Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: August 8, 2014
CLAIM NO. 201073734
FANNIE L. CRUSE PETITIONER
VS. APPEAL FROM HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE
HENDERSON COUNTY BOARD OF EDUCATION
and HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Fannie Cruse (“Cruse”) appeals from the December
16, 2013 Opinion and Award and the February 14, 2014 Order on Reconsideration
rendered by Hon. Jane Rice Williams, Administrative Law Judge (“ALJ”). The ALJ found Cruse suffered a permanent
injury to her left shoulder, but determined she sustained no permanent injury
to her right shoulder, knees, and cervical spine. She awarded Cruse temporary total disability
benefits, permanent partial disability benefits, and medical benefits for the
left shoulder injury; and medical benefits for the temporary injuries. Cruse appeals, arguing the ALJ erred in
finding her injuries were temporary, and in determining she is not totally
disabled. Additionally, she argues KRS
342.730(4) is in contravention of federal employment discrimination
legislation. For the reasons set forth
herein, we affirm.
Cruse was employed as an after-school
care and summer care aide for the Henderson County Board of Education (“HCBE”),
a position which involved caring for groups of small children. She was injured on October 14, 2010 when she
tripped and fell in the playground area of a school. At the time of her injury, she was 71 years
old. In her Form 101, she alleged
injuries to her “left and right shoulders, bicep, knees, ankle, foot, neck,
back and toes.”
Methodist Hospital records indicated
Cruse presented on October 14, 2010 with complaints of pain in her left
shoulder, clavicle, both knees and left foot.
She had abrasions on both knees and both arms. A splint cast was applied and Cruse was
released in stable condition, but returned four days later with continued left
shoulder pain.
A subsequent MRI revealed a full
thickness rotator cuff tear in Cruse’s left shoulder. The tear was surgically repaired by Dr. Glenn
Johnson on November 1, 2010. By February
15, 2011, Dr. Johnson’s medical records indicate Cruse had tolerated the
surgery well, though she was restricted to lifting no more than five to eight
pounds. As to her left shoulder, he
placed Cruse at maximum medical improvement (“MMI”) on May 12, 2011 and released
her to work. On June 3, 2011, Dr.
Johnson assigned a 6% whole person impairment rating for the left shoulder
condition pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”).
During the course of his treatment,
Dr. Johnson referred Cruse to two other physicians. For knee pain, she was referred to Dr. John
Deppe. He noted pre-existing
osteoarthritis aggravated by the fall and resulting contusion. He found no meniscal tear and recommended
conservative treatment and strengthening exercises. In a follow-up visit on July 7, 2011, Cruse
indicated her left knee was improving, but her right knee continued to bother
her. X-rays revealed severe
patellofemoral arthritis, aggravated by the contusion. He administered an injection.
Cruse was also referred by Dr. Johnson
to Dr. Ross Whitacre for evaluation of her neck pain. He diagnosed significant left C3-4 and 4-5
spondylosis with acute chronic flare-up resulting from the fall. He administered an injection in June,
2011. A month later, Cruse reported her
neck pain persisted.
Dr. Jules Barefoot conducted an
independent medical evaluation (“IME”) on July 9, 2013 at Cruse’s request. Dr. Barefoot rated cervical, left knee, left
shoulder, and right shoulder conditions for a combined 23% whole person
impairment pursuant to the AMA Guides.
He also found Cruse’s carpal tunnel syndrome was due to the workplace
fall. Dr. Barefoot predicted she would
have marked difficulty kneeling, crouching, crawling, squatting and using her
arms above shoulder level.
Dr. Daniel Primm also conducted an IME
on August 20, 2013. Based on a medical
records review, Dr. Primm noted Cruse’s history of chronic neck pain, and
rheumatologic disease involving her Achilles tendons, hands and other
joints. Following a physical
examination, Dr. Primm did not find evidence she had sustained an injury to her
cervical spine or either knee. Instead,
he opined her neck pain was due to degenerative disease as well as prior motor
vehicle accidents, and her knee pain was a result of degenerative changes. Due to her left shoulder condition, Dr. Primm
assigned a 7% whole person impairment rating pursuant to the AMA Guides. He found her to be at MMI as of the date of
examination, and released her to work with a recommendation to avoid heavy
lifting above shoulder level.
Additional medical evidence concerning
non-work-related conditions was introduced.
Dr. James O’Neill evaluated Cruse on November 7, 2012 for Achilles tendonitis
and right foot pain, at which time she reported dropping an object on her right
foot resulting in bruising. Dr. Moges
Sisay evaluated Cruse on April 5, 2011.
Dr. Sisay’s records indicate a history of muscle cramps in her hands and
feet, and polymyalgia rheumatoid.
Finally, emergency room records from Methodist Hospital document a visit
on December 4, 2012, following an automobile accident in which Cruse was the
driver of a car which was rear-ended.
She reported neck pain following this minor collision.
The ALJ ultimately determined Cruse
sustained an injury to her left shoulder, resulting in a 7% whole person
impairment rating pursuant to the AMA Guides. She relied on Dr. Primm’s report to conclude
Cruse suffered no permanent injury to any body part other than the left
shoulder. She further concluded the left
shoulder injury would not prevent Cruse from returning to work. The ALJ awarded Cruse temporary total disability
benefits, permanent partial disability benefits and medical benefits for the
left shoulder injury, and medical benefits for the temporary injuries to her
right shoulder, bicep, knees, ankle, foot, back, neck and toes.
Both
parties petitioned for reconsideration.
Cruse’s petition, which the ALJ deemed an impermissible re-argument of
the merits of the claim, was denied. The
HCBE’s petition was granted and, in her Order on Reconsideration, the ALJ
corrected certain errors which do not relate to the arguments raised in this
appeal. Cruse now appeals, raising three
allegations of error.
Cruse first argues the ALJ erred in
failing to find permanent injuries to her cervical spine, knees and right
shoulder. In addition to claiming the
evidence compels a contrary result, Cruse avers the ALJ incorrectly applied the
law to her pre-existing conditions. We
begin by noting Cruse, as the claimant, bore the burden of proof of each
element of her cause of action. Snawder
v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Because she was
unsuccessful in establishing a permanent injury to her cervical spine, knees,
and right shoulder, the question on appeal is whether the evidence compels a
different result.
Dr.
Primm’s report, relied upon by the ALJ, constitutes the requisite substantial
evidence to support the determination Cruse suffered only temporary injuries to
her cervical spine, knees, and right shoulder. Special Fund v. Francis, 708 S.W.2d 641
(Ky. 1986). Also, as noted by the ALJ,
Cruse suffered from degenerative conditions in her knees and neck, as supported
by the medical records of Drs. Whitacre and Deppe. While evidence exists in the record
supporting a contrary conclusion, namely Dr. Barefoot’s report, this proof is
not so overwhelming to compel any particular result. McCloud v. Beth-Elkhorn Corp.,
514 S.W.2d 46 (Ky. 1974). The ALJ acted
well within her discretion in choosing to rely upon Dr. Primm’s report, and
sufficiently articulated her reasons for doing so.
Furthermore,
we disagree with Cruse’s assertion the ALJ failed to evaluate the medical proof
regarding pre-existing conditions. In
her brief to this Board, Cruse emphasizes any pre-existing condition in her
neck and knees were asymptomatic. In her
summary of Dr. Deppe’s records, the ALJ noted Cruse’s pre-existing
osteoarthritis in her knees, which was aggravated by the contusion. She also acknowledged Dr. Whitacre’s
diagnosis of degenerative disease in the cervical spine, aggravated by her
work-related fall. Thus, the ALJ
accepted Cruse’s conditions were asymptomatic.
She was simply not convinced that the work-related accident produced any
permanent injury. As explained above,
she acted within her discretion in relying on Dr. Primm’s report which supports
this conclusion.
As
to Cruse’s right shoulder condition, we cannot agree the ALJ wholly disregarded
her history of right shoulder problems.
Dr. Primm’s report recounted Cruse’s prior right rotator cuff repair
that had healed months before the work accident. Following her fall at work, Cruse first
reported right shoulder pain some two months after the accident. Dr. Primm also evaluated Cruse and recorded
range of motion measurements of her right shoulder. He concluded only Cruse’s left shoulder
injury resulted in a permanent impairment.
By stating her reliance upon Dr. Primm’s report, the ALJ adequately apprised
the parties of the basis of her conclusion that the work accident resulted in
no permanent impairment to Cruse’s right shoulder.
Cruse
next argues the evidence compels a finding of total disability, or a finding
she could not return to her job. The ALJ
explained:
After careful review of all the medical evidence and
the testimony of Cruse, it is clear she has many long standing problems and
many degenerative changes which were not brought on by the work injury. Dr. Primm is found most persuasive. While Dr. Barefoot’s report and deposition
have been considered, his opinion is not convincing as he attributes so much of
Cruse’s complaints, even carpel tunnel syndrome, to the work injury. Clearly Cruse suffered a hard fall at work
resulting in multiple injuries, most temporary.
Only the shoulder injury is found to have resulted in permanent injury
with the other injuries resolving completely to the pre-injury state within the
following year. Furthermore, based on
Cruse’s shoulder condition alone, she could return to her former job. While Dr. Primm noted a few lifting
restrictions and discussed those in his deposition, there is no proof this
restriction would prohibit her from returning to work.
“Permanent
partial disability” means the condition of an employee who, due to an injury,
has a permanent disability rating but retains the ability to work. KRS 342.0011(11)(b). In concluding Cruse is permanently partially disabled,
the ALJ relied on Dr. Primm’s impairment rating, as well as his opinion that
Cruse’s left shoulder had returned to its pre-injury state and his recommended
lifting restrictions. Furthermore, in
the summary of Cruse’s testimony, the ALJ recounted her work history,
education, age, and her post-injury level of activity at home. Likewise, the ALJ stated her consideration of
Cruse’s many other non-work-related physical conditions. When her opinion is read in its entirety, it
becomes evident the ALJ considered the factors enunciated in Ira A. Watson
Dept. Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
The
ALJ was presented with conflicting medical evidence concerning a worker of
advanced age with several, non-work-related physical conditions. In such circumstances, the discretion lies
with the ALJ to select which evidence upon which to rely, and to draw rationale
conclusions from the proof. Square D
Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).
“Compelling evidence” is defined as evidence that is
so overwhelming, no reasonable person could reach the same
conclusion as the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224
(Ky. App. 1985) superseded by statute on
other grounds as stated in Haddock v. Hopkinsville Coating Corp., 62
S.W.3d 387 (Ky. 2001). When viewed in its totality, we cannot agree the
evidence compels a finding Cruse is permanently totally disabled or unable to
return to her pre-injury position. Wolf
Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).
Finally,
in a largely undeveloped argument, Cruse asserts KRS 342.730(4), which limits
entitlement to income benefits when an employee qualifies for Social Security
retirement benefits, violates the federal Age Discrimination in Employment Act.
29 U.S.C. §623. HCBE responds this Board
lacks jurisdiction to consider the constitutionality of a statutory provision. At the outset, we disagree with HCBE that
Cruse has raised a constitutionality argument.
Rather, she argues the statute contravenes federal law.
However,
we also disagree with Cruse that KRS 342.730(4) violates 29 U.S.C.§623(a)(1),
which prohibits an employer from “discriminat[ing] against any individual with
respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's age.” KRS
Chapter 342 is a system of compensation mandated by the state, not the employer. Thus, even assuming arguendo KRS 342.730(4) is discriminatory, we are not convinced
such action can be imputed to the employer as it is not within the employer’s
control. Furthermore, we are not
persuaded Kentucky’s workers’ compensation scheme constitutes “compensation,
terms, conditions or privileges of employment” within the meaning of the
federal statute. Income benefits do not
fall within this class because it is compensation for an injury, not a benefit
of employment.
For
the foregoing reasons, the December 16, 2013 Opinion and Award and the February
14, 2014 Order on Reconsideration rendered by Hon. Jane Rice Williams, are
hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON AUSTIN P VOWELS
PO BOX 2082
HENDERSON, KY 42419
COUNSEL
FOR RESPONDENT:
HON DAVID L MURPHY
PO BOX 7158
LOUISVILLE, KY 40257
OFFICE OF THE ATTORNEY GENERAL
700 CAPITOL AVENUE, SUITE 118
FRANKFORT, KY 40601
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601