Simpson v. Franklin Insurance Agency, Inc., No. 2007-CA-000578-WC (Ky. App. 11/21/2007)
| Decision Date | 21 November 2007 |
| Docket Number | No. 2007-CA-000578-WC.,2007-CA-000578-WC. |
| Parties | Edie M. SIMPSON, Appellant v. FRANKLIN INSURANCE AGENCY, INC.; Hon. John B. Coleman, Administrative Law Judge and Workers' Compensation Board, Appellees. |
| Court | Kentucky Court of Appeals |
Norman E. Harned, Bowling Green, Kentucky, Brief and Oral Argument for Appellant.
R. Brent Vasseur, Paducah, Kentucky, Brief and Oral Argument for Appellee, Franklin Insurance Agency, Inc.
Before: ACREE, HOWARD and LAMBERT, Judges.
Edie M. Simpson (hereinafter Simpson) petitions for review of a decision of the Workers' Compensation Board which affirmed an award of permanent partial disability benefits resulting from a work-related back injury and psychological impairment. In her petition, Simpson asserts that the evidence compelled a finding of total occupational disability and that the Administrative Law Judge further erred in failing to award benefits for other alleged impairments. We affirm in part, reverse in part and remand.
Simpson was born in 1961 and has a 12th grade education. She worked in the insurance business since high school, obtained an insurance agent's license, and in October 1994, purchased her own agency, the appellee Franklin Insurance Agency. On January 2, 2000, Simpson sustained a work-related injury to her back when she lifted a five gallon water jug onto a water cooler. She initially responded well to conservative treatment and on February 8, 2000, was released to return to her regular activities. A few weeks later, however, severe pain returned and on March 10, 2000, Simpson underwent a lumbar laminectomy at L5-S1. In October 2000, she was referred to another orthopedic surgeon who performed a repeat laminectomy on March 27, 2001. Shortly after the second surgery, Simpson developed severe pain and could not feel her legs or use the lower part of her body. On March 28, 2001, a blood clot in the spinal canal was surgically removed. On March 31, 2001, she underwent yet another surgery to decompress the L5 nerve root and to remove more of the blood clot. She was discharged from the hospital on April 4, 2001, with diagnoses of recurrent herniated nucleus pulposus at L5-S1, cauda equina syndrome and L5 nerve root compromise. Simpson experienced foot-drop, continuing pain and depression. She attempted to return to work, but eventually sold her insurance agency in 2002, and has not worked since May of that year. She claims that as a result of the work-related injury, she sustained a permanent total disability that encompassed bowel, bladder and sexual complications, in addition to her back injury. The employer's primary defense theory was that Simpson's January 2, 2000, work-related injury had resolved and her impairments were caused by a separate, non-work-related injury.
The Administrative Law Judge, the Honorable John B. Coleman (hereinafter the ALJ), found that Simpson was 23% impaired due to her back injury and 10% impaired due to her psychiatric impairment, resulting in a 31% combined whole body impairment, and that this all resulted from her work-related injury and the resulting treatment. The ALJ dismissed Simpson's claim for benefits for her urinary incontinence, bowel problems, and sexual dysfunction, finding that she did not prove causation as to these claimed impairments. Specifically, the ALJ stated the following:
[T]he plaintiff does claim a decrease in her bowel and bladder functioning as a result of her work related low back injury. A review of that evidence indicates that Dr. Evins diagnosed the plaintiff with urgency/frequency syndrome, but could not determine the cause of that condition. Dr. Concepcion originally noted the plaintiff may have some inflammation around the nerve roots going to the bladder, but the diagnostic studies showed chronic inflammation and cystitis with small blood clots in the bladder. He noted the inflammation and clots were not caused by the work related injury and also that the plaintiff had a drop in the bladder. In addition, he noted the sexual dysfunction to potentially be related to the work injury. The plaintiff bears the burden of proof and risk of non-persuasion to convince the trier of fact as to each and every element of her claim. Snawder v. Stice, Ky. App., 576 S.W.2d 276 (1979). In this particular instance, the medical proof is not at all clear as to the cause of the plaintiff's bladder, bowel, and sexual dysfunctions. The mere possibility of a causal relationship is insufficient to permit a finding that a medical condition is work related and therefore compensable. Markwell and Hartz, Inc. v. Pigman, Ky., 473 S.W.2d 640 (1972); Marcum v. General Electric Company, Ky., 479 S.W.2d 640 (1972); and Pierce v. Kentucky Galvanizing Company, Ky. App., 606 S.W.2d 165 (1980). In this case, while there is potential that these conditions are related, the Administrative Law Judge has not been convinced and as it is the plaintiff's burden of proof to show causation, her claim for medical and income benefits for those conditions must be dismissed.
Simpson appealed to the Workers' Compensation Board (hereinafter the Board), which affirmed the ALJ's award in a 2-1 decision. The majority of the Board discussed the evidence relating to Simpson's claims of bowel, bladder, and sexual dysfunction as follows:
Although we find the evidence to be very persuasive, and would have most likely made a finding of disability for the bowel, bladder and sexual dysfunctions, we cannot say that it reaches the "overwhelming" or "compelling" standard. . . .
We are acutely aware of the deference to be given to the ALJ in such a case as this, as set out in the cases cited above. And, while the evidence, unrebutted, is very persuasive, we cannot overstep our bounds and reverse the ALJ. The ALJ may choose to believe part of the evidence and disbelieve other portions of the evidence whether the evidence came from the same witness or from the same party's total proof.
Board Member Cowden, in his dissent, stated as follows:
It is clear to the undersigned that the medical evidence demonstrates causation and work relatedness as it applies to the bowel, bladder, and sexual dysfunction allegations and is not contradicted by any other evidence on this issue. To this extent, the evidence stands unrebutted. Moreover, a reading of the ALJ's opinion provides no basis or reasoning for dismissing this evidence. It is error for the fact finder to reject uncontradicted medical evidence of record without providing a sufficient explanation for his rejection.
Commonwealth v. Workers' Compensation Board of Kentucky, 697 S.W.2d 540, Ky. App. (1985). See also Mengel v. Hawaiian-Tropic Northwest & Central Distributors, Inc., 618 S.W.2d 184, Ky. App. (1981) and Collins v. Castleton Farms, 560 S.W.2d 830, Ky. App. (1977). For this reason, I would remand this matter back to the ALJ to make additional findings as it applies to compensability of the bowel, bladder, and sexual elements of the claim. To the same extent, if the ALJ finds that sufficient evidence exists in the record to support causation as it applies to these three elements of the claim, the ALJ should also address the potential effect that these conditions have on Simpson's ability to perform work on a sustained basis as a result of the injury in question.
This petition for review followed. Our task in this review is to correct the Board only if it overlooked or misconstrued controlling law, or so flagrantly erred in evaluating the evidence so as to cause a gross injustice. Western Baptist Hosp. v. Kelly, 827 S.W.2d 685 (Ky. 1992). The ALJ "has the sole authority to determine the quality, character, and substance of the evidence." Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). The ALJ may reject any evidence and may believe or disbelieve evidence, including medical evidence. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000). Where a claimant fails to convince the ALJ and the Board that his or her burden of proof was met, the claimant must demonstrate on appeal that the evidence was so overwhelming as to have compelled a favorable finding. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
Most on point with this case, the ALJ, as the fact finder, may reject uncontradicted medical evidence, but only when he supports that decision with a reasonable explanation. Commonwealth v. Workers' Compensation Bd. of Kentucky, 697 S.W.2d 540 (Ky.App. 1985); Collins v. Castleton Farms, Inc., 560 S.W.2d 830 (Ky.App. 1977). In Collins, this court quoted 3 A. Larson, Workmen's Compensation Law, §80.20 (9th ed. 1976), to state:
The Commission [now the ALJ] may even refuse to follow the uncontradicted evidence in the record, but when it does so, its reasons for rejecting the only evidence in the record should appear e.g., that the testimony was inherently improbable, or so inconsistent as to be incredible, that the witness was interested, or that his testimony on the point at issue was impeached by falsity in his statements on some other matters. Unless some explanation is furnished for the disregard of all uncontradicted testimony in the record, the Commission may find its award reversed as arbitrary and unsupported.
Neither party contested the ALJ's findings and award relating to Simpson's low back injury and her psychiatric condition. However, Simpson asserts that the evidence compelled findings that her bowel, bladder and sexual dysfunctions are compensable and that she has sustained a total occupational disability. While we disagree that the evidence compelled a finding of total disability or a finding that her bowel dysfunction was a result of her work-related injury, we conclude that this action must be remanded for findings on the undisputed medical evidence relating to Simpson's bladder and sexual dysfunctions.
Simpson first...
To continue reading
Request your trial