prior factual findings regarding the merits of his claim in its original order
based on the submitted evidence; and, based on those prior factual findings, the
fact-finder had dismissed the claimant’s application for benefits. The Court held,
“[i]t is . . . essential that there should be an end to litigation in cases arising under
the Workmen’s Compensation Act as in other cases.” Id. at 812. To hold
otherwise, the Court reasoned, “would be to entirely destroy the value and effect of
disability, even though the ALJ must weigh the evidence concerning whether the worker is able
to engage in work activities and earn an income.
-26-
the awards of the [fact-finder].” Id. at 813. Parties have a reasonable expectation
that dispositive questions of fact, once fairly litigated, fully argued, and properly
adjudicated, may be considered finally resolved, and thereby provide a sure
foundation for their further argument or action, regardless of whether the factfinder’s determination is rendered in an interlocutory order or a final decision.
Otherwise, the value and effect of factual findings, including those rendered in
interlocutory proceedings, is eviscerated.
Black Mountain affirmed the fact-finder’s change of an earlier order
because it did not constitute an unauthorized second review of the claimant’s case.
The Court reasoned the fact-finder’s change simply corrected an “apparent clerical
error” in applying the wrong statutory period allowed for total disability.
Likewise, in Peabody Coal, the Court affirmed the fact-finder’s
change of an earlier order in which the claimant had been awarded an incorrect
amount of benefits based on application of the wrong version of the relevant
statute. The Court held the claimant was “entitled to compensation as provided by
[the] law in effect at the time his disability occurred . . . .” Id. at 170. The Court
reiterated the reasoning of Black Mountain, holding that the fact-finder’s
subsequent order changing the claimant’s compensable period “did not constitute a
second review of the case but merely substituted language in accordance with the
law as it then existed.” Id.
In Fayette County Board of Education v. Phillips, 439 S.W.2d 319
(Ky. 1969), a claimant appealed the fact-finder’s denial of her motion to reopen its
-27-
previous award for an adjustment of the amount of her weekly total permanent
disability (“TPD”) benefits. The Court affirmed the circuit court’s reversal of the
fact-finder’s denial of the claimant’s motion based on its conclusion that a
“mistake” within the meaning of KRS 342.125 existed and it was an abuse of
discretion not to amend the award to conform to the admitted facts under the
circumstances presented. The Court noted that KRS 342.125 sets forth definite
limitations regarding a fact-finder’s authority to change an award, and concluded,
“[i]t is true, of course, that awards may not be modified capriciously or
whimsically.” Id. at 321.
In Beth-Elkhorn Corp. v. Nash, 470 S.W.2d 329 (Ky. 1971), the
former Court of Appeals reversed a circuit court’s affirmation of the fact-finder’s
reconsideration and reversal of the merits of a workers’ compensation claim. In its
original decision, the fact-finder made a factual finding that the claimant’s “current
condition” had not caused his loss of earnings, and dismissed the claim. As the
Court noted, “[t]his, of course, was a decision on the merits of the claim.” Id. at
330. However, when the claimant filed a petition for reconsideration, the factfinder reversed itself in regard to the entire case, withdrew its original order, and
awarded the claimant benefits. Citing the restrictive provisions of KRS 342.281
pertaining to petitions for reconsideration, the Court noted the fact-finder was
limited in such review to the correction of errors patently
appearing upon the face of the award, order, or decision
....
-28-
This statutory limitation is clear and positive. It
expresses a legislative policy that the Board shall not
have authority to reverse itself on the merits of a claim.
Whether this policy is a good one or a bad one, it is not
our province to determine. Its apparent justification is
that if parties adversely affected by an award could ask
for reconsideration of the whole case, a final
determination could be unduly delayed.
Id. (emphasis added).
In Wells v. Beth-Elkhorn Coal Corp., 708 S.W.2d 104 (Ky. App.
1985), the fact-finder granted an employer’s petition for reconsideration and
reversed its prior decision because its previous apportionment of liability between
the employer and the Special Fund was legally incorrect. On appeal, the circuit
court reversed and remanded, holding the fact-finder was without authority to grant
the petition. However, this Court held KRS 342.281 authorized the fact-finder to
summarily correct itself, reasoning that the statutory provision concerning petitions
for reconsideration “is to be liberally construed and is not intended merely to
address clerical errors but all patent errors.” Id. at 106. Even so, citing Nash, our
Court underscored a noteworthy caveat, holding that the fact-finder’s authority to
grant such a petition for reconsideration was limited in one respect, stating “[t]he
petition may not be granted if it appears that the Board has reconsidered the case
on its merits and/or changed its factual findings.” Id. (emphasis added).
Finally, in Garrett Mining, an ALJ granted a claimant’s motion to
reopen a prior workers’ compensation decision and ultimately awarded increased
disability benefits. However, upon the filing of a petition for reconsideration, the
-29-
ALJ changed a factual finding pertaining to apportionment of liability between the
employer and the Special Fund. On appeal, our Supreme Court held that, while the
ALJ had authority to increase a claimant’s original award in accordance with any
increased disability, the ALJ had no authority to change an original factual finding
concerning apportionment of causation. Specifically, in regard to motions to
reopen, the Court held:
[h]owever, once an ALJ-adjudicated award and order
becomes final, the ALJ’s determinations with respect to,
e.g., causation, notice, apportionment, etc., cannot be
readdressed under KRS 342.125 except upon an
allegation of fraud, newly discovered evidence, or
mistake, grounds that do not exist and are not asserted in
this case. The reason, of course, is that revisiting issues
previously decided is precluded by the principle of res
judicata. “The doctrine of res judicata applies to the
rulings of a Workmen’s Compensation Board the same as
it does to the decisions of a court.” Hysteam Coal Corp.
v. Ingram, 283 Ky. 411, 141 S.W.2d 570, 572 (1940).
Id., 122 S.W.3d at 522 (citations omitted) (emphasis added). The Court held that
once a decision is final, an ALJ is without authority to make new findings, apply a
new theory, and increase the amount of benefits awarded. Id. at 523.
In the instant appeal, the ALJ appropriately exercised her discretion to
enter factual findings in the interlocutory proceeding, but then erred when she
applied the wrong statutory standard to those facts. When her error became
evident, the ALJ did not merely correct her misapplication of the law, but abused
her discretion by conducting an unauthorized second review of Bowerman’s claim
-30-
and reversing her original factual findings. As a result, Bowerman’s assertion that
the ALJ’s action bears the appearance of being result-oriented is understandable.
The unexplained reversal of the ALJ’s longstanding interlocutory
factual findings was inconsistent, erratic and unpredictable, and therefore arbitrary
and capricious. The ALJ’s entry of opposite dispositive factual findings in her
final opinion went beyond merely correcting an error patently appearing upon the
face of her interlocutory opinion. Instead, the ALJ’s action represented an
unauthorized second review of the merits of Bowerman’s claim, and was an abuse
of her discretion as fact-finder.
While the Court’s reference to the principle of res judicata in Garrett
Mining applied to dispositive factual findings rendered in final decisions vis-à-vis
motions to reopen, its logic extends to factual determinations which have been
fully and fairly litigated and properly adjudicated by an administrative fact-finder
in interlocutory orders. Factual findings have legal consequences. They are a
foundation for the proper application of law. Parties rely upon adjudicated factual
findings in shaping their decisions, conduct, and arguments. Adjudicated factual
findings must remain constant and immutable so their legal impact may be
predictable. A fact, once adjudged, must be taken for truth; and no fact, once
adjudged, should be subject to re-examination or revision.
This principle of finality is logically applicable to all factual findings,
whether rendered in interlocutory orders or final decisions, and certainly applies to
the circumstances in Bowerman’s appeal. The clear import of the foregoing
-31-
analogous legal authority is that an ALJ, properly acting within her discretion as
fact-finder, is authorized to reverse a misapplication of law in a subsequent
decision, but is not authorized to conduct a second review of the merits in a
subsequent opinion by reversing previously litigated and adjudicated questions of
fact.
B. THE ALJ ERRED IN DENYING AN AWARD OF
TTD BENEFITS BASED ON FACTUAL FINDINGS
RENDERED IN AN INTERLOCUTORY OPINION
Entitlement of a workers’ compensation claimant to TTD benefits is a
question of fact to be determined in accordance with KRS 342.0011(11)(a).
Statutory interpretation is a matter of law reserved for the courts, and courts are not
bound by the ALJ’s or the Board’s interpretation of a statute. Halls Hardwood
Floor Co. v. Stapleton, 16 S.W.3d 327, 329-330 (Ky. App. 2000). Indeed, it is the
appellate court’s province to ensure that ALJ decisions, and the Board’s review
thereof, are in conformity with the Workers’ Compensation Act. KRS 342.290;
Whittaker v. Reeder, 30 S.W.3d 138, 144 (Ky. 2000).
TTD is statutorily defined in KRS 342.0011(11)(a) as “the condition
of an employee who has not reached maximum medical improvement from an
injury and has not reached a level of improvement that would permit a return to
employment[.]” In Central Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky. 2000), the
Supreme Court of Kentucky established how the statutory definition was to be
interpreted and applied in determining the duration of any appropriate award of
TTD benefits. In Wise, the employer argued KRS 342.0011(11)(a) required
-32-
termination of TTD benefits as soon as an injured worker is released to perform
any type of work. However, relying upon the plain language of KRS
342.0011(11)(a), the Supreme Court held “[i]t would not be reasonable to
terminate the benefits of an employee when he is released to perform minimal
work but not the type that is customary or that he was performing at the time of his
injury.” Id. at 659. Thus, a release “to perform minimal work” does not constitute
a “return to work” for purposes of KRS 342.0011(11)(a).
Thus, as defined by the statute, there are two requirements for an
award of TTD benefits: first, the worker must not have reached MMI; and, second,
the worker must not have reached a level of improvement that would permit him to
return to the type of work he was performing when injured or to other customary
work. Absent either requirement, a worker is not entitled to TTD benefits.
Furthermore, pursuant to the construction assigned under Wise, KRS
342.0011(11)(a) takes into account two distinct realities: first, even if a worker has
not reached MMI, temporary disability can no longer be characterized as total if
the worker is able to return to the type of work performed when injured or to other
customary work; and, second, where a worker has not reached MMI, a release to
perform minimal work does not constitute “a level of improvement that would
permit a return to employment” for purposes of KRS 342.0011(11)(a).
The purpose of awarding income benefits, such as TTD, was
explained by the Supreme Court in Double L. Construction, Inc. v. Mitchell, 182
-33-
S.W.3d 509 (Ky. 2005), which applied the two-pronged TTD standard announced
in Wise. The Supreme Court held:
[t]he purpose for awarding income benefits such as TTD
is to compensate workers for income that is lost due to an
injury, thereby enabling them to provide the necessities
of life for themselves and their dependents.
Id. at 514. The Court clarified that TTD is not based on a finding of AMA
impairment, nor based on an inability to perform any type of work. Id. at 515.
1. ABATEMENT OF CLAIM PENDING MMI
DOES NOT MANDATE AWARD OF TTD
Based on our reading of Wise and its progeny, therefore, we must
reject Bowerman’s argument that, “[i]n the absence of an agreement by the parties,
the Workers’ Compensation Act and the regulations promulgated thereunder do
not permit an ALJ to place a claim in abeyance unless income benefits are
initiated.”9 Clearly, under Wise, an ALJ could find that a claimant had not reached
MMI and abate the claim pending completion of further treatment and
improvement, but award no TTD benefits if the claimant had returned to the type
of work performed when injured or to other customary work. Even so, based on
the ALJ’s initial factual findings, that is not the case in the present appeal.
2. ALJ’S ORIGINAL FACTUAL FINDINGS MANDATED
AWARD OF TTD UNDER KRS 342.0011(11)(A)
9
Bowerman does not cite which portions of the Workers’ Compensation Act and regulations
support his argument, but we note that his brief to the Board cited 803 KAR 25:010 § 12(5).
While the plain language of 803 KAR 25:010 § 12(5) would require an ALJ to place a claim in
abeyance if she orders payment of TTD benefits, it does not appear to require payment of TTD
benefits simply because a claim is placed in abeyance.
-34-
In the present case, the ALJ applied the wrong statutory definition and
applicable case law to her original factual findings when she denied Bowerman
TTD benefits in her interlocutory opinion, and later in her final opinion. The
Board’s decision affirming the ALJ’s final opinion admits:
it is clear that the ALJ in her interlocutory opinion
confused the definition of “permanent total disability”
and “temporary total disability” when she found
Bowerman was able to earn an income by providing
services on a regular and sustained basis in a competitive
economy in denying additional TTD benefits. Any error
contained in the decision, however, was not appealable
based on the interlocutory nature of the opinion. Transit
Authority of River City vs. Saling, 774 S.W.2d 468 (Ky.
App. 1989).
The Board held the ALJ corrected this blatant error in her May 3, 2006, order
denying Bowerman’s petition for reconsideration. We disagree. Mere reference to
the correct definition does not assuage the ALJ’s continued failure to properly
interpret and apply that statutory standard to the adjudicated factual findings she
rendered in her interlocutory opinion.
The overwhelming weight of the lay and medical evidence adopted by
the ALJ in her interlocutory opinion compelled an award of ongoing TTD benefits
under any proper application of KRS 342.0011(11)(a) and Wise. By simply
reasserting Bowerman had “reached a level of improvement that would permit a
return to employment” in her order of May 3, 2006, the ALJ demonstrated her
continued lack of understanding regarding the second prerequisite of the twopronged TTD statutory definition announced in Wise.
-35-
The ALJ initially adopted the medical opinions of Dr. Davies in her
interlocutory opinion, finding Bowerman had not reached MMI but had “reached a
level of improvement that permitted his return to some form of work on October
25, 2004.” In denying TTD benefits in her interlocutory opinion, the ALJ cited
McNutt Construction as legal authority, but that case concerns the proper
construction and application of KRS 342.0011(11)(b) and (c), the statutory
definitions for permanent partial disability (PPD) or permanent total disability
(PTD) benefits.
Thereafter, in her May 2006 order denying reconsideration, the ALJ
referred to the correct statutory definition for TTD benefits while maintaining her
conclusion that Bowerman “is not entitled to temporary total disability benefits.”
In holding Bowerman “does not meet the definition of temporary total disability
under KRS 342.0011(11)(a),” the ALJ, with no further factual analysis, rationale,
or explanation, simply reiterated her original conclusion that “I found and still find
that plaintiff has reached a level of improvement that would permit a return to
employment [as of October 25, 2004].
Clearly, the ALJ’s adoption of Dr. Davies’ medical opinions would
have allowed her to determine Bowerman was capable of returning to “some form
of work,” but she could not have reasonably concluded he was capable of returning
to the type of work he had performed at Black when injured or to other customary
work. In her summary of the lay and medical evidence in her interlocutory
-36-
opinion, the ALJ noted that after Bowermen resumed working for Black on
October 25, 2004, he:
worked for defendant in a light duty capacity. He was
kept in the office in the parts room. He cleaned the
office, took out the garbage, filled parts orders and pulled
parts for customers. He said that he had problems
performing this job because there was a lot of reaching
involved. Some parts were too heavy and he could not
pick them up. He could not kneel down or get down on
his knees. His service manager, Donnie Hertter[,] would
assist him in this job.
(Emphasis added). The ALJ also noted Bowerman’s testimony regarding his
having had problems performing these light duty activities, and his receipt of
Black’s termination letter alleging he had refused to return to such light duty work.
In the same interlocutory opinion, the ALJ further noted Bowerman’s
customary work at Black was as a forklift operator, and that this was the type of
work he was performing at Black when he sustained his work-related injury.
According to Bowerman’s uncontradicted testimony, his pre-injury work duties as
a forklift operator included “lots of heavy lifting, doing engine repairs, pulling
heads off, pulling motors out, transmissions, brake jobs, and pulling wheels and
tires off.” In performing these duties, Bowerman “tried not to lift anything over
100-120 pounds if he could help it.”
Finally, the ALJ’s interlocutory opinion noted Dr. Davies had initially
examined Bowerman on April 22, 2005. At that time, Dr. Davies placed
Bowerman on off-work status “because he was not getting better on light duty and
was falling,” and “to prevent any further injury.”
-37-
Thus, the ALJ’s own adjudicated factual findings rendered in her
interlocutory opinion, which were based on her acceptance of the medical opinions
of Dr. Davies, established that Bowerman had not reached MMI, required further
medical treatment, did not qualify for an AMA impairment rating pending further
improvement, and, most importantly for purposes of this appeal, could not return to
the type of work he performed when injured or to other customary work. Based on
these factual findings rendered by the ALJ in her interlocutory opinion, we hold
proper application of KRS 342.0011(11)(a) and Wise compelled an award of
ongoing TTD benefits during abatement of Bowerman’s claim.
V. CONCLUSION
For the foregoing reasons, the ALJ’s final opinion and award of
August 20, 2007, is hereby reversed and the matter remanded for entry of a final
award consistent with the holdings contained herein.
CAPERTON, JUDGE, CONCURS.
KELLER, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
KELLER, JUDGE, DISSENTING: While I agree with a great deal of
the majority’s opinion, I disagree with their ultimate conclusions; therefore, I
respectfully dissent and write separately.
I agree with the majority and the Board that the ALJ used the standard
for determining permanent total disability, not the TTD standard, when she denied
Bowerman’s claim for TTD benefits in her interlocutory opinion. However, on
reconsideration, the ALJ stated that Bowerman’s condition did “not meet the
-38-
definition of temporary total disability found in KRS 342.0011(11)(a)” and she
found, using that standard, “that plaintiff has reached a level of improvement that
would permit a return to employment.”
Kentucky Revised Statute 342.0011(11)(a) defines temporary total
disability as “the condition of an employee who has not reached maximum medical
improvement from an injury and has not reached a level of improvement that
would permit a return to employment[.]” Thus, an injured employee is entitled to
TTD benefits until he reaches maximum medical improvement or
until the medical evidence establishes the recovery
process, including any treatment reasonably rendered in
an effort to improve the claimant's condition, is over, or
the underlying condition has stabilized such that the
claimant is capable of returning to his job, or some other
employment, of which he is capable, which is available
in the local labor market. W.L. Harper Construction
Company, Inc. v. Baker, Ky.App., 858 S.W.2d 202, 205
(1993).
Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327, 329 (Ky. App. 2000).
Although the ALJ, in her order on reconsideration, did not cite Halls Hardwood
Floor Co., she did cite the correct statutory language. Therefore, the ALJ
ultimately applied the correct standard when she determined that Bowerman was
not entitled to interlocutory TTD benefits. Because the ALJ had previously
summarized the facts, she was not required to do more. See Big Sandy Community
Action Program v. Chaffins, 502 S.W.2d 526 (Ky. 1973).
Furthermore, I note that, although there was evidence to the contrary,
Dr. O’Brien stated that Bowerman could return to work with no restrictions. Dr.
-39-
O’Brien’s opinion is probative evidence, sufficient to support the ALJ’s finding.
Although I might have found otherwise, because the ALJ ultimately applied the
correct standard and Dr. O’Brien’s opinion supported her findings, I do not believe
this Court can disturb those findings on appeal.
I also agree with Bowerman, the Board, and the majority that the
ALJ’s finding in the interlocutory opinion regarding when Bowerman reached
maximum medical improvement is inconsistent with her finding on that issue in
her final opinion. In fact, as the majority notes, when the ALJ adopted the
interlocutory opinion in her final opinion, she made her final opinion internally
inconsistent. However, I disagree with the majority that this inconsistency merits
reversal. I do so because I believe that the ALJ initially denied Bowerman’s
request for interlocutory TTD benefits based on her assessment of his ability to
return to work. She did not base that opinion on when he reached maximum
medical improvement. Therefore, when Bowerman reached maximum medical
improvement is not dispositive, and the change in the ALJ’s opinion regarding that
date is irrelevant. Because I believe the ALJ’s inconsistent findings regarding
maximum medical improvement are not dispositive and are irrelevant, I do not
believe the majority’s analysis regarding an ALJ’s ability to alter her findings is
necessary. However, I do not disagree with that analysis.
I respectfully disagree with the majority’s opinion that the
“overwhelming weight of the lay and medical evidence adopted by the ALJ in her
interlocutory opinion compelled an award of ongoing TTD benefits . . . ” for two
-40-
reasons. First, as noted above, Dr. O’Brien stated that Bowerman could return to
work without restriction, which was sufficient evidence of substance to support the
ALJ’s opinion. Second, the ALJ, not this Court, is saddled with the job of
weighing the evidence. While Dr. Davies and Dr. Berkman limited Bowerman’s
ability to perform work activity, I can find nothing in the record that so denigrates
Dr. O’Brien’s opinion that the ALJ was compelled to ignore or discount it.
Therefore, although I might have found differently, I do not believe that the ALJ
was compelled to do so.
I also agree with the majority that an ALJ who places a claim in
abeyance is not required to award TTD benefits. In doing so, I note that 803 KAR
25:010 § 12 states that an ALJ may order interlocutory relief in the form of
income, medical expense, or rehabilitation benefits. Under paragraph 5, “[i]f
interlocutory relief is awarded in the form of income benefits, the application shall
be placed in abeyance unless a party shows irreparable harm will result.” Based on
the plain language of 803 KAR 25:010 § 12(5), an ALJ is required to place a claim
in abeyance if she orders payment of TTD benefits. However, she is not required
to order payment of TTD benefits simply because she places a claim in abeyance.
Had the legislature or the Department of Workers’ Claims wanted to make this
requirement, either could have done so.
Finally, I painfully recognize and greatly sympathize with
Bowerman’s frustration regarding the course his claim took. However, the ALJ’s
ultimate findings, despite being imperfect and delayed, were supported by the
-41-
evidence and not contrary to law. Therefore, I would reluctantly affirm the Board
who affirmed the ALJ.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Rodger W. Lofton
Paducah, Kentucky
K. Lance Lucas
Edgewood, Kentucky
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