Opinion
2024-CA-0072-WC
08-09-2024
ALDEN RESOURCES APPELLANT v. STANLEY LOWE; HONORABLE JONATHAN WEATHERBY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Jeremy N. Faulk Louisville, Kentucky BRIEF FOR APPELLEE STANLEY LOWE: John Morgan Harlan, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NOS. WC-22-01141 AND WC-22-01140
BRIEF FOR APPELLANT: Jeremy N. Faulk Louisville, Kentucky
BRIEF FOR APPELLEE STANLEY LOWE: John Morgan Harlan, Kentucky
BEFORE: ACREE, EASTON, AND GOODWINE, JUDGES.
OPINION
GOODWINE, JUDGE:
An Administrative Law Judge ("ALJ") awarded Stanley Lowe ("Lowe") permanent total disability workers' compensation benefits after determining Lowe suffered a work-related injury caused by cumulative trauma while working for Alden Resources ("Alden"). The ALJ also awarded Lowe medical benefits for coal workers' pneumoconiosis ("CWP"). Alden appealed to the Workers' Compensation Board (the "Board"), and the Board affirmed in part, vacated in part, and remanded to the ALJ for additional findings. After careful review, we found no error, and we affirm.
BACKGROUND
The Board summarized the relevant facts and posture of this case as follows:
On October 6, 2022, Lowe filed a Form 101, alleging injuries to multiple body parts caused by work-related cumulative trauma, and a Form 102, alleging work-related CWP. On the Form 101, Lowe listed the alleged date of injury as October 12, 2019. On the Form 102, he listed the date of last exposure as October 12, 2019, the same date listed in the Form 101.
Lowe testified by deposition and at the May 25, 2023 Final Hearing. Lowe was born on October 27, 1956. He stipulated he possessed a seventh-grade education and had worked as a heavy equipment operator for multiple companies for more than 40 years, with 20 years in surface coal mining. Lowe worked for Alden from 2017 through October 12, 2019, when he was laid off. At that time, Lowe had complaints of back, bilateral shoulder, bilateral knee, and bilateral hand pain. He also had shortness of breath. Lowe testified that during his time as a heavy equipment operator, he drove a truck, ran a dozer, ran an excavator, pushed in shot with the dozer, cleaned walls with the excavator, cleaned coal upon a front-end loader, and graded roads with a motor grader.
Regarding his back and shoulder pain, Lowe stated his back pain worsened after he fell off a truck in 2009. He had chiropractic treatment for his back and has had several injections in both shoulders. He also stated his shoulder pain worsened after having to load cinder blocks.
He cannot lift his arms above his head and his back is stiff and sore.
Lowe testified he had a 15-year history of knee and hand pain. He believes his hand pain originates from years of joystick operation. His hand pain worsened in the last six or seven years and he can barely make a fist. When he ran the dozer and the excavator, he advised Ronnie Bell, his immediate supervisor at Alden, that he could not handle the jarring caused by both pieces of equipment. Some of the equipment, like the excavator and the dozer, had steel tracks. He moved to driving a truck with rubber tires instead of steel tracks during the last six to eight months with Alden. At the final hearing, Lowe identified his most physically demanding task:
Q. What was the hardest part of your job at Alden Resources there? What made it physically challenging?
A. Keeping the dump shoved off till the other trucks could dump.
Q. What makes it a tough job?
A. Well, if you're in a hurry to shove it out and you back up and misplace the rock, hit it, then it jars your gizzards loose. It's -it's - equipment is a tough job.
Q. Are you exposed to vibration, jarring and jolting on it?
A. All the time.
When he was working at Alden, he could still sit for an hour and a half to two hours at a time, but now his pain worsens within less than an hour of sitting. He cannot lift his arms and his shoulders hurt all the time. He does not believe he would "last long" if he returned to operating
heavy equipment and does not believe he could sit on a piece of equipment for more than an hour. When he was laid off, he was having problems with his back, shoulders, knees, and hands. His shoulders and back bothered him the most. Lowe explained both arms are needed to operate the heavy equipment. His back is stiff and causes him pain. His knees pop and are painful.
When asked about his CWP claim, Lowe testified, he filed a federal claim but was told his condition was not due to exposure to coal dust. Lowe used to smoke one pack plus five cigarettes per day and stopped smoking 11 or 12 years ago. When asked why Dr. Ammisetty's report stated he quit four years ago, he stated he did not know and that he told him he stopped 10 to 12 years ago. He stated he deals with shortness of breath, which dates back 15 to 20 years. He worked around coal mines for 39 years and was exposed to coal dust. He uses an inhaler and a nebulizer. Dr. Alana Oculam, his primary doctor, informed him he had COPD and prior to that, diagnosed him with emphysema. Lowe was not told his condition was caused by being around the coal mines.
After he was laid off from Alden, Lowe testified he "retired early." He received disability benefits but now receives regular Social Security benefits since he turned 66 years of age.
Lowe filed a certified notice letter addressed to Alden dated July 20, 2022 expressing his intent to file workers' compensation claims based on CWP and his injury caused by cumulative trauma.
Dr. Bruce A. Guberman evaluated Lowe on September 27, 2022. He diagnosed Lowe with degenerative joint and disc disease of the lumbosacral spine, bilateral shoulders with chronic musculoligamentous strain and degenerative joint disease of both knees due to work-related cumulative trauma. He initially assessed a 25% whole person impairment rating
pursuant to the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment ("AMA Guides"). The Form 107 contained multiple measurements of the spine and shoulders. He found Lowe reached maximum medical improvement ("MMI") as of September 27, 2022. He opined Lowe does not retain the capacity to return to his prior employment. The restrictions assigned were: Unable to use his arms or legs for repeated activities or to operate controls. He should avoid climbing ladders or working at heights. He should avoid sitting for more than 30 to 45 minutes at a time or more than 4 hours in an 8-hour day. He should avoid kneeling, crawling, or squatting. In a rebuttal report dated May 8, 2023, Dr. Guberman commented specifically on Dr. Michael Best's report. He also pointed out a typographical error indicating the correct impairment rating is 45%. He opined that while Lowe's obesity may have contributed to his knee symptoms and impairment, in his opinion, Lowe's occupation was the significant factor causing his impairment. Dr. Guberman apportioned 8% to the lumbar spine (3% pre-existing and 5% work-related cumulative trauma), 7% to the shoulders (4% pre-existing for the right), 8% to the right knee, 10% to the right hand, and 16% to the left hand resulting in a 42% whole person impairment.
Dr. Michael Best evaluated Lowe on April 10, 2023 at Alden's request. He opined Lowe's obesity was the significant factor causing his knee pain and he assessed a 5% impairment rating for the lumbar spine condition caused by cumulative trauma based upon the AMA Guides. He found Lowe's complaints of bilateral shoulder, bilateral hands, bilateral knees, and cervical spine were not caused by cumulative trauma. He opined Lowe had reached MMI, assigned no permanent
restrictions, and found only the trauma to his lumbar spine was caused by work related cumulative trauma. He stated: "Clearly, Mr. Lowe has experienced numerous work events that have precipitated his current complaints. These would include work related falls, his morbid obesity, and his history of osteoarthritis. Cumulative trauma is supported only in the vibratory effects of heavy equipment operation in the lumbar spine only."
Alden filed treatment records from Ortho Tennessee for treatment he received from 2017 through 2023. An MRI performed on October 10, 2016 showed rotator cuff tendinopathy with mild degenerative changes. The records note shoulder pain began in 2014. Lowe has received several injections in both shoulders. Dr. Ammisetty performed an evaluation on January 20, 2023 and completed a Form 108 regarding Lowe's CWP claim. Dr. Ammisetty noted Lowe began smoking at age 16 and quit 28 years later. He also detailed Lowe's work history, which totaled 42 years of exposure to coal and rock dust. Dr. Ammisetty diagnosed work-related simple CWP (1/0 profusion).
Lowe also filed other various medical records, including a chest x-ray from Jonesville Family Health Care of September 23, 2020 showing mild nodular interstitial changes of lungs. He also filed an x-ray of the lumbar spine from FSR West Diagnostic Center in Knoxville, Tennessee, revealing multilevel disc degeneration, disc space narrowing from L2-L3 through the L5-S1 levels, anterior marginal osteophytes along the superior endplates about the L4-L5 disc space, and facet arthropathy in the lower lumbar spine at L4-L5.
The Benefit Review Conference ("BRC") Order and Memorandum listed the following as contested issues: benefits per KRS 342.730; workrelatedness/causation; notice; credit for unemployment; exclusion for pre-
existing disability/impairment; benefits per KRS 342.732; proper use of the AMA Guides by Dr. Guberman; statute of limitations, PTD benefits; and multipliers. The BRC Order lists "10/12/19 (alleged)" as the date of injury.
In his July 24, 2023 Opinion, Award, and Order, the ALJ first addressed Alden's argument regarding notice and the statute of limitations of Lowe's cumulative trauma injuries. The ALJ stated the parties stipulated to an October 12, 2019 date of injury, and cited to Ford Motor Company v. Duckworth, 615 S.W.3d [26] (Ky. 2021) for the proposition that an ALJ is not confined to a claimant's identified injury date in determining the date of manifestation for cumulative trauma. Accordingly, the ALJ found Lowe became aware in January 2023 that his injuries resulted from work-related cumulative trauma, thus, his claim was timely filed and notice was properly given....
The ALJ also found Lowe provided proper notice for his CWP claim, finding Lowe credibly testified that he had been previously diagnosed with COPD, not CWP.Record ("R.") at 509-16.
Kentucky Revised Statutes.
Alden then filed a petition for reconsideration, raising the same arguments it raised in the appeal to the Board. The ALJ denied Alden's petition, but it provided the following additional explanation of the ALJ's findings regarding notice and manifestation:
KRS 342.185(3) defines the manifestation date applicable for the purposes of the two-year statute of limitations for cumulative trauma claims and the parties did not stipulate to a manifestation date as it is therein defined. Similarly, KRS 342.316(2) specifically references the situations triggering the notice requirement for coal workers' pneumoconiosis claims. The ALJ reiterates the finding
that the Plaintiff was initially told by his primary care physician that his symptoms were due to COPD thus making the date upon which he was told by Dr. Ammisetty that he had coal workers' pneumoconiosis, January 31, 2023, relevant for notice purposes. The ALJ declines to disturb the factual finding of the manifestation date in either claim. The ALJ therefore again finds that the cumulative trauma claim was timely filed per KRS 342.185(3) and that notice was given in the coal workers' pneumoconiosis claim in accordance with KRS 342.316(2).R. at 517-18.
Alden then appealed to the Board and raised the following issues:
1) The ALJ must find October 12, 2019 as the date of manifestation of Lowe's cumulative trauma claim and the evidence does not support disability beginning on October 12, 2019; 2) Lowe's CWP claim is barred by a lack of timely notice; 3) The ALJ erred in accepting Dr. Guberman's impairment rating; 4) The evidence does not support an award of PTD benefits; 5) the evidence does not support a finding Lowe cannot return to his customary work; and 6) the ALJ failed to make findings pertaining to its claim for a credit for the receipt for unemployment benefits.
On December 15, 2023, the Board entered an opinion affirming in part, vacating in part, and remanding. The Board provided the following instructions in remanding the case to the ALJ:
We vacate and remand for additional findings regarding the date of notice of the injury claim as the Opinion appears to refer to the date of the CWP University Evaluation examination. We also remand for additional findings regarding the award of PTD benefits. This claim must be remanded as set forth below and it would behoove
the ALJ to delineate the evidence supporting his decision. The ALJ must also provide findings regarding Alden's claim of entitlement to a credit for unemployment benefits paid to Lowe, which was not addressed by the ALJ, even though it was identified as a contested issue properly preserved throughout the proceedings.R. at 508-09. This appeal followed. On appeal, Alden argues: (1) the stipulated date of injury controls the date of manifestation of Lowe's cumulative trauma and CWP claims; (2) lack of timely notice of occupational disease bars Lowe's; (3) this Court should correct Dr.
Guberman's errors made when combining impairment ratings; (4) the ALJ's findings do not support a PTD award; (5) the evidence does not support the ALJ's finding that Lowe cannot return to the same type of work; and (6) imposing prejudgment interest on a past-due PPD award is an unconstitutionally vague civil penalty, which the law does not permit Alden to avoid.
STANDARD OF REVIEW
We apply the following deferential standard when reviewing a Board opinion:
When reviewing an ALJ's decision, this Court will reverse only if the ALJ overlooked or misconstrued controlling law or so flagrantly erred in evaluating the evidence that it has caused gross injustice. On appellate review, the ALJ's findings of fact are entitled to considerable deference and will not be set aside unless the evidence compels a contrary finding. However, we review the ALJ's application of the law de novo. On appeal, our standard of review of a decision of the Workers' Compensation Board
is to correct the Board only where the . . . Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice.Wonderfoil, Inc. v. Russell, 667 S.W.3d 73, 77 (Ky. App. 2020) (internal quotation marks and citations omitted) (quoting Plumley v. Kroger, Inc., 557 S.W.3d 905, 909-10 (Ky. 2018)).
ANALYSIS
First, Alden argues the stipulated date of injury controls the date of manifestation of Lowe's cumulative trauma and CWP claims. On the benefit review conference order and memorandum, the parties stipulated that Lowe "sustained a work-related injury or injuries on: 10/12/19 (alleged)." R. at 308. Notice and statute of limitations are listed as contested issues, but date of manifestation is not mentioned on the form. Id.
To determine the date on which Lowe's cumulative trauma claim accrued, we turn to KRS 342.185(3), the statute of limitations for cumulative trauma claims. This subsection is relatively new:
In 2018, the Kentucky General Assembly amended KRS 342.185[.] It made two significant changes to KRS 342.185. First, KRS 342.185(1) was modified to include the language, "[e]xcept as provided in subsections (2) and (3) of this section[.]" Second, a new subsection three was added dealing specifically with cumulative trauma claims."Anderson v. Mountain Comprehensive Health Corporation, 628 S.W.3d 10, 15 (Ky. 2021) (footnotes omitted). KRS 342.185(3) provides:
The right to compensation under this chapter resulting from work-related exposure to cumulative trauma injury shall be barred unless notice of the cumulative trauma injury is given within two (2) years from the date the employee is told by a physician that the cumulative trauma injury is work-related. An application for adjustment of claim for compensation with respect to the injury shall have been made with the department within two (2) years after the employee is told by a physician that the cumulative trauma injury is work-related. However, the right to compensation for any cumulative trauma injury shall be forever barred, unless an application for adjustment of claim is filed with the commissioner within five (5) years after the last injurious exposure to the cumulative trauma."KRS 342.185(3) provides a bright-line two-year limitation period from the date the plaintiff is told her cumulative trauma is work-related[,]" which the Kentucky Supreme Court also refers to as the "manifestation date." Anderson, 628 S.W.3d at 15, 17. The subsection also "establishes a firm five-year repose period from the date of last exposure. Neither limitation includes a further provision that notice to the employer be provided 'as soon as practicable.'" Id. at 15.
Alden argues Hale v. CDR Operations, Inc., 474 S.W.3d 129 (Ky. 2015) applies to bar Lowe's claim. There, "the parties stipulated that, '[The plaintiff allegedly] suffered a work-related injur[y] on [February 7, 2012],'. . . [and they] . . . 'did not include the alleged date of injury among the contested issues.'" Id. at 139. The Kentucky Supreme Court held "the ALJ properly found that the date of manifestation was February 7, 2012, because he was bound by the parties' stipulation[,]" and "[n]either party sought relief from the stipulation." Id. We note that KRS 342.185(3) was enacted after Hale.
The ALJ disagreed with Alden's argument and instead determined that Ford Motor Company v. Duckworth, 615 S.W.3d. 26 (Ky. 2021), allows Lowe's claim to go forward. There, the parties stipulated five injury dates, "but the order also stated that the injury dates were 'at issue,' and identified the 'date of injury' and 'statute of limitations' as 'contested issues.'" Id. at 29. The Supreme Court held that the ALJ had the authority to determine the manifestation date of Duckworth's cumulative trauma because "[t]he parties did not agree on the manifestation of Duckworth's injury, making that issue subject to further proceedings." Id. at 33. The Court opined:
In cumulative trauma injury claims, "manifestation" can have dual meanings. The date an injury manifests might refer to the date when symptoms or disability arise and may constitute the starting date for liability. Am. Printing House, 142 S.W.3d at 147-48. The Board concluded that this meaning differs from the manifestation date for notice and statute of limitations purposes. The ALJ correctly concluded that the date for triggering the running of the limitations period and for giving notice in a cumulative trauma injury claim is when the worker has knowledge that a harmful change has occurred and is informed by a physician that it is work-related. Hill v. Sextet Mining, 65 S.W.3d 503, 507 (Ky. 2001).
The parties identified the dates of injury as "at issue" and nowhere in the Benefit Review Conference order do the parties stipulate a date of manifestation for notice and statute of limitations purposes.Id. at 30-31. We note that though Duckworth was rendered after KRS 342.185(3) was added, the opinion does not mention that subsection of the statute.
In Anderson, the Kentucky Supreme Court specifically addressed the date of manifestation in cumulative trauma claims under KRS 342.185(3). The "manifestation date and required notice date" were at issue there. Anderson, 628 S.W.3d at 16. Anderson's Form 101 clearly identified the claim as cumulative trauma. It provided the date of her last injurious exposure, but there was competing evidence regarding which of the two dates a doctor first diagnosed her condition as work-related. Id. at 12, 16. The Kentucky Supreme Court held that her claim was timely under either date because she "met the two-year statutory limitations period" under either date. Id. at 16.
The relevant point in all three of these cases is that the parties in workers' compensation cases are bound by the stipulations and contested issues in their BRC order and memorandum. Hale seems to strictly require the date of manifestation to be a contested issue but also allows parties to seek relief from stipulations. The key distinguishing factor in Duckworth is that the parties included the date of injury as a contested issue, but the Court did note that "nowhere in the Benefit Review Conference order do the parties stipulate a date of manifestation for notice and statute of limitations purposes." Duckworth, 615 S.W.3d at 31. In Anderson, the date of manifestation was a contested issue.
Based on our review of the record and applicable case law, the ALJ had the authority to determine the date of manifestation for statute of limitation purposes. The parties stipulated a date of injury and listed the statute of limitations as a contested issue. The BRC order and memorandum do not contest the date of manifestation but do not stipulate one for statute of limitation purposes. Omitting such a stipulation and listing the statute of limitations as a contested issue was sufficient to provide the ALJ authority to select the date of manifestation to determine whether Lowe's claim was filed in a timely manner.
We agree with the Board that "the injury date agreed upon by the parties, which was the last date of injurious exposure that Lowe worked at Alden, does not in and of itself render his claims untimely, either as to the filing of the claim or when notice must be provided to Alden." R. at 524. However, we also agree with the Board that the ALJ failed to identify a manifestation date in its opinion and order for statute of limitations purposes. The Board opined:
We note Dr. Guberman informed Lowe his condition was work-related in September 2022. The ALJ found Lowe did not become aware his conditions were work-related until January 2023, making his claims timely. The only record from January 2023 is the report from Dr. Ammisetty, who evaluated Lowe distinctly for CWP, not
his alleged injuries caused by cumulative trauma. The ALJ has failed to cite the evidence relied upon in determining the date Lowe became aware his injuries were work-related. Therefore, we must vacate this finding and remand for the ALJ to explain the evidence he relies upon in finding Lowe provided proper notice and filed a timely injury claim.Id. As the ALJ's opinion and order clearly lack this crucial finding of fact, we affirm the Board's decision on the date of manifestation and statute of limitations issue.
Second, Alden argues lack of timely notice of occupational disease bars Lowe's CWP claim. KRS 342.316(2) provides the notice requirement for CWP claims:
notice of claim shall be given to the employer as soon as practicable after the employee first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise the employee that he or she has contracted the disease, or a diagnosis of the disease is first communicated to him or her, whichever shall first occur.
"In Kentucky, while there is no specific time frame for satisfying the notice requirement in injury or occupational disease cases, we believe the discretion for making the determination of whether it was given 'as soon as practicable' lies properly with the ALJ." Newberg v. Slone, 846 S.W.2d 694, 699 (Ky. 1992).
In reviewing the ALJ's determination that Lowe's CWP claim was timely filed, the Board found:
The ALJ found Lowe credibly testified that he had not been diagnosed with CWP prior to January 2023 and had previously been informed he did not have CWP. While October 12, 2019 was the stipulated date of injury, as it was his last date of injurious exposure, Lowe was not aware his condition including shortness of breath was work-related until diagnosed by Dr. Ammisetty. Hence pursuant to KRS 342.316(2), notice was timely as the diagnosis of the disease was communicated to him at the university evaluation. The ALJ's finding that the CWP claim was timely filed and notice was properly provided is supported by substantial evidence.R. at 527.
The ALJ had the discretion to determine the manifestation or diagnosis date for timeliness purposes, and substantial evidence supports the ALJ's finding. Thus, we affirm the Board's opinion that Lowe's CWP claim was filed in a timely manner and proper notice was given.
Third, Alden argues that this Court should correct Dr. Guberman's errors when combining impairment ratings because his calculation did not adhere to the AMA Guides. In affirming the ALJ on this issue, the Board found that although Dr. Best opined that Dr. Guberman miscalculated the impairment rating, this amounted to a difference of opinion. R. at 529. "Ultimately, the AMA Guides are for medical practitioners to address, and while the ALJ may consult the Guides, his reliance on Dr. Guberman constitutes substantial evidence supporting his award." Id.
Strict adherence to the Guides is not required, "but rather a general conformity with them." Plumley v. Kroger, Inc., 557 S.W.3d 905, 912-13 (Ky. 2018). Additionally, the ALJ had the sole authority to weigh conflicting evidence:
Though medical evidence was conflicting, "the question of which evidence to believe is the exclusive province of the ALJ." Square D Co., 862 S.W.2d 308, 309 (Ky. 1993). As finder of fact, an ALJ has sole discretion to determine the quality, weight, character, credibility, and substance of the evidence, together with the inferences to be drawn therefrom. AK Steel Corp. v. Adkins, 253 S.W.3d 59, 64 (Ky. 2008); Square D, 862 S.W.2d at 309; and Paramount Foods [v. Burkhardt], 695 S.W.2d [418,] 419 [(Ky. 1985)]. In doing so, an ALJ "may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same party's total proof." Abel Verdon Const. [v. Rivera], 348 S.W.3d [749,] 753-54 [(Ky. 2011)].Lexington Fayette Urban Cnty. Gov't v. Gosper, 671 S.W.3d 184, 203 (Ky. 2023). Thus, we hold the Board correctly affirmed the ALJ's finding of Lowe's 42% whole-person impairment rating.
Fourth, Alden argues the ALJ's findings do not support a PTD award. Lowe argues this argument is a variation of Alden's impairment rating argument as it is a criticism of the ALJ's reliance on Dr. Guberman's opinions. Lowe has no objection to vacating this portion of the ALJ's opinion and remanding for further findings of fact regarding his PTD benefits.
Alden specifically takes issue with the ALJ's decision to rely on Dr. Guberman's supplemental report, which included amended impairment ratings that accounted for Lowe's intervening deposition testimony. Alden also argues Dr. Guberman's report is stale because he did not reassess whether the restrictions he placed on Lowe were still accurate and attributable to cumulative trauma. Thus, Alden argues Lowe's cumulative trauma claim should be dismissed or we should instruct the ALJ not to rely on Dr. Guberman's allegedly stale evidence and instead cite to appropriate medical evidence to support the PTD award. We disagree.
In deciding to remand this issue for additional findings, the Board opined:
KRS 342.0011(11)(c) defines permanent total 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[.]" A permanent disability rating is the permanent impairment rating selected by an ALJ times the factor set forth in the table that appears at KRS 342.730(1)(b).
We must note that Alden's Petition for Reconsideration did not request additional findings of fact or a more explicit ruling concerning the award of PTD benefits. It strictly argues the medical evidence in the record does not support this award. The issue before us is whether substantial evidence supports the ALJ's decision. Bullock v. Goodwill Coal Co., 214 S.W.3d 890, 893 (Ky. 2007).
In City of Ashland v. Stumbo, 461 S.W.3d 392 (Ky. 2015), the Court held that an ALJ must undertake a five-step analysis to determine whether a claimant is totally disabled. First, the ALJ must determine if the claimant suffered a work-related injury. Second, the ALJ must determine what, if any, impairment rating the claimant has. Third, the ALJ must determine the applicable
permanent disability rating. Fourth, an ALJ is required to determine that the claimant is unable to perform any type of work. Fifth, an ALJ must determine that the total disability is the result of the work injury. City of Ashland v. Stumbo, supra, at 396-97.
In resolving the issue of permanent total disability, the ALJ is required to make an "individualized determination of what the worker is and is not able to do after recovering from the work injury." McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 860 (Ky. 2001). The analysis includes "consideration of factors such as the worker's post-injury physical, emotional, intellectual, and vocational status and how those factors interact." Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d at 48, 52 (Ky 2000). "It also includes a consideration of the likelihood that the particular worker would be able to find work consistently under normal employment conditions. A worker's ability to do so is affected by factors such as whether the individual will be able to work dependably and whether the worker's physical restrictions will interfere with vocational capabilities. The definition of "work" clearly contemplates that a worker is not required to be homebound in order to be found to be totally occupationally disabled." Id. at 51. The ALJ enjoys wide ranging discretion in granting or denying an award of permanent total disability benefits. Seventh Street Road Tobacco Warehouse v. Stillwell, 550 S.W.2d 469 (Ky. 1976); Colwell v. Dresser Instrument Div., 217 S.W.3d 213 (Ky. 2006). Furthermore, the ALJ must provide findings of fact sufficient to inform the parties of the basis of his decision and to permit meaningful review. Kentland Elkhorn Coal Corp. v. Yates, 743 S.W.2d 47 (Ky. App. 1988).
The ALJ acknowledged the criteria necessary for a finding of permanent total disability. He stated he relied upon Dr. Guberman in finding Lowe sustained a 42% whole person impairment caused by work-related cumulative trauma.
He also relied upon Dr. Guberman to find Lowe could not return to the same type of work.
In finding Lowe "could not provide services to another in return for remuneration on a regular and sustained basis in a competitive economy," the ALJ considered Lowe's advanced age, as well as his exclusive heavy manual labor work experience, limited education, and deteriorating condition. However, nowhere in the Opinion or Order on Reconsideration did the ALJ discuss the significant physical restrictions Dr. Guberman assigned. The testimony of the claimant may also be cited as evidence the ALJ could rely upon as to his Lowe's functional limitations and inability to return to his job as a heavy equipment operator. Hush v. Abrams, 584 S.W.2d 48 (Ky. 1979).
Alden argues Dr. Guberman's assignment of restrictions is stale because he modified his impairment rating in May 2023. Dr. Guberman examined Lowe and completed a Form 107 in September 2022. He was aware of a detailed history of Lowe's prior physical condition, his work activities, and that Lowe was working his job until he was laid off. He believed the restrictions assigned related to Lowe's work injury due to operating heavy equipment. Dr. Guberman was aware of a prior lumbar injury as he apportioned some impairment related to that condition and he also acknowledged prior treatment to the shoulders. The modification of his impairment rating on May 8, 2023 to attribute some pre-existing impairment to the shoulders does not render his opinion on functional limitations stale. The significant restrictions imposed on September 27, 2022 primarily involve limitations related to the lumbar injury and the impairment rating for the lumbar condition remained unchanged.
The ALJ acknowledged the factors in Stumbo that are required to find a claimant permanently totally disabled; however, the ALJ lacked specificity in discussing the evidence he specifically relied upon in reaching his
decision. The parties are entitled to know the specific evidence which led to the ALJ's conclusion. Big Sandy Community Action Program v. Chaffins, 502 S.W.2d 526 (Ky. 1973). Accordingly, we remand on this issue for the ALJ to provide additional findings. The Board is not directing any particular result and the ALJ is well within his discretion in relying upon Dr. Guberman's opinions as opposed to those of Dr. Best. However, out of caution, the ALJ must articulate the medical and lay testimony in addition to Lowe's age, education, and vocational skills in reaching his decision. On remand, the ALJ should state the medical restrictions relied upon and further address each element of the five steps required, including the permanent disability rating.R. at 529-33.
Based on our review, we reject Alden's argument because the ALJ has the discretion to weigh the evidence presented in granting or denying PTD benefits. Instead, we agree with the Board's analysis and hold it correctly concluded that the ALJ failed to make required findings under the five-step analysis in Stumbo and correctly vacated and remanded this issue to the ALJ to make said findings.
Fifth, Alden argues the evidence does not support the ALJ's finding that Lowe cannot return to the same type of work. Lowe asserts this is yet another variation of Alden's attack on the ALJ's reliance on Dr. Guberman's assessment. "Again, an ALJ possesses sole authority to weigh evidence and resolve conflicts." Gosper, 671 S.W.3d at 207. Thus, we affirm the Board's finding that "[t]he ALJ relied upon Dr. Guberman, as well as Lowe's advanced age and deteriorating condition, to find he could no longer return to previous employment. Substantial evidence supports the ALJ's determination. We find no error with the ALJ's findings as to this issue." R. at 534.
Finally, Alden argues imposing prejudgment interest on a past-due PPD award is an unconstitutionally vague civil penalty, which the law does not permit Alden to avoid. Lowe points out that Alden raised this issue for the first time on appeal to this Court but concedes constitutionality is not an issue the Board can address. Because the "Board is not empowered to address constitutional questions because its review is limited by statute[,] [e]xhaustion of administrative remedies is not necessary when attacking the constitutionality of a statute as void on its face." Scott v. AEP Kentucky Coals, LLC, 196 S.W.3d 24, 26 (Ky. App. 2006). As "administrative agencies cannot decide constitutional issues[,]" it was proper for Alden to raise this argument for the first time on appeal to this Court. Id. Additionally, Alden notified the Attorney General of its "challenge to the constitutionality of a statute by serving a copy of the brief, as KRS 418.075 requires." Id. Thus, Alden's constitutionality argument is properly before this Court.
Alden raises a confusing argument that KRS 342.040(1) is unconstitutionally vague because it imposes interest on backdated income benefits as the PPD benefit award amount was not fixed on the date of the injury. Thus, Alden argues employers do not know what the award amount will be until the ALJ selects an impairment rating. Alden's argument does not pertain to the language of the statute being vague, but that the amount of interest owed is not clear until the ALJ sets an impairment rating.
KRS 342.040(1) provides:
(1) Except as provided in KRS 342.020, no income benefits shall be payable for the first seven (7) days of disability unless disability continues for a period of more than two (2) weeks, in which case income benefits shall be allowed from the first day of disability. All income benefits shall be payable on the regular payday of the employer, commencing with the first regular payday after seven (7) days after the injury or disability resulting from an occupational disease, with interest at the rate of six percent (6%) per annum on each installment from the time it is due until paid, except that if the administrative law judge determines that the delay was caused by the employee, then no interest shall be due, or determines that a denial, delay, or termination in the payment of income benefits was without reasonable foundation, then the rate of interest shall be twelve percent (12%) per annum. In no event shall income benefits be instituted later than the fifteenth day after the employer has knowledge of the disability or death. Income benefits shall be due and payable not less often than semimonthly. If the employer's insurance carrier or other party responsible for the payment of workers' compensation benefits should terminate or fail to make payments when due, that party shall notify the commissioner of the termination or failure to make payments and the commissioner shall, in writing, advise the employee or known dependent of right to prosecute a claim under this chapter.(Emphasis added.)
"We begin our analysis by noting that 'acts of the legislature carry a strong presumption of constitutionality'" and the imposition of interest on workers compensation benefits awards is not new in Kentucky. Cates v. Kroger, 627 S.W.3d 864, 870 (Ky. 2021) (citation omitted). "A statute is vague if 'men of common intelligence must necessarily guess at its meaning.' In Kentucky the test has been expressed as 'whether a person disposed to obey the law could determine with reasonable certainty whether contemplated conduct would amount to a violation.'" State Bd. for Elementary and Secondary Educ. v. Howard, 834 S.W.2d 657, 662 (Ky. 1992) (citations omitted). We apply "two general principles" in testing a statute of vagueness: "First, a statute is impermissibly vague if it does not place someone to whom it applies on actual notice as to what conduct is prohibited; and second, a statute is impermissibly vague if it is written in a manner that encourages arbitrary and discriminatory enforcement." Id. (citation omitted).
First, Alden does not allege that the language fails to notify employers of what conduct is prohibited. Instead, it alleges that the amount of interest is not ascertainable until an award is entered in favor of the employee. Second, it does not encourage arbitrary or discriminatory enforcement as it applies to all overdue income benefits. The statute provides a fair warning to Alden and other employers that a rate of 6% interest applies to all overdue income benefits on the date it becomes due until paid. Simply because the award amount is not fixed on the date of injury and does not become fixed until the ALJ entered an award does not make the language of the statute void for vagueness. Thus, KRS 342.040(1) is not unconstitutionally vague.
CONCLUSION
For the foregoing reasons, we affirm the opinion of the Workers' Compensation Board.
ALL CONCUR.