OPINION OF THE COURT
An Administrative Law Judge (ALJ) refused to consider post-hearing evidence regarding the claimant’s social security disability award and determined that he was only partially disabled. Noting that the facts complied with both KRS 342.730(l)(c)l and 2, the ALJ determined that the claimant could return immediately to other regular employment at the same or a greater wage and awarded benefits under KRS 342.730(l)(c)2. Although the Workers’ Compensation Board affirmed on the first two issues and found no error in the corrected order denying reconsideration, it determined that the evidence and
Fawbush v. Gwinn,
The claimant was born in 1967, graduated from high school, and earned a medical technology certificate. He had worked primarily in the health care field at several different facilities. His application indicated that he had worked as a med tech at Hilltop and New Dawson Springs nursing homes from 1989 to 1996. In 1996, he began working for NHC Healthcare as a nursing assistant. NHC was also a nursing home. When deposed, the claimant testified that his duties as a med tech had involved giving medications. He changed jobs because NHC offered better benefits. His duties as a nursing assistant for NHC included helping nurses with their duties, wheeling patients from place to place and bathing, dressing, grooming, feeding, and lifting patients. They involved a heavier physical burden than being a med tech.
The claimant testified that he injured his back on April 16, 2002, while moving a patient. No one else was present. Although he reported the incident, his supervisor failed to complete an accident report. The claimant testified that he finished his shift and saw Dr. James (his family physician) the next day. Dr. James later referred him to Dr. Davies, a neurosurgeon. The claimant testified that he missed no work and performed his usual duties until the end of August, 2002, when his injury worsened.
The claimant stated that he had suffered two prior injuries to his low back and wrist while working for NHC. He had undergone surgery due to the injury at issue, but his pain continued and he thought his condition was worse. At present, he experienced pain and numbness in his low back that radiated into his left leg. He could not sit for more than 15-20 minutes, bend over to pick things up, walk without a cane for more than 10-20 minutes at a time, or engage in more than limited physical activity.
Based on MRI scans that revealed neu-roforamenal stenosis and a small disc herniation at L5-S1, Dr. Davies diagnosed lumbar disc displacement and radiculopa-thy for which he performed surgery. He later assigned a 13% impairment and re-sfricted the claimant from lifting more than five pounds and from bending, twisting, or prolonged sitting. He thought the claimant could return to very sedentary work that allowed him to rest frequently and should not be on his feet for extended periods of time.
The claimant received post-surgical pain management treatment from Dr. Love until September, 2003. He walked with a cane at the time and continually complained of low back pain and increased leg pain. Several epidural injections did not relieve it.
Dr. Travis, a neurosurgeon, performed an independent medical evaluation for the employer in February, 2004. He performed a physical examination and also
Attempting to prove a pre-existing active disability, the employer submitted an October 25, 2000, radiology report from Dr. Guyette. Among other things, it noted mild degenerative changes and disc narrowing at L5-S1. Records from Dr. James indicated that he treated the claimant twice in October, 2000, for an acute lumbo-sacral strain.
When the claim was heard, Dr. James continued to treat the claimant for back complaints. A March, 2004, letter indicated that the claimant suffered from work-related severe low back pain, lumbar degenerative disc disease, and failed back syndrome. He could not rise from a chair without assistance and required an assis-tive device for ambulating. In Dr. James’ opinion, the condition would not improve and probably would worsen.
At the hearing, the claimant testified that a med tech not only dispensed medicine but also performed the duties of a nursing assistant. He stated that he continued to experience low back pain, that his left leg was completely numb, and that Dr. James advised him recently to use a walker rather than a cane. His prescribed medications included Lortab, Zanaflex, Ativan, Zantac, and Senna-Gen. The claimant stated that pain management sometimes helped but that his other treatments failed to relieve his symptoms. He was waiting for a hearing on his social security disability claim and had received no income since voluntary benefits were terminated. He acknowledged that NHC offered him a sedentary job, spoon-feeding patients, but stated that Dr. Davies “told me no.” He spent his days either lying on the couch or in bed and drove a vehicle only when absolutely necessary.
More than a month after the hearing, after the claim had been briefed and submitted for a decision, the claimant filed a motion to submit information regarding his social security claim. The employer objected. Noting that proof time had expired and that
Kington v. Zeigler Coal Co.,
Turning to the merits of the claim, the ALJ found that no medical evidence attributed any portion of the claimant’s impairment to a prior, active condition and that even Dr. Travis attributed impairment to the L5-S1 disc. Finding that the claimant was only partially disabled, the ALJ noted his youth, educational level, and ability to learn and be trained. The ALJ also noted that Dr. Travis thought the claimant’s
The claimant petitioned for reconsideration complaining that when awarding a partial disability, the ALJ failed to acknowledge that he anived at the hearing using a walker; that the ALJ erred by fading consider his social security records; that he was entitled to a triple benefit under KRS 342.730(l)(c)l; and that the ALJ failed to address his right to be reimbursed for the walker. Although the ALJ entered an order, the style of which indicated that it denied the petition, the body of the order clearly addressed another worker’s claim. Several days later, the ALJ rendered a “corrected order” that addressed the claimant’s arguments and found them to be without merit.
The claimant asserts that the ALJ’s refusal to consider information regarding his social security disability determination violated 803 KAR 25:010, § 14(2). He argues that he was unable to submit the information earlier because the social security hearing occurred several weeks after his workers’ compensation hearing. He argues that the ALJ should have at least considered the “facts, medical records and reports, testimony, and rationale” for the decision regardless of whether it was binding in the workers’ compensation proceeding.
We find no abuse of discretion in the ALJ’s refusal to consider the disputed evidence. 803 KAR 25:010, § 14(2) allows a party to file as evidence pertinent material from social security and various public records, but nothing allows a party to file such material outside normal proof time, much less after a claim has been submitted for a decision. Although 803 KAR 25:010, § 15 allows a party to request an extension of proof time up to five days before it expires, the claimant failed to do so. Even had he made a timely request, 803 KAR 25:010, § 14(2) would have prohibited the ALJ from considering any additional medical opinions from his social security record that violated the limitations found in KRS 342.033. Moreover, we fail to see how the rationale for a finding by another agency that was made under the requirements of a different statute would be relevant to his workers’ compensation claim.
The claimant’s second argument is that the finding of partial disability was unreasonable, particularly because the ALJ ordered the employer to pay for the walker. We disagree.
Contrary to what this argument implies, the ALJ did not determine that the walker
The claimant’s third argument is that the corrected order denying his petition for reconsideration did not comply with Chapter 342. He asserts that the order was defective because it failed to withdraw the erroneous order, to refer to KRS 342.125, or to indicate that it was entered on the ALJ’s own motion. Therefore, the claim must be remanded to another ALJ for a consideration of the entire record, including the social security determination that he filed before his petition. Again, we disagree.
A clerical error caused the style of the present claim to be joined to the body of an order denying the petition for reconsideration in another claim. As explained in
Wheatley v. Bryant Auto Service,
The claimant’s final argument concerns the decision in Fawbush v. Gwinn, supra, which determined that when the evidence supports the application of both KRS 342.730(1) (c) 1 and 2, the ALJ must choose the subsection that is more appropriate under the facts. The case involved an individual whose entire work history involved manual labor. As of the hearing, he earned a greater wage than at the time of his injury but worked outside his restrictions and required more than the prescribed amount of narcotic pain medication to do so. The court found the ALJ’s application of KRS 342.730(l)(c)l to be appropriate because overwhelming evidence indicated that the worker would be unable to continue in the employment indefinitely.
The court explained subsequently in
Adkins v. Pike County Board of Education,
Unlike the situations in Fawbush, supra, and Adkins, supra, the claimant continued to work as a nursing assistant for several months after his injury but quit before his claim was heard. He asserted that he could no longer work. Having found the claimant to be only partially disabled, the ALJ’s task was to determine whether his injury permanently deprived him of the ability to do work in which he could earn a wage that equaled or exceeded his wage when he was injured. The claimant asserts that it did and that he was entitled to a triple benefit under KRS 342.730(l)(c)l.
The claimant points to statements in the ALJ’s opinion indicating that he would probably be able to return to work as a med tech. He asserts that the ALJ acknowledged that his medium duty restriction did not permit him to lift patients, even occasionally, but failed to consider his testimony that the duties of a med tech involved both dispensing medication and working as a nurse’s aide. The ALJ also failed to consider that he used a walker at the hearing and quit working due to pain.
The claimant’s argument contains two major flaws. First, his ability to perform his previous job a med tech was but one factor in the Fawbush analysis. Second, his hearing and deposition testimonies regarding the duties of a med tech were inconsistent. When analyzing the extent of disability, the ALJ emphasized the claimant’s relative youth, education, and ability to learn and train; Dr. Travis’s neurological findings, which indicated that the claimant could perform medium duty work; and the evidence of symptom magnification as well as its effect on the claimant’s credibility. The evidence provided a sufficient basis for the ALJ to determine that the claimant would be able to return to regular employment at the same or greater wages than he earned at the time of his injury and that an award under KRS 342.730(l)(c)2 was appropriate.
The decision of the Court of Appeals is affirmed.