IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."

PURSUANT TO THE RULES OF CIVIL PROCEDURE

PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C),

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER

CASE IN ANY COURT OF THIS STATE; HOWEVER,

UNPUBLISHED KENTUCKY APPELLATE DECISIONS,

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE

BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION

BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED

DECISION IN THE FILED DOCUMENT AND A COPY OF THE

ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE

DOCUMENT TO THE COURT AND ALL PARTIES TO THE

ACTION.
AND

Auprmt Coutf laf

2007-SC-000233-WC

MARSHALL JARRELL;

HON. GRANT ROARK,

ADMINISTRATIVE LAW JUDGE ;

AND WORKERS' COMPENSATION BOARD

2007-SC-000234-WC

ON APPEAL FROM COURT OF APPEALS

V. 2006-CA-001415-WC

WORKERS' COMPENSATION NO. 03-95660

ON APPEAL FROM COURT OF APPEALS

V. 2006-CA-001415-WC

WORKERS' COMPENSATION NO. 03-95660

MEMORANDUM OPINION OF THE COURT

RENDERED: March 20, 2008

NOT TO BE PUBLISHED

CZAR COAL CORPORATION APPELLANT

APPELLEES

MARSHALL JARRELL APPELLANT

CZAR COAL CORPORATION ;

HON. GRANT ROARK,

ADMINISTRATIVE LAW JUDGE;

AND WORKERS' COMPENSATION BOARD APPELLEES
AFFIRMING

An Administrative Law Judge (ALJ) found the claimant to be partially disabled by

a work-related back injury and psychiatric condition but chose the hypothetical

permanent impairment rating assigned by a psychiatrist who stated that he was not at

maximum medical improvement (MMI). The Workers' Compensation Board affirmed in

all respects, but the Court of Appeals vacated and remanded regarding the permanent

impairment rating for the psychiatric condition . We affirm.

The claimant was born in 1972. He completed high school with training in auto

mechanics and worked as a roof bolter in the defendant-employer's coal mine. He

sustained a work-related back injury on February 7, 2003, when a large slab of rock fell

from the roof of the mine and struck him . The claimant continued to work for ten to

twelve days with significant back pain, then underwent surgery in May 2003 for

herniated discs at two levels and again in September 2003 for recurrent herniations .

He received temporary total disability (TTD) benefits from February 14, 2003, through

May 9, 2005. His application alleged that he was permanently and totally disabled by

the back injury and a resulting psychiatric condition .

Dr. Wagner reported to the employer in June 2004 that x-rays revealed nerve

root compression and stenosis. He thought that with physical and aqua therapy the

claimant would reach MMI by August 31, 2004, and would retain a 12% permanent

impairment rating . He reported in November 2004 that the claimant would have

reached MMI in August 2004 even without the recommended therapies .

Dr. Witt began to treat the claimant at the Samaritan Pain Clinic in February

2005 for complaints of back and leg pain . He diagnosed post-laminectomy syndrome,
neuropathic pain in the left lower extremity L5-S1 nerve distribution, and lumbar

degenerative disc disease. Dr. Witt prescribed various conservative measures and

later scheduled a psychological evaluation, which Dr. Etscheidt performed in May 2005.

Dr. Etscheidt noted that the claimant was distressed because he had severe

financial pressures, a wife and two children to support, and was "raised to work every

day." He suggested a trial of Cymbalta (an antidepressant) and therapy to address

depression, anxiety, and sleep disturbances . Based on the evaluation, Dr. Witt

prescribed Cymbalta and added depressive disorder and anxiety state to his diagnosis .

Later, he also prescribed a Tempur-Pedic mattress to enable the claimant to get

restorative sleep, but the employer's carrier denied authorization . Dr. Witt testified

subsequently that the mattress had helped many other patients with mechanical back

pain and that he had recommended it along with other conservative measures with the

hope of avoiding the need for a spinal cord stimulator or fusion surgery. He thought

that the claimant could perform work that did not require heavy lifting, was impressed

with his high level of motivation, and thought him to be a good candidate for retraining .

Dr. Travis examined the claimant for the employer in April 2005. He assigned a

20% permanent impairment rating for the back condition, stating that there were no

objective findings on neurological evaluation but significant symptom magnification . He

recommended aggressive work hardening and a cognitive-based physical conditioning

program but suspected that the claimant's tendency to magnify his symptoms would

prevent him from attempting such a program.

Dr. Templin evaluated the claimant in May 2005 and diagnosed chronic low back

pain syndrome, herniated discs at L4-5 and L5-S1, recurrent herniation, and lumbar
radiculopathy. He assigned a 19% permanent impairment rating for the lumbar spine

and a 3% rating for pain, for a total of 21 %. He assigned numerous work restrictions

and stated that the claimant lacked the physical capacity to return to roof bolting.

Dr. Potter evaluated the claimant at his attorney's request in June 2005. He

reported that the claimant retained a 29% permanent impairment rating based on the

back injury. Dr. Potter assigned extensive restrictions and stated that the claimant

could not return to his former job.

Phil Pack, - M.S . in clinical psychology and a Licensed Psychological Practitioner,

evaluated the claimant in July 2005 . His evaluation included a history, mental status

examination, psychological and achievement tests, and a medical records review. He

noted that the insurance carrier had refused to approve Cymbalta and that the claimant

had received no psychological therapy. Testing revealed a high school reading level

and no signs of malingering, but it did reveal symptoms of depression and agitation. In

Mr. Pack's opinion, the claimant's condition did not result from the arousal of a preexisting dormant condition and he did not have an active psychological impairment

before the back injury. He thought that the injury caused depressive and pain disorders

for which recommended counseling . Using Chapter 14 of the AMA Guides to the

Evaluation of Permanent Impairment ( Guides), Fifth Edition, Table 14-1, he rated the

claimant on each of the four areas of functioning and assigned class II impairment,

which equates to a 10% permanent impairment rating .

Dr. Ruth, a psychiatrist, evaluated the claimant in October 2005. His evaluation

included a history, mental status examination, psychological tests, tests that assessed

the effort exerted during the assessment of cognitive functioning, and a- medical records
review. Dr. Ruth noted that test results weighed against malingering and were

0

consistent with the complaints of depression, anxiety, chronic pain, and irritability . Any

symptom exaggeration appeared to result from a sense of desperation . He noted the

claimant's frustration at what he perceived to be illogical and arbitrary decisions by the

insurance carrier to refuse to authorize treatment. Dr. Ruth diagnosed major

depression due to back and lower extremity pain, an anxiety disorder, and a learning

disorder. He stated that the claimant would benefit from a consultation with a

psychiatrist, a prescription for an antidepressant, and appointments for medication

maintenance for about two years. Cymbalta was among the antidepressants that he

suggested. Dr. Ruth found it impossible to assign a permanent psychiatric impairment

at that time because the claimant had not been treated for his symptoms and,

therefore, had not reached MMI . Although he explained that the Guides did not permit

permanent impairment to be assessed until MMI, he assigned what he called a

"hypothetical" permanent impairment rating of 10% based on the claimant's present

symptoms . He attributed a 6% impairment rating to emotional symptoms and a

learning disorder, which were pre-existing, non-work-related factors. He stated that the

impairment due to pre-existing conditions would not improve with treatment. He

thought that depressed affect, anxiety attacks, and instability due to the injury warranted

a 4% impairment rating that would improve by 50% with treatment.

The employer submitted an August 2005 vocational report from Dr. Crystal. It

indicated that the claimant was of average intelligence and read at a level sufficient for

a skilled trade. He thought that the claimant could perform low-stress, entry-level work

that required moderate physical exertion or some types of sedentary bench work. He
did not think that the claimant's pain was so severe as to prevent him from

concentrating sufficiently to work.

Dr. Weikel's 2005 vocational report indicated that the claimant was afraid to drive

while on medication, walked stiffly with a limp, and was trying to wean himself off pain

medication. He stated that he could sit for only fifteen minutes or stand for ten minutes

and that his condition had improved little since the injury. Dr. Weikel concluded that he

sustained a 100% loss of access to the labor market until his pain could be reduced .

The claimant testified that he did not think he had the physical ability to perform

any work. He stated that he had difficulty sleeping except for one night when he used a

friend's Tempur-Pedic mattress. He required medication to deal with his pain as well as

with stress and anxiety. He stated that he could not sit through three or four hours of

class a day but would undergo rehabilitation if his pain resolved .

Among the contested issues were extent and duration of disability and the

claimant's entitlement to additional TTD based on the psychiatric condition . The

employer argued that the claimant was not totally disabled, that the physical injury

caused a 20% permanent impairment rating, and that the 4% permanent impairment

rating that Dr. Ruth assigned to the psychiatric injury was more persuasive than the

10% rating that Mr. Pack assigned .

The AU noted that the claimant appeared to be credible and well-motivated . He

had ceased smoking, lost weight, and weaned himself off narcotic pain medication.

Nonetheless, he was relatively young, had a high school education, and appeared to be

"bright and responsive" at the hearing, all of which indicated an ability to be retrained for

more sedentary work. The AU determined from the medical evidence that the back
condition warranted a 21 % permanent impairment rating . Finding "Dr. Ruth's 4%

impairment rating most credible" regarding the psychiatric condition, the AU reasoned

that Mr. Pack "did not take into account the factors indicating a prior ratable psychiatric

condition that were noted by Dr. Ruth ." The AU determined that the claimant's

disability was only partial and awarded income benefits based on a combined values

rating of 24%, explaining that there were "some jobs to which [the claimant] could return

on a regular and sustained basis, even with his current limitations and pain."

Convinced that he could not return to work as a roof bolter, the AU awarded a triple

benefit under KRS 342 .730(1)(c)1 and ordered a rehabilitation assessment.

Among other things, the claimant's petition for reconsideration requested specific

findings regarding why the AU found him to be at MMI from the psychiatric condition

although Dr. Ruth stated that he was not. The AU denied the petition, reasoning that

MMI regarding the psychiatric claim was not listed as a contested issue. The AU noted

that Mr. Pack and Dr. Ruth both assigned permanent impairment ratings and that "no

such impairment rating could be provided unless each believed plaintiff was at MMI or,

at the very least, that plaintiffs impairment rating would not change significantly even

after reaching MMI ."

The employer asserts that the Court of Appeals invaded the ALJ's province as

the finder of fact when it held that the evidence compelled a finding in the claimant's

favor regarding the permanent impairment rating that the psychiatric injury caused . In

contrast, the claimant argues that the AU erred by relying on Dr. Ruth's opinion

because Dr. Ruth stated that he was not at MMI . In a cross-appeal, he asserts that he

is permanently and totally disabled and that speculation rather than substantial
evidence supports the finding that he is "capable of being retrained to other more

sedentary occupations." In the alternative, he asserts that because Dr. Ruth found him

not to be at MMI regarding the psychiatric condition, he is entitled to TTD benefits until

he reaches that point.

The claimant had the burden to prove every element of his claim. As the

employer points out, KRS 342 .285(1) vests the AU with the sole authority to determine

the weight and credibility of evidence. Special Fund v. Francis, 708 S.W.2d 641, 643

(Ky. 1986), explains that if a party with the burden of proof fails to convince the finder of

fact, the party must show on appeal that the decision was unreasonable and that the

evidence compelled a favorable finding .

KRS 342 .0011(11)(b) and (c) require a finding of partial or total disability to be

supported by a permanent disability rating, which KRS 342.0011(35) and (36) require to

be based on a permanent impairment rating "as determined by" the Guides. The

Guides, Fifth Edition, page 2, state that impairment is considered to be permanent

when an individual reaches MMI, which means that it "is well stabilized and unlikely to

change substantially in the next year with or without medical treatment." Page 19

indicates that a permanent impairment rating is not to be assigned until an individual

reaches MMI and is no longer expected to improve or deteriorate .

Mr. Pack noted that the employer's insurance carrier refused to approve

antidepressant medication and that the claimant had received no therapy for his

psychiatric injury. He reported that the injury caused a 10% permanent impairment

rating as determined by the Guides. The report was submitted, without objection, and

constituted substantial evidence that the psychiatric injury caused a 10% permanent
impairment rating .

Testifying on the employer's behalf, Dr. Ruth stated specifically that the claimant

was not at MMI because he had received no psychiatric treatment and, therefore, that ,

he could not assign a permanent impairment rating under the Guides. Nonetheless, he

assigned a "hypothetical" permanent impairment rating of 10%, attributed a 4% rating to

the injury, and expected it to improve by 50% with treatment.

The AU did not rely on Mr. Pack's testimony to determine that the claimant had

a 10% permanent impairment rating but then exclude a 6% rating based on Dr. Ruth's

testimony of a pre-existing impairment. Thus, it is unnecessary to consider if that

method would have been proper. The AU found Dr. Ruth's hypothetical 4%

impairment rating to be "most credible," which was unreasonable when even Dr. Ruth

acknowledged that the rating was not determined in accordance with the Guides . Mr.

Pack assigned the only permanent impairment rating for the injury that complied with

the Guides; therefore, the AU erred by failing to rely on it when awarding permanent

income benefits.

The AU ordered a vocational rehabilitation assessment but also stated that

there were "some jobs to which plaintiff could return on a regular and sustained basis,

even with his current limitations and pain and, as such, he is not permanently, totally

disabled ." Although Dr. Potter imposed severe work restrictions, Dr. Travis thought that

the claimant could return to work if he alternated between sitting and standing and lifted

no more than 50 pounds. Dr. Weikel thought that he was unable to work, but Dr.

Crystal thought that he was of average intelligence, could read at the level necessary to

perform a skilled trade, and could perform work requiring a moderate level of exertion.
He did not think that the claimant's pain had reached a level that interfered with his

attention and concentration to the point that he could not work. Under the

circumstances, substantial evidence supported the decision to award partial rather than

total disability . The claimant's entitlement to permanent income benefits renders moot

his argument regarding additional TTD benefits.

The decision of the Court of Appeals is affirmed .

Lambert, C.J ., and Cunningham, Minton, Noble, Schroder and Scott, J.J .,

concur. Abramson, J ., not sitting .

COUNSEL FOR APPELLANT,

CZAR COAL CORPORATION:

WALTER W. TURNER

JONES, WALTER, TURNER & SHELTON PLLC

151 NORTH EAGLE CREEK DRIVE

ONE FOUNTAIN PLAZA

SUITE 310

LEXINGTON, KY 40509

COUNSEL FOR APPELLEE,

MARSHALL JARRELL:

THOMAS W. MOAK

MOAK & NUNNERY, PSC

P.O. BOX 510

PRESTONSBURG, KY 41653