Opinion
2024-CA-0553-WC
07-26-2024
ROBERT BLAKER, JR. APPELLANT v. THE KROGER COMPANY; HONORABLE MONICA J. RICE- SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD OF KENTUCKY APPELLEES
BRIEF FOR APPELLANT: Bradley D. Harville Louisville, Kentucky BRIEF FOR APPELLEE THE KROGER COMPANY: James B. Cooper Lexington, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-21-93895
BRIEF FOR APPELLANT: Bradley D. Harville Louisville, Kentucky
BRIEF FOR APPELLEE THE KROGER COMPANY: James B. Cooper Lexington, Kentucky
BEFORE: CETRULO, L. JONES, AND LAMBERT, JUDGES.
OPINION
CETRULO, JUDGE
Robert Blaker ("Blaker") petitions for review of a decision by the Workers' Compensation Board ("Board") that upheld an Opinion, Award, and Order ("Opinion") of an Administrative Law Judge ("ALJ") awarding permanent partial disability instead of total occupational disability benefits.
FACTS &PROCEDURAL HISTORY
In 2010, Blaker began working at Kroger Company ("Kroger") as a maintenance electrician. On January 13, 2021, "while removing materials and tools from [a] truck," he injured his back. After three or four days of light duty, Kroger sent him home. Blaker was initially treated with medications and therapy, then eventually he had surgery. Kroger paid temporary total disability benefits over two years in excess of $113,000 and medical expenses in excess of $19,000. Blaker applied for and received an award of total disability by the Social Security Administration ("SSA"). The SSA determined that Blaker became totally disabled under its rules as of January 13, 2022.
In October 2021, Blaker filed a workers' compensation claim - the root of this action - against Kroger alleging a work-related injury. In this workers' compensation action, Blaker testified by deposition and at the final hearing before the ALJ. Also, Blaker submitted medical records of two back surgeries: one in 2010 (before his employment with Kroger), and a multi-level fusion in November 2021 (after injuring himself at Kroger). Dr. Steven Glassman performed both surgeries. In these medical records, Dr. Glassman noted that Blaker was doing well overall and improving with good range of motion of the lumbar spine without pain. These medical records were the only medical evidence submitted by Blaker. Dr. Glassman did not testify before the ALJ, nor did any other physician testify on Blaker's behalf.
At Kroger's request, Dr. John Vaughan performed an independent medical examination of Blaker. Dr. Vaughan assessed a total 30% impairment: 20% impairment from Blaker's pre-existing condition (and 2010 surgery), and 10% impairment from the 2021 work injury. Dr. Vaughan recommended lifting restrictions of no more than 15 pounds, and avoiding repetitive bending and twisting. Based upon these restrictions, Kroger agreed that Blaker would be unable to return to his pre-injury work as an electrician. Dr. Vaughn was the only doctor to assess an impairment rating and impose post-surgery physical limitations.
The ALJ found Blaker sustained a work-related injury on January 13, 2021. The award granted permanent partial disability and medical benefits to Blaker. The permanent partial disability benefits were enhanced by a 3.6% multiplier pursuant to Kentucky Revised Statute ("KRS") 342.730(1)(c), as Blaker was over the age of 60 and unable to perform the job he had been performing at the time of the injury. The ALJ did not agree that Blaker was totally occupationally disabled from any type of work and denied total permanent disability benefits.
Both Blaker and Kroger filed petitions for reconsideration. Kroger noted miscalculations in the Opinion. Blaker took issue with the ALJ's finding that he was not totally occupationally disabled. The ALJ granted Kroger's petition with regard to typographical errors, but denied Blaker's petition.
Blaker then filed an appeal to the Board, arguing - as he does herein -that the ALJ erred in finding he was not totally disabled. Blaker argued that there was no substantial evidence to support the determination that he was not totally disabled. However, the Board disagreed and affirmed the ALJ. Blaker petitioned this Court for review.
STANDARD OF REVIEW
In workers' compensation cases, the standard of review varies for findings of fact and conclusions of law. Oufafa v. Taxi, LLC, 664 S.W.3d 592, 597 (Ky. 2023) (citation omitted). The ALJ, as the factfinder, has "the sole discretion to determine the quality, character, weight, credibility, and substance of the evidence, and to draw reasonable inferences from the evidence." Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky. App. 2009) (citation omitted). When conflicting medical evidence is presented, the ALJ may choose whom and what to believe. Pruitt v. Bugg Bros., 547 S.W.2d 123, 124 (Ky. 1977) (citing Yocom v. Gentry, 535 S.W.2d 850, 851 (Ky. 1976)). The factfinder has "the right to believe part of the evidence and disbelieve other parts of the evidence whether it came 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). "If the findings of fact are supported by substantial evidence of probative value, then they must be accepted as binding and it must then be determined whether or not the administrative agency has applied the correct rule of law to the facts so found." Kentucky Unemployment Ins. Commission v. Cecil, 381 S.W.3d 238, 245 (Ky. 2012) (quoting S. Bell Tel. &Tel. Co. v. Kentucky Unemployment Ins. Comm n, 437 S.W.2d 775, 778 (Ky. 1969)). "Substantial evidence means evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Smyzer v. B. F. Goodrich Chem. Co., 474 S.W.2d 367, 369 (Ky. 1971) (citation omitted). The sole issue in this case is whether some "evidence of substance" supports the rulings of the ALJ and the Board's decision upholding those rulings. Id.
ANALYSIS
The Workers' Compensation Act ("Act") compensates workers for injuries arising out of and in the course and scope of their employment. KRS 342.0011(1). 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.(Emphasis added.) Determining whether a particular worker has sustained a total occupational disability as defined by this section of the Act requires a weighing of the evidence, i.e., whether the worker will be able to earn any income by providing services on a regular and sustained basis in a competitive economy. Ira A. Watson Dep t Store v. Hamilton, 34 S.W.3d 48, 51 (Ky. 2000). We agree with Blaker that it is among the functions of the ALJ to translate the lay and medical evidence into a finding of occupational disability. Id. at 52. The ALJ must set forth, with some specificity, what factors he or she considered and how those factors led to the conclusion as to total occupational disability. City of Ashland v. Stumbo, 461 S.W.3d 392, 396-97 (Ky. 2015).
However, Blaker bore the burden of proving inability to perform any type of work as a result of the injury, a burden he did not meet. See Burton v. Foster Wheeler Corp., 72 S.W.3d 925, 928 (Ky. 2022) (citation omitted) ("It is elementary that a claimant bears the burden of proof and risk of nonpersuasion before the fact[-]finder with regard to every element of the claim."). Blaker argues that his own testimony warranted a total disability award because he testified that he could no longer work; he did not think anyone would hire him; and his multilevel fusion surgery made him unemployable. The ALJ considered this testimony but found it insufficient for a rating of total disability.
The ALJ described the perimeters used in its analysis:
Although Blaker is unable to return to his electrician job at Kroger, the ALJ is not convinced he is permanently totally occupationally disabled. In determining entitlement to permanent total disability, the Kentucky Supreme Court laid out a five-step analysis in City of Ashland v. Stumbo, 461 S.W.3d 392 (Ky. 2015). The ALJ
must determine if the claimant suffered a work-related injury; what if any impairment rating the claimant has; what permanent disability rating the claimant has; whether the claimant is unable to perform any type of work; and if the total disability is the result of the work injury. In determining whether the claimant is unable to perform any type of work, the ALJ must state with specificity the factors that were utilized in making the determination. In so doing, the ALJ must consider several factors including the worker's age, education level, vocational skills, medical restrictions, and the likelihood that he can resume some type of "work under normal employment conditions." Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). Pursuant to Osborne v. Johnson, 432 S.W.2d [ ] 800 (Ky. 1968), the ALJ must evaluate the post-injury physical, emotional, intellectual, and vocational status when determining entitlement to [total permanent disability].
In its Opinion, the ALJ considered Blaker's testimony regarding his pain and physical limitations, but weighed it against contrary evidence. The Opinion then went through each of the factors analyzed.
As to the first step in the analysis, the ALJ found a work-related injury. With regard to the next two steps, the ALJ found Blaker to have sustained a 10% impairment for the January 13, 2021 injury which translated to an 8.5% permanent disability rating. The fourth step required the ALJ to consider Blaker's age, educational level, vocational skills, and medical restrictions, as well as the likelihood that he could resume some type of work. The ALJ pointed out that no doctor of record stated that Blaker was totally disabled. His treating doctors' notes indicated that Blaker was continuing to improve, walking often, doing well, and recommended that he should stay active. Dr. Vaughan, the employer's independent medical examiner, was the only medical witness who assessed an impairment rating and imposed any physical restrictions. The ALJ noted that the only medical evidence Blaker submitted showed that he was doing well overall and improving with good range of motion of the lumbar spine without pain.
Moreover, the ALJ considered that Blaker did not present any medical opinions that indicated he was incapable of work due to the effects of his work-related injury. He did not present any vocational evidence as to employment that might or might not be available to him in the local market. He did not present testimony that showed a lack of employment opportunities that fell within the restrictions recommended by Dr. Vaughan. While challenging his overall employability, Blaker admitted that he might be able to work as an electrical instructor. The ALJ considered Blaker's age and education level, skills, and medical restrictions. The ALJ found it significant that Blaker was a licensed master electrician who had recently renewed his license. The ALJ found no evidence in any of the medical records that were submitted that Blaker could not perform light duty or sedentary work activities. The ALJ conducted the five-step analysis required in Stumbo. 461 S.W.3d at 396-97. Although Blaker notes evidence that might have supported a different outcome or supported a conclusion contrary to the ALJ's, such evidence is not an adequate basis for reversal on appeal. McNutt Constr./First Gen. Servs. v. Scott, 40 S.W.3d 854, 860 (Ky. 2001) (citation omitted).
Blaker also contends the ALJ's decision was "completely at odds" with his subsequent award of social security disability benefits. However, he cites to no law in support of his contention that a different agency's ruling is somehow binding in a workers' compensation claim. We note his own testimony agreed that other "non work-related" issues were presented as part of his social security claim. More importantly, Blaker did not point to any evidence in the record that confirmed what injuries or conditions were considered by the SSA. Even if such evidence was presented to the ALJ, a determination of another agency is generally irrelevant to the limited questions before the Board under the Act, as the standards are very different. Although Kington v. Zeigler Coal Company, 639 S.W.2d 560, 562 (Ky. App. 1982), does not deal with the same factual situation, we find its holding applicable.
As previously noted, where the evidence is conflicting, the factfinder is vested with discretion to determine whom and what to believe. Ford Motor Co. v. Jobe, 544 S.W.3d 628, 631-32 (Ky. 2018). Here, the Opinion of the ALJ is supported by evidence of substance such that it cannot be said that the evidence compels a different result from that reached by the ALJ. See Special Fund v. Francis, 708 S.W.2d 641, 643-44 (Ky. 1986). As the Board concluded, the ALJ supported its findings with substantial evidence, and Blaker did not meet his burden of proof. As the evidence does not compel a different result, the Board decision is AFFIRMED.
ALL CONCUR.