Myers v. Merit Elec., LLC

• Decision Date: 09 October 2020
• Docket Number: NO. 2020-CA-0634-WC,2020-CA-0634-WC
• Parties: XENIA R. MYERS APPELLANT v. MERIT ELECTRIC, LLC; HON. BRENT E. DYE, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
• Court: Kentucky Court of Appeals

XENIA R. MYERS APPELLANT v. MERIT ELECTRIC, LLC; HON. BRENT E. DYE, ADMINISTRATIVE LAW JUDGE;and WORKERS' COMPENSATION BOARD APPELLEES

NO. 2020-CA-0634-WC

Commonwealth of Kentucky Court of Appeals

OCTOBER 9, 2020

NOT TO BE PUBLISHED

PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD

ACTION NO. WC-08-91428

OPINION

AFFIRMING

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BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.

KRAMER, JUDGE: Xenia R. Myers appeals from a March 6, 2020 opinion of the Workers' Compensation Board ("Board"). In Western Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky. 1992), the Kentucky Supreme Court described the role of the Court of Appeals in reviewing decisions of the Board: "The function of further review of the WCB in the Court of Appeals is to correct the Board only where the [] Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Id. at 687-88. Here, the arguments Myers advances in this appeal are duplicative of what she asserted before the Board. We have thoroughly reviewed the record, the arguments of the parties, and the law. Upon our review, we conclude that the Board's dispositions of Myers' arguments, as set forth in its opinion, were not in error, but rather were indicative of a thorough understanding of the underlying evidence and a correct application of the law. We therefore affirm and adopt the Board's opinion as follows:

Xenia R. Myers ("Myers") seeks review of the October 1, 2018, Opinion, Award, and Order of Hon. Brent E. Dye, Administrative Law Judge ("ALJ") finding she sustained a work-related injury on March 25, 2008, and awarding income and medical benefits. Myers sustained a horrendous work injury when her mini-excavator overturned crushing her left foot. Ultimately, her left leg below-the-knee had to be amputated. The ALJ awarded periods of temporary total disability ("TTD") benefits, permanent partial disability ("PPD") benefits, and medical benefits. Myers also appeals from the October 30, 2019, Order denying her petition for reconsideration.[FN]

[FN] In the same order, the ALJ granted the Respondent's petition for reconsideration relating to the rendition date of the opinion.

On appeal, Myers challenges the decision on four grounds. Myers first argues the ALJ erred inrecalculating the impairment rating of Dr. Robert Jacob. Myers then contends the ALJ incorrectly determined she attained maximum medical improvement ("MMI") sometime after the surgery amputating her left leg. Myers maintains the ALJ should have found she did not attain MMI until sometime after her March 4, 2016, revision surgery. Next, Myers argues the ALJ erred in accepting Dr. Walter Butler's 5% impairment rating for the psychological injury and in rejecting the 50 to 55% impairment rating assessed by Dr. William Wilkerson. Finally, Myers argues the ALJ erred in not finding she is totally occupationally disabled.

BACKGROUND

Myers' May 8, 2015, Form 101 alleges she sustained a work-related injury on March 25, 2008, in Cedar Park, Texas, when a "mini-excavator slammed into a ditch and jarred [her] foot out of the cab. Foot got crushed between [the] side of ditch and mini excavator." The Form 101 states the doctors "tried to fix bones and tissue in foot, eventually got MRSA and had to have amputation. Now having issues with major scar tissue where skin, muscle and blood was taken from for [sic] the top of my foot."

The medical records of Myers' treating physicians were introduced along with the reports of the doctors who evaluated her physical and psychological condition and provided impairment ratings pursuant to the 5^th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment ("AMA Guides").

The September 4, 2018, Benefit Review Conference Order & Memorandum ("BRC") reflects the parties stipulated Myers sustained a work-related injury and was paid three periods of TTD benefits from March 26, 2008, through May 25, 2014, from May 26, 2014, through August 17, 2014, and from March 4, 2016, through July 14, 2016. The parties also stipulated Merit Electric paidmedical expenses of $306,921.21, Myers' pre-injury average weekly wage, and she had not returned to work since the injury. The parties further stipulated Myers possesses a high school diploma and a real estate license which had expired. The contested issues were as follows: KRS¹ 342.730 benefits, credit for TTD overpayment (duration), and KRS 342.165 safety violation. Under "Other contested issues" is the following: "(1) Compensability 2/27/13 & 4/10/15 travel expenses, (2) + the requested credit period is 9/2/09-8/17/14, & (3) Plaintiff's failure to timely present any medical reimbursements requests. The parties agree to have a deposition in lieu of a hearing. Both parties are alleging safety violations against each other. The Plaintiff has 30 days to obtain a psychological permanent impairment rating. If so, the Defendant may file the applicable motion."

Myers testified at an August 12, 2015, deposition and at a September 4, 2018, deposition presided by the ALJ.

At her August 2015 deposition, Myers testified she has lived in Mobile, Alabama, for almost two years. She has a high school diploma from Walla Walla Valley Academy in Washington state and her high school GPA was 3.92. She attended technical school for three months. While living in Oregon, Myers also obtained an Oregon real estate license in 2000 which has expired. Myers testified the first time she took the test to obtain an Oregon real estate license she scored 95% and thereafter received multiple employment offers from real estate agencies. From the time she graduated from high school in 1992 until she went to work for Phil Myers Construction in December 2000, she worked at Ventura Foods in Portland, Oregon.[FN]

[FN] Phil Myers is her father.

She worked briefly in the plastics department, filled in at quality control, and then moved to supervisor of her operating line. Because of harassment from another employee, Myers left Ventura Foods at the end of 2000 to work for her father's business from December 2000 to October 2006 as a painter and trim carpenter. She also worked as a project manager for nine months. She quit because her father retired in October 2006.

Myers began working for Merit Electric in February or March 2007 and served as an electrician's helper. On-the-job training was the only training she received. She did not possess a journeymen's license nor did she reach apprentice status. During her tenure at Merit Electric, she worked as an electrician's helper. All of her experience was hands-on with no other direct training provided.

Myers acknowledged she had operated a mini excavator and a tugger in the past. She described a tugger as a heavy piece of equipment. Paul Reeves ("Reeves") was her foreman the entire time she worked for Merit Electric. Because Reeves trusted Myers' skills, he allowed her to operate the mini excavator. Reeves knew Myers was very particular and careful in performing her work, and Reeves had trained Myers on how to operate the mini excavator.

Myers provided a description of how the mini-excavator turned over on March 25, 2008. Myers was treated in Austin, Texas by Dr. Kelly Tjelmeland, a plastic surgeon, and Dr. Mark Dalton, an orthopedic surgeon. Ultimately, Dr. Dalton was required to amputate her leg on June 9, 2008. Dr. Dalton informed her she eventually would have to undergo revision surgery. Myers underwent physical therapy in Texas and obtained pain management treatment in multiple states.

When she saw Dr. Sudhakar Madanagopal in Mobile, Alabama, he proposed revision surgery.[FN][FN] The Form 105 - Medical History reflects Myers was treated by Dr. Dalton from 2008 to 2010 and first saw Dr. Madanagopal in March 2015. The medical records establish that in late 2015 or early 2016, Dr. Madanagopal moved from the University of South Alabama in Mobile, Alabama to Huntsville, Alabama.

This was the surgery Dr. Dalton had previously recommended.

Myers has not worked or looked for work since the injury. At the time of her deposition, she was taking no prescription medication. She estimated that since the injury she has gained approximately 35 pounds. She is unable to exercise explaining as follows:

Q: What would you try to do for exercise?

A: I'd walk around the block, take my dog for a walk. And I can manage that for about two weeks and then I've got blisters - so many blisters that I can't even wear my leg.

Q: Where are the blisters located?

A: On the scar tissue on the back of my leg.

Myers believes she is unable to perform desk work, because sitting for more than a couple of hours causes left leg pain which necessitates removal of the prosthetic device and elevating [her] leg. Except for a September 2008 fall which bruised her leg, Myers has had no other accidents. Although she experiences pain, she has refused to take prescription medication. She believes she is unable to perform sedentary work because she has a hereditary circulation problem. She explained that when she sits too long, the blood pools in her feet and builds upcausing her knees to swell. Myers admitted a doctor has never diagnosed this condition. Her doctors have recommended work hardening training in which she is interested.

Myers described her day-to-day activities as "not a lot." She and Reeves plan to remain in Mobile, Alabama.[FN]

[FN] Myers described Reeves as her common-law husband since the state of Alabama recognizes common-law marriage.

Myers further testified her only work experience has been as a painter, carpenter, and electrician's helper, and she also worked as a cashier at McDonald's for three months. She has never possessed a commercial driver's license. All of her previous jobs entailed working on her feet all day. Although she obtained an Oregon real estate license, she has never worked as a real estate agent.

Myers believed she has "tons" of

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