KROGER DISTRIBUTION CENTER v. JAMES W. COOK, SR.; HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: MARCH 4, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001401-WC
KROGER DISTRIBUTION CENTER
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-01-91268
v.
JAMES W. COOK, SR.; HON. DONALD G.
SMITH, ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; JOHNSON AND MINTON, JUDGES.
JOHNSON, JUDGE:
Kroger Distribution Center has petitioned for
review of an opinion of the Workers’ Compensation Board entered
on June 16, 2004, which affirmed in part, reversed in part, and
remanded the opinion and award of the Administrative Law Judge.
Having concluded that the Board has not overlooked or
misconstrued controlling statutes or precedent or committed an
error in assessing the evidence so flagrant as to cause a gross
injustice, we affirm.
James W. Cook, Sr. began his employment with Kroger
Distribution Center as a tractor-trailer truck driver in May of
1985.
On July 30, 2000, Cook was involved in a head-on
collision with another vehicle while driving a delivery route in
Lexington, Kentucky.
Several hours after the accident, Cook
returned to Louisville, Kentucky, where he resided with his wife
and children, and he then sought treatment at Baptist Hospital.
Upon arriving at the hospital, Cook complained of neck pain and
a tingling sensation in his left hand.
According to Cook’s
medical history, he had previously suffered from neck pain and
weakness and numbness in his right arm in 1993, and had right
shoulder pain in 1998.
Also in 1998, Cook was diagnosed with
cervical degenerative disc and joint disease, and he had seen a
chiropractor for a number of years for his neck.
Cook received treatment from a number of physicians
for the work-related injuries he sustained in the automobile
accident.
While Cook missed work occasionally due to an injury
flare-up or to receive medical care as a result of the injuries
he sustained in the July 2000 accident, he did not miss work for
any extended period of time.
Cook underwent an MRI on October
19, 2000, which indicated that he had a congenitally small
cervical canal at the C5-6 and C6-7 level.
There were also
signs of disc narrowing and extensive anterior spurring, as well
as a minimal degree of compression of the cord at these levels.
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The test also showed a moderate degree of left-sided foraminal
narrowing at the C3-4 level and bilateral foraminal stenosis at
C6-7, greater on the left than the right.
Cook filed a Form 101, Application for Resolution of
Injury Claim, on July 22, 2002, to recover workers’ compensation
benefits for the injuries he suffered in this accident.
During
the hearing before the ALJ on September 24, 2003, Cook
introduced the following medical reports from his treating
physicians:
Dr. Blaine Lisner, a neurologist and neurosurgeon;
Dr. Greg Smith, a neurologist; Dr. Wayne Villenueva, a
neurosurgeon; and Dr. Ellen Ballard, a physical medicine and
rehabilitation specialist.
Kroger submitted medical reports
from Dr. Morton Kasdan, an orthopedic hand specialist, and the
deposition of Dr. Thomas Gabriel, an orthopedic surgeon and hand
specialist.
In an order dated November 21, 2003, the ALJ made
findings of facts and conclusions of law, which included the
following:
The parties also raised an issue regarding
causation for the cervical condition. It is
undisputed that the Plaintiff did have
occasional stiffness in his neck for which he
sought treatment. Plaintiff’s testimony was
credible regarding the treatment of those prior
problems and the development of additional
problems following the 2000 work injury. The
various medical records document problems with
the cervical region following the work injury.
Dr. Lisner found that these problems were caused
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by the work injury. The Administrative Law
Judge finds him to be persuasive on this issue.
Therefore the Plaintiff’s current cervical
problems were found to have been caused by the
2000 work injury.
. . .
[T]he Administrative Law Judge must first
determine whether the Plaintiff retains the
physical capacity to return to the type of
work performed at the time of the injury. Dr.
Gabriel placed no significant restrictions on
the Plaintiff that would prevent him [sic]
returning to his past work. Plaintiff’s
testimony was credible regarding his pain and
restrictions. Yet he has continued to work as
a truck driver, although on a different
schedule. Based on this evidence, the
Administrative Law Judge does believe the
Plaintiff could return to his prior work. The
Administrative Law Judge does not believe
Plaintiff is totally disabled at this time.
The Defendant further conceded that the
Plaintiff now makes less than his average
weekly wage at the time of injury, albeit by a
small amount. It is noted that Dr. Gabriel is
the most persuasive doctor to give an
impairment rating under the AMA Guides, and
therefore Plaintiff is found to have a 3%
impairment rating. Therefore it appears that
the Plaintiff’s benefits would be calculated
as follows: $381.77 [average weekly wage
multiplied by two-thirds, but limited to 75%
of the state average weekly wage] x 3%
[impairment rating] x 0.65 [factor under KRS
342.730(1)(b)] x 2.00 [2.00 multiplier under
KRS 342.730(1)(c)(2) when Plaintiff returns to
work at lower wages] = $14.89. That is the
amount Plaintiff would be entitled to on a
weekly basis in this claim.
On December 5, 2005, Cook petitioned the ALJ to
reconsider the opinion and award.
The ALJ overruled Cook’s
petition for reconsideration in an order dated December 23,
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2003, claiming the petition “merely tends to reargue the merits
of the claim.”
Cook then filed an appeal to the Board on January 22,
2004, alleging the ALJ had made three errors.
First, Cook
claimed the ALJ was clearly erroneous in limiting his permanent
partial disability (PPD) benefits for his carpal tunnel injury
to a three percent impairment rating because the physician who
gave the impairment rating admittedly failed to apply the
appropriate criteria set forth by the AMA Guides to the
Evaluation of Permanent Impairment.
Next, Cook argued the ALJ
erred by refusing to award the 18% impairment rating assessed by
Dr. Lisner for his compensable cervical injury.
Finally, Cook
alleged the ALJ erred in determining he had the physical
capacity to return to the type of work he performed at the time
of his injury.1
In response to these allegations, Kroger argued to the
Board that Cook had had a long-standing history of cervical
problems, and that the ALJ had determined that Dr. Gabriel’s
impairment rating was the most credible evidence on this issue.
Kroger further cross-appealed the ALJ’s decision that the 2x
multiplier applied to Cook’s workers’ compensation benefit.
1
The Board affirmed the ALJ on this issue relying on the unpublished case of
Teleplan v. Conner, 2003 WL 22975457 (Ky. December 18, 2003). Cook did not
file a cross-petition on this issue; however, we note that Ford Motor Co. v.
Forman, 142 S.W.3d 141, 145 (Ky. 2004), and Ford Motor Co. v. Lynn, 2004 WL
2913244 (Ky. December 16, 2004), support Cook’s position.
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On June 16, 2004, the Board entered an opinion
affirming in part, reversing in part, and remanding the ALJ’s
award.
The Board determined that the ALJ had not erred in
determining that Cook had the physical capacity to return to the
type of work he had performed at the time of the injury.
However, the Board determined that Cook’s impairment rating for
the carpal tunnel syndrome injury should be assessed at six
percent, rather than three percent, given the fact that Dr.
Gabriel admitted that the higher rating is appropriate according
to the AMA Guides.
Thus, the Board reversed the ALJ in part and
remanded this matter for the appropriate award for Cook’s carpal
tunnel syndrome based on an impairment rating of six percent.
The Board also reversed the ALJ on his failure to award Cook
income benefits resulting from his compensable cervical
condition, since the uncontroverted evidence compelled income
benefits based on the 18% permanent impairment rating assessed
by Dr. Lisner.
This matter was further remanded for the
appropriate award for Cook’s cervical condition based on the 18%
impairment rating.
On Kroger’s cross-appeal, the Board reversed
the ALJ’s determination that Cook was entitled to a 2x
multiplier under KRS2 342.730(1)(c)2.3
2
Kentucky Revised Statutes.
3
KRS 342.730(1)(c)2. states:
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The Board determined that
since, upon returning to work, Cook had failed to earn wages
equal to or greater than his average weekly wage at the time of
his injury, he was not eligible for the 2x multiplier.4
This
petition for review followed.
In its petition, Kroger claims (1) that the ALJ “has
the right to pick and choose amongst conflicting testimony he
found most persuasive with regard to the extent of permanent
functional impairment due to the injury”; and (2) that the
“finding of a compensable injury does not compel an ALJ to award
permanent disability benefits.”
While both of these arguments
are correct statements of the law, we do not agree with Kroger’s
assertion that the Board’s decision failed to correctly apply
the law.
Our Supreme Court has held that a reversal of the
Board by the Court of Appeals is appropriate “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 a gross
If an employee returns to work at a weekly wage equal to
or greater than the average weekly wage at the time of
injury, the weekly benefit for permanent partial
disability shall be determined under paragraph (b) of this
subsection for each week during which that employment is
sustained. During any period of cessation of that
employment, temporary or permanent, for any reason, with
or without cause, payment of weekly benefits for permanent
partial disability during the period of cessation shall be
two (2) times the amount otherwise payable under paragraph
(b) of this subsection. This provision shall not be
construed so as to extend the duration of payments.
4
Cook did not file a cross-appeal on this issue.
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injustice.”5
It is well-settled that “the finder of fact, and
not the reviewing court, has the authority to determine the
quality, character and substance of the evidence presented[.]”6
The fact-finder also has the authority to reject any testimony
and to believe or disbelieve various parts of the evidence,
regardless of whether it comes from the same witness or the
adversary party’s proof.7
In this case, the Board stated that given Dr.
Gabriel’s expansive testimony on Cook’s impairment rating for
his carpal tunnel syndrome, “we believe it was reasonable for
the ALJ to find Dr. Gabriel’s opinions more persuasive than
those of Dr. Lisner with respect to Cook’s carpal tunnel
syndrome.”
However, the Board further ruled that the ALJ erred
by accepting the three percent impairment rating given by Dr.
Gabriel instead of the six percent rating.
The Board concluded
that “Dr. Gabriel’s admission that the appropriate permanent
impairment rating as determined by the AMA Guides under the
particular facts of this case (i.e. a pre-surgical and not a
post-surgical case) would be 6% constitutes not only substantial
but compelling evidence of such a percentage.”
From the record,
it is clear that Dr. Gabriel knew that Cook had not undergone a
5
Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 688 (Ky. 1992).
6
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985).
7
Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
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surgical procedure for his carpal tunnel syndrome; but, in his
deposition, he admitted that he arrived at the three percent
impairment rating by applying the rating used for post-operative
cases.
During Dr. Gabriel’s deposition, he stated:
Q. [By Mr. Levy] So, using that – using
Table 16-15 – 16-10 through 16-15, there is
a 6 percent impairment?
A. [By Dr. Gabriel] You could consider a 6
percent. I still will stand by the way I
did it. You’re correct in saying that’s
for post-op. That’s generally the one that
I use, but if you –- because I think the
other ones are so arbitrary in terms of how
much, you know, distortion of sensibility
that the patient subjectively complains to
you.
The reason why I use the one that’s in
there is it specifically says if a person
has an abnormal EMG, they will get a 5
percent, you know, impairment. Does it
undershoot it a little bit? I guess it
probably does, but you could have three or
four people look at those same two tables
that I just looked at and probably come up
with variations in terms of exactly what
they perceive the patient to be complaining
about, because it’s very arbitrary, that
Table 16-10, where it asks, you know, do
they have distorted sensibility, do they
have pain, abnormal pain.
If you asked a patient, they would
say, well, I have pain all the time, and,
you know, it’s very arbitrary, and even
then if you are able to isolate it down to,
okay, I think this is a Level IV, it’s
still between 25 and 40 percent. So it
leaves a lot of leeway for which one of
those numbers you choose. So, that’s why I
don’t particularly use it.
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The ALJ’s assignment of a three percent impairment
rating was inconsistent with the statutory requirement that the
permanent impairment rating be determined in accordance with the
latest available edition of the AMA Guides.8
Therefore, while
the ALJ is authorized to pick and choose from the evidence, in
this case the conflicting evidence was not between two
physicians who have assigned different impairment ratings; but
instead, the conflict was between an impairment rating assessed
by a physician and the impairment rating as set forth by the AMA
Guides.
Given this evidence, we conclude that the Board was
correct in ruling that the evidence compelled a six percent
impairment rating for Cook’s carpal tunnel syndrome.
Kroger also claims that the Board erred by remanding
this case for an award based on a 18% impairment rating for
Cook’s cervical condition.
Kroger argues that even though the
evidence from Dr. Lisner assessing Cook’s impairment rating for
his cervical condition at 18% was uncontroverted, there was
substantial conflicting evidence as to whether this impairment
was caused by the work accident.
However, as Cook correctly
notes, the ALJ specifically stated that “the Plaintiff’s current
cervical problems [are] found to have been caused by the 2000
8
KRS 342.0011(35) states:
“Permanent impairment rating” means percentage of whole body
impairment caused by the injury or occupational disease as
determined by “Guides to the Evaluation of Permanent Impairment,”
American Medical Association, latest available edition.
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work injury.”
This finding was not appealed to the Board and it
is binding on Kroger.
In Dr. Gabriel’s testimony, he repeatedly stated that
he did not “do cervical spines.”
He stated that his evaluation
of Cook related to his carpal tunnel syndrome only, not to his
cervical condition.
Meanwhile, Dr. Lisner in his report stated,
“the patient has a 27% whole body impairment for the left upper
extremity plus 18% equals a 40% whole body impairment rating
[under] the AMA Guides Combined Value Chart on page 604
secondary to the injuries of the motor vehicle accident of July
30, 2000.”
Thus, Dr. Lisner’s report was the only evidence
submitted which imposed an impairment rating for Cook’s cervical
condition, which the ALJ found to be work-related.
The ALJ
erred when he failed to assign impairment ratings for the two
separate work-related injuries.
Therefore, the Board, having
noted that the ALJ found Cook’s cervical spine injury to be
work-related, correctly remanded this matter for the assignment
of the uncontroverted impairment rating of 18%.
In Collins v. Castleton Farms, Inc.,9 the Court
determined that the fact-finder may refuse to follow
uncontradicted evidence in the record, but he must explain the
basis for such a rejection.
9
The Court in Shields v. Pittsburg &
560 S.W.2d 830, 831 (Ky. 1977).
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Midway Coal Mining Co.,10 stated that “it is required that basic
facts be clearly set out to support the ultimate conclusions. .
. in each case so that both sides may be dealt with fairly and
be properly apprised of the basis for the decision.”
Where a
question is properly within the province of medical experts, the
ALJ may not disregard uncontroverted evidence without offering a
legally sufficient reason for doing so.11
In this case, the ALJ made the determination that
Cook’s cervical injury was work-related, but he then failed to
impose an impairment rating for the injury, and he further
failed to set forth his rationale for rejecting the
uncontradicted impairment rating offered by Cook’s physician.
The rating assessed by Dr. Lisner for Cook’s cervical spine
injury was the only impairment rating submitted regarding Cook’s
cervical condition.
Thus, it was not refuted in the record.
Although an ALJ may not be compelled to award permanent
disability benefits, he cannot disregard the uncontroverted
evidence and select an erroneous impairment rating.
Rather, the
ALJ is required to determine the totality of the impact of the
compensable injury.
Therefore, once it was determined that
Cook’s cervical injury was work-related, the ALJ was required to
10
634 S.W.2d 440, 444 (Ky. 1982).
11
See Bullock v. Gay, 296 Ky 489, 177 S.W.2d 883 (Ky. 1944); and Mengel v.
Hawaiian-Tropic Northwest & Central Distributors, Inc., 618 S.W.2d 184
(Ky.App. 1981).
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accept the uncontroverted 18% impairment rating or to state a
sufficient reason for not doing so.
Thus, the Board properly
remanded this matter for entry of an award based on an 18%
impairment rating for Cook’s work-related cervical condition.
Based on the foregoing reasons, the opinion of the
Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
C. Patrick Fulton
Louisville, Kentucky
Udell B. Levy
Louisville, Kentucky
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