Workers’
Compensation Board
OPINION ENTERED: October 5,
2018
CLAIM
NO. 200874483
BIG
LOTS, INC. PETITIONER
VS. APPEAL FROM HON. DOUGLAS W. GOTT,
CHIEF
ADMINISTRATIVE LAW JUDGE
LORITTA
F. WHITWORTH and
HON.
DOUGLAS W. GOTT,
CHIEF
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and
RECHTER, Members.
ALVEY, Chairman. Big Lots, Inc. (“Big Lots”) appeals from the
June 19, 2018 Order, and the July 17, 2018 Order denying its petition for
reconsideration rendered by Hon. Douglas W. Gott, Chief Administrative Law
Judge (“CALJ”). The CALJ overruled Big
Lots’ motion to reopen to reduce Loritta F. Whitworth’s (“Whitworth”) award of
permanent total disability (“PTD”) benefits based upon a change of disability
pursuant to KRS 342.125(1)(d). On
appeal, Big Lots argues the CALJ erred in finding it failed to set forth prima facie evidence in support of its motion to reopen. For the foregoing reasons, we affirm.
Whitworth filed a Form 101
on July 23, 2009, alleging she injured her left upper extremity when a boxed
recliner fell on her on April 25, 2008, while working for Big Lots as a
furniture sales manager. Whitworth
underwent surgery to her left shoulder on October 7, 2008. In a March 24, 2010 Opinion, the CALJ[1]
awarded permanent partial disability benefits based upon an 11% impairment
rating for Whitworth’s work-related left shoulder condition, enhanced by the three multiplier contained in KRS 342.730(1)(c)1 because the
CALJ found Whitworth did not retain the physical capacity to return to her job
as a furniture sales manager. The CALJ also
awarded temporary total disability (“TTD”) benefits and medical benefits for
Whitworth’s work-related injury.
Whitworth filed a motion to
reopen on July 14, 2011, alleging her condition had worsened necessitating the
need for additional surgery to her cervical spine. Whitworth underwent fusions at C4-5 and C5-6
on July 13, 2011 performed by Dr. Michael Doyle. Over Big Lots’ objection, Hon. J. Landon
Overfield, then Chief Administrative Law Judge, concluded Whitworth had set
forth a prima facie case for
reopening. Multiple medical records were
submitted into evidence, including a report by Dr. Michael Best, who evaluated
Whitworth at Big Lots’ request on October 3, 2012. Hon. Jonathan R. Weatherby, Administrative
Law Judge (“ALJ Weatherby”) rendered an opinion on February 11, 2013. He determined the phrase, “left upper
extremity” as used in the original Form 101 encompassed a cervical spine
injury. ALJ Weatherby therefore found
Whitworth did not allege a new cause of action. He determined the motion to reopen alleging a
worsening of her condition had been timely filed. ALJ Weatherby relied upon the 25% impairment
rating for the cervical condition assessed by Dr. Doyle. He also noted the left shoulder had been
assigned an 11% impairment rating in the March 2010 opinion. Considering both the cervical and left
shoulder conditions, ALJ Weatherby determined Whitworth is permanently totally
disabled. He awarded additional TTD
benefits and PTD benefits commencing on December 25, 2011, the day Dr. Doyle
found Whitworth attained maximum medical improvement for her cervical
condition. ALJ Weatherby overruled Big
Lots’ petition for reconsideration.
On
May 16, 2018, Big Lots filed a motion to reopen based upon a change of
disability shown by objective medial evidence. In support of its motion, Big Lots filed the
April 9, 2018 report by Dr. Best, who re-evaluated Whitworth at its
request. Whitworth moved to dismiss the
motion to reopen arguing it failed to demonstrate a change of disability by
objective medical evidence.
The
CALJ overruled Big Lots’ motion to reopen on the following grounds:
This claim is on the Frankfort motion docket on the Defendant’s motion
to reopen to reduce Plaintiff’s award based on a change of disability under KRS
342.125(1)(d).
. . . .
There is no explanation or support for the pending motion but the
attachment of an April 9, 2018 report of Dr. Michael Best. Dr. Best had
evaluated Whitworth at its request in 2012 during the litigation on reopening.
The current report repeats much of the prior one. It challenges causation. It
does not acknowledge either prior ALJ opinion. Dr. Best assigned 25% impairment
for the cervical fusion and 2% for the distal clavicle excision.
The Defendant’s motion is overruled because it has not shown the
requisite grounds to support reopening. KRS 342.125(1)(d) requires change of
disability to be “shown by objective medical evidence of worsening or
improvement of impairment due to a condition caused by the injury since the
date of the award or order.” Dr. Best’s opinion on cervical impairment and
shoulder impairment are the same 25% and 2% he expressed in 2012. His 2018
report never speaks to a “change of condition,” or improvement in
impairment.
Whitworth pointed out the lack of evidence on improvement of impairment
in her response. To that, the Defendant replied that even though the impairment
rating had not changed, Dr. Best said Whitworth now had no work restrictions,
and, therefore, her “disability” had improved. There are several problems with
that position. First, an easing of work restrictions is not the standard for
reopening under the statute; an improvement in impairment is required. Second,
Dr. Best said in 2012 that Whitworth required no restrictions, so his opinion
is unchanged. And third, Dr. Best quoted another physician, Dr. Doyle, as
saying in 2011 that Whitworth could return to normal activities. (4/9/18, p.
23)
(There was no allegation of a return to work following an award of total
disability, which is one of the optional boxes to check as the basis for
reopening on the Form MTR filed by the Defendant.)
Big
Lots filed a petition for reconsideration essentially arguing it had made a prima facie case establishing
improvement in disability, noting “the Plaintiff’s lack of medical care over
the last seven (7) years would suggest strongly that her condition has
stabilized.”
The CALJ denied the petition for
reconsideration, stating as follows:
The Defendant has petitioned the CALJ for
reconsideration of an Order overruling its motion to reopen to challenge
ongoing permanent total disability. The Defendant aptly points out that given
Plaintiff’s surgery her impairment rating may not be capable of improving; it
may be that “it is what it is.” However, the statute requires an improvement in
impairment to make a prima facie case of a “change of disability.” Some
conditions are amendable to improvement of impairment, and some may not be.
Absent that, the Defendant must show evidence of current employment to serve as
basis for the preliminary showing that she is no longer totally disabled, and
that is not offered here. The petition is denied.
On appeal, Big Lots
argues the CALJ’s determination is “overly narrow.” It argues it demonstrated a prima facie case for reopening pursuant
to KRS 342.125(1)(d), and that Whitworth is no longer totally disabled. It first argues Dr. Best assessed a 2%
impairment for the left shoulder condition in his 2018 report, which is lower
than the 11% impairment adopted by CALJ Gott in the original opinion. Big Lots also points out the American Medical
Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”),
do not allow a reduction in the 25% impairment rating for the cervical
fusion. Big Lots also points to the fact
that Whitworth reported to Dr. Best that she has not treated with an orthopedic
physician or neurosurgeon since 2012, suggesting her condition had stabilized
or improved. Dr. Best also opined
Whitworth is able to work.
Big
Lots argues the standard for reopening utilized by the CALJ “would prevent any
reopening other than for a return to work, for all individuals who have
suffered an injury which can be arbitrarily described pursuant to the [AMA Guides],
such as a cervical fusion. He is not
addressing the dual role of disability per Osbourne, supra.” It argues that in cases of total disability,
the impairment rating and the injured worker’s ability to return to employment
are to be considered.
The procedure for
reopening a workers’ compensation claim pursuant to KRS 342.125 is a two-step process. Colwell v. Dresser Instrument Div.,
217 S.W.3d 213, 216 (Ky. 2006). The
first step is the prima
facie motion, which requires the moving party to provide sufficient
information to demonstrate a substantial possibility of success in the event
evidence is permitted to be taken. Stambaugh v. Cedar Creek Mining, 488
S.W.2d 681 (Ky. 1972). “Prima
facie evidence” is evidence which “if unrebutted or unexplained is
sufficient to maintain the proposition, and warrant
the conclusion [in] support [of] which it has been introduced ... but it does
not shift the general burden ....” Prudential Ins. Co. v. Tuggle’s Adm’r.,
254 Ky. 814, 72 S.W.2d 440, 443 (1934).
The burden during the initial step
is on the moving party and requires establishment of grounds for which the
reopening is sought. Jude v. Cubbage,
251 S.W.2d 584 (Ky. 1952); W. E. Caldwell Co. v. Borders, 301 Ky. 843,
193 S.W.2d 453 (Ky. 1946). It is only
after the moving party prevails in making a prima facie showing
as to all essential elements of the grounds alleged for reopening that the
adverse party is put to the expense of further litigation. Big Elk Creek
Coal Co. v. Miller, 47 S.W.3d 330 (Ky. 2001). When an ALJ determines the movant failed to
present a prima facie
case for reopening, the decision is reviewed for an abuse of discretion. Harold Turner v. Bluegrass Tire Co.,
331 S.W.3d 605, 610 (Ky. 2010). An abuse
of discretion occurs when the decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles. Id.; Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999).
After reviewing Big
Lots’ motion and the attached report of Dr. Best, we determine the CALJ did not
abuse his discretion in finding it failed to present prima facie evidence demonstrating a substantial possibility of
success. The CALJ clearly articulated
his reasoning for finding Dr. Best’s opinion does not establish a prima facie basis demonstrating a change
in disability as shown by objective evidence caused by the work injury since
the opinion rendered by ALJ Weatherby.
As noted by the CALJ, the 2012 report prepared by Dr. Best is largely
identical to the one he prepared in 2018.
Dr. Best provided an identical analysis addressing diagnoses, causation,
maximum medical improvement, prognoses, impairment rating for the left
shoulder, restrictions, and Whitworth’s ability to return to her former job
with Big Lots. In both reports, Dr. Best
opined Whitworth’s cervical injury and surgery are due to a chronic, active
medical condition, and therefore not work-related. He assessed a 2% impairment for the left
shoulder condition. He declined to
assign permanent restrictions for either the shoulder or cervical spine, and
opined Whitworth is capable of returning to her former
job with Big Lots.
Of note, Dr. Best’s 2018
report does not acknowledge or discuss the February 11, 2013 opinion rendered
by ALJ Weatherby, and the fact he found Whitworth
permanently totally disabled from her work-related left shoulder and cervical
conditions. Similarly, Dr. Best’s report
does not discuss or establish a basis for finding a change of disability as
shown by medical evidence of improvement of impairment due to a condition
caused by the injury since the date of the 2013 opinion and award. Likewise, there is no explanation or
discussion addressing why Whitworth is no longer totally disabled. The 2018 report fails to establish a change
or improvement
in Whitworth’s condition since the 2013 opinion rendered by ALJ Weatherby.
The
CALJ clearly articulated his reasoning for determining Big Lots failed to set
forth prima facie evidence supporting
its motion to reopen and did not abuse his discretion is doing so. Therefore, we decline to disturb his
decisions on appeal.
Accordingly,
the June 19, 2018 Order, and the July 17, 2018
Order on petition for reconsideration rendered by Hon. Douglas W. Gott, Chief
Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
DISTRIBUTION:
COUNSEL FOR PETITIONER: LMS
HON
WALTER E HARDING
400
WEST MARKET ST, STE 2300
LOUISVILLE,
KY 40202
COUNSEL FOR RESPONDENT: LMS
HON
WAYNE C DAUB
600
WEST MAIN ST, STE 300
LOUISVILLE,
KY 40202
CHIEF ADMINISTRATIVE LAW JUDGE: LMS
HON
DOUGLAS W GOTT
657
CHAMBERLIN AVE
FRANKFORT,
KY 40601