200-CA-00(NP)

RENDERED:  MAY 24, 2013; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

 

NO. 2013-CA-000108-WC


 

 

FOOD FAIR OF ASHLAND, INC.                                             APPELLANT

 

 

 

                           PETITION FOR REVIEW OF A DECISION

v.                   OF THE WORKERS’ COMPENSATION BOARD

                                        ACTION NO. WC-10-70469

 

 

 

KAREN SUE HOLLOWAY;

HON. WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE;

AND WORKERS’ COMPENSATION
BOARD                                                                                        APPELLEES

 

 

 

OPINION

AFFIRMING

 

** ** ** ** **

 

BEFORE:  DIXON, MOORE AND THOMPSON, JUDGES.

DIXON, JUDGE:  Food Fair of Ashland, Inc. petitions for review of an opinion and order of the Workers’ Compensation Board (Board) which confirmed the Administrative Law Judge’s (ALJ’s) finding that Karen Sue Holloway is permanently and totally disabled.  Food Fair argues that the finding is not supported by substantial evidence, and that the ALJ’s opinion did not adequately apprise Food Fair of the basis for the decision.  We affirm.

                   Karen Sue Holloway, who was fifty-one years of age at the time of the final hearing, has completed the eleventh grade and received some vocational training in horticulture.  She has been employed in grocery stores throughout her working life.  She began working for Food Fair in 2004, and was the manager of the produce department at the time of her injury.  Her duties as produce manager required her to unload trucks, pallets, and items from the cooler, and to dispose of spoiled produce.  On July 8, 2010, she experienced a popping sensation in her right shoulder as she moved a pallet of groceries.  She reported the incident to the store bookkeeper and completed her shift.  She did not seek medical treatment until about two weeks later.  The initial treatment, which consisted of physical therapy, provided no relief, and she was subsequently referred to Dr. James Powell, a neurosurgeon, who performed a two-level anterior cervical fusion and discectomy on April 11, 2011.  In his operative report, Dr. Powell noted that Holloway was asymptomatic before the lifting incident at work.  According to Holloway, the surgery provided some relief, but she continues to experience pain in her neck, both shoulders, her left arm to the elbow and in the middle of her back.

                   Medical evidence was submitted on Holloway’s behalf by Dr. Bruce Guberman and Dr. Warren Bilkey; Food Fair submitted medical reports from Dr. David Jenkinson and Dr. Gregory Snider.  The ALJ entered an opinion and order awarding Holloway permanent total disability benefits and medical benefits.  Food Fair filed a petition for reconsideration, which was denied.  The Board affirmed the opinion and order of the ALJ, and this appeal followed.

The function of further review of the WCB [Workers’ Compensation Board] in the Court of Appeals is to correct the Board 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 gross injustice.

 

Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).

                   The ALJ relied primarily on the medical evidence of Dr. Bruce Guberman and Dr. Warren Bilkey.  Dr. Bruce Guberman evaluated Holloway on April 4, 2012.  He diagnosed acute and chronic cervical spine strain; acute and chronic thoracic spine strain; disc extrusion; chronic post-traumatic strain of the left shoulder and persistent range of motion abnormalities.  He assessed a 35 percent impairment rating pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”) and noted that Holloway had reached maximum medical improvement (MMI).  He assessed restrictions of no lifting, carrying or pushing over ten pounds maximum, or over five pounds frequently, and opined that Holloway did not retain the capacity to perform her prior work. 

                   Dr. Warren Bilkey, who evaluated Holloway on June 27, 2012, diagnosed cervical strain, cervical radiculopathy and aggravation of degenerative disease of the cervical spine.  He noted that she had undergone surgery and had residual chronic neck pain and impairment as well as left shoulder strain and labral tear.  He also noted that she has myofascial pain affecting the scapular muscles which has not been treated.  He opined that all of these conditions were caused by the work-related accident of July 8, 2010.  He found that she had reached MMI for the cervical condition, but not for the shoulder complaints.  He assessed a 29 percent impairment rating pursuant to the AMA Guides.

                   In his findings of fact, the ALJ stated that he found the opinions of Dr. Bilkey and Dr. Gulberman the most persuasive, and concluded that Holloway had sustained a 29 percent whole person impairment.  He then explained that he was required to consider what impact the employee’s post-injury physical, emotional and intellectual state has on the employee’s ability “to find work consistently under normal employment conditions . . . [and] to work dependably[.]”  Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 51 (Ky. 2000).  The ALJ concluded as follows:

In the present case, the ALJ considers the severity of the sequelae of the plaintiff’s injuries; her age; her lack of education; her steady work history; her testimony; and her physical limitations.  In spite of having no high school diploma, this 51 year-old plaintiff has held a steady job since the age of 15.  The ALJ finds that if she could be working, she would be.  Based on these factors, the ALJ finds that the plaintiff cannot find work consistently and under regular circumstances and work dependably.  I therefore find her permanently and totally disabled.

 

                   Food Fair argues that the ALJ’s finding of permanent disability was not supported by substantial evidence.  Food Fair stresses the relative brevity of the ALJ’s opinion, and a statement in the Board’s opinion that the ALJ provided a “de minimis basis” to support his finding of disability.  Food Fair contends that the ALJ’s opinion and order on reconsideration was also inadequate because it did not contain any new additional findings of fact on the issue of permanent disability.  As the ALJ correctly noted, however, Kentucky Revised Statutes (KRS) 342.281 limits the scope of reconsideration to “the correction of errors patently appearing on the face of the award, order or decision.”  The ALJ did provide the following comments to elucidate what he had stated in his initial opinion and order:

I saw Ms. Holloway testify at the hearing on August 2, 2012.  She was a credible and convincing witness.  Based upon her testimony and the credible and convincing evidence from Drs. Bilkey and Guberman and the holding of the Kentucky Supreme Court in Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000), I made the factual determination that Ms. Holloway is permanently and totally disabled and is entitled to appropriate workers’ compensation benefits. 

 

                   Food Fair points to the following evidence as undermining the ALJ’s finding:  that Holloway continued to work in the same job for close to six months following her injury, Holloway’s testimony that her neck improved after the surgery, and the lack of reference by the ALJ to records from Stultz Pharmacy which show that Holloway’s pre- and post-injury medication regime remained essentially unchanged.

Although a party may note evidence which would have supported a conclusion contrary to the ALJ’s decision, such evidence is not an adequate basis for reversal on appeal.  The crux of the inquiry on appeal is whether the finding which was made is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law.

 

Ira A. Watson, 34 S.W.3d at 52 (internal citations omitted). 

                   In this case, the evidence referred to by Food Fair is simply not adequate to form a basis for reversing the ALJ’s findings.  Neither we nor the Board are entitled to reweigh the evidence in this manner.  KRS 342.285(2).  The ALJ “has the sole authority to judge the weight, credibility, substance, and inferences to be drawn from the evidence.”  AK Steel Corp. v. Adkins, 253 S.W.3d 59, 64 (Ky. 2008), citing Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky.1986).  

                   Food Fair further argues that there was an absence of vocational proof to support a finding that Holloway was incapable of engaging in meaningful work on a repetitive basis within a competitive economy.  Food Fair acknowledges that Dr. Bilkey and Dr. Gulberman assessed permanent restrictions, but stresses that there was no evidence in the record to show that there are no jobs available which Holloway could work within those restrictions.  Food Fair also questions the ALJ’s finding that because Holloway had worked steadily since the age of fifteen, she would continue to work if she was able to do so.  

It is among the functions of the ALJ to translate the lay and medical evidence into a finding of occupational disability.  Although the ALJ must necessarily consider the worker’s medical condition when determining the extent of his occupational disability at a particular point in time, the ALJ is not required to rely upon the vocational opinions of either the medical experts or the vocational experts.

 

 Ira A. Watson, 34 S.W.3d at 52.

                   Although Food Fair has pointed to evidence in the record that would support a contrary finding, and to perceived gaps in the evidence on certain points, it is the role of ALJ to synthesize the medical and lay evidence.  In this case, there was more than sufficient evidence to support the ALJ’s findings.  The medical experts assessed restrictions on Holloway’s ability to lift that are inimical to working in a supermarket setting.  The ALJ assessed her age, her educational background and commendable work history, and concluded that she would not be able to find other regular employment.  This conclusion was amply supported by the evidence in the record and was well within the scope of the ALJ’s role as the fact-finder, “who 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 party’s total proof.”  Abel Verdon Const. v. Rivera, 348 S.W.3d 749, 754 (Ky. 2011).  

                   Food Fair further argues that the ALJ failed adequately to support his conclusions with facts drawn from the evidence “so that both sides may be dealt with fairly and be properly apprised of the basis for the decision.”  Shields v. Pittsburgh and Midway Coal Min. Co., 634 S.W.2d 440, 444 (Ky. App. 1982).  Food Fair contends that the ALJ neglected to consider that Holloway continued to work after her injury, that her medications did not change substantially after the injury, and that she presented no medical or vocational expert testimony that she was incapable of employment.  This argument is essentially a restatement of the earlier argument regarding the sufficiency of the evidence.  We reiterate that the presence of evidence in the record contrary to that relied upon by the ALJ is not sufficient grounds for reversal.  As the Board aptly stated in affirming the ALJ’s opinion and order:

Taking into account Holloway’s age, education and past work experience, in conjunction with her post-injury physical status, the ALJ was persuaded due to the effects of the work-related injury, she no longer retains the ability to provide services to another in return for remuneration on a regular and sustained basis in a competitive economy.  See KRS 342.0011(11)(c) and (34).  Substantial evidence of record exists to support that conclusion.  For that reason, we cannot say the outcome arrived at by the ALJ finding Holloway entitled to an award of permanent total disability benefits is so unreasonable under the evidence the decision must be reversed.

 

                   For the foregoing reasons, the opinion of the Board is affirmed.

                   ALL CONCUR.

 

BRIEF FOR APPELLANT:

 

James W. Herald III

Pikeville, Kentucky

 

BRIEF FOR APPELLEE KAREN SUE HOLLOWAY:

 

William Grover Arnett

Salyersville, Kentucky