Opinion
NO. 2019-CA-001670-WC
05-01-2020
JBS SWIFT APPELLANT v. LYNN FIELDS; HON. CHRISTINA D. HAJJAR, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Walter E. Harding Louisville, Kentucky BRIEF FOR APPELLEE LYNN FIELDS: Pierre J. Coolen Lexington, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-18-00878 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES. DIXON, JUDGE: JBS Swift petitions for review of the Workers' Compensation Board (Board) opinion entered October 11, 2019, affirming the order and award entered on April 19, 2019, by the administrative law judge (ALJ). Following review of the record, briefs, and law, we affirm.
JBS Swift petitioned the administrative law judge (ALJ) to reconsider its order, but its petition was denied by the ALJ in an order entered May 13, 2019.
On June 6, 2016, Lynn Fields fell and injured his hip and back during his employment with JBS Swift, a pork processing facility. While Fields was using long hooks to pull hogs that had fallen off the processing rail to the kill floor, he slipped in pooled blood, causing him to fall on three occasions that day. Fields reported his injury to health services and his general foreman; however, he did not immediately seek medical treatment for his injury and continued to work.
On June 12, 2016, Fields experienced increased, radiating hip pain and had his son take him to the emergency room. He was referred to and began physical therapy for his hip and low back pain.
On July 13, 2016, Fields underwent a foot surgery unrelated to his current claims. He was off work due to that surgery until September 12, 2016. After returning to work, Fields experienced foot, leg, hip, and low back pain. Fields sought medical treatment for his low back on September 12, 2016, and was formally diagnosed with radiculopathy for the first time on that date. On September 15, 2016, Swift had a follow-up appointment with his primary care physician about his low back pain. An MRI was ordered, which revealed degenerative spondylolisthesis at L5-S1 with a broad-based disc herniation with nerve impingement at L-1. Fields continued to seek medical treatment for his low back pain and was referred to a neurosurgeon, as well as a pain management physician. Ultimately, on November 29, 2017, Fields underwent a lumbar fusion and discectomy at L5-S1 with placement of a titanium cage.
The foot pain was in relation to his recent unrelated foot surgery, but the leg, hip, and low back pain was in relation to his falls on June 6, 2016. Fields only worked three or four more days at JBS Swift after his foot surgery.
On June 4, 2018, Fields filed his Form 101, Application for Resolution of a Claim-Injury. He underwent an independent medical evaluation (IME) on July 31, 2018, with Dr. Mark Barrett. Dr. Barrett's IME report, dated August 23, 2018, opined that the falls at work on June 6, 2016, were the direct and precipitate cause of Fields' injuries. He assessed an impairment rating pursuant to the AMA Guides. Fields underwent a second IME on September 19, 2018, with Dr. Russell Travis, who also assessed an impairment rating pursuant to the AMA Guides, and noted Fields could not return to his work on the killing room floor. However, Dr. Travis opined the impairment and restrictions were not due to Fields' work-related injury.
AMERICAN MEDICAL ASSOCIATION, GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT (5th ed. 2000). --------
A benefit review conference was held on January 3, 2019, and a final hearing on February 26, 2019. On April 19, 2019, the ALJ entered her opinion and order awarding Fields permanent partial disability benefits, temporary total disability benefits, and medical benefits. JBS Swift petitioned the ALJ for reconsideration, but the petition was denied. JBS Swift appealed the ALJ's orders to the Board. The Board affirmed the ALJ, and this appeal followed.
The appropriate standard of review for workers' compensation claims was summarized in Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866-67 (Ky. App. 2009).
Appellate review of any workers' compensation decision is limited to correction of the ALJ when the ALJ has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice. Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). Our standard of review differs in regard to appeals of an ALJ's decision concerning a question of law or a mixed question of law and fact vis-à-vis an ALJ's decision regarding a question of fact.
The first instance concerns questions of law or mixed questions of law and fact. As a reviewing court, we are bound neither by an ALJ's decisions on questions of law or an ALJ's interpretation and application of the law to the facts. In either case, our standard of review is de novo. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001); Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998). De novo review allows appellate courts greater latitude in reviewing an ALJ's decision. Purchase Transportation Services v. Estate of Wilson, 39 S.W.3d 816, 817-18 (Ky. 2001); Uninsured Employers' Fund v. Garland, 805 S.W.2d 116, 117 (Ky. 1991).
The second instance concerns questions of fact. KRS 342.285 designates the ALJ as finder of fact, and has
been construed to mean that 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. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985); McCloud v. Beth-Elkhorn Corporation, 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).
KRS 342.285 also establishes a "clearly erroneous" standard of review for appeals concerning factual findings rendered by an ALJ, and is determined based on reasonableness. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). Although an ALJ must recite sufficient facts to permit meaningful appellate review, KRS 342.285 provides that an ALJ's decision is "conclusive and binding as to all questions of fact," and that the Board "shall not 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, appellate courts may not 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).
. . . .
Generally, "arbitrariness" arises when an ALJ renders a decision on less than substantial evidence, fails to afford procedural due process to an affected party, or exceeds
her statutory authority. K & P Grocery, Inc. v. Commonwealth, Cabinet for Health Services, 103 S.W.3d 701, 703 (Ky. App. 2002).Substantial evidence is "that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person." Bowling v. Natural Resources and Envtl. Protection Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994) (citation omitted). Our standard of review requires considerable deference to the ALJ and the Board.
On appeal, JBS Swift raises three arguments, alleging the Board failed to follow its statutory scope of review and reverse and remand an ALJ decision not based on substantial evidence. We will address each, in turn.
First, JBS Swift argues the parties are entitled to have their claims decided on correct findings of basic facts. Cook v. Paducah Recapping Serv., 694 S.W.2d 684, 689 (Ky. 1985). JBS Swift argues that when a physician's opinion is based on a history that is substantially inaccurate or largely incomplete, that opinion cannot constitute substantial evidence.
[I]n cases such as this, where it is irrefutable that a physician's history regarding work-related causation is corrupt due to it being substantially inaccurate or largely incomplete, any opinion generated by that physician on the issue of causation cannot constitute substantial evidence. Medical opinion predicated upon such erroneous or deficient information that is completely unsupported by any other credible evidence can never, in our view, be reasonably probable. Furthermore, to permit a ruling of law to stand based upon such evidence
that is not reliable, probative and material would be fundamentally unjust.Cepero v. Fabricated Metals Corp., 132 S.W.3d 839, 842 (Ky. 2004) (quoting Cepero v. Fabricated Metals Corp., No. 01-00361, slip op. at 18-19 (Ky. Workers' Comp. Bd. Mar. 6, 2002)).
In the case herein, the ALJ began her findings of fact and conclusions of law stating, "[t]his ALJ relies upon Dr. Barrett to find that Fields sustained a work-related injury on June 6, 2016, to his low back and left hip/leg, which resulted in the fusion surgery." JBS Swift attacks Dr. Barrett's report claiming he revised and changed his opinion during his deposition. This simply is not borne out by the record.
During his deposition, Dr. Barrett was questioned about Fields' medical reports from September 12 and 15, 2016. Though Fields was first diagnosed with radiculopathy on September 12, 2016, this does not necessarily mean he first experienced radiculopathy on September 12, 2016. Dr. Barrett acknowledged this in his IME report and in his deposition. Fields' medical record from September 15, 2016, states, "patient is here with complaining [sic] of left hip and lower back pain which started 3 days ago and has gradually gotten worse." This record does not foreclose the possibility that Fields experienced left hip and low back pain prior to September 12, 2016. In fact, Fields' other medical records document that he complained of such pain prior to September 12, 2016. Once again, Dr. Barrett acknowledged this in his IME report, as well as in his deposition.
Dr. Barrett's IME report demonstrates that he reviewed Fields' medical records. The report also documents Dr. Barrett's conversation with Fields regarding his medical history, including a discussion of the records, and specifically notes that Fields stated the September 15, 2016, record was inaccurate with regard to his experiencing hip and low back pain only since September 12, 2016. Fields' medical records and patient history indicate he experienced radiating hip pain within six days of the injury—first documented in his medical records from the emergency room visit on June 12, 2016. Contrary to JBS Swift's assertions, Dr. Barrett's opinion was not based upon a history that was substantially inaccurate or largely incomplete. Therefore, the ALJ did not err in relying on Dr. Barrett's opinion, nor did the Board err in affirming the ALJ's reliance upon it.
JBS Swift next argues that a question of causation involving a medical relationship not apparent to a layperson is only properly within the province of medical experts, and not the ALJ. "Where the question at issue is one which properly falls within the province of medical experts, the fact-finder may not disregard the uncontradicted conclusion of a medical expert and reach a different conclusion." Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000) (citing Mengel v. Hawaiian-Tropic Northwest & Cent. Distributors., Inc., 618 S.W.2d 184 (Ky. App. 1981)).
It is clear the ALJ did not impermissibly disregard an uncontradicted conclusion of a medical expert. Instead, she specifically stated in her order, "[t]his ALJ relies upon Dr. Barrett to find that Fields sustained a work-related injury on June 6, 2016, to his low back and left hip/leg, which resulted in the fusion surgery." Dr. Barrett specifically found that Fields experienced a new onset of back pain with radicular symptoms that progressively got worse after his falls on June 6, 2016. Dr. Barrett, in his IME report, diagnosed Fields with "[l]umbar pain with radicular symptoms status post L5-S1 fusion, following a slip/fall injury at work on June 6, 2016." Dr. Barrett concluded his IME report stating, "[i]t is my opinion that the fall at work on June 6, 2016, was the direct and precipitate cause of [Fields'] subsequent clinical course and therapeutic care as outlined above." The diagnoses and causation were determined by Dr. Barrett, not the ALJ who merely relied on Dr. Barrett's medical findings in her order and award. In adopting Dr. Barrett's medical findings and opinions, the ALJ noted the onset of Fields' reported complaints concerning left hip, leg, and low back symptoms soon after the injury. Specifically, Dr. Barrett's medical report referenced the June 12, 2016, emergency room visit just six days after Fields' injury. At that time, Fields reported having radiating pain through his left hip. These early documented complaints led Dr. Barrett—and ultimately the ALJ—to conclude the injury had caused left hip, leg, and low back symptoms. Based on the foregoing, it is clear the ALJ's factual findings regarding Fields' medical conditions were supported by substantial medical evidence. Thus, the Board was correct to affirm the ALJ.
Finally, JBS Swift complains about the Board's order affirming the ALJ. JBS Swift claims the Board impermissibly supplemented the ALJ's findings by citing additional evidence in the record that supported the ALJ's findings. However, the Board did not impermissibly usurp the ALJ's role as fact-finder, nor did it impose its own conclusions for those of the ALJ. As previously discussed, the ALJ's findings of fact were supported by substantial evidence, and the ALJ did not commit clear error. Nevertheless, even if any of its additional discussion was unnecessary, the Board did not err in affirming the ALJ on the evidence before it.
For the foregoing reasons, the opinion of the Workers' Compensation Board is AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANT: Walter E. Harding
Louisville, Kentucky BRIEF FOR APPELLEE LYNN
FIELDS: Pierre J. Coolen
Lexington, Kentucky