KROGER VS. LIGON (JAPHETH), ET AL.
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RENDERED: MAY 14, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001455-WC
KROGER
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-06-069756
JAPHETH LIGON; HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
AND:
NO. 2009-CA-001619-WC
JAPHETH LIGON
v.
APPELLEES
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-06-069756
KROGER,
HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE; AND
THE WORKERS’ COMPENSATION BOARD
CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, NICKELL AND THOMPSON, JUDGES.
NICKELL, JUDGE: Kroger appeals from a decision of the Workers’
Compensation Board reversing the Administrative Law Judge’s (ALJ) finding that
Japheth Ligon was not entitled to future medical benefits. On cross-petition for
review, Ligon appeals from the Board’s decision affirming the dismissal of his
claim for permanent income benefits. After reviewing the record and the briefs,
we affirm the opinion of the Board in its entirety.
Kroger employed Ligon. Ligon injured his shoulder while lifting a
seventy pound box of chicken. Dr. Stacie Grossfeld performed arthroscopic
surgery to repair a labral tear. Following a period of physical therapy, Dr.
Grossfeld released Ligon to left-handed duty and stated Ligon would not reach
maximum medical improvement (MMI) until five months post surgery.
At Kroger’s direction, Ligon changed physicians and began treating
with Dr. Frank Bonnarens. Following an examination, Dr. Bonnarens found no
recurrent tear, but noted marked limitations in the internal rotation of Ligon’s
shoulder and felt additional physical therapy was appropriate. Dr. Bonnarens
released Ligon to work with restrictions of no overhead use of his right arm and no
lifting over twenty pounds with his left arm, while using the right arm for light
assistance. Following a subsequent examination, Dr. Bonnarens released Ligon to
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regular work duty. Ligon last visited Dr. Bonnarens on August 29, 2007, at which
time Dr. Bonnarens noted Ligon continued to exhibit some tightness with internal
shoulder rotation. Dr. Bonnarens recommended Ligon continue stretching and
following a home exercise routine and pronounced Ligon had achieved MMI. Dr.
Bonnarens assessed Ligon as having a zero percent whole person impairment and
did not address the reasonableness and necessity of future medical care.
Ligon next came under the care of Dr. Thomas Dovan, complaining of
right shoulder pain and stiffness. Following an examination, Dr. Dovan
recommended work restrictions of no lifting of the right hand above shoulder level
and no lifting in excess of ten pounds. After follow-up examinations, Dr. Dovan
pronounced Ligon at MMI and released him to full duty. Dr. Dovan assessed
Ligon as having a 1.5 percent whole person impairment, but stated his condition
did not merit any permanent restrictions or further treatment.
Ligon did not return to work at Kroger for reasons unrelated to his
injury. Dr. Richard Fishbein performed an independent medical evaluation (IME)
of Ligon on July 29, 2008. Dr. Fishbein assessed Ligon as having an eight percent
whole person impairment and requiring continued symptom relieving measures for
the indefinite future. Dr. Fishbein recommended no overhead lifting on a
repetitive basis and no lifting in excess of thirty pounds.
The ALJ found Ligon had a zero percent whole person impairment
rating and dismissed Ligon’s claims for additional income benefits and future
medical benefits. The Board affirmed the dismissal of the claim for additional
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income benefits but reversed the dismissal of the claim for future medical benefits.
This petition for review followed.
Kroger argues the Board erred by reversing the ALJ’s dismissal of
Ligon’s claim for future medical benefits. On cross-petition, Ligon argues the
Board erred in affirming the ALJ’s dismissal of his claim for permanent income
benefits. This Court’s function when reviewing a workers' compensation decision
is to correct the Board only where “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.” Western Baptist Hosp. v. Kelly, 827
S.W.2d 685, 687-88 (Ky. 1992).
Relying on FEI Installation, Inc., v. Williams, 214 S.W.3d. 313, 319
(Ky. 2007), the Board concluded the ALJ erred as a matter of law by dismissing
Ligon’s claim for future medical benefits. The Supreme Court of Kentucky held
“disability exists for the purposes of KRS 342.020(1)1 for so long as a work-related
injury causes impairment, regardless of whether the impairment rises to a level that
it warrants a permanent impairment rating, permanent disability rating, or
permanent income benefits.” Id. In FEI Installation, the claimant suffered a work1
KRS 342.020(1) provides in pertinent part “[i]n addition to all other compensation provided in
this chapter, the employer shall pay for the cure and relief from the effects of an injury or
occupational disease the medical, surgical, and hospital treatment, including nursing, medical,
and surgical supplies and appliances, as may reasonably be required at the time of the injury and
thereafter during disability, or as may be required for the cure and treatment of an occupational
disease. The employer's obligation to pay the benefits specified in this section shall continue for
so long as the employee is disabled regardless of the duration of the employee's income
benefits.”
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related injury requiring surgery. The claimant was released to work without
restrictions and was assessed a zero percent impairment rating. The claimant
testified that he continued to receive treatment for the injury and no physician
testified that future medical treatment would be unreasonable or unnecessary. The
Court held that the claimant was entitled to future medical benefits despite the lack
of an impairment rating with the caveat that the employer could contest the
reasonableness or necessity of any future medical treatment. Id. at 319.
This case presents an almost identical situation. It is undisputed that
Ligon’s injury was entirely work-related and serious enough to require surgery to
embed two metal anchors in his shoulder. Although Ligon reached MMI and there
was evidence that no further treatment was currently required, there was no
testimony adduced that any future medical treatment would be unnecessary or
unreasonable. Ligon testified he continues to experience pain and tightness in his
shoulder.
Kroger cites Mullins v. Mike Catron Construction/Catron Interior
Systems, Inc., 237 S.W.3d 561, 563 (Ky. App. 2007), for the proposition that
awards of future medical benefits are not always mandated. However, contrary to
the facts of the present case, the claimant in Mullins did not require surgery and
had experienced flare-ups of a preexisting injury. Under the facts of the present
case, we conclude that the Board properly reversed the ALJ pursuant to FEI
Installation.
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On cross-petition for review, Ligon argues the Board committed a
flagrant error in assessing the evidence. He asserts the ALJ erred in finding no
permanent impairment.
“The claimant in a workman's compensation case has the burden of
proof and the risk of persuading the board in his favor.” Snawder v. Stice, 576
S.W.2d 276, 279 (Ky. App. 1979) (citations omitted). “[I]f the claimant is
unsuccessful before the board . . . the question before the [appellate] court is
whether the evidence was so overwhelming, upon consideration of the entire
record, as to have compelled a finding in his favor.” Wolf Creek Collieries v.
Crum, 673 S.W.2d 735, 736 (Ky. App. 1984). “Compelling evidence is evidence
‘so overwhelming that no reasonable person could reach the conclusion’ of the
ALJ.” Neace v. Adena Processing, 7 S.W.3d 382, 385 (Ky. App. 1999) (citation
omitted). Where the evidence conflicts, “the finder of fact, and not the reviewing
court, has the authority to determine the quality, character and substance of the
evidence presented. . . .” Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418,
419 (Ky. 1985). “The fact-finder 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.” Magic Coal Co. v. Fox,
19 S.W.3d 88, 96 (Ky. 2000).
Dr. Bonnarens testified Ligon qualified for a zero percent impairment
rating according to the AMA Guides. Ligon argues Dr. Bonnarens’s assessment is
invalid because it was given before he reached MMI. However, the “ALJ may
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pick and choose among conflicting medical opinions and has the sole authority to
determine whom to believe.” Copar, Inc. v. Rogers, 127 S.W.3d 554, 561 (Ky.
2003). Ligon has merely pointed to conflicting evidence and has not cited any
cases on point in support of his argument. The ALJ was free to rely upon the
opinion of Dr. Bonnarens and to disbelieve the other medical opinions offered.
The Board did not err in assessing the evidence.
Accordingly, the decision of the Workers’ Compensation Board is
affirmed in its entirety.
ALL CONCUR.
BRIEFS FOR APPELLANT/
CROSS-APPELLEE, KROGER:
BRIEFS FOR APPELLEE/CROSSAPPELLANT, JAPHETH LIGON:
Joel W. Aubrey
Louisville, Kentucky
Donald D. Zuccarello
Nashville, Tennessee
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