Barbara Collins This is Me

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1. 1. CompEd, Inc. - Articles

   www.comped.net/articles.html?i - [Cached]

   Published on: 5/1/2000   Last Visited: 9/28/2000

   BARBARA COLLINS and
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   The ALJ determined that Barbara Collins (Collins) was totally disabled as a result of an August 19, 1997 thoracic back injury with subsequent psychiatric overlay which Collins sustained while bending over to lift linens out of a laundry cart while employed by Methodist Hospital in its housekeeping department. On appeal, Methodist Hospital contends the ALJ erred by his failure to apply the appropriate statutory standards enacted by the Legislature in 1996 to Collins' claim in the determination of total disability. Methodist Hospital requests a reversal of the ALJ's determination and remand of the claim to the ALJ for an appropriate decision under law. Collins, born November 11, 1954, has an 11th grade education with no specialized or vocational training. She worked as a housekeeper for Methodist Hospital. Previous to her employment with Methodist Hospital, Collins worked in the kitchen of Madison Elms Nursing Home. She then sought employment in a restaurant where she worked as a waitress and a cook. Her employment with Methodist Hospital commenced in 1989 and she eventually secured a job in the linen room of the housekeeping department. There, Collins pulled carts of linens to the various floors after she and others washed and folded them. Lifting linen was a constant part of her job. On August 19, 1997, DATE : [ 08/19/1997 ] Collins was bending over lifting linens out of a cart when she experienced pain in her upper back. Since the accident, Collins has received conservative medical treatment for her back condition and has also sought medical attention for psychological problems which were alleged to have developed following the injury. Collins additionally testified in connection with a previous automobile accident and at the time of her deposition on February 1, 1999, she testified that litigation concerning the automobile accident was still pending. She stated that she received injury to her shoulder and neck in the automobile accident. Collins further acknowledged that the shoulder and neck condition bothered her up and through the time of her work-related injury.
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   Dr. Rapier examined Collins on October 13, 1998.
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   Dr. Rapier restricted Collins from no lifting more than 10 pounds on an occasional basis and no repetitive or frequent bending, turning, twisting or lifting.
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   Dr. Muckenhausen examined Collins on October 28, 1998.
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   Dr. Robert Goodman evaluated Collins on January 20, 1999.
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   The ALJ was also presented with testimony from Betty Sue Vicars, manager of Methodist Hospital's housekeeping department where Collins had worked. She stated that Collins had complained of a nervous condition following her prior automobile accident in May of 1996. She stated that Collins also complained of back pain at that time. In connection with the various contested issues submitted by the parties for final adjudication, the ALJ first determined that the conditions for which Collins sought compensation were causally related to her lifting incident in August of 1997. In this connection, the ALJ relied on evidence from Dr. Rapier, Dr. Muckenhausen, and Dr. Riaz, in addition to testimony from Collins. The ALJ then sought to decide the extent and duration of Collins' disability, if any. He made the following finding :. The next issue to be decided by the Administrative Law Judge is the extent and duration of Plaintiff's disability as a result of his [ sic ] work-related injury on August 19, 1997. Based upon the date of injury, Plaintiff would be governed under the amendments found in House Bill 1. Disability under those amendments are [ sic ] to be determined by the use of impairment ratings under the AMA Guides. The only exception to this is when the Plaintiff is found to be totally occupationally disabled under KRS 342.730 (1) (a). This Court found the Plaintiff to be very credible regarding both her pain and restrictions.
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   Here, Collins had a thoracic spine injury. Those ratings, as submitted to the ALJ, then require the ALJ first to make a determination whether there is a permanent disability, i.e., a permanent impairment rating pursuant to the AMA Guidelines. In the instant claim, the ALJ did not make a determination with a finding of what permanent disability rating was chosen from the conflicting medical evidence and assigned to Collins' impairment rating. This was error on the part of the ALJ. Where the ALJ has then made a specific finding as to whether the claimant suffers a permanent disability rating, the ALJ must then determine whether the individual (Collins) lacks the ability to perform work in a competitive economy (not limiting that analysis to the local economy) and, if reaching such a conclusion, the ALJ may then award permanent total disability benefits. The above steps were not undertaken by the ALJ in Collins' claim. We believe the ALJ is required to undertake this analysis before a decision of permanent total occupational disability can be made. As we have frequently noted and as has been affirmed by the Kentucky Court of Appeals in Ira Watson Dept. Stores v. Hamilton, Claim No. 1998-CA-003100-WC, rendered November 19, 1999, and which was designated to be published but is now on appeal to the Supreme Court and is therefore not final, it is the Board's opinion that there is significantly more discretion granted to an Administrative Law Judge in assessing a permanent total disability than in a permanent partial disability. We, of course, do not cite Watson for authority but believe we are obligated to follow even non-final Court of Appeals decisions on issues of first impression. On remand, the ALJ will be required to undertake the analysis of the evidence presented in Collins' case and apply the statutory principles delineated herein before reaching a decision as to the extent and duration of her occupational disability.