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200-CA-00(NP)

RENDERED:  JANUARY 13, 2017; 10:00 A.M.

NOT TO BE PUBLISHED

 

Commonwealth Of Kentucky

Court of Appeals

 

NO. 2016-CA-001031-WC

 


 

michael r. plumley                                                            APPELLANT

 

 

 

                           PETITION FOR REVIEW OF A DECISION

v.                   OF THE WORKERS’ COMPENSATION BOARD

                                        ACTION NO. WC-12-00260

 

 

 

KROGER, INC.;                                                                           APPELLEES

WORKERS’ COMPENSATION BOARD

And HON. JOHNATHAN R. WEATHERBY,

ADMINISTRATIVE LAW JUDGE

 

 

OPINION

AFFIRMING

 

** ** ** ** **

 

BEFORE:  JONES, D. LAMBERT, AND TAYLOR, JUDGES.

LAMBERT, D., JUDGE:  Michael R. Plumley seeks judicial review of an administrative ruling issued by the Workers’ Compensation Board (hereinafter “the Board”), which affirmed in part and reversed in part, a ruling by an Administrative Law Judge (“ALJ”) awarding him permanent partial disability benefits.  He seeks this Court to review the Board’s decision that the ALJ’s opinion was supported by substantial evidence as it related to the whole person impairment (“WPI”) rating adopted by the ALJ.  As an apparent issue of first impression, Plumley also contends that multiple injuries to the same body part should be treated as a single injury for the purpose of calculating the amount of the award.  Having reviewed the record, we affirm.

I.  FACTUAL AND PROCEDURAL HISTORY

Kroger, Inc. (hereinafter, “Kroger”) has employed Plumley at one of its grocery stores in Lexington since December 27, 1993.  During his tenure there, he has held various positions, including: stocker, assistant department manager, department manager (in two different departments), and self-check clerk.  Over the course of his employment, Plumley has sustained four separate work-related injuries. 

On June 30, 1998, he injured his lower back lifting items from a conveyer belt while unloading a truck.  This injury ultimately required a discectomy in the L4-L5 vertebrae on September 17, 1998, performed by Dr. Leon Ravvin.  He returned to work on October 28, 1998, with a permanent restriction that he not lift anything weighing greater than 25 pounds, and to refrain from bending or stooping.  He filed a claim for workers’ compensation benefits, which was settled based on a finding that he was permanently partially disabled with a 10 percent WPI.

Plumley’s second injury occurred on November 17, 2006.  He again injured his lower back while unloading a truck.  A spinal MRI revealed a central disc protrusion at the L3-L4 vertebrae and an associated annular tear.  He missed approximately five months of work while under the treatment of neurologist, Dr. Michael Webb, who noted the development of a “severe foot drop” in Plumley’s gait, which indicated a peripheral nerve impairment.   He was allowed to return to work on April 6, 2007, with no new restrictions, though the prior restrictions regarding lifting and bending remained in place.

His third lower back injury occurred on February 5, 2009, while he was assembling a floor display.  He experienced a popping sensation in his back, followed by extreme pain which ran down his left leg.  An MRI revealed a herniated disc, which required surgery on his L3-L4 vertebrae.  Ravvin performed a second discectomy and laminotomy on Plumley on July 10, 2009.  He was allowed to return to work on light duty (restricted to lifting nothing heavier than fifteen pounds) on October 9, 2009.  He was released from the light duty restriction on December 21, 2009, but the permanent 1998 restrictions remained in effect.

The fourth injury to Plumley’s lower back occurred on March 31, 2011, when he again felt a pop in his back while helping a co-worker break down a truckload of merchandise.  He continued working, but eventually went to an urgent care facility on April 5, 2011.  After another MRI, Ravvin diagnosed Plumley with a recurrent hernia in the L3-L4 disc.  Plumley’s symptoms worsened when he attempted physical therapy, and he needed surgery to repair the damage on August 4, 2011.  He returned to work in late October, with the 1998 restrictions still in place.

Plumley filed a claim for benefits for the 2006, 2009, and 2011 injuries, but the proceedings were held in abeyance when he began experiencing the worsening symptoms in 2011.  Those symptoms ultimately required surgery to fuse his L3 and L4 vertebrae on August 6, 2013.  After this surgery, the proceedings continued.  Several doctors had evaluated Plumley for the purpose of his claim for benefits and assigned a WPI.  However, only two doctors did so after the fusion surgery, Dr. Frank Burke and Dr. Greg Snider.  Burke assigned Plumley a WPI rating of 34 percent, whereas Snider assigned a rating of 22 percent.

Following a hearing, the ALJ issued an Opinion and Award, which granted benefits to Plumley.  The ALJ discussed the evidence presented, and found Snider’s report to be more credible, “the most consistent, coherent, and logical.”  After noting Snider’s “convincing support via the AMA Guides,” the ALJ adopted his conclusions which assigned a 22 percent WPI rating.  The ALJ also calculated the award based on three separate and distinct injuries, rather than aggregate them as if they were one injury.  Plumley moved for reconsideration, which the ALJ denied.

Plumley then appealed the decision to the Board, which affirmed the ALJ, except for the issues of whether Plumley was entitled to vocational rehabilitation and whether he was permanently totally disabled. 

Plumley filed the instant petition, which presents neither the vocational rehabilitation nor the permanent total disability issues to this Court.  Plumley’s petition does, however, challenge the propriety of the ALJ’s reliance on Snider’s conclusions, and the ALJ’s calculation of the award based on three separate injuries.

II.  ANALYSIS

A.  STANDARD OF REVIEW

“On appeal, our standard of review of a decision of the Workers’ Compensation Board ‘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.’”  Pike Cty. Bd. of Educ. v. Mills, 260 S.W.3d 366, 368 (Ky. App. 2008) (quoting Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-688 (Ky. 1982).

Having been vested by KRS 342.285(1) with the responsibility of the fact-finder, the ALJ holds “the sole discretion to determine the quality, character, weight, credibility, and substance of the evidence, and to draw reasonable inferences from the evidence.”  Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky. App. 2009).  An ALJ is entitled to believe or disbelieve all or parts of the evidence presented for review.  Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).  The Board must refrain from “substitut[ing] its judgment for that of the [ALJ] as to the weight of evidence on questions of fact[.]”  Bowerman at 866 (quoting Shields v. Pittsburgh & Midway Coal Mining Co., 634 S.W.2d 440, 441 (Ky. App. 1982). 

The role of this Court is not to “second-guess or disturb discretionary decisions of an ALJ unless those decisions amount to an abuse of discretion.” Bowerman, at 866 (citing Medley v. Bd. of Educ., Shelby Cty., 168 S.W.3d 398, 406 (Ky.App. 2004)).  “If the reviewing court concludes the rule of law was correctly applied to facts supported by substantial evidence, the final order of the agency must be affirmed.”   Kentucky Unemployment Ins. Comm'n v. Cecil, 381 S.W.3d 238, 246 (Ky. 2012) (citing Brown Hotel Co. v. Edwards, 365 S.W.2d 299 (Ky. 1962)).

B.  SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S FINDINGS

Plumley’s primary contention is that the methodology utilized by Snider in arriving at a WPI did not conform to the AMA Guides.  Plumley contends that because the methodology deviated from the Guides, it cannot be considered substantial evidence under Jones v. Brasch-Barry Gen. Contractors, 189 S.W.3d 149, 153 (Ky. App. 2006) (“[A]ny assessment that disregards the express terms of the AMA Guides cannot constitute substantial evidence to support an award of workers’ compensation benefits.”).

This analysis must necessarily include an examination of the 5th edition AMA Guides.  According to Section 15.2a(7), when more than one spinal region is impaired, the proper method of assessment is the more generalized diagnosis-related estimation (“DRE”) method.  However, according to Section 15.2a(4), in situations where there are multiple injuries to the same spinal region, the more specialized and situational range-of-motion (“ROM”) method should be used to combine the several ratings.  Moreover, in Section 15.2, the Guides specify that “In the small number of instances in which the ROM and DRE methods can both be used, evaluate the individual with both methods and award the higher rating.”

According to the expert evidence, ROM method analysis under the Guides has three components: 1) the range of motion of the affected spinal region, 2) any accompanying diagnoses, and 3) the presence of any spinal nerve deficit.

All four injuries occurred in Plumley’s lumbar spine, and the expert evidence indicates that the Guides direct that an assessing physician should employ the ROM method.  Snider’s evaluation began with the 1998 injury (for which Plumley had already been separately compensated) in isolation, and assessed it using the DRE method.  Snider’s evaluation then employed the ROM method in assessing the remaining three injuries.  Allowing for an offset for the 1998 injury, he reached a current WPI of 22 percent. 

Plumley alleges Snider’s analysis departed from the Guides in at least three ways.  Snider did not assess Plumley’s three most recent injuries under both the ROM and the DRE method.  The second departure relates to the failure to assess under both methods: Snider did not determine which methodology produced the higher impairment rating.  Third, Snider’s ROM assessment did not note any spinal neural impairment reflected by the deranged gait, which, as noted above, is an element of the ROM analysis.

The Board declined to address Plumley’s argument that the ALJ lacked substantial evidence to support the conclusion, noting instead that “[t]his Board is not a fact-finding tribunal.”  What Plumley characterizes as multiple instances of disregard from the AMA Guides is just as easily characterized as a differing interpretation and application of the Guides by a medical professional.

Further, the medical evidence at issue in Jones, which the Court characterized as a “disregard” of the Guides was a conclusion reached by a physician who explicitly disagreed with them and intentionally assigned a rating higher than the ratings they directed.  Jones at 152.  The "disregard” from the AMA Guides here clearly does not rise to the same level as Jones.

We agree with the Board that Snider’s report “genuinely express[es] a medically sound, but differing opinion[] as to the severity of a claimant’s injury,” which was arrived at using a methodology that simply differed from that employed by Plumley’s experts.  Jones at 153.  The Board correctly held that the ALJ’s reliance thereon did not amount to an abuse of discretion, and this Court must likewise conclude that the Board acted within its discretion in affirming.

C.  THE WORKERS’ COMPENSATION BOARD PROPERLY AFFIRMED THE ALJ ON THE ISSUE OF SEPARATE INJURIES

Plumley contends that his multiple specific traumatic injuries, which were separated by a period of years, should be treated as a single cumulative stress injury for the purposes of determining benefits pursuant to KRS 342.730(b), because they had a cumulative effect on his condition.  The Board’s opinion declined to address this argument, instead rightly deferring “to the legislature and the courts” to craft a change in the law, and noted that “existing case law supports the notion that as long as injuries are successive, the award of PPD benefits must be separated.”

In drawing this conclusion, the Board cited the Kentucky Supreme Court opinion in Lewis v. Ford Motor Co., 363 S.W.3d 340 (Ky. 2012).  In Lewis, the claimant had suffered injuries to the same body part, the lumbar spine, which “produced various periods of temporary total disability.”  Lewis at 341.  The Supreme Court affirmed this Court’s determination that partial disability awards rendered for specific injuries to the same body part occurring at different times should not be aggregated to allow the claimant to receive payments that exceed the maximum for permanent total disability.  Id. at 343. 

While not squarely on point, the Supreme Court’s holding in Lewis should be extended and adapted to the situation here.  To rule that Plumley’s distinct and specific traumatic injuries somehow amounted to a cumulative trauma injury would be to ignore the delineation between the two types of injury and the very definition of what a cumulative trauma injury is.  “Implicit in the finding of a gradual injury [is] a finding that no one instance of workplace trauma, […] caused an injury of appreciable proportion.”  Hill v. Sextet Mining Corp., 65 S.W.3d 503, 507 (Ky. 2001). 

Here, the record contains ample evidence of specific instances of workplace trauma causing injuries of appreciable proportion.  Although these injuries all converged to create the partially disabled condition in which Plumley now finds himself, to rule that these singular—but repeated—injury events created a gradual injury defies existing case law.  This Court thus concludes that the Board did not err in affirming the ruling of the ALJ.

III.  CONCLUSION

This Court, having examined the record, concludes that the ALJ’s ruling was supported by substantial evidence.  The Court also concludes that prevailing authority precludes treatment of repeated specific injuries to the same body part as a single cumulative injury.  This Court, therefore, affirms the order of the Workers’ Compensation Board.

 

ALL CONCUR.

 

BRIEF FOR APPELLANT, MICHAEL R. PLUMLEY:

 

Diana Beard Cowden

Lexington, Kentucky

 

BRIEF FOR APPELLEE, KROGER, INC.:

 

Ronald J. Pohl

Lexington, Kentucky

 

Brandon L. Rosen

Lexington, Kentucky