May 18, 2018 201364261

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  May 18, 2018



CLAIM NO. 201364261



















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BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 


STIVERS, Member. Crittenden County Fiscal Court (‘Crittenden County”) seeks review of the February 26, 2018, Opinion, Award, and Order of Hon. Jeff V. Layson, Administrative Law Judge (“ALJ”) finding Sam Hodge (“Hodge”) sustained a work-related injury as a result of an October 11, 2013, motor vehicle accident (“MVA”). The ALJ found Hodge permanently totally disabled due to the October 11, 2013, MVA, and awarded permanent total disability (“PTD”) benefits and medical benefits. Crittenden County also appeals from the March 9, 2018, Order denying its petition for reconsideration.

          On appeal, Crittenden County challenges the ALJ’s decision on four grounds. First, it asserts House Bill 2 enacted by the Kentucky Legislature, which has yet to take effect, now limits Hodge’s income benefits to four years. Second, it argues the ALJ’s finding of total disability is not founded on the medical evidence. Crittenden County asserts Dr. Richard Sheridan opined Hodge could return to work and there is no medical opinion in evidence to the contrary. It also complains the ALJ discounted the opinion of Dr. Sheridan solely because he was an examining physician thereby implying the treating physician’s opinion has more credibility because of his status. Third, Crittenden County asserts there is no proof of a work injury at L1-2. It does not dispute the MVA brought into disabling reality the symptomatic lumbar region where the surgery was performed. However, it contends the post-surgical CT scan shows the only problem existing at L1-2 is mild stenosis. Thus, there is no evidence in the record Hodge’s injury aggravated a dormant stenosis at L1-2. Finally, Crittenden County asserts the ALJ’s interpretation of KRS 342.730(4) leads to an absurd result. It asserts the ALJ was clearly erroneous in failing to apply the tier-down provision of KRS 342.730(4) in effect as of April 4, 1994, because Hodge was older than 65 at the time of the injury. Finding no error, we affirm.

          Hodge was involved in a serious MVA while driving a truck for Crittenden County on October 11, 2013. The January 16, 2018, Benefit Review or Status Conference Order and Memorandum reflects the parties stipulated Hodge sustained a work-related injury as defined by KRS 342.0011(1). The parties also stipulated Hodge received TTD benefits from October 12, 2013, through October 11, 2015, and medical expenses totaling $64,998.69 had been paid. The parties stipulated Hodge’s birth date is December 31, 1937. At issue were Hodge’s physical capacity to return to the type of work at the time of the injury, TTD benefits, average weekly wage, and permanent income benefits pursuant to KRS 342.730 including multipliers.

          The only testimony offered was at the January 30, 2018, hearing at which time Hodge and his wife testified. Hodge testified he was driving a loaded dump truck, and as he went into a curve, a car moved into his lane. He swerved off the road to miss the car and his tire dropped off the pavement. Although Hodge was able to maneuver the truck onto the road it eventually flipped on its left side. Hodge was treated at Western Baptist Hospital. Hodge sustained multiple injuries. Hodge testified Dr. Clint Hill performed fusion surgery on his back and never released him to return to work. His current physical limitations are:

A: Well, sitting here today, whenever I get up to walk, I couldn’t walk from here to my car without some help. I just have to sit down. If I don’t do a whole lot, I can stand it, but I take pain pills everyday [sic]. Actually, it’s not pain pills, it’s just aspirin. Because pain pills, I don’t like the way they make me feel. But anyway, I survive like that. And I have patches, Lidocaine is the name of them, that I put on and that helps me. 

          Hodge occasionally attempts to lift a 50-pound bag of dog food. He testified he uses a small wagon to move the dog food from his vehicle to his home. He acknowledged the job he performed for Crittenden County involved heavy physical labor. Hodge did not believe he could return to the same type of work because of his back pain and because he is physically incapable. Hodge testified he is unable to shovel gravel or any other substance, he is unable to walk to his mailbox, and he is unable to climb into the cab of a dump truck. He uses a “walking on wheels” device. Dr. Hill ordered a cane for his use prior to his discharge from the hospital. Hodge testified he needed the cane in order to walk without falling. Although Hodge believed he was unable to physically perform any of his past jobs, he indicated he might be able to perform work in a grocery store. He testified he is unfamiliar with computers and last operated a cash register in 1978 or 1979. He has not sought employment because he is incapable of performing any type of job. Hodge considered a job as a Wal-Mart greeter but believed he could not stand long enough to perform that job. He is unable to work in his garden. He is unable to drive long distances. He believes his condition is slowly worsening. Hodge estimated he obtained the rolling walker approximately two to three months prior to the hearing.

          Hodge’s wife, Thelma Hodge (“Thelma”), testified that, after the surgery, Dr. Hill prescribed a cane while Hodge was in the hospital. Her husband was instructed on how to use the cane before he left the hospital. She believes he obtained the walker approximately a year ago. Thelma provided the following testimony as to why she believes he needs the walker:

A: Well, the best I understand, the doctor was going to order a motorized vehicle for him to get around in, but they didn’t want him to quit walking or quit moving and doing his exercises any earlier than he had to. So this was kind of a transition between the cane and the motorized vehicle, and it’s turned out pretty good for him although he still has to sit on that seat some.

          Her husband has used either the cane or walker since he was discharged from the hospital. He cannot do very much around the house. Hodge cannot engage in any gardening or yard work activities. She estimated the heaviest item he lifts is a bag of dog food which she estimated weighed 35 pounds, and even then, she testified he has to drag the bag.

          The only medical evidence addressing an impairment rating is Dr. Sheridan’s November 16, 2015, Independent Medical Evaluation (“IME”) report. After performing a physical examination and reviewing medical records, Dr. Sheridan assessed a 22% impairment rating pursuant to the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment, due to the work injury. He concluded Hodge did not need further treatment. He opined the work injury had permanently aggravated a pre-existing lumbar spinal stenosis. Dr. Sheridan imposed no work restrictions and believed Hodge retained the physical capacity to return to his regular job.

          The medical records of the Orthopaedic Institute of Western Kentucky were introduced detailing Hodge’s treatment from October 11, 2013, through March 14, 2017. Those records reveal Hodge sustained a “left fracture, posterior dislocation of the elbow.” On October 11, 2013, surgery was performed by Dr. Brian Kern consisting of “closed reduction of left elbow under sedation.” On June 19, 2014, Hodge underwent the following surgical procedures:

1. L2-L3, L3-L4 and L4-L5 laminectomy with decompression of central spinal canal and bilateral neural foraminotomies at L2-L3, L3-L4 and L4-L5.

2. Posterior spinal fusion, L2-L5 with locally obtained autograft bone from the laminectomy and partial facetectomies.

3. Use of intraoperative fluoroscopy for verification of the operative levels.

4. Use of allograft bone in the form of InterGro and demineralized bone matrix from Biomet.

          The discharge summary reflects the following diagnosis:

1. Lumbar stenosis.

2. Low back pain.

3. Neurogenic claudication.

4. Lumbar degenerative disk disease.

5. Lumbar spondylosis.

6. Status post laminectomy, L2-L5.

          During this four-year period, Hodge underwent nerve block injections to the facet joints at the lumbar level. The records reveal Hodge’s back problems worsened during the course of his treatment.

          Hodge introduced his “job description form” with Crittenden County which reveals the physical demand level was characterized as heavy. The form set forth the physical requirements of his job and the frequency each task is performed.

          In the February 26, 2018, Opinion, Award, and Order, the ALJ concluded Hodge was totally occupationally disabled based on the following findings of fact and conclusions of law:

It has been stipulated by the parties that Mr. Hodge sustained a work-related injury on October 1l, 2013. The only physician to address the issue of an AMA rating was the Defendant/Employer's IME physician, Dr. Sheridan, who assessed a 22% permanent impairment as a result of the injury, which translates into a 25.3%% [sic] disability rating pursuant to KRS 342.730(l)(b). Consequently, Mr. Hodge has met his burden of proving that he has a permanent disability rating that is due to a work-related injury.

The next question is whether Mr. Hodge has proven a complete and permanent inability to perform any type of work on a regular and sustained basis in a competitive economy. In making this determination, the Administrative Law Judge must consider several factors including the worker's age, educational level, vocational skill, medical restrictions and the likelihood that he can resume some type of work under normal employment conditions. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

In this case, the Administration [sic] Law Judge believes that the Plaintiff has proven that he is permanently and totally disabled. With regard to the specific factors, the record contains the following:

     1. Mr. Hodge is 80 years old. This factor alone puts him at an almost insurmountable disadvantage when competing for jobs, even without the effects of the work-related injury. When the fact of Mr. Hodge's advanced age is superimposed upon his post-injury condition, which necessitates the use of a cane or walker, it is apparent that he is unemployable.

     2. Mr. Hodge is a high school graduate. While this level of education is a prerequisite for many types of entry level jobs, an advanced degree is necessary to obtain many of the more sedentary jobs in the modem economy. In the extremely unlikely event that Mr. Hodge were able to find an employer who would hire him, there is no doubt that any such position would be very sedentary. His lack of education narrows the range of any such jobs.

3. Mr. Hodge's long work history consists mostly of manual labor type jobs which require a high degree of exertional activity. The written description for his job as a truck driver for the Defendant/Employer classifies the demand level for this position as "heavy.” The physical requirements listed are numerous and include reaching, squatting and lifting. The medical records and Mr. Hodge's testimony indicate that he cannot perform these activities.

     4. Medical records submitted by the Plaintiff indicate that Mr. Hodge was treated for his work-related injuries by several physicians at the Orthopedic [sic] Institute of Western Kentucky from October 11, 2013 through March 14, 2017. This is a period of approximately three and half years. During this entire time, the records indicate the Plaintiff reported debilitating symptoms which progressively worsened. Medical treatment was ongoing and consistent and continued even after the workers' compensation insurance carrier denied further authorization. At no point was Mr. Hodge specifically released to return to any type of work. The Defendant/Employer voluntarily paid TTD benefits for two-years following the injury and it appears the decision to terminate those benefits was based on the pre-Parker version of KRS 342.730(4).

     The Plaintiff's testimony regarding his post-injury physical abilities is consistent with these medical records. In addition to stating that his doctors have never released him to return to work, Mr. Hodge testified that he can only walk a minimal distance without having to sit down. Dr. Hill had originally given him a cane with a three-pronged base to assist his mobility but, by the time of the hearing, Mr. Hodge was using wheeled walker. Mr. Hodge also testified that his back injury prevents him for lifting very much.

Ms. [sic] Hodge's wife, Sunny, corroborated her husband's testimony regarding the cane and rolling walker as well as his general ability to function post-injury.

With regard to his ability to return to work, the Plaintiff testified that his back pain prevents him from performing his pre-injury job as a truck driver. While he thinks that he may be able to do part of the work he formerly did as a grocery store owner, he admitted that he has no knowledge of how to use computers and that he hasn't run a cash register since 1979. He considered applying for a position as a greeter at Wal-Mart but ultimately realized that he would not be able to stand long enough to perform that job.

     5. There is simply no doubt that Mr. Hodge has an excellent work ethic and has been a productive member of society for his entire life. He testified that, prior to the injury, he had no plans to retire even though he was well past the age at which most people stop working. These admirable qualities only confirm the credibility of this Plaintiff's testimony regarding his post-injury physical condition and ability to work.

The Administrative Law Judge found both Mr. Hodge and Ms. Hodge to be extremely credible witnesses. This case involves an 80 year-old man with limited education and a solid work history consisting of manual labor who sustained an injury which necessitated a lumbar fusion. This injury has had a very adverse impact upon Mr. Hodge's ability to function and has rendered him unable to perform any type of work on a regular and sustained basis in a competitive economy. The Administrative Law Judge finds that Mr. Hodge is permanently and totally disabled as a result of the work-related injury which he sustained on October 11, 2013.

     Since Hodge was beyond 65 years of age at the time of the injury, KRS 342.730(4) in effect as of April 4, 1994, was not applicable. Consequently, Hodge’s PTD benefits were not subject to the tier-down provision.

          Crittenden County filed a petition for reconsideration making the same argument it now makes on appeal. The ALJ denied the petition for reconsideration by order dated March 9, 2018. In doing so, the ALJ provided, in relevant part, the following:

     The first point raised by the Defendant/Employer relates to the ALJ’s statement that “at no point was Mr. Hodge specifically released to return to any type of work.” The Defendant/Employer points to the fact that Dr. Sheridan said that Mr. Hodge could return to his regular job. The ALJ’s statement that no physician has released Mr. Hodge to return to work is clearly a reference to the Plaintiff’s treating physicians. While Dr. Sheridan is at liberty to give his opinion as to the Plaintiff’s post-injury abilities, his only role in this case is as an IME physician hired by the Defendant/Employer. He has no authority to release the Plaintiff to return to work, or to take him off from work, for that matter. Similarly, Dr. Sheridan is not able to prescribe medications for Mr. Hodge or to make referrals for treatment by other providers such as specialists or physical therapists. Dr. Sheridan’s role is limited to his opinions only and his opinions were taken into consideration by the Administrative Law Judge in rendering his decision in this case.

          Hodge, as the claimant in a workers’ compensation proceeding, had the burden of proving each of the essential elements of his cause of action. See KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since Hodge was successful in that burden, the question on appeal is whether there was substantial evidence of record to support the ALJ’s decision. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).  “Substantial evidence” is defined as evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable persons. Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).  

          In rendering a decision, KRS 342.285 grants an ALJ as fact-finder the sole discretion to determine the quality, character, and substance of evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). An ALJ may draw reasonable inferences from the evidence, reject any testimony, and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof. Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). An ALJ 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 adversary party’s total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000). In that regard, an ALJ is vested with broad authority to decide questions involving causation.  Dravo Lime Co. v. Eakins, 156 S.W. 3d 283 (Ky. 2003).  Although a party may note evidence that would have supported a different outcome than that reached by an ALJ, such proof is not an adequate basis to reverse on appeal.  McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).  Rather, it must be shown there was no evidence of substantial probative value to support the decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). 

          The function of the Board in reviewing an ALJ’s decision is limited to a determination of whether the findings made are so unreasonable under the evidence that they must be reversed as a matter of law. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). The Board, as an appellate tribunal, may not usurp the ALJ's role as fact-finder by superimposing its own appraisals as to weight and credibility or by noting other conclusions or reasonable inferences that otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).

          We find no merit in Crittenden County’s first argument that Hodge’s award is subject to the limits of House Bill 2 which has yet to take effect. Because this law was not in effect at the time of the injury and the ALJ’s award, and it will not be in effect at the time of the rendition of this opinion, we decline to entertain this argument.

          We reject Crittenden County’s assertion the finding of total disability is not grounded in medical evidence. In his decision, the ALJ complied with the requirements of the City of Ashland v. Stumbo, 461 S.W.3d 392 (Ky. 2015). Consistent with the parties’ stipulation, the ALJ found Hodge sustained a work-related injury. The ALJ also found Hodge had an impairment rating as a result of the injury adopting the impairment rating of Dr. Sheridan. Consistent with his finding concerning Hodge’s impairment rating, the ALJ also determined Hodge’s permanent disability rating. The ALJ then determined Hodge was unable to perform any type of work and total disability resulted from the work injury.

          In McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 860 (Ky. 2001), the Kentucky Supreme Court directed that in determining whether an injured worker is totally occupationally disabled the following analysis is necessary:

An analysis of the factors set forth in KRS 342.0011(11)(b), (11)(c), and (34) clearly requires an individualized determination of what the worker is and is not able to do after recovering from the work injury. Consistent with Osborne v. Johnson, supra, it necessarily includes a consideration of factors such as the worker's post-injury physical, emotional, intellectual, and vocational status and how those factors interact. It also includes a consideration of the likelihood that the particular worker would be able to find work consistently under normal employment conditions. A worker's ability to do so is affected by factors such as whether the individual will be dependable and whether his physiological restrictions prohibit him from using the skills which are within his individual vocational capabilities. The definition of “work” clearly contemplates that a worker is not required to be homebound in order to be found to be totally occupationally disabled. See, Osborne v. Johnson, supra, at 803.  

          In the case sub judice, the ALJ thoroughly and systematically engaged in the analysis required by McNutt, supra. The ALJ specifically addressed Hodge’s age and education. The ALJ noted Hodge had a long history of performing manual labor jobs which required a high degree of exertional activity. The ALJ also discussed the physical requirements of Hodge’s job which was characterized as heavy. The ALJ addressed the medical records of the Orthopaedic Institute of Western Kentucky. Important to the ALJ was Hodge’s and Thelma’s assessment of his post-injury physical abilities which he concluded were consistent with the medical records. The ALJ believed Hodge could only walk a minimal distance without having to sit down and noted he was initially prescribed a cane by Dr. Hill, but at the time of the hearing was using a wheeled walker.  Based on Hodge’s assessment of his physical capabilities, the ALJ found Hodge could not return to his former employment or any job he had performed in the past. As pointed out in McNutt, supra:

A worker’s testimony is competent evidence of his physical condition and of his ability to perform various activities both before and after being injured. Hush v. Abrams, 584 S.W.2d 48 (Ky. 1979).

          In accordance with McNutt, supra, based on Hodge’s age, limited education, the nature of his work history, and the nature of the injury, the ALJ concluded Hodge was unable to perform any type of work on a regular and sustained basis. After accepting Dr. Sheridan’s impairment rating, the ALJ was not required to give any credence to the balance of the opinions shared by Dr. Sheridan in his IME report. Based on the impairment rating assessed by Dr. Sheridan, the fact Hodge performed a heavy manual labor job, the medical records of the Orthopaedic Institute of Western Kentucky, and the Hodges’ testimony, the ALJ concluded Hodge was permanently totally disabled. The ALJ has that discretion. The ALJ also enjoys the discretion to reject portions or all of an examining physician’s findings and opinions.

          Since the ALJ performed the requisite analysis and his analysis is supported by substantial evidence, this Board has no authority to disturb the finding of total occupational disability.

          We are unsure of the relief Crittenden County seeks in its third argument asserting there is no evidence Hodge’s injury aggravated a dormant stenosis at L1-2. Notably, Crittenden County does not state why it is asserting this argument since its physician, Dr. Sheridan, assessed a 22% impairment rating as a result of the work injury. Should Crittenden County believe the L1-2 area of the spine was not affected by the injury, it has the right to file a medical fee dispute contesting any future treatment of that area of the spine as being non-work-related.

          Finally, we reject Crittenden County’s assertion the ALJ erred by not imposing the tier-down provisions of KRS 342.730(4) in effect as of the April 4, 1994. In Swinford v. Holcim, Claim No. 2016-90245, rendered February 16, 2018, this Board directed KRS 342.730(4), as it existed in 1994, is not applicable to claimants who are 65 years and older at the time of injury. Chairman Alvey, writing for a unanimous Board, stated:

     Finally, regarding the ALJ’s determination Swinford’s award of PPD benefits is subject to the tier down provision contained in KRS 342.730(4) as it existed in 1994, we must reverse.  We agree with the ALJ’s determination the 1996 version of KRS 342.730(4) is inapplicable, and adopt his reasoning for that consideration.  However, we determine the ALJ misapplied the provisions of KRS 342.730(4) as they existed in 1994.  The statute, as it existed in 1994, stated as follows:

(4) If the injury or last exposure occurs prior to the employee’s sixty-fifth birthday, any income benefits awarded under KRS 342.750, 342.316, 342.732, or this section shall be reduced by ten percent (10%) beginning at age sixty-five (65) and by ten percent (10%) each year thereafter until and including age seventy (70).  Income benefits shall not be reduced beyond the employee’s seventieth birthday. (Emphasis added)

     Swinford was already seventy-five years old at the time of the accident.  By its clear language, KRS 342.730(4) only applies to those employees who are injured prior to age sixty-five.  Therefore, we do not believe the tier down provision has any application to Swinford’s claim.  We note the Kentucky Court of Appeals addressed this very issue in an unpublished decision issued on May 30, 1997.  While we are well aware unpublished decisions may not be cited as authority, we cite Richardson Hardware, Inc. v. Charles Lethel Bridges, et al., 96-CA-1709-WC (May 30, 1997), for guidance. 

     In that case, the Kentucky Court of Appeals agreed with this Board in determining KRS 342.730(4), “is simply not reasonably capable of being construed to apply to persons at an age over sixty-five.”  The Court reasoned as follows:

The courts may not interpret a statute at variance with its stated language. Revenue Cabinet v. Gaba, Ky. App., 885 S.W.2d 706 (1994). Unless a statute being construed contains some ambiguity, it is generally not subject to interpretation. Overnite Transportation Co. v. Gaddis, Ky. App., 793 S.W.2d 129 (1990). Further, if the language of a statute is both plain and unambiguous, it must be given effect as written.  Lynch v. Commonwealth, Ky., 902 S.W.2d 813 (1995); Commonwealth v. Shivley, Ky., 814 S.W.2d 572 (1991).

KRS 342.730(4) clearly states that it applies only "[i]f the injury or last exposure occurs prior to the employee's sixty-fifth birthday . . . ."  We agree with the board that the language of KRS 342.730(4) is simply not reasonably capable of being construed so as to apply to persons injured at an age over sixty-five.  Nevertheless, appellant urges that this court should carry out the "intent" of the legislature, and by judicial fiat declare otherwise.  The doctrine of judicial restraint, however, compels us to decline to do so.  Moreover, contrary to appellant's argument, if a statute is unambiguous on its face, we cannot resort to any outside aids in interpreting it. Coursey v. Westvaco Corp., Ky., 790 S.W.2d 229 (1990).


Finally, we reject the notion that application of the plain language of the statute leads to an absurd result. Appellant claims, and we recognize the likelihood that in enacting the statute the legislature intended, at least in part, to reduce the massive unfunded liability of the Special Fund.  As noted by the board, however, since Special Fund liability is not triggered until after the employer's liability for its proportionate share of the benefits payable has been exhausted, it follows that it is not absurd to construe the statute as not applying to persons who at the time of injury were over sixty-five.

Moreover, even though it is possible that a more efficient or greater benefit for the Special Fund could be achieved by interpreting the statute to extend to all injured workers no matter what their age at the time of injury, it is within the province of the legislature and not this court to do so. Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575 (1994).  In short, the plain meaning of a statute cannot be ignored by us merely because a different interpretation might achieve a more desirable public policy.  ITT Commercial Finance Corp. v. Madisonville Recapping Co., Inc., Ky. App., 793 S.W.2d 849 (1990).

          We decline to vary from our holding in Swinford, supra. Thus, the ALJ’s award of PTD benefits will be affirmed.

          Accordingly, on all issues raised on appeal, the February 26, 2018, Opinion, Award, and Order and the March 9, 2018, Order ruling on the petition for reconsideration are AFFIRMED.

          ALL CONCUR.







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