No. 09-97634. CHARLES EDWARD BRAIM PETITIONER VS. KENTUCKY MOVING and STORAGE SERVICE and HON. JOSEPH W. JUSTICE,.

• Case Date: January 19, 2012
• Court: Kentucky

Kentucky Workers Compensation 2012. No. 09-97634. CHARLES EDWARD BRAIM PETITIONER VS. KENTUCKY MOVING and STORAGE SERVICE and HON. JOSEPH W. JUSTICE, CHARLES EDWARD BRAIM PETITIONER VS. KENTUCKY MOVING and STORAGE SERVICE and HON. JOSEPH W. JUSTICE, ADMINISTRATIVE LAW JUDGE RESPONDENTS OPINION ENTERED:January 19, 2012CLAIM NO. 200997634APPEAL FROM HON. JOSEPH W. JUSTICE, ADMINISTRATIVE LAW JUDGEOPINION DISMISSING * * * * * *BEFORE: ALVEY, Chairman; STIVERS and SMITH, Members. ALVEY, Chairman. Charles Braim ("Braim") seeks review of the opinion, award and order entered July 27, 2011 by Hon. Joseph W. Justice, Administrative Law Judge ("ALJ"), awarding temporary total disability ("TTD") benefits, permanent partial disability ("PPD") benefits and medical expenses for injuries sustained on November 12, 2007, while working for Kentucky Moving and Storage Service ("Kentucky Moving"). Braim also appeals from the August 24, 2011 order denying his petition for reconsideration and the October 4, 2011 order denying his second petition for reconsideration. Kentucky Moving seeks dismissal of Braim's appeal. In the first petition for reconsideration filed August 4, 2011, Braim argued the following: The ALJ's opinion contains a patent error. The opinion says, at page 7, "There are reports from Drs. Davis, O'Neill, and Barlow, none of which placed restrictions". In fact, Dr. Barlow's report says:

He has no permanent restrictions. However, due to the underlying degenerative process he will be unable to return to heavy work such as furniture moving as such activity would produce increased pain.

In the first petition for reconsideration, Braim did not argue the ALJ failed to address his own testimony regarding the inability to perform the work he was performing at the time of the injury. On August 24, 2011, concerning the first petition for reconsideration, the ALJ ruled as follows:

Plaintiff having filed a Petition for Reconsideration of the Opinion and Award rendered July 27, 2011, and Defendant having responded thereto, and the ALJ having carefully considered the petition and response, [sic] the record, and being sufficiently advised, the ALJ makes the following rationale, comments and explanations:

Plaintiff states that the ALJ did not properly state the opinion of Dr. Barlow or give proper rationale for the finding Plaintiff could return to his former type work. The more correct finding by the ALJ would have been that Plaintiff's proof did persuade the ALJ that he did not retain the capacity to return to his former type work. The ALJ states that he must make his decision on the reports that he has before him.

Plaintiff must have gotten a better result from surgery than the ALJ would have expected. All three physicians seem to agree on the assignment of 10% WPI. The AMA Guides call for impairment of 10-13% for herniated disc at one level. The Physicians assigned the lowest level of 10%. Dr. O'Neill did not make an assignment himself; he must have agreed with the assignment. It appears that all the physicians would give this minimum assignment even though there were surgeries at two levels.

Plaintiff has complained that the ALJ did not accurately describe the opinion of Dr. Barlow. First, the ALJ would like to set out all that Dr. Barlow stated in his re-port pertaining to restrictions:

3. Are there any permanent restrictions? He has no permanent restrictions. However, due to the underlying degenerative process he will be unable to return to heavy work such as furniture moving as such activity would produce increased pain.

4. Can the client safely return to his moving and storage job description considering only his post-surgical back condition, and excluding from his back condition the symptoms Jacob O'Neill, MD described? Mr. Braim's complaints and physical findings today do not include any stocking glove numbness in the left lower extremity. This complaint during Dr. O'Neill's IME

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