COOK'S FAMILY FOODS/CONAGRA FOODS COMPENSATION VS. JOBE (JENNIFER), ET AL.Annotate this Case
RENDERED: DECEMBER 12, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
COOK'S FAMILY FOODS/
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-06-00738
JENNIFER JOBE AND WORKERS'
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BEFORE: CLAYTON, LAMBERT, AND WINE, JUDGES.
LAMBERT, JUDGE: Cook’s Family Foods appeals the Workers’ Compensation
Board’s opinion vacating and remanding the decision of the ALJ. After careful
review, we reverse the opinion entered by the Workers’ Compensation Board.
Jennifer Jobe (hereinafter “Jobe”) was hired at Cook’s Family Foods
(hereinafter “Cook’s”) in May 2004. On August 9, 2004, Jobe claims that she was
injured while lifting and placing hams on the assembly belt. According to Jobe,
the injury occurred as she was holding a group of hams back with one arm while
lifting and turning individual hams with the other arm. After the injury Jobe was
able to continue the remainder of her shift. The following day Jobe reported the
injury to her manager and was immediately referred to her family physician, Dr.
Hunt, for evaluation.
Dr. Hunt’s office prescribed pain medication and assigned work
restrictions. Cook’s accommodated Jobe’s restrictions from the time of her injury
through the date of her subsequent resignation several weeks later in September.
On September 1, 2004, Jobe underwent a physical therapy evaluation, and a report
prepared in conjunction with the evaluation stated that Jobe exhibited a decreased
range of motion and was placed on a four-week home strengthening program. An
MRI dated November 10, 2004, revealed mild endplate and disc degenerative
changes with mild disc bulging at the L4-5 level.
On March 1, 2005, Jobe began treating with Dr. Bhasin, a neurologist.
At her initial visit, Jobe stated that her pain was predominately centered in her
lower back and did not radiate into her lower extremities bilaterally, although it
radiated into her right hip. Dr. Bhasin believed that Jobe’s symptoms of pain
radiating into her right hip could signify a symptomatic radiculopathy. He
suggested an EMG nerve conduction study to discern this possibility and
At Jobe’s follow up with Dr. Bhasin on April 6, 2005, Dr. Bhasin
noted that Jobe was doing well on Neurontin and that her complaints of pain had
subsided but had not completely remitted. Dr. Bhasin recommended that weight
loss would help Jobe significantly and recommended gentle physical therapy. On
April 11, 2005, Dr. Bhasin prepared a report interpreting the results of the nerve
conduction study he had previously ordered. His report stated, “[e]ssentially a
normal study. There is no evidence of neuropathy that is seen. The decreased
amplitude on the left tibia given normal f-wave response is of unclear
Jobe began physical therapy in July 2005. On July 20, 2005, Jobe
complained that physical therapy had worsened her condition, and Dr. Bhasin
advised her to cease physical therapy. On August 17, 2005, Jobe complained that
the pain in her lower back was radiating down her left lower extremity. She and
Dr. Bhasin discussed epidural steroid injections, and Dr. Bhasin stated that he
would make arrangements for these.
In his report dated September 28, 2005, Dr. Bhasin noted that he had
asked Jobe not to ride her motorcycle since the bumpy ride could exacerbate her
lower back pain, particularly after epidural steroid injections. He noted that
despite his recommendation, Jobe continued to ride her motorcycle, claiming that it
did not increase her pain. He also noted that the epidural steroids had helped her
pain somewhat but that the pain persisted.
At a follow up on December 1, 2005, Jobe indicated that she was
doing “remarkably well” after the epidural steroids and that she was weaning
herself off the Lorcet that had been previously prescribed. On March 1, 2006, Jobe
continued to complain of lower back pain with bilateral numbness and tingling
radiating down to the lower extremities. At that time, Dr. Bhasin recommended
another MRI and a repeat EMG nerve conduction study to discern any underlying
chronic or superimposed acute radiculopathy. The second MRI was conducted on
March 2, 2006.
On March 24, 2006, Jobe treated with Dr. Bhasin and stated that she
was doing “reasonably better than before.” At the same visit, she reported
muscular spasm type complaints but did not explain what caused the change in her
pain. She also stated that she was having nerve conduction studies done.
In May 2006 Jobe accepted a job transfer with Cingular Wireless
(now AT&T) to a call center in Florida, where she continues to reside. Several
weeks after moving to Florida, Jobe sought treatment with a general practitioner,
Dr. Devane, without any communications with Cook’s. Dr. Devane referred Jobe
to other medical providers for treatment of her lupus and asthma and ordered an
MRI of her spine. Ultimately, Dr. Devane referred Jobe to Dr. Scharf. On July 25,
2006, unbeknownst to Cook’s, Jobe underwent lumbar fusion surgery performed
by Dr. Scharf. Jobe was off work for approximately two months following her
surgery, returning around September 28, 2006. Jobe continued to treat with Dr.
Scharf after her surgery.
Jobe maintains that the surgery resolved the numbness in her legs but
states that she still suffers from low back pain. She takes Lorcet for the pain. She
is no longer able to do dishes or use a mop but continues to ride her motorcycle.
Dr. McCormick evaluated Jobe on February 9, 2007, and determined
that the fusion surgery performed by Dr. Scharf was not likely attributable to the
injury suffered at Cook’s. Dr. McCormick explained:
[w]ith regard to the work causation, the only thing I can
reasonably conclude is that she may have had a strain
injury from performing an unaccustomed activity if she
has not been previously working in that placer position
and if it was physical in nature as she described. Reports
from Work Place Health contemporaneous with the time
at which she had these symptoms were describing pain
with decreased range of motion. Later in their
evaluations after several months, she was reported to
have essentially full motions. Her back pain complaints
became chronic in nature. There were never any true
radiculopathy symptoms. She underwent a surgical
procedure for degenerative changes in the discs.
The degenerative changes noted in the MRI report included descriptions of facet
hypertrophy and end plate osteophytes, as well as degenerative changes in the discs
with disc desiccation. Dr. McCormick also noted, “[c]hanges like these do not
reflect any acute process or acute injury nor can they be attributed to a work
activity in which she is employed by that employer over a period of some four
months.” Finally, Dr. McCormick concluded:
[i]t is my opinion that it is possible she could have
suffered a strain/sprain as a result of an unaccustomed
work activity. However, by December 2005, she was
demonstrating essentially full motion, but persistent back
pain complaints. I cannot ascribe the degenerative
changes that resulted in Dr. Scharf performing a surgical
procedure as being work related.
On March 27, 2006, Dr. Scharf provided a brief supplement to his
earlier reports and specifically addressed the report prepared by Dr. McCormick.
Dr. Scharf conceded that Dr. McCormick had provided a complete and extensive
report and stated that “[i]t is true that he [sic] degenerative changes in Ms. Jobe’s
back is [sic] not work related. However, the injury that she sustained in August
2004 caused a permanent aggravation of her preexisting condition, which in my
opinion necessitated surgery.”
A formal hearing was held on September 20, 2007, in Lexington,
Kentucky. At the time of the hearing, Jobe was still employed with AT&T and
that employment was within her work restrictions. On November 15, 2007, the
ALJ entered her award, finding that Jobe suffered a permanent impairment of eight
percent resulting from the August 9, 2004, work injury. With regard to liability for
Jobe’s medical expenses, the ALJ found that the surgery performed by Dr. Scharf
was not related to the work injury, and as such Cook’s was not responsible for the
disputed medical expenses tendered by Jobe for the first time at the formal hearing.
Finally, the ALJ ruled that because the fusion surgery was not related to the work
injury, that Cook’s was not responsible for paying TTD benefits during the time
period that Jobe was recovering from the surgery.
On November 28, 2007, Jobe filed a petition for reconsideration,
which was denied. On March 12, 2008, Jobe filed her notice of appeal to the
Workers’ Compensation Board (hereinafter “the Board”). On June 26, 2008, the
Board issued its opinion vacating and remanding the ALJ’s opinion. The Board
ruled that Dr. Scharf’s determination that the work injury had aggravated preexisting degenerative changes had not been rebutted by any evidence on behalf of
Cook’s, and that the ALJ could not therefore conclude that the injury was not
attributable to the work accident. The Board remanded the issue to the ALJ for
further findings as to why the medical evidence from Dr. Scharf was ignored.
Secondly, the Board found that the ALJ had failed to address the
compensability of the contested medical bills, including the applicability of 803
KAR 25:096 to these medical bills and remanded the case to the ALJ for further
consideration on this issue as well. This appeal followed.
KRS 342.285 provides that an Administrative Law Judge is the finder
of fact and prohibits the Board from substituting its judgment for that of the
Administrative Law Judge with regard to the weight of the evidence on questions
of fact. Purchase Transp. Services v. Estate of Wilson, 39 S.W.3d 816, 817 (Ky.
2001). A finding of fact is erroneous as a matter of law and may be disturbed on
appeal only if it is so unreasonable under the evidence that a contrary finding is
compelled. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986)(emphasis
added). “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.” Southern Bell Tel. & Tel. Co. v. Kentucky Unemployment Ins.
Comm'n, 437 S.W.2d 775, 778 (Ky. 1969).
In the instant case, Cook’s argues that the Board improperly
substituted its own judgment for that of the ALJ in concluding that Dr. Sharf’s
opinion was uncontradicted. Cook’s further argues that it was error for the Board
to conclude that the ALJ did not consider the compensability of certain medical
expenses, given the ALJ’s conclusion that the pertinent surgery was not related to
the work injury. After careful review, we agree with Cook’s.
This is a case of conflicting medical conclusions. Dr. Scharf
concluded that the surgery was necessary, given that the work injury aggravated a
pre-existing condition. Dr. McCormick concluded that the surgery was not
necessitated by the work injury. Instead, the work injury resulted in a sprain, and
Jobe was exhibiting a full range of motion several months later. It is the
Administrative Law Judge’s responsibility to consider all the evidence and
testimony, to judge the credibility of such evidence and testimony, and to make
findings of fact and conclusions of law based on that evidence. Simply because the
ALJ in the instant case found Dr. McCormick’s testimony to be more credible does
not allow the Board to vacate and remand for further findings or to substitute its
own judgment regarding the weight of the evidence. We do not find the ALJ’s
decision to be flagrantly against the weight of the evidence and instead find that it
is supported by the evidence, specifically by Dr. McCormick’s reports and medical
conclusions. The Board’s decision to the contrary was an abuse of discretion.
The Board’s subsequent finding that the ALJ ignored the
compensability of medical expenses is also in error, given that the ALJ concluded
that those expenses were related to the surgery, and as the surgery was not related
to the work injury, Cook’s was not responsible for paying such expenses.
Accordingly, we reverse the decision of the Workers’ Compensation
BRIEF FOR APPELLANT:
G. Kennedy Hall, Jr.
BRIEF FOR APPELLEE
Jeffrey D. Hensley