source: Caselaw Access Project

author: GRAVES, J.,

license: Public Domain

text:
    Brian LANTER, Appellant, v. KENTUCKY STATE POLICE; Hon. J. Kevin King, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2004-SC-0872-WC.
    Supreme Court of Kentucky.
    Aug. 25, 2005.
    As Corrected Aug. 29, 2005.

      Gregory N. Schabell, Busald, Funk & Zevely, PSC, Florence, KY, Counsel for Appellant.
    Kenneth Lance Lucas, Edgewood, KY, Counsel for Appellee.
   Chapter 13 of the AMA Guides to the Evaluation of Permanent Impairment (Guides) addresses disorders of the central and peripheral nervous system; Chapter 14 addresses mental and behavioral disorders. The claimant alleged that work-related head trauma caused impairments under both chapters that, together, rendered him totally disabled. Nonetheless, an Administrative Law Judge (ALJ) awarded income benefits for only partial disability and determined that an impairment that was assigned under Chapter 13 most nearly measured the claimant’s ability to perform activities of daily living with the need for some direction. Rejecting the claimant’s assertion that uncontrovert-ed evidence of a psychiatric impairment compelled a Chapter 14 impairment to be included in his disability rating, the Workers’ Compensation Board (Board) and the Court of Appeals affirmed. We affirm.

On April 5, 2002, the claimant was struck in the head while participating in a training class in defensive tactics at the Kentucky State Police Academy. He later testified that he had six years of martial arts training that involved physical contact and that he had used that training previously to defend himself from an assault. He stated that he had been mentally prepared for the training exercise and had not been afraid. As he recalled the incident, he was struck in the head and became dazed. He was then hit several more times and became unconscious. Upon regaining consciousness, he was kicked while struggling to his feet. When he attempted to leave the room, he had his head slammed into the wall. He was told to return to class after the incident but refused, became dizzy, and fell down again. He was then interviewed in the captain’s office, resigned from the academy, and drove home, almost wrecking several times.

Ten days later, after experiencing neck pain, memory loss, and clumsiness, as well as difficulty walking, speaking and driving, the claimant first sought treatment from his family physician, Dr. Shearer. In addition to a neck injury that is no longer at issue, his application for workers’ compensation benefits alleged a severe brain contusion and concussion as well as post-traumatic stress disorder, severe generalized anxiety disorder, and psychosis due to the head injury. At issue presently is whether the medical evidence compelled a finding that harmful changes resulting from the head trauma warranted a disability rating based upon impairments under both Chapter 13 and 14 of the Guides.

A December, 2002, report from Dr. Shearer stated that he began treating the claimant on April 15, 2002, for neck pain and for memory loss and other cognitive complaints after he was struck in the head several times by an instructor. Dr. Shearer diagnosed cognitive brain dysfunction and cervical stenosis. Using the Fifth Edition of the Guides, he assigned a 30% impairment based on Chapter 13, Table 13-3 (Impairment Due to Episodic Loss of Consciousness or Awareness).

A November, 2002, report from Dr. D’Souza, the claimant’s treating psychiatrist, noted that the claimant was frightened, confused, and experienced severe headaches after the head trauma and period of unconsciousness. Since then, he had also been experiencing nightmares, difficulty sleeping, and severe depressive symptoms as well as anxiety, panic attacks, paranoid thoughts, and active flashbacks. He was currently engaged in extensive psychotherapy and receiving pharmacotherapy. Dr. D’Souza diagnosed post-traumatic stress disorder, major depressive episodes with psychotic features, post-concussion syndrome, and psychosis due to head trauma. He attributed the conditions to a focal brain lesion that was caused by the head injury. In his opinion, the claimant did not retain the physical capacity to return to the type of work performed at the time of the injury. Such work would exacerbate his symptoms and make him more disabled. He should avoid stressful situations in any kind of work.

Dr. Pagani, who is board-certified in neurology and emergency medicine, treated the claimant several times between April 18 and October 17, 2002. His December, 2002, report noted the history of injury followed by symptoms that included headache, confusion, disorientation, loss of memory, hypersomnia, and psychomotor retardation. He noted that the medications Dr. D’Souza prescribed had helped. After performing various diagnostic tests, including a brain MRI, EEG, and brain SPECT, Dr. Pagani diagnosed a cerebral contusion with post-concussive syndrome. He attributed the claimant’s present condition to the head trauma and assigned a 14% impairment to the central nervous system, using Table 13-6 (Impairment Related to Mental Status) from Chapter 13 of the Guides. He stated that the claimant did not have an active impairment before the injury or a pre-existing dormant condition that was aroused by the injury. In his opinion, the claimant lacked the physical capacity to return to the type of work he performed at the time of the injury. Furthermore, he should avoid stressful situations and independent or unsupervised work.

The employer submitted a report based on a June 11-12, 2003, neuropsychiatric evaluation by Dr. Granacher, who is board-certified in both neurology and psychiatry. Dr. Granacher obtained a detailed history and performed both physical and mental status examinations. He ordered extensive neuropsychological, intellectual, achievement, and personality testing. He also ordered a SPECT scan, which revealed functional defects in the right parietal and left occipital lobes of the claimant’s brain.

Noting that Dr. D’Souza thought the claimant was psychotic but that the claimant denied ever hearing voices, seeing things, or being delusional, Dr. Granacher stated that he could not determine the basis for the diagnosis. He noted that Dr. D’Souza had prescribed Seroquel and Trileptal for a while but that the claimant had not been on them for some time and was taking no “psychiatric or brain medications” presently. Summarizing the mental status examination, he noted that the claimant was pleasant and cooperative; that he independently completed a complex 23-page medical questionnaire; that he was oriented to person, place, and time; and that he was a capable historian. His affective range was moderately constricted, but he made good eye contact, had no delusions or hallucinations, and had no loose associations or circumstantial thinking. He denied suicidal ideas or plans and never appeared tearful or anxious.

Dr. Granacher noted that there was no sign of “faking bad” on the cognitive portions of the testing and concluded that it was valid. He stated, however, that when taking the MMPI-2, which measures psychological adjustment, the claimant may have attempted “to create a highly virtuous self-portrait, in conjunction with elevated clinical scales that indicate a claim of serious physical and emotional disability.” Therefore, Dr. Granacher thought that the claimant’s MMPI-2 profile “may not accurately represent existing psychopathology.” Later in the report, he explained that the test was administered “to provide hypotheses” regarding the claimant’s psychological functioning but that its validity in individuals with traumatic brain injury had not been verified. Therefore, the standard interpretations may not apply to such individuals, and “[t]he interpretations presented in this report need to be verified by other sources of clinical information.”

Dr. Granacher determined that the claimant’s cognitive functioning was average before the injury but that it had declined in several areas due to the head trauma and that the brain lesions that were noted on the SPECT scan appeared to be permanent. Using the DSM-IV-TR classification system for mental disorders, he diagnosed a cognitive disorder due to head trauma (Axis I), no personality or developmental disorder (Axis II), a cognitive disorder (Axis III), no psychosocial stressors (Axis IV), and a current GAF of 65 (Axis V). He concluded that the claimant had a 14% neuropsychiatric impairment due to head trauma, relying on Tables 13-5 (Clinical Dementia Rating) and 13-6 (Impairment Related to Mental Status) from page 320 of the Fifth Edition of the Guides.

Michael Borack, a Doctor of Psychology and practicing clinical psychologist, evaluated the claimant on May 6, 2003. His July 3, 2003, report indicated that he reviewed the other medical reports and diagnostic test results, including the neu-ropsychological, academic/achievement, intellectual capacity, personality, and brain imaging tests. He disagreed with Dr. Granacher’s conclusion regarding the validity of the MMPI-2 personality assessment. Dr. Borack acknowledged that there were no norms specific to individuals who have sustained a head injury. Nonetheless, he thought that the claimant’s effort to “fake good” and, thereby, to minimize any psychological disturbances suggested that the clinical scale findings were highly meaningful. They revealed “significant sadness and depressed mood, suspiciousness and hostile sensitivity, anxiety and agitation, interpersonal alienation, and difficulties in logic and concentration.” Dr. Borack diagnosed posttraumatic stress disorder and dementia due to head trauma with a clinically significant behavioral disturbance. Taking into account the degree of impairment in the claimant’s ability to perform activities of daily living and in his social functioning, concentration, and adaptation, Dr. Borack concluded that he came within the criteria for a Class 3 (moderate) impairment of 47.5%.

When deposed in May, 2003, the claimant stated that he was living with his parents and attending college. He explained that he decided to become a fitness trainer after his injury and began taking three classes but later dropped two of them due to post-traumatic stress, panic attacks, and seizures. He stated that he had not attempted to find work and had not been released to do so by his doctor. He stated that he continued to experience memory loss, clumsiness, difficulty walking, difficulty speaking, and forgetfulness. In July, 2003, at the hearing, he testified that he was on summer break but was scheduled to return to school in the fall. He stated that he had experienced difficulty with the physical activities in his previous classes and sometimes passed out. He had problems with long term and short term memory, became physically and mentally exhausted, and had difficulty understanding the material. He testified that he no longer took medication for the effects of his injury and noticed no change in his condition. He had not seen Drs. Paga-ni or D’Souza for a few months and had no scheduled medical appointments. On a typical day, he did physical therapy and researched his brain injury on the internet.

After summarizing the lay and medical evidence, the ALJ stated as follows:

From a psychological perspective, four physicians have rendered opinions regarding Lanter’s impairment. Dr. Shearer assigned Lanter a 30% impairment, Dr. Granacher and Dr. Pagani assigned Lanter a 14% impairment, and Dr. Borack assigned Lanter a 47.5% impairment.
Having reviewed the evidence and the appropriate portions of the AMA Guides, the [ALJ] notes that Dr. Shearer’s impairment would require Lanter to suffer from severe episodic loss of consciousness or awareness to the point that Lanter’s activities would need to be supervised, protected, or restricted. While it is clear that Lanter does have some occasional loss of awareness, it is not to the extent necessary to support Dr. Shearer’s impairment rating. Dr. Borack’s impairment is based on mental and behavioral disorders. To qualify for the high-end of a Class 3 impairment, Lanter must have impairment levels compatible with some but not all useful functioning rising nearly to the level of significant difficulties with useful functioning. Furthermore, the Guides state on page 364 that, “a moderate impairment does not imply a 50% limitation in useful functioning, and an estimate of moderate impairment in all four categories does not imply a 50% impairment of the whole person.” On the other hand, the impairment ratings of Dr. Pagani and Dr. Granacher more nearly indicate Lanter’s ability to perform activities of daily living and the need for some direction. Therefore, the [ALJ] finds that Lanter has a 14% impairment from a psychological standpoint.

Taking into account the claimant’s difficulty performing classwork due to his mental and physical restrictions but also his age (25), education (two years of college), history of sedentary to medium work, and his ability to drive, to research his condition on the internet, and to perform the majority of his activities of daily living, the ALJ determined that he was capable of some type of work.

The claimant maintains that his head injury caused both brain damage and a psychological condition. Pointing to the ALJ’s references to a psychological injury while relying on a neurological impairment, he maintains that the ALJ “overlapped and misinterpreted” Chapters 13 and 14 of the Guides, considered only the first condition, and disregarded the second. He asserts that only Drs. Borack and D’Souza testified regarding a psychological condition and that only Dr. Borack analyzed the impairment the condition caused. Therefore, the ALJ was required to accept Dr. Borack’s uncontradicted testimony that the condition caused a 47.5% impairment. We disagree.

Chapter 13 of the Guides provides criteria for evaluating brain dysfunction, emphasizing the deficits or impairments that may be identified during a neurologic evaluation. Id. at 305. It acknowledges, however, that “[b]ecause neurologic impairments are intimately related to mental and emotional processes and their functioning, the examiner should also understand Chapters 14, Mental and Behavioral Disorders, and 18, Pain” and that “Additional impairments based on those chapters may need to be considered.” (emphasis added). Id. at 306; see also Id. at 321-22. Section 13.3f (Emotional and Behavioral Impairments) of Chapter 13 contains Table 13-8, which sets forth the criteria for rating such impairment. Furthermore, Section 13.3f states that “[e]motional, mood, and behavioral disturbances illustrate the relationship between neurology and psychiatry. Emotional disturbances originating in verifiable neurologic impairments (e.g., stroke, head injury) are assessed using the criteria in this chapter.” (emphasis added). Id. at 325. Some of the psychiatric features listed as examples include irritability, outbursts of rage or panic, aggression, withdrawal, depression, mania, and emotional fluctuations. Section 13.3f also states that “[njeurologic impairments producing psychiatric conditions are assessed using the neurologic examination, with an expanded neuropsychiatric history and the necessary ancillary tests.” Id.

The introduction to Chapter 14 of the Guides, states, in part, as follows:

This chapter discusses impairments due to mental disorders and considers behavioral impairment of function that may complicate any condition. As did Chapter 13 (The Central and Peripheral Nervous System), this chapter assesses the brain; however, here the emphasis is on evaluating brain function and its effect on behavior for mental disorders. Unlike the other chapters in the Guides, this chapter focuses more on the process of performing mental and behavioral impairment assessment. Numerical impairment ratings are not included; however, instructions are given for how to assess an individual’s abilities to perform activities of daily living, (emphasis original).

Id. at 357-58. The introduction also notes that the Fifth Edition stresses the importance of the DSM-IV criteria for determining a mental impairment and includes more case examples to exemplify the relationship between diagnosis, symptoms, and impact on the ability to perform activities of daily living. Current research finds little relationship between psychiatric signs and symptoms and the ability to perform competitive work. Id. at 361-62. Evaluating impairment is based on the extent of function in four main categories: 1.) ability to perform activities of daily living; 2.) social functioning; 3.) concentration, persistence, and pace, which relate to the ability to sustain focused attention long enough to permit the timely completion of necessary tasks; and 4.) ability to adapt to stressful circumstances without deterioration or decompensation. Chapter 14 describes a Class 2 impairment as being mild, which “implies that any discerned impairment is compatible with most useful social functioning.” Id. at 363. It describes a Class 3 impairment as being moderate, which “means that the identified impairments are compatible with some, but not all useful functioning.” Id. Chapter 14 does not assign percentages to impairments, but as the ALJ noted when analyzing the evidence, it does state that “a moderate impairment does not imply a 50% limitation in useful functioning, and an estimate of moderate impairment in all four categories does not imply a 50% impairment of the whole person.” Id. at 364.

Workers’ compensation law is fundamentally for the benefit of the injured worker. See Messer v. Drees, 382 S.W.2d 209 (Ky.1964). Nonetheless, an injured worker has the burden to prove every element of a claim for benefits, one of which is the amount of AMA impairment that it caused. See KRS 342.0011(11); KRS 342.730(l)(b); Roark v. Alva Coal Corporation, 371 S.W.2d 856 (Ky.1963); Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App.1984); Snawder v. Stice, 576 S.W.2d 276 (Ky.App.1979). KRS 342.285 designates the ALJ as the finder of fact; therefore, the courts have determined that the ALJ, rather than the Board or a reviewing court, has the sole discretion to determine the quality, character, and substance of evidence. See Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky.1985). When the party with the burden of proof does not succeed before the ALJ, that party’s burden on appeal is to show that the favorable evidence was so compelling that the decision to the contrary was unreasonable. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky.1986).

Depending on the evidence, a claim of psychological harm from a traumatic brain injury could be raised under either of two theories: 1.) that the emotional effects of having sustained such an injury resulted in behavioral symptoms; or 2.) that the brain damage caused by the injury resulted in both neurological and behavioral symptoms. No medical expert attributed the claimant’s behavioral symptoms to the emotional effects of the training incident or of living with the harm that it caused. At issue, therefore, is whether the evidence compelled the ALJ to award benefits for the effects of the claimant’s brain damage based not only on his impairment under Chapter 13 but also on an impairment under Chapter 14.

The proper interpretation of the Guides and the proper assessment of impairment are medical questions. See Kentucky River Enterprises, Inc. v. Elkins, Ky., 107 S.W.3d 206, 210 (Ky.2003). In the present case, no physician testified regarding the proper application of the Guides when evaluating impairment from a traumatic brain injury that causes both neurological and behavioral symptoms. Faced with impairment ratings that were assigned under Chapters 13 and 14 and the task of selecting an impairment rating that was a reasonable estimation of the claimant’s condition, the ALJ appropriately consulted the Guides when considering the medical evidence and deciding upon which experts to rely. Chapter 13 clearly indicates that an additional impairment may be warranted in certain instances based on behavioral factors that originate in the brain due to organic damage from a head injury, but it does not indicate that behavioral symptoms always warrant an additional impairment. Furthermore, it appears to indicate that any additional impairment for emotional or behavioral disorders is to be determined under the criteria found in Section 13.3f of Chapter 13 rather than under Chapter 14. Id. at 325.

We find nothing in the ALJ’s reference to the impairment “from a psychological standpoint” or “psychological perspective” together with a discussion of impairments that were assigned under Chapters 13 and 14 of the Guides that evinces a misunderstanding of the medical evidence or a confusion regarding Chapters 13 and 14. In summarizing the evidence, the ALJ specifically noted that the claimant was no longer taking any medication for the neurological or behavioral effects of his injury and had no scheduled medical appointments. It is apparent from the analysis that followed that the ALJ found the impairments assigned by Drs. Shearer and Borack to be excessive in light of the claimant’s restrictions and found the impairments assigned by Drs. Pagani and Granacher to “more nearly indicate [the claimant’s] ability to perform activities of daily living and the need for some direction.” The decision was reasonable under the evidence that was available and was properly affirmed on appeal. Special Fund v. Francis, supra.

LAMBERT, C.J., and COOPER, JOHNSTONE, ROACH, SCOTT, and WINTERSHEIMER, JJ., concur.

GRAVES, J.,

dissents and states that when the ALJ “noted in particular Lan-ter’s young age”, he gave undue weight to youth and erroneously assumed Lanter would outgrow his disability.

        . The criteria are as follows: Class 1 (0-14%), Mild limitation of activities of daily living and daily social and interpersonal functioning; Class 2 (15-29%), Moderate limitation of some activities of daily living and some daily social and interpersonal functioning; Class 3 (30-69%), Severe limitation in performing most activities of daily living, impeding useful action in most daily social and interpersonal functioning; and Class 4 (70-90%), Severe limitation of all daily activities, requiring total dependence on another person.


author: COOPER, Justice.

text:
    Thomas Edwin JONES, Petitioner, v. COMMONWEALTH of Kentucky, ADMINISTRATIVE OFFICE OF THE COURTS, Respondent
    No. 2005-SC-0272-OA.
    Supreme Court of Kentucky.
    Aug. 25, 2005.

      Michael A. Taylor, Taylor Law Offices, Middlesboro, Counsel for Petitioner.
    Raymond F. Debolt, Jr., Frankfort, Counsel for Respondent.
   COOPER, Justice.

Petitioner, Thomas Edwin Jones, brings this original action, pursuant to CR 76.36, to challenge a personnel action taken against him by Respondent, the Administrative Office of the Courts (AOC). Petitioner is a former Bell County pretrial services officer. On November 17, 2003, the AOC’s Division of Pretrial Services issued to Petitioner official notification of its intent to dismiss him from employment. Petitioner thereafter requested an informal meeting with the General Manager of the Division of Pretrial Services. On December 16, 2003, after this informal meeting, Petitioner received a second official notification of intent to dismiss him. Petitioner appealed, and on May 7, 2004, the AOC conducted a hearing on the matter. After taking testimony from several witnesses and reviewing various letters, reports, and affidavits submitted by the parties, the hearing officer concluded that good cause existed for Petitioner’s dismissal. On June 15, 2004, the Acting Director of the AOC adopted the hearing officer’s recommendation to affirm Petitioner’s dismissal. Petitioner appealed to the Court of Justice Employee Grievance and Appeal Committee, which found that the decision to terminate Petitioner’s employment was reasonable.

Petitioner then filed an action in the Franklin Circuit Court, which he styled a “Petition for Appeal of Findings of Fact and Determination of Reasonableness of Director’s Decision.” On March 21, 2005, the Franklin Circuit Court ordered that Petitioner’s action be transferred to this Court, reasoning that because the AOC is the administrative arm of the Supreme Court, requests for review of AOC actions can only be brought before the Supreme Court. This petition followed.

The Chief Justice of the Commonwealth has constitutional authority to “appoint such administrative assistants as he deems necessary.” Ky. Const. § 110(5)(b). This authority is instituted by SCR 1.050, which provides that “[t]he Administrative Office of the Courts shall act as the administrative and fiscal agency of the Court of Justice.” SCR 1.050(1). See also KRS 27A.050 (“The Administrative Office of the Courts is created to serve as the staff for the Chief Justice in executing the policies and programs of the Court of Justice.”). In Martin v. Administrative Office of the Courts, 107 S.W.3d 212 (Ky.2003), we addressed a request for a writ of mandamus directing the AOC to reimburse costs of preparing and transcribing transcripts for appeal of a case to the Court of Appeals. We declined to issue the writ, citing an order promulgated by former Chief Justice Stephens rescinding the AOC’s authorization for payment of transcripts. Id. at 214-15. In discussing our jurisdiction over the matter, we stated, “[t]he Administrative Office of the Courts, as an inseparable part of the Office of the Chief Justice, cannot be properly sued in any of the other courts of the state.” Id. at 214. In other words,

[Ejxcept for matters in which the United States Supreme Court has the right of review over the judgments of this court, the jurisdiction to hear and determine any cause that has as its ultimate objective a judgment declaring what this court must do or not do is vested exclusively in this court, for the very simple reason that our Constitution makes it the highest court of the state and gives it the authority to “exercise control of the Court of Justice.” It could not be said to possess such authority if it or its members in their official capacities were held subject to the authority of the Circuit Court or any other court of the state. The Circuit Court can have no more jurisdiction to issue a declaratory judgment than to issue a writ of mandamus or prohibition against this court or against its members and administrative staff in their official capacities.

Ex Parte Farley, 570 S.W.2d 617, 622 (Ky.1978). See also Ex Parte Auditor of Pub. Accounts, 609 S.W.2d 682, 688 (Ky.1980) (“[Bjecause the [Kentucky Bar] Association is an arm of the court itself, and therefore cannot properly be sued in any of the other courts of the state, this court is [the] only forum in which the controversy can be heard and officially resolved.”). This language formed the basis for the Franklin Circuit Court’s decision to transfer Petitioner’s action so that the parties would litigate the action before this Court.

Where Martin, Auditor of Public Accounts, and Farley concerned original suits against agencies of the Court of Justice, however, Petitioner’s action in the Franklin Circuit Court was an appeal from a personnel action taken by the AOC. Such actions are governed by the Court of Justice personnel policies, which are issued by the Chief Justice pursuant to the authority provided by Sections 110(5)(b) and 116 of the Kentucky Constitution. See also SCR 1.050(2). Section 6.04 of the Court of Justice personnel policies, entitled “Dismissals and Notification of Dismissals,” and Section 6.08, entitled “Grievance and Appeal Procedures,” detail the steps that must be followed to dismiss a Court of Justice employee, as well as the employee’s rights of appeal upon dismissal. In the case sub judice, the AOC followed the proper procedures for dismissal, and Petitioner exercised his rights of appeal in turn, first receiving an evidentiary hearing and review of the hearing record by the Acting Director, and then obtaining review of the decision by the Employee Grievance and Appeal Committee. Upon receiving an adverse determination from the Committee, Petitioner then appealed his case to the Franklin Circuit Court. When an employee continues to seek relief after the Committee’s determination, Section 6.08 of the Court of Justice personnel policies provides only that the employee may “appeal the grievance to the proper court for resolution.” The personnel policies are silent as to the “proper court.”

The General Assembly has addressed the question of the “proper court” for judicial review of action taken by administrative agencies:

A party shall institute an appeal by filing a petition in the Circuit Court of venue, as provided in the agency’s enabling statutes .... If venue for appeal is not stated in the enabling statutes, a party may appeal to Franklin Circuit Court or the Circuit Court of the county in which the appealing party resides or operates a place of business.

KRS 13B.140. However, the General Assembly’s constitutional lawmaking authority does not, by itself, render a legislative statute applicable to the AOC, which is within the exclusive province of the judicial branch.

The correct principle, as we view it, is that the legislative function cannot be so exercised as to interfere unreasonably with the functioning of the courts, and that any unconstitutional intrusion is per se unreasonable, unless it be determined by the court that it can and should be tolerated in a spirit of comity.

Auditor of Pub. Accounts, 609 S.W.2d at 688. The issue in Auditor of Public Accounts was whether the Auditor, an official whose constitutional authority is only of a scope defined by the General Assembly, was legally entitled or required to audit the books of the Kentucky Bar Association (KBA). Id. at 683. We held that the 1975 Judicial Article, which amended Section 116 of the Kentucky Constitution to provide for Supreme Court governance of the KBA, “completely removed the subject from any legislative authority and rendered obsolete and ineffective the statutes pertaining to it.” Id. at 684. Thus, the KBA became the exclusive province of the Court of Justice and, absent a judicial extension of comity to the statutes of the General Assembly, the Auditor of Public Accounts had no authority to inspect the KBA’s records.

The Judicial Article also provided for the Chief Justice’s governance of the administrative arm of the Court of Justice. Ky. Const. § 110(5)(b). This effectively removed the AOC from legislative authority, in the same manner as it did the KBA. See Auditor of Pub. Accounts, 609 S.W.2d at 687 (“(T]he 1975 Judicial Amendment extended the judicial function to include the administration of the business affairs of the judicial branch of government ....”); Farley, 570 S.W.2d at 620 (“Clearly, [the AOC] and its director and employes are part and parcel of the judicial department of the state. They are, in fact, inseparable from the office of the Chief Justice itself.”).

Nevertheless, “[t]he policy of this court is not to contest the propriety of legislation in this area to which we can accede through a wholesome comity.” Auditor of Pub. Accounts, 609 S.W.2d at 688. The extension of comity depends on the outcome of a balancing test, as demonstrated by this Court’s denial of comity to KRS Chapter 43, which defines the functions of and directs the Auditor of Public Accounts. Id. at 688-89. Our decision was based upon the recognition that it was unnecessary to apply Chapter 43 to the KBA, because the KBA regularly subjected its financial records to inspection by certified public accountants and held its books and records open for public inspection. Id. at 688. We recognized that this lack of necessity was outweighed by the potential threat to judicial independence that would have been created by granting the authority to audit the KBA to an office that is political in nature. Id. at 688-89. As a result, we denied comity to Chapter 43, declining to extend it to provide the Auditor with authority over the KBA.

In contrast, the application of KRS 13B.140 to determine the “proper court” for appeal of an AOC personnel action is necessary. This Court simply does not possess the resources to open its gates to direct appeals of each personnel action taken by the AOC. Sound management of judicial resources dictates that the circuit courts hear the initial appeals from such administrative actions. Moreover, there is no counterbalancing reason to deny comity as existed in Auditor of Public Accounts. KRS 13B.140 provides for judicial review of agency action and will not subject the AOC to an intrusion by one of the political branches of our government. Circuit court review will not threaten the Supreme Court’s “authority to ‘exercise control of the Court of Justice,’ ” Farley, 570 S.W.2d at 622 (quoting Ky. Const. § 110(2)(a)), as the review shall be limited, in accordance with the provisions of KRS 13B.150. Additionally, this Court will retain the ultimate authority over AOC personnel actions, as well as the determinations of the circuit courts reviewing such actions, by way of the normal appellate process.

We conclude that comity should be extended to KRS 13B.140 in this context. A party wishing to appeal an AOC personnel action may file such appeal in either the Franklin Circuit Court or the circuit court of the county in which that party resides or operates a place of business. In reviewing the AOC’s action, the circuit court shall sit without a jury, shall be confined to the record unless there has been fraud or misconduct, shall not substitute its judgment for that of the AOC as to the weight of the evidence on questions of fact, and shall be limited to affirming the order or reversing it and remanding the action for further administrative proceedings, in accordance with KRS 13B.150.

Accordingly, we vacate the Franklin Circuit Court’s order of transfer and remand this case to the Franklin Circuit Court for proceedings consistent with this opinion.

All concur.


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Lawrence HEMMING (KBA Member No. 89198), Respondent.
    No. 2004-SC-0758-KB.
    Supreme Court of Kentucky.
    Aug. 25, 2005.
   OPINION AND ORDER

In an Opinion and Order entered January 20, 2005, this Court adopted the conclusion of the Kentucky Bar Association (KBA) Board of Governors that Respondent, Lawrence Hemming, had violated SCR 3.130-8.3(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects). Ky. Bar Ass’n v. Hemming, 152 S.W.3d 865 (Ky.2005). We ordered Respondent’s suspension from the practice of law for a period of thirty (30) days, with said suspension probated for two years on the condition that Respondent enroll in the Kentucky Lawyer Assistance Program within thirty (30) days of the Order’s entry. Id. We further ordered Respondent to continue participating in the Program for at least two years. Id.

After Respondent failed to enroll in the Program and did not communicate with the KBA about his enrollment in the Program, we issued a Show Cause Order on April 21, 2005, providing Respondent thirty (30) days to show cause why his probation should not be revoked and his suspension imposed. Respondent has not replied. Accordingly, upon motion of the KBA, it is hereby ordered that Respondent, Lawrence Hemming, is suspended from the practice of law in the Commonwealth of Kentucky, effective the date of this order, for a period of thirty (30) days.

All concur.

ENTERED: August 25, 2005.


author: JOHNSON, Judge.

text:
    Gerri HOLLINS, Appellant, v. JOE GUY HAGAN REALTORS COMPANY LLC; and Pamela Straub, Appellees.
    No. 2005-CA-000184-MR.
    Court of Appeals of Kentucky.
    Aug. 12, 2005.

      Galen L. Clark, Louisville, KY, for appellant.
    Robert E. Stopher, Louisville, KY, for appellees.
    Before COMBS, Chief Judge; HENRY and JOHNSON, Judges.
   OPINION AND ORDER

JOHNSON, Judge.

This matter is before the Court on ap-pellees’ motion to dismiss this appeal, to which appellant responded. The issue presented to us is whether the appeal was timely filed.

The notice of appeal, which was filed on January 24, 2005, designates an Opinion and Order entered by the Jefferson Circuit Court on November 17, 2004, granting ap-pellees’ motion for summary judgment, and an order entered on December 28, 2004, denying appellant’s motion to amend, alter or vacate pursuant to CR 59.05.

Appellees argue that the appeal is untimely because appellant failed to notice her motion for a hearing, which is a requirement under the Rules of Practice of the Jefferson Circuit Court (JRP), and which omission arguably would render the motion a nullity under Kentucky case law. Appellees add that although appellant subsequently filed a second motion seeking to set the matter for a hearing, the motion was filed after expiration of the mandatory ten (10) days provided under CR 59.05. Hence, appellees conclude, the CR 59.05 motion was untimely and the trial court was without jurisdiction to consider it. As a result, the “appeal window closed 30 days after the circuit court granted Straub and Hagan summary judgment.”

Appellant responds that, although Car-nahan is factually distinguishable, it does stand for the principle that a party may obtain a hearing date on a motion after it has been served. In addition, she relies on other case law which rejected the argument that an appeal was not timely filed because appeal time had not been tolled by a post-judgment motion which failed to schedule a hearing date. Appellant quotes the following language:

We agree that better practice dictates the scheduling of a hearing date when a motion is filed. However, we are unwilling to say that the failure to schedule such a hearing date is to be regarded as equivalent to failing to file the motion at all.... In such instances, the trial court may properly put the movant on reasonable terms as to a hearing date, but under the existing Civil Rules may not treat the motion as a nullity.

Having considered the parties’ arguments, and being sufficiently advised, the Court has determined that appellees’ motion is not well taken. While we agree that Carnahan controls the resolution of this matter, we disagree with appellees’ interpretation of its holding. Therefore, the motion is hereby DENIED.

First, we note that the Carnahan case emphasizes that a notice of hearing of a motion is intended to facilitate the prompt disposition of a case and that, therefore, the better practice is to include that notice within the motion. The Carnahan Court opined that “the movant must exhibit his good faith by seeking to bring the motion on for an early hearing and ruling.” The Court further explained that “a proper motion would require that it be accompanied by a notice of hearing, or that such notice be given within a reasonable time after its service.”

In Carnahan, however, at issue was the fact that defendant Robert Carnahan had not assigned a date for the hearing of his motion to dismiss the appeal of the Special Fund either at the time of filing of the motion or at any time afterwards before the trial court disposed of the Special Fund’s motion for default judgment. While the Court expressed doubt “if there could be a hard and fast rule to the effect that a motion without a notice is no motion at all”, it concluded that “a motion of the character filed here is, in effect, ‘no motion at all.’ ”

We construe Carnahan to articulate a concept not specifically defined in the older cases cited by appellant which establishes that a motion without a notice of hearing is merely defective at the time of its filing, rather than a nullity, but that the defect must be cured within a reasonable time lest the movant’s good faith become an issue with a potentially adverse effect on the “character” of the motion as found in Carnahan. What is a reasonable time to carry out this requirement is left to the discretion of the trial court.

In the instant case, appellant served her motion to set a hearing on her previously filed CR 59.05 motion 16 days following service of that motion. It is not clear whether appellees challenged the reasonableness of her delayed compliance when the trial court heard that motion or whether the trial court made any determination in that regard.

We now decide (and appellees have not come forward with any reason to compel us to hold differently) that appellant corrected the initial failure to serve notice of the hearing on her CR 59.05 motion within a reasonable time, thus preserving the effectiveness of that motion in accordance with the principle articulated in Carnahan.

In addition, the motion was timely served, which is the sole requirement set forth in CR 59.05, and, as a consequence, the motion tolled the running of time for appeal. The appeal was timely taken within 30 days following entry of the order denying the motion. Therefore, this appeal shall proceed.

ALL CONCUR.

      . Kentucky Rules of Civil Procedure.

      . Appellees also argued that the motion was untimely because it was served on November 29, 2004, which was twelve days after entry of judgment. However, as appellant correctly states in her response, the motion was timely served on the twelfth day because the tenth and eleventh days, November 27 and 28, 2004, were a Saturday and a Sunday, respectively. CR6.01.

      . Appellees refer to JRP 301, 302, 304, 305 and 401.

      . Appellees rely on Carnahan v. Yocom, 526 S.W.2d 301 (Ky.1975).

      . Commonwealth, Dept. of Highways v. Congleton, 436 S.W.2d 507, 509-10 (Ky.1969). See also Commonwealth, Dept. of Highways v. Baldwin, 445 S.W.2d 427, 428 (Ky.1969).

      . 526 S.W.2d at 304.

      . Id. See also CR 6.04(1).

      . Id.

      . Congleton, 436 S.W.2d at 509-10; Baldwin, 445 S.W.2d at 428.

      . CR 73.02(l)(e).

      . CR 73.02(l)(a).


text:
    Doyle CARNES, Jr., Appellant, v. PARTON BROTHERS CONTRACTING, INC.; Backfield Coal Co.; and Workers’ Compensation Board, Appellees.
    No. 2004-CA-002267-WC.
    Court of Appeals of Kentucky.
    Aug. 19, 2005.

      Susan Turner Landis, Harlan, KY, for appellant.
    William E. Brown, II, Lexington, KY, for appellees.
    Before BARBER and JOHNSON, Judges; HUDDLESTON, Senior Judge.

      . Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

JOHNSON, Judge.

Doyle Carnes, Jr. has petitioned for review from an opinion of the Workers’ Compensation Board entered on October 8, 2004, which vacated and remanded the Chief Administrative Law Judge’s opinion and award rendered on April 6, 2004, which found Carnes to be permanently and totally disabled. Having concluded that the Board misapplied the relevant statutory provisions and exceeded its authority on appellate review, we reverse and remand this matter to the Board to reinstate the CALJ’s opinion and award.

Carnes was born on October 27, 1969. He is a high school graduate, and received some vocational training in diesel mechanics while in high school. Carnes never used these skills in any job. Following high school, Carnes worked as a cook at a McDonald’s restaurant for approximately one year. After working at McDonald’s, Carnes worked as an underground coal miner from 1988 to 2002, with the exception of approximately one year of employment with a construction company in 1998 and 1999. While in the coal industry, Carnes worked primarily as a continuous mine operator.

Carnes suffered at least three work-related injuries before the injury which gave rise to the claim on review. Carnes’s right shoulder was injured on October 18, 1993, while he was working for Crockett Collieries when draw rock fell on him. No workers’ compensation claim was filed and the problem resolved itself within a few days. Then, on December 12, 1996, Carnes’s left foot was struck by draw rock, causing temporary nerve damage. He filed a workers’ compensation claim, which was settled for the lump sum of $15,000.00 based on a 7.5% impairment rating. Carnes also suffered an injury in January 2001 when he was struck in the shoulders and in the head by a piece of draw rock, just two days after beginning work for Jack Rock Coal. He reported pain in his head, shoulders, and mid-back, and ringing in his ears. He was hospitalized, but did not have surgery. With continuing pain and ringing in his ears, Carnes returned to work with the help of pain medication and monthly doctor visits. He filed a workers’ compensation complaint and received an award and a settlement for his medical expenses.

After the January 2001 injury, Carnes was employed with Parton Brothers Contracting, Inc. on July 17, 2001, and he was injured on October 10, 2002, while dragging a five-gallon can of gear oil, 700 to 800 feet, in an underground mine. Upon completing the task, he immediately felt a severe throbbing and burning with a stinging sensation down his left leg and pain in the center of his back just above his belt-line. Carnes drove himself to the hospital where he was treated at the emergency room. He was unable to return to work and filed his Application for Resolution of Injury Claim on July 21, 2003.

On February 6, 2004, an evidentiary hearing was held before the CALJ. Evidence presented included Carnes’s deposition and live testimony, and medical evidence from Dr. James Bean, Dr. David Muffly, and Dr. Christopher Stephens. Carnes testified in his deposition that he suffers from severe lower back pain, as well as numbness in his left leg, and muscle spasms in his calf muscles. He also testified that he suffers from temporary paralysis in his lower left leg from time to time. The numbness in his leg comes and goes, but he described the back pain as a constant ache. Due to his pain, Carnes engages in very few daily activities, but stays in bed most of the time, while applying a heating pad. In a 12-hour period, Carnes spends approximately six to eight hours lying down, one hour standing, and one hour sitting. He stated that he is able to do some yard work on a riding lawn mower from time to time, and that he does laundry, but only what he has to, and he sometimes goes to the grocery store. His family and friends perform the housekeeping tasks that he cannot do on his own. He testified that he can no longer engage in the hobbies he enjoyed before his low-back injury, including hunting and fishing. He also stated that he only drives when he has to, and only 10 to 15 miles at a time, because he cannot sit for longer periods of time.

On February 6, 2004, Carnes testified before the CALJ regarding his injury, stating that he is in constant pain, and that he suffers from paralysis in his left leg several days out of the month. He sometimes uses a cane to assist him with walking. He is currently on Percocet, a muscle relaxer, and has recently been taking sleeping pills and blood pressure medication as needed. He has been bedridden by his pain for up to nine consecutive days. He is most comfortable lying flat on his back. He has received medical care for his pain, including hospitalization, emergency room treatment, injections of medication, as well as daily medication. He also testified that he has discussed the options of surgery with Dr. Stephens, but that he has not undergone the surgery because of the risks and the somewhat minimal relief that Dr. Stephens told him he could expect from surgery.

Carnes also testified that his pain is worsening and that he could not do any type of work as of the date of the hearing. He had not looked for work since the date he gave his deposition. The CALJ specifically asked Carnes about his educational and vocational training. Carnes testified that due to his condition he did not think he could perform any job.

Carnes submitted in support of his claim a Form 107 dated May 10, 2003, along with Dr. Bean’s report dated May 10, 2003. Dr. Bean indicated in his report that Carnes’s straight-leg-raising test was positive on the left, but he had a normal motor sensory reflex exam. After reviewing an MRI dated December 12, 2002, Dr. Bean reported that Carnes suffered from degenerative disc disease, lumbar sprain, and a central disc bulge at the L4-5 and L5-S1 levels. It was Dr. Bean’s opinion that these conditions were due to the injury Carnes sustained in 2002, and that Carnes did not have an active impairment before this injury. He assigned Carnes an 8% functional impairment rating in accordance with the AMA Guides to the Evaluation of Permanent Impaiment. Dr. Bean recommended that Carnes lift no more than 30 to 40 pounds, and avoid any activities which required continuous bending or stooping. He further opined that Carnes was physically unable to return to the type of work he performed prior to and at the time of his injury.

Dr. Muffly, an orthopedic surgeon, testified by deposition dated November 12, 2003. Dr. Muffly had treated Carnes for both his 1997 foot injury and his 2001 shoulder injury. He evaluated Carnes on May 19, 2003, after he complained of low-back pain as a result of the October 10, 2002, injury. He testified that prior to this date, Carnes had never complained of pain in his lumbar spine and had no history of lumbar problems. He reported that Carnes’s straight-leg-raising test was positive at 80 degrees in both the seated and supine positions and that Carnes walked without a limp, but had stiffness in the low back with change of position and tenderness in the low back. Dr. Muffly also reviewed the MRI scan dated December 12, 2002, and agreed with Dr. Bean that the MRI showed a moderate disc bulge at the L4-5 and the L5-S1 levels. Dr. Muffly’s diagnosis was lumbar strain, disc bulging of the lower two lumbar levels, and degenerative changes. He attributed these conditions to Carnes’s October 2002 injury, and estimated Carnes’s functional impairment rating to be 8% based on the AMA Guides. Dr. Muffly recommended that Carnes lift no more than 30 pounds, do only minimal bending and stooping, and change positions every 30 to 60 minutes. Dr. Muffly testified that it was within reasonable medical probability that the restrictions would be permanent.

Dr. Muffly testified that, following his May 19, 2003, evaluation of Carnes, he was able to review additional medical records, including an MRI scan of Carnes’s lumbar spine taken on May 29, 2003. He stated that it was his opinion that the May 29, 2003, MRI showed a progression of Carnes’s disc injury, including a disc protrusion at the L4-5 level, and disc herniation at L5-S1 level, and that the injury was more significant than was diagnosed by the first MRI scan. Dr. Muffly revised his estimation of Carnes’s impairment level to 10% and revised his recommendation to restrict Carnes’s lifting to less than 20 pounds. He stated that Carnes should only bend or stoop one to two hours per day, changing positions at least every 30 minutes, including lying down. Dr. Muffly testified that Carnes would continue to suffer from chronic pain, and that he would suffer from “flare-ups,” which would render him bedridden or even require hospitalization. He also stated that he believed Carnes’s medical condition would slowly worsen over time, as it appeared to be worsening every five months between MRI scans. He stated that Carnes needed to have regular doctor visits and additional testing, medication, and possibly future surgical treatment. He testified that combining the effect of Carnes’s prior neck injury and the low-back injury, Carnes would be limited to less than sedentary work, because he should lift less than ten pounds, could not stand or sit for even three hours in an eight-hour workday, and would have difficulty concentrating. He also testified that Carnes would be slower at performing daily activities.

The medical report of Dr. Stephens was also introduced. Dr. Stephens evaluated Carnes on November 21, 2003, and also reviewed Carnes’s treatment records and the two MRI scans from December 12, 2002, and May 29, 2003. He stated that Carnes’s straight-leg-raising test was positive on the left, he had a three-quarters inch atrophy on his left calf, and that he had decreased left ankle-jerk reflex. Dr. Stephens agreed with earlier conclusions that the December 12, 2002, MRI showed degenerative changes at the L4-5 and the L5-S1 levels with bulging. He also concluded that the May 29, 2003, MRI showed a moderately large disc herniation at the L5-S1 level. Dr. Stephens diagnosed Carnes with left lumbar radiculopathy with neurologic deficit secondary to lumbar disc herniation. Dr. Stephens believed that surgery was an option for Carnes to relieve the pain in his left leg, but the report revealed that Dr. Stephens did not believe surgery would help Carnes’s back pain, nor significantly improve his functionality.

Dr. Stephens found that without surgery, Carnes had reached maximum medical improvement, and estimated a 10% functional impairment rating. He recommended Carnes lift repetitively no more than 30 pounds, and that he refrain from repetitive bending, stooping, kneeling, and crawling. Dr. Stephens stated he did not believe any of Carnes’s “current complaints” to be related to his January 2001 injury. He also opined that Carnes did not retain the capacity to return to the type of work he was performing prior to and at the time of his injury.

After examining the evidence, the CALJ entered her opinion on April 6, 2004, finding Carnes to be permanently and totally disabled, with a 10% functional impairment rating. The CALJ observed that Carnes was 34 years old with a high school education. While in high school, he received some vocational training in diesel mechanics. The CALJ also pointed out that Carnes had worked as an underground coal miner for essentially his entire adult life, and that he had testified that he no longer had the physical capacity to return to any type of work he had performed in the past. The CALJ found that Carnes continued to have low-back pain, radiating into his left leg, and continued to receive conservative medical treatment. The CALJ also found Carnes to be a “highly credible witness,” and that his testimony was consistent with his demeanor during the hearing. The CALJ took note of the findings from the three treating physicians, stating that the evidence had a “remarkable degree of similarity.” Further, the CALJ noted that Carnes had had at least two prior work-related injuries, but that Carnes was able to continue working on a regular basis until the low-back injury. The CALJ then set out in detail the medical conclusions of the three physicians that were placed into evidence. Based on the totality of the evidence and based on the law of KRS 342.0011(11) and Ira A. Watson Department Store v. Hamilton, the CALJ found that Carnes had a 10% functional impairment as a result of the October 10, 2002, injury, and that as a result of that injury he is now permanently and totally disabled.

On April 20, 2004, Parton Brothers filed a petition for reconsideration in which it argued that the CALJ’s finding of permanent total disability was erroneous and not supported by substantial evidence. Parton Brothers further argued that the CALJ should have at least ordered Carnes to undergo vocational rehabilitation pursuant to KRS 342.710. The CALJ overruled the petition for reconsideration on May 14, 2004, and Parton Brothers appealed to the Board.

In its appeal to the Board, Parton Brothers argued that Carnes was able to perform light duty and sedentary work, and pointed out that none of the physicians had opined that Carnes was permanently and totally disabled. Thus, Parton Brothers argued that the CALJ’s opinion was not supported by “substantial evidence of probative value.” Parton Brothers also relied on the fact that Dr. Muffly’s revised opinion relied on both Carnes’s earlier injuries and the lumbar injury sustained on October 10, 2002. Parton Brothers argued that it was erroneous for the CALJ to rely upon Carnes’s testimony that he was unable to work, and claimed that the physicians’ testimony was that Carnes “does retain the capacity to be gainfully employed within the medical restrictions imposed on him.” Further, it argued that the modifiers for impairment calculations in KRS 342.730 should have been considered. Parton Brothers also argued that, at a minimum, the CALJ should have ordered vocational rehabilitation pursuant to KRS 342.710. Parton Brothers further claimed that the CALJ could not have found Carnes permanently and totally disabled even under the strictest restrictions in the medical evidence and that the CALJ should have ordered vocational rehabilitation pursuant to KRS 342.710.

In an opinion entered October 8, 2004, the Board vacated and remanded the CALJ’s decision, with instructions that the CALJ “expressly state whether Carnes has a complete and permanent inability to perform any type of work as a result of his lower back injury.” The Board acknowledged that the issue of vocational rehabilitation was “imperfectly preserved” and raised by Parton Brothers only on its petition for reconsideration. However, the Board instructed the CALJ on remand to grant the parties a reasonable time to address the appropriateness of a vocational rehabilitation evaluation pursuant to KRS 342.710(3). The CALJ was instructed that if either party were to request such an evaluation, “the CALJ shall thereafter follow the procedure outlined in KRS 342.710(3).” The Board stated that it had authority to remand this issue to the CALJ under KRS 342.285(2)(c), since the claim was being remanded on a “related issue.” This petition for review followed.

Carnes argues to this Court that (1) the Board abused its discretion in vacating and remanding the decision of the CALJ, and (2) the Board abused its discretion in ordering the CALJ to allow consideration of vocational rehabilitation. Parton Brothers states in response that Carnes’s arguments are “based upon a misapplication of the case law and statutes.”

The ALJ is the finder of fact and has the sole authority “to determine the quality, character, and substance of all the evidence.” The ALJ alone is to judge the “weight, credibility, and inferences” to be drawn from the evidence, and is therefore permitted to believe some evidence and to disbelieve other evidence. Further, as fact-finder, the ALJ may draw on either of two reasonable inferences. On appeal, “[n]o new evidence may be introduced before the Board, and the Board may not substitute its judgment for that of the AL J concerning the weight of evidence on questions of fact.”

Upon the initial reading of the Board’s opinion, one error is obvious. The Board remanded the case to the CALJ because the CALJ did not “expressly state that Carnes has a complete and permanent inability to perform any type of work as a result of his lower back injury.” Upon reading the CALJ’s opinion, we conclude that the Board overlooked the CALJ’s statement on page seven of her opinion that “the plaintiff is now permanently and totally disabled as a result of this injury pursuant to KRS 342.0011(11) and Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky.2000).” In fact, the CALJ had noted earlier in her opinion that the real issue was “whether the plaintiffs functional impairment and restrictions are so great that he now has a complete and permanent inability to perform any type of work as a result of this injury. KRS 342.0011(ll)(c).”

KRS 342.0011(ll)(c) defines permanent partial disability as “the condition of an employee who, due to an injury, has a permanent disability rating and has a complete and permanent inability to perform any type of work as a result of an injury[.]” The Board stated that the CALJ did not recognize “the distinction between an inability to perform the type of work performed at the time of injury and a complete and permanent inability to perform any type of work[.]” However, the AL J demonstrated familiarity with and understanding of the statute, and how it has been interpreted by our Supreme Court in Hamilton. After citing Carnes’s credibility and the opinions of the physicians, the CALJ went on to conclude that Carnes’s injury resulted in him being permanently and totally disabled.

The Board then stated that the CALJ’s ruling is unclear because of Carnes’s testimony that “he no longer has the physical capacity to return to any type of work that he has done in the past.” The Board stated that this testimony could have required an award of permanent partial disability benefits tripled pursuant to KRS 342.730(l)(c)l. Further, the Board stated that none of the medical evidence provided by the three physicians indicated why an award of permanent total disability is warranted. If the CALJ had relied on any single piece of evidence, rather than a totality of the evidence in the record, the Board’s rationale would be proper; however, that is not what occurred. The CALJ specifically acknowledged that it was her “responsibility ... to look at the totality of lay and medical evidence contained in the record ... in making the determination of whether [Carnes] has a total and permanent occupational disability.”

The Board vacated and remanded the decision of the CALJ, stating that the evidence adduced by the CALJ “does not lead ineluctably to an award of permanent total disability.” However, this is not the proper standard of review. Where a claimant “is successful before the ALJ, the issue on appeal [to the Board] is whether substantial evidence supported the ALJ’s conclusion.” Substantial evidence is defined as “evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable [people]” [citation omitted]. The Board should have determined if there was substantial evidence to support the CALJ’s conclusions, and if so, then it was the Board’s duty to affirm. The evidence need not lead inescapably to the CALJ’s ultimate finding; rather that finding need only be supported by substantial evidence and authorized by the law. The fact that the evidence in this case does not “lead ineluctably” to the CALJ’s conclusion is of little consequence, as there was substantial evidence to support the CALJ’s award.

The CALJ noted that Carnes is a young worker, a high school graduate, and that he has some vocational training. The CALJ determined that Carnes was a highly credible witness. The CALJ further pointed out the consistency of the evidence from the physicians, and pointed out that Carnes’s symptoms were uncontroverted. She noted that Dr. Muffly had testified that Carnes was now limited to less than sedentary work because of the low-back injury and the earlier neck injury. Carnes testified at the hearing before the CALJ that he had been bedridden for as many as nine days, that the pain was not getting better, but was worsening, and that he would be unable to return to any kind of work. “[A] worker is not required to be homebound in order to be found to be totally occupationally disabled.” We conclude that this evidence in its totality was substantial to support the CALJ’s finding that Carnes is totally and permanently disabled.

Because we conclude that the CALJ’s award was based on substantial evidence and authorized by law, and that remand to the CALJ by the Board was erroneous, the second issue raised by Carnes is moot. However, we will briefly discuss it. We conclude that it was improper for the Board to instruct the CALJ upon remand to consider vocational rehabilitation. KRS 342. 710(3) provides, in relevant part, as follows:

The administrative law judge on his own motion, or upon application of any party or carrier, after affording the parties an opportunity to be heard, may refer the employee to a qualified physician or facility for evaluation of the practicability of, need for, and kind of service, treatment, or training necessary and appropriate to render him fit for remunerative occupation [emphasis added].

In statutory interpretation and construction, “ ‘[m]ay’ is permissive[,]” while “ ‘[sjhair is mandatory!.]” We conclude that the use of the word “may” in KRS 342.710(3) places vocational rehabilitation entirely within the discretion of the CALJ. Furthermore, neither party requested a vocational rehabilitation evaluation when the matter was before the CALJ. The Board, citing its authority under KRS 342.285(2)(c) to ensure that a decision is in conformity with the provisions of KRS chapter 342, determined that it was proper to instruct the CALJ to consider vocational rehabilitation, because of the purpose of vocational restoration embodied in KRS 342.710(1). However, KRS 342.710(3) places the consideration of vocational rehabilitation within the discretion of the CALJ. The effect of the Board’s opinion is to second-guess the CALJ’s exercise of that discretion. Such an approach would place a duty upon an ALJ to order a vocational rehabilitation evaluation on its own motion in cases where the Board, in retrospect, determines that a vocational rehabilitation evaluation would be appropriate. We do not agree with this application of the statute and conclude that the Board abused its discretion in ordering the CALJ to consider vocational rehabilitation.

We conclude that the CALJ’s conclusion that Carnes is now permanently and totally disabled as a result of his low-back injury is supported by substantial evidence, and that a remand for more specific findings was inappropriate, as the findings of fact were sufficient to enable a meaningful review. We also conclude that the Board abused its discretion by ordering the CALJ to consider vocational rehabilitation, as it was within the discretion of the CALJ, since neither party requested such evaluation.

For the foregoing reasons, the Board’s opinion is reversed, and this matter is remanded to the Board for reinstatement of the opinion and order of the CALJ.

ALL CONCUR.

      . Carnes testified that he returned to coal mining because he did not want to do the traveling required for construction work.

      . During this time, Carnes worked 48 hours per week.

      . Carnes was manually moving the can of oil because the equipment normally used was broken.

      . Dr. James Bean’s medical report indicated that Carnes was off work for 18 days, returned to work, but pain reoccurred and he did not return to work at Parton Brothers. Later, Carnes attempted to return to mining work with a different employer for five to six days, but could not continue because of the injury, i.e., severe chronic back and left leg pain.

      .Carnes also filed a black lung claim which is not a part of this case. He also applied in May 2003 for Social Security benefits, but was denied. The case was on appeal at the time of the hearing before the CAU.

      . He testified that he had been to the emergency room three times since he gave his deposition in October, due to pain related to the injury.

      . Dr. Muffly stated that his testimony related solely to the orthopedic problems, not the foot injury.

      . Dr. Muffly was referring to the injury that occurred in January 2001, which was work-related, and the Board acknowledged that it could be considered in determining whether the October 2002 low-back injury caused Carnes to be totally disabled. See KRS 342.730(l)(a).

      . Dr. Stephens reviewed the records of Dr. Bean, Dr. Muffly, Dr. Zerga, and Dr. Oculam. The record does not indicate the first names of Dr. Zerga or Dr. Oculam.

      . 34 S.W.3d 48 (Ky.2000).

      . This was the first instance in which vocational rehabilitation was discussed in the course of the claim for benefits.

      . Garrett Mining Co. v. Nye, 122 S.W.3d 513, 518 (Ky.2003) (citing Square D. Co. v. Tipton, 862 S.W.2d 308, 309 (Ky.1993); and Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky.1985)).

      . Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329, 331 (Ky.1997).

      . Burton v. Foster Wheeler Corp., 72 S.W.3d 925, 929 (Ky.2002) (citing Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky.1977)). See also Pruitt v. Bugg Brothers, 547 S.W.2d 123, 124 (Ky.1977).

      . Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky.1979).

      . Parton Brothers argues that the Board did not examine new evidence or substitute its opinion for the ALJ’s opinion. If it had done so, it would have ordered the ALJ to enter an award based upon permanent partial disability-

      . Smith v. Dixie Fuel Co., 900 S.W.2d 609, 612 (Ky.1995). See also KRS 342.285(2).

      . The Board remanded "for additional fact finding ... to ensure that the CALJ’s permanent total disability award is based on a correct understanding of the evidence and to meaningfully inform appellate review of the issue." The Board cited Cook v. Paducah Recapping Service, 694 S.W.2d 684 (Ky.1985) and Shields v. Pittsburg & Midway Coal Mining Co., 634 S.W.2d 440 (Ky.App.1982). However, those cases involved highly controverted evidence, and the lower decisions were insufficiently clear for the reviewing body to determine what weight, if any, the fact-finder had given to particular evidence. As laid out in Shields, the rule is that the fact-finder is required to "support its conclusions with facts drawn from the evidence in each case so that both sides may be dealt with fairly and be properly apprised of the basis for the decision.” Id. at 444.

      .KRS 342.730(l)(c)l states that it applies "[i]f, due to an injury, an employee does not retain the physical capacity to return to the type of work that the employee performed at the time of injury[.]"

      . Ineluctably is defined as "not to be avoided or overcome; inescapable.” Webster II New College Dictionary, p. 566 (2001).

      . Burton, 72 S.W.3d at 929 (citing Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky.1986)). See also Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky.App.1984).

      . Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky.1971).

      . McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 860 (Ky.2001) (citing Osborne v. Johnson, 432 S.W.2d 800, 803 (Ky.App.1968)).

      . KRS 446.010(20).

      . KRS 446.010(29).

      . In its brief to the CALJ, Parton Brothers did argue that Carnes was retrainable. However, only in its petition for reconsideration, did it argue that Carnes had "transferable job skills” and that CALJ should have ordered vocational rehabilitation pursuant to KRS 342.710.

      . KRS 342.710(1) states as follows:
      One of the primary purposes of this chapter shall be restoration of the injured employee to gainful employment, and preference shall be given to returning the employee to employment with the same employer or to the same or similar employment.

        See Whittaker v. Reeder, 30 S.W.3d 138, 144 (Ky.2000).

      .KRS 342.710(3) also states in part that an employee, who cannot perform work which he is trained to do, is entitled to vocational rehabilitation services and the ALJ shall determine whether such services have been offered and accepted. Carnes testified that he could not perform any type of work. Further, with testimony from both Carnes and Dr. Muffly that Carnes’s condition was worsening and that he was at times bedridden, there was no reason for the CALJ to further inquire about vocational rehabilitative services.


author: SHERRI B. SULLIVAN, J.

text:
    Richard F. KLONOSKI, M.D., Plaintiff/Appellant, v. CARDIOVASCULAR CONSULTANTS OF CAPE GIRARDEAU, INC., C.R. Talbert, Jr., M.D., Allen L. Spitler, M.D., James B. Chapman, M.D., William K. Lafoe, M.D., Kenneth W. Retter, M.D., Defendants/Respondents.
    No. ED 84920.
    Missouri Court of Appeals, Eastern District, Division One.
    May 24, 2005.
    Rehearing Denied Sept. 6, 2005.

      Michael L. Jackson, Jackson, MO, for appellant.
    Matthew M. Mocherman, Cape Girar-deau, MO, (attorney for Cardiovascular Consultants of Cape Gireardeau, C.R. Tal-bert Jr., Allen L. Spitler, James B. Chapman, William K. Lafoe, and Kenneth W. Retter), for respondent.
   SHERRI B. SULLIVAN, J.

Introduction

Richard F. Klonoski, M.D. (Appellant) appeals from the trial court’s judgment denying his claim for damages for breach of an employment contract between Appellant and Cardiovascular Consultants of Cape Girardeau, Inc., C.R. Talbert, Jr., M.D., Allen L. Spitler, M.D., James B. Chapman, M.D., William K. LaFoe, M.D. and Kenneth W. Retter, M.D. (the Group). We affirm.

Factual and Procedural Background

Appellant and the Group entered into an employment agreement (the Agreement) on July 31, 1998. By the terms of the Agreement, Appellant was to practice medicine with the Group “for a term of 18 months, beginning on the 7th day of October, 1998 and ending on the last day of the 18th month of this practice.” The Agreement provided that Appellant would diligently devote his time, skill and effort to the practice of medicine throughout the term of the Agreement, exclusively within the employ of the Group, and the Group would pay Appellant during the first 12 months of the contract a base salary of $20,000.00 per month with bonus incentives for individual performance goals, and during months 18-18 of the contract, Appellant’s compensation would be “productivity based at 80% of individual net bookings after equal overhead applied.”

Appellant began work with the Group on October 7, 1998. For the first 12 months of the parties’ employment relationship, which ran from October 7, 1998 through October 6, 1999, Appellant drew from the Group the agreed base salary of $20,000.00 per month. The parties concede that no bonus incentives were earned or paid. Appellant continued on with the Group from October 7, 1999 through the end of April 2000. It was during this period that Appellant was to be compensated on the basis of productivity “at 80% of individual net bookings after equal overhead applied.”

The contract term “bookings” is not defined in the Agreement. Appellant maintains that bookings are when services are rendered, and thus he should get paid for services he rendered before October 7, 1999, but did not bill until after that date. The Group interprets bookings as when services are billed, but made an exception in Appellant’s case because the Group determined Appellant had been hoarding services rendered until after he became production-based, and then billed them all to increase his compensation as production-based. The Group did not pay Appellant for services he rendered before October 7, 1999, but billed after that date.

Appellant brought a breach of contract claim against the Group for monies earned, but not paid, for services rendered during the last six months of the parties’ employment relationship, when Appellant was no longer a salaried employee and was to be paid solely on the basis of those “bookings” which Appellant produced for the Group.

Neither party requested findings of fact and conclusions of law. The trial court entered its judgment finding all issues in favor of the Group. This appeal follows.

Point on Appeal

Appellant maintains that the trial court’s judgment is not supported by substantial evidence, is against the weight of the evidence and erroneously applies the law because the trial court failed to define and apply the contract term “bookings” and failed to enforce the clear and unambiguous language of the Agreement’s formula for determining Appellant’s compensation for his services during the final six months of his employment with the Group.

Standard of Review

The standard of review in a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence or it erroneously declares or applies the law. Id. Neither party in this case requested findings of fact or conclusions of law, nor did the trial court make any findings of fact. As such, Supreme Court Rule 73.01(a)(3) provides that “[a]ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.” Golden Delta Enterprises v. City of Arnold, 151 S.W.3d 119, 121-122 (Mo.App. E.D.2004).

Discussion

Whether a contract is ambiguous is a question of law. Thomas v. B.K.S. Dev. Corp., 77 S.W.3d 53, 59 (Mo.App. E.D.2002). In determining whether a contract is ambiguous, the court must consider the whole instrument and the natural and ordinary meaning of the language. Id. The mere fact that the parties disagree on the subject does not render the document itself ambiguous. Id. The test is whether the disputed language, in the context of the entire agreement, is reasonably susceptible of more than one construction giving the words their plain and ordinary meaning as understood by a reasonable, average person. Id. Where the contract is ambiguous, use of extrinsic evidence for interpretation is proper; the resolution of the ambiguity is a question of fact. Id.

Appellant and the Group agree that the term “bookings” is undefined within the Agreement and ambiguous. Appellant maintains that “bookings” are defined by the date of service. The Group maintains that “bookings” are determined by the date of billing.

Mr. James Erlacker (Erlacker), who had been the accountant for the Group for 10 years, testified that it was his understanding that a booking was when all paperwork was done and prepared, and the bill could be sent out to the insurance company or other appropriate payee. In other words, when a billing was sent out, it became a booking.

Dr. William LaFoe (LaFoe), a partner and member of the Group, testified that the performance of a doctor was not based upon when his service was performed, but when the service was billed, and that a doctor would receive no credit for the services he performed until the service had been billed. LaFoe stated that the productivity formula used by the Group, taking bookings times (x) 80%, less (-) expenses was used to determine how hard each physician was working, but the formula did not entitle the individual doctor to ownership in the particular bookings that came in that month.

Cindy Gerler (Gerler), an office manager at the Group for 10 years and an employee of the Group for a total of 25 years, testified that the figures which were utilized to determine Appellant’s productivity during the last six months of Appellant’s employment with the Group did not include the Group’s billings for services rendered by Appellant prior to October 7, 1998, while Appellant was a salaried employee. Ger-ler testified that there was a general feeling within the Group that Appellant was holding his paperwork until he became production-based and that, therefore, in Appellant’s case, the date of service determined whether a particular account would be viewed as booked during the first 12 months of Appellant’s employment or during the last six months of the contract when Appellant’s compensation was to be based solely on Appellant’s production. When Appellant became a production compensated individual in October of 1999, the Group made a decision not to give him credit for bookings that represented services that were provided during the first 12 months of his employment. The Group had a meeting in which the owners voted how to handle the situation, and it was felt strongly by all of them that Appellant had tried to shift bookings from the first 12 months over to the productivity period so that he would get paid more. The Group did not believe that would be fair to the rest of the doctors and they made a decision to keep the bookings they believed were the property of the Group.

As a result of this decision, LaFoe stated that Appellant received no credit as a production-based employee for work performed prior to October 7, 1999, regardless of when the work was billed.

Appellant acknowledged that he was slow getting his paperwork to the Group through late March or April of 1999 and stated that the Group actually withheld Appellant’s paychecks for a period of time until Appellant got his paperwork up to date. Appellant testified that he brought his paperwork current in or about May of 1999 and remained current with his paperwork after that date.

We find that the Group’s interpretation, adopted by the trial court, is supported by substantial evidence. The testimony of Erlacker, LaFoe and Gerler supports the interpretation of “booking” as when the service is billed. The trial court clearly found their testimony credible, and we will not disturb that finding. Henderson, 78 S.W.3d 147, 150 (Mo.App. E.D.2002). Appellant’s own deposition testimony supports their construction, when he concedes that “bookings” and “billings” are equal terms, and that LaFoe represented to him that “bookings” as the term was used in the Agreement meant receivables, and receivables meant that bills had gone out.

However, what is troubling is that the Group decided to treat Appellant’s bookings as from the date of service after his production-based compensation period started, because they felt he had been hoarding bookings. The issue thus posed is, was this inconsistent treatment permitted by the Agreement? There is no language in the Agreement strictly prohibiting this treatment. However, it is assigning a meaning to the term “booking,” which is inconsistent with the ordinary and usual one they had supplied to the ambiguous term.

Erlacker opined in a letter to Gerler that he did not think it was necessary to change the method of allocation for Appellant unless it could be shown that he had deliberately delayed billings in order to increase his own profitability which in turn would reduce the profitability of other physicians in the Group. The Group met and decided this indeed was the case. The trial court agreed. Whether Appellant actually was purposely withholding his bookings or not was an issue of credibility for the trial court, and we will not revisit that issue on appeal. Henderson, 78 S.W.3d at 150. However, we do note that Missouri law implies a covenant of good faith and fair dealing in every contract. Koger v. Hartford Life Ins. Co., 28 S.W.3d 405, 412 (Mo.App. W.D.2000). When a party, in bad faith, utilizes contract language that allows unilateral action to improperly deny the other party from expected benefits flowing from the contract, he breaches this covenant. Id., citing Martin v. Prier Brass Mfg. Co., 710 S.W.2d 466, 473 (Mo.App. W.D.1986). By hoarding bookings, and then arguing that it should be the date of service, not billing, that applies, Appellant appears to be doing this very thing.

Appellant testified that the Group’s practice of looking to the date of rendition of service for the purpose of determining whether a “booking” would be credited to the first 12 months or the last six months of Appellant’s employment was consistent with Appellant’s understanding of how the contract would be applied. However, the Group’s practice of looking to the date of rendition of service was an exception they took with regard to Appellant for the mere purpose of handling his alleged hoarding of paperwork for services performed within his first year of employment, when he was salary-based, in order to submit it to the Group in his last six months of employment, when he was production-based. For all other intents and purposes, the evidence establishes that bookings were determined at the time of billing, not at the time of service.

Further, Appellant knew that unless the office was provided the underlying paperwork, the service could not be billed. He understood that if a doctor was not doing his paperwork, or doing a poor job on his paperwork, the services could not be billed. It defies logic that a doctor would be paid based on something that was not, or could not be, billed. Under Appellant’s interpretation of his compensation, there would be nothing from which to subtract overhead. Appellant himself rushed to complete his paperwork when Gerler told him if he did not get his bookkeeping up to speed he would not get credit for his production.

Appellant also maintains that the Agreement’s portion that states that during months 13-18 of the contract, Appellant was to receive “80% of (his) individual net bookings after equal overhead applied,” clearly means that equal overhead would be subtracted from his gross earnings first, and then the 80% figure would be applied. However, Erlacker and Gerler testified that the Group’s practice in dealing with physician employees was to apply the 80% multiplier to gross bookings and then deduct overhead. Dr. Lipoff, another production-based employee, also was paid this way. Gerler and Erlacker informed Appellant of this method of compensation on several occasions during his employment, and Appellant never disputed it. The first time Appellant notified Gerler of his dissatisfaction with the method was three months after the Agreement expired, in July 2000.

Based on the foregoing, we find that the trial court’s judgment adopting the Group’s interpretation of the production-based method of compensation to be supported by substantial evidence.

Appellant also maintains that the Group should have paid him for bookings entered after April 30, 2000. However, bookings are determined at the time they are billed, and Appellant was no longer in the Group’s employment after April 30, when they were billed. Moreover, there was substantial evidence in the record that the Group made every effort to book all of Appellant’s services before the termination of the Agreement. In April, the Group’s doctors instructed Gerler to book as much of Appellant’s services as possible. Gerler stated that on April 21, when Appellant submitted to her all of his paperwork that he believed was necessary to book his services, which was several months behind, she instructed her entire staff to work at all costs to bill as much of Appellant’s services as possible. During the last nine days of April, Gerler worked overtime to help the booking department; coders and transcriptionists worked weekends; and the Group hired a former employee to work at home exclusively on Appellant’s bookings. Michelle Covrick, a coder with the Group, testified that a new coder started on April 3 and exclusively handled Appellant’s bookings while she took care of the other five doctors’ bookings.

The Group was not able to book all of the $172,000.00 of services submitted by Appellant based upon missing documentation and incomplete dictation, and even had all the paperwork been complete and accurate, there was not enough time to complete all of the bookings prior to May 1. LaFoe testified that had Appellant been current with his bookkeeping, he would have been given credit, as bookings, for the $90,000.00 of services that were booked after his contract expired, except for maybe a couple of procedures that he had just recently performed in April.

Based on the above, coupled with the fact that the Agreement itself does not provide for post-termination compensation, we find Appellant’s argument without merit.

For all the aforementioned reasons, we reject Appellant’s assertion of trial court error. Appellant’s point on appeal is denied.

The judgment of the trial court is affirmed.

GARY M. GAERTNER, SR., P.J., and BOOKER T. SHAW, J., concur.

      . Appellant was paid a total of $180,000.00 for the period from January 2, 1999 to September 30, 1999 ($20,000.00 salary per month x 9 months). If he had been paid by the productivity-based compensation formula during that same period of time, based on his bookings, he would have only earned $91,877.80. For the very first month of his productivity-based compensation period, Appellant presented bookings that represented a 40% increase over his most recent month of bookings (which was his last salaried month).