Opinion
NO. 2018-CA-001638-WC
05-31-2019
BIG LOTS APPELLANT v. LORITTA WHITWORTH; HON. DOUGLAS W. GOTT, CHIEF ADMINISTRATIVE LAW JUDGE; AND THE WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Walter E. Harding Louisville, Kentucky BRIEF FOR APPELLEE: Wayne C. Daub Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-08-74483 OPINION
AFFIRMING
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BEFORE: JONES, KRAMER, AND MAZE, JUDGES. JONES, JUDGE: The Appellant, Big Lots has petitioned for review of an opinion rendered by the Workers' Compensation Board ("Board") wherein the Board affirmed an order of the Chief Administrative Law Judge ("CALJ") denying Big Lots' motion to reopen to reduce the permanent total disability ("PTD") benefits previously awarded to the Appellee, Loritta F. Whitworth. Having reviewed the record in conjunction with all applicable legal authority, we affirm.
I. BACKGROUND
On April 25, 2008, while Whitworth was working as the furniture sales manager at Big Lots, a boxed recliner fell on Whitworth injuring her. Whitworth sought medical treatment and eventually underwent left shoulder surgery on October 7, 2008.
On July 23, 2009, Whitworth filed a Form 101 Application for Resolution of Injury Claim with the Department of Workers' Claims. Whitworth's Form 101 stated that the work accident caused an injury to her "left upper extremity." Following the submission of proof, a benefit review conference and a hearing, the Administrative Law Judge ("ALJ") assigned to Whitworth's claim rendered an opinion, order and award in Whitworth's favor. The ALJ awarded Whitworth permanent partial disability ("PPD") benefits based on an 11% impairment rating for her left shoulder condition. The ALJ determined that Whitworth did not retain the physical capacity to return to her prior position as a furniture sales manager and enhanced her benefits by the three-multiplier pursuant to KRS 342.730(1). The ALJ also awarded Whitworth temporary total disability ("TTD") benefits and medical benefits for her work-related injury. Big Lots did not appeal this award.
Kentucky Revised Statutes. --------
Whitworth continued to treat for her injuries. Eventually, Dr. Michael Doyle recommended Whitworth undergo cervical fusions at C4-5 and C5-6. Dr. Doyle believed Whitworth's cervical condition was related to the injuries she sustained at Big Lots in April of 2008. Whitworth had the fusions performed. Thereafter, on July 14, 2011, Whitworth filed a motion to reopen alleging her condition had worsened. Whitworth's motion was referred to an ALJ for adjudication. Big Lots vigorously contested the compensability of an additional impairment rating based on the cervical fusions. Big Lots maintained that the original claim was for a shoulder injury, not a cervical injury. Big Lots also disputed Whitworth's assertion that her cervical condition was caused by her work-related injury. To support its contentions, Big Lots relied on an independent medical evaluation ("IME") performed by Dr. Michael Best in 2012.
Ultimately, the ALJ decided the motion to reopen in Whitworth's favor. The ALJ determined the phrase "upper left extremity" as used in Whitworth's original Form 101 encompassed Whitworth's cervical spine as well as her left shoulder. Based on Dr. Doyle's opinion, the ALJ found Whitworth's cervical condition warranted a 25% impairment rating. Considering both the cervical and left shoulder conditions, the ALJ concluded Whitworth had become totally and permanently occupationally disabled as a result her April 2008 work injury at Big Lots. The ALJ awarded Whitworth PTD benefits commencing December 25, 2011, the date Dr. Doyle determined Whitworth obtained maximum medical improvement.
Big Lots appealed to the Board which reversed and remanded the claim to the ALJ. The Board determined that in the original litigation, the ALJ had determined that Whitworth sustained only a left shoulder injury which was the law of the case. This Court affirmed the Board. The Supreme Court of Kentucky, however, disagreed. See Whitworth v. Big Lots, 2014-SC-000283-WC, 2015 WL 5652844 (Ky. Sept. 24, 2015). The Supreme Court noted that Big Lots did not appeal the original award so the "law of the case doctrine" did not apply. After reviewing the medical evidence submitted as part of the original claim, the Supreme Court determined that "[u]nquestionably, at the time of the [original ALJ's] decision, Whitworth's injury included her complaints of neck pain." Id. at *8. It held that "[g]iven that [the original ALJ] relied upon Dr. Bilkey's opinion and Whitworth's 'credible testimony' in concluding that her injury was work-related, [the ALJ who decided the reopening] did not err in concluding that Whitworth's left upper extremity injury[] encompassed her cervical complaints." Id. Accordingly, the Supreme Court reversed this Court and ordered the ALJ's February 11, 2013 opinion and award on reopening be reinstated.
A little less than three years later, on May 16, 2018, Big Lots filed a motion to reopen based on a change in impairment pursuant to KRS 342.125(1)(d). Big Lots asserted that objective medical evidence supported the conclusion that Whitworth's impairment had improved such that she was no longer totally disabled. In support of its motion, Big Lots filed the April 9, 2018, IME report of Dr. Best, who re-evaluated Whitworth at its request. Whitworth moved to dismiss the motion to reopen arguing it failed to demonstrate a change of impairment by objective medical evidence.
The CALJ denied Big Lots' motion to reopen. The CALJ noted the motion to reopen was based on Dr. Best's 2018 report, which was substantially the same as Dr. Best's 2012 report, which Big Lots submitted in opposition to Whitworth's motion to reopen. Comparing the two reports in conjunction with the ALJ's prior order on reopening, the CALJ determined that Big Lots had failed to make a prima facie showing that Whitworth's condition had actually changed. To this end, the CALJ pointed out that Dr. Best's opinions on Whitworth's cervical and shoulder impairments were the same in 2018 as they were in 2012. The CALJ further noted that Dr. Best stated in 2012 that Whitworth's condition did not merit any work restrictions, which he again found to be the case in 2018.
Following an unsuccessful petition for reconsideration, Big Lots appealed to the Board. Big Lots argued that it demonstrated a prima facie case for reopening pursuant to KRS 342.125(1)(d), and that Whitworth was no longer objectively disabled. It first argued that Dr. Best assessed a 2% impairment for the left shoulder condition in his 2018 report, which is lower than the 11% impairment adopted in the ALJ's original opinion. Big Lots also pointed out that the Fifth Edition American Medical Association, GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT do not allow a reduction in the 25% impairment rating for the cervical fusion thereby preventing it from ever being able to effectively show an improved condition under the CALJ's interpretation of KRS 342.125(1)(d). Big Lots maintained that the CALJ should have considered the fact Whitworth had not treated with an orthopedic physician or neurosurgeon since 2012 as objective medical evidence in support of its motion to reopen.
The Board was not persuaded by Big Lots' arguments. It ultimately agreed with the CALJ that Big Lots failed to put forth prima facie evidence of a change sufficient to warrant reopening. The Board explained:
As noted by the CALJ, the 2012 report prepared by Dr. Best is largely identical to the one he prepared in 2018. Dr. Best provided an identical analysis addressing diagnoses, causation, maximum medical improvement, prognoses, impairment rating for the left shoulder, restrictions, and Whitworth's ability to return to her former job with Big Lots. In both reports, Dr. Best opined Whitworth's cervical injury and surgery are due to a chronic, active medical condition, and therefore not work-related. He assessed a 2% impairment for the left shoulder condition. He declined to assign permanent restrictions for either the shoulder or cervical spine, and
opined Whitworth is capable of returning to her former job with Big Lots.(10/5/2018 Bd. Op. at 6-7).
Of note, Dr. Best's 2018 report does not acknowledge or discuss the February 11, 2013 opinion rendered by [the ALJ who awarded Whitworth increased benefits], and the fact he found Whitworth permanently totally disabled from her work-related left shoulder and cervical conditions. Similarly, Dr. Best's report does not discuss or establish a basis for finding a change of disability as shown by medical evidence of improvement of impairment due to a condition caused by the injury since the date of the 2013 opinion and award. Likewise, there is no explanation or discussion addressing why Whitworth is no longer totally disabled. The 2018 report fails to establish a change or improvement in Whitworth's condition since the 2013 opinion rendered by ALJ Weatherby.
The CALJ clearly articulated his reasoning for determining Big Lots failed to set forth prima facie evidence supporting its motion to reopen and did not abuse his discretion is doing so. Therefore, we decline to disturb his decisions on appeal.
This appeal by Big Lots followed.
II. STANDARD OF REVIEW
Pursuant to KRS 342.285, the ALJ is the sole finder of fact in workers' compensation claims. Our courts have construed this authority to mean the ALJ has the sole discretion to determine the quality, character, weight, credibility and substance of the evidence and to draw reasonable inferences from that evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985); McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 47 (Ky. 1974). Moreover, an ALJ has sole discretion to decide whom and what to believe and 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 adversary party's total proof. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
On review, neither the Board nor the appellate court can substitute its judgment for that of the ALJ as to the weight of evidence on questions of fact. Shields v. Pittsburgh & Midway Coal Mining Co., 634 S.W.2d 440, 441 (Ky. App. 1982). In short, the reviewing body cannot second-guess or disturb discretionary decisions of an ALJ unless those decisions amount to an abuse of discretion. Medley v. Board of Education, Shelby County, 168 S.W.3d 398, 406 (Ky. App. 2004). Discretion is abused only when an ALJ's decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001).
When reviewing questions of law, an appellate court is bound neither by the decisions of an ALJ nor the Board regarding proper interpretation of the law or its application to the facts, and in such matters, the standard of review is de novo. Bowerman v. Black Equipment Company, 297 S.W.3d 858, 866 (Ky. App. 2009).
III. ANALYSIS
"Reopening is the remedy for addressing certain changes that occur or situations that come to light after benefits are awarded." Dingo Coal Co., Inc. v. Tolliver, 129 S.W.3d 367, 370 (Ky. 2004). The reopening statute, KRS 342.125, sets forth the requirements for and limits on the parties' ability to reopen a final award. In relevant part, it provides:
(1) Upon motion by any party or upon an administrative law judge's own motion, an administrative law judge may reopen and review any award or order on any of the following grounds:
Id.. . .
(d) Change of disability as shown by objective medical evidence of worsening or improvement of impairment due to a condition caused by the injury since the date of the award or order.
"Under KRS 342.125, a motion to reopen is the procedural device for invoking the jurisdiction of the Department of Workers' Claims to reopen a final award." Dingo Coal Co., 129 S.W.3d at 370. "Only after the motion has been granted will the opponent be put to the expense of litigating the merits of an assertion that the claimant is entitled to additional income benefits under KRS 342.730." Id. To justify reopening, the movant must "make a sufficient prima facie showing of the possibility of prevailing on the merits." AAA Mine Services v. Wooten, 959 S.W.2d 440, 441 (Ky. 1998).
Big Lots concedes that Dr. Best's 2018 report, which was the only evidence it included in support of its motion to reopen, is essentially the same in terms of impairment ratings and restrictions as the report he authored in 2012. Dr. Best did not opine that Whitworth's impairment rating was lower, that her restrictions were different, or that his examination revealed anything different than his prior examination in terms of Whitworth's limitations and abilities. Big Lots, however, points out that in interviewing Whitworth, Dr. Best learned that Whitworth had not had any treatment from an orthopedic physician or neurosurgeon since 2012. Big Lots posits that this fact, which was included in Dr. Best's 2018 report, constitutes "objective medical evidence of . . . improvement of impairment" sufficient to require reopening under KRS 342.125(1)(d).
While we agree with Big Lots that a change in rating is not always necessary to show either an improvement or a worsening of impairment when dealing with permanent total disability, LKLP CAC Inc. v. Fleming, 520 S.W.3d 382, 387 (Ky. 2017), we disagree that a claimant's lack of continuing treatment with an orthopedic physician or neurosurgeon constitutes "objective medical evidence" of improvement sufficient to justify a reopening. Like objective medical findings, objective medical evidence, concerns evidence gathered during an examination through "direct observation and testing of the patient applying objective or standardized methods." Colwell v. Dresser Instrument Div., 217 S.W.3d 213, 218 (Ky. 2006) (quoting KRS 342.0011(33)). While Dr. Best learned this information during his examination, the information—lack of continuing medical treatment with a specialist—is not objectively demonstrative of impairment improvement. In fact, the prior ALJ determined that Whitworth reached maximum medical improvement on December 25, 2011. Maximum medical improvement "refers to the point at which an injury has stabilized and will not be improved by additional treatment although some treatment may still be necessary." FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 318 (Ky. 2007). Thus, it is not entirely surprising that Whitworth did not continue to treat with an orthopedic physician or neurosurgeon past the date she obtained maximum medical improvement. Failure to continue treating with a specialist past the date of maximum medical improvement does not evince improvement without some additional showing. That additional showing is utterly lacking in this case.
In conclusion, we agree with the Board that the CALJ did not abuse his discretion. The CALJ clearly articulated his reasoning for determining that Big Lots failed to set forth prima facie evidence to support its motion to reopen Whitworth's claim. Therefore, we find no error.
IV. CONCLUSION
For the reasons set forth above, the October 5, 2018, opinion of the Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Walter E. Harding
Louisville, Kentucky BRIEF FOR APPELLEE: Wayne C. Daub
Louisville, Kentucky