*/
Workers’
Compensation Board
OPINION ENTERED: March 1,
2019
CLAIM
NO. 201800392
TA
OPERATING, LLC PETITIONER/
CROSS-RESPONDENT
VS. APPEAL FROM HON. JEFF V. LAYSON,
ADMINISTRATIVE
LAW JUDGE
WANDA
NAPIER RESPONDENT/
and CROSS-PETITIONER
HON.
JEFF V. LAYSON,
ADMINISTRATIVE
LAW JUDGE RESPONDENT
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and
RECHTER, Members.
ALVEY, Chairman. TA Operating, LLC (“TA Operating”) appeals
from the September 29, 2018 Opinion, Award, and Order rendered by Hon. Jeff V.
Layson, III, Administrative Law Judge (“ALJ”).
The ALJ found Wanda Napier (“Napier”) sustained a work-related injury to
her right knee on July 13, 2016 when she tripped and fell due to a raised floor
tile while working at TA Operating. The
ALJ awarded temporary total disability (“TTD”) benefits, permanent partial
disability (“PPD”) without the enhancement by any multipliers contained in KRS
342.730(1)(c), and medical benefits. TA
Operating also appeals from the October 22, 2018 order denying its petition for
reconsideration. Napier cross-appeals.
On
appeal, TA Operating argues the ALJ erred by disregarding the opinions of Dr.
Richard Deerhake in determining Napier sustained a work-related injury on July
13, 2016 for which surgery was required. It argues substantial evidence does
not support the ALJ’s decision. On
cross-appeal, Napier argues the ALJ erred in not enhancing her PPD benefits by
the two multiplier contained in KRS
342.730(1)(c)2. Because the ALJ’s
decision is supported by substantial evidence, he did not err as a matter of
law, and a contrary result is not compelled, we affirm.
Napier
filed a Form 101 on March 13, 2018 alleging she injured her right knee when she
lost her footing and fell while walking to attend the coffee bar at work on
July 13, 2016. At the time of the accident, she was concurrently employed at
Florence Tanning and Coin Laundry.
According to her Form 104, Napier began working for TA Operating as a
cashier in January 1980. She has also
worked as a laundry attendant for Florence Tanning and Coin Laundry since
2001.
Napier
testified by deposition on April 26, 2018, and at the July 24, 2018 hearing. Napier was born on December 31, 1956, and is a
resident of Florence, Kentucky. Napier
is a high school graduate with no specialized vocational training. She began working as a cashier for TA
Operating in January 1980. Her job
duties include waiting on customers, taking care of the coffee bar, and
stocking food. She stated the job
involves standing, walking, bending, stooping, and lifting up
to ten pounds. She works ten-hour
shifts, beginning at midnight, four days per week. She testified that once or twice a month she
borrows a chair from one of the onsite restaurants to sit for part of her shift
due to her right knee problems. She
testified she lifts up to fifty pounds while working
at the laundry. Napier testified she
continues to perform the same duties at both jobs that she performed prior to
her injury. She testified her right knee
symptoms worsen during her shift at TA Operating. She takes Gabapentin, and
uses Ben-Gay for relief of her symptoms.
The
coffee bar is located across the room from the cashier stand. The floor has one-foot-by-one-foot
tiles. On July 13, 2016, Napier was
walking across the floor to tend the coffee bar. Her shoe caught on a raised tile causing her
to fall to the floor, landing on her palms and knees. She experienced an onset of right knee pain, but continued to work the remainder of her shift. Napier tended the coffee bar,
and reported the incident the next morning when her manager arrived at
work. The manager then completed an accident
report. Napier continued to work, and sought no medical treatment until July 27,
2016. After her right knee complaints
persisted, she was referred by TA Operating to treatment with Concentra. Napier was restricted from stooping after
that appointment. She continued to work
until her May 30, 2017 surgery. She
returned to work with TA Operating in August 2017.
Napier
was diagnosed with myasthenia gravis in 1997, which involves muscle
deterioration. She also injured her
right knee in December 2013 when her leg became trapped between her car door
and the car frame. She underwent an
unrelated right total knee replacement due to that accident in March 2014. She was off work for six weeks due to that surgery, and returned to work with no problems. She subsequently had a couple of incidents at
home where she tripped and fell, but no medical treatment was required.
Although
there was a question as to whether TA Operating was aware of her concurrent
employment, Napier testified that her manager not only knew of it, she worked
with Napier on scheduling to accommodate the other job. The parties stipulated that if the concurrent
wages were considered, her pre-injury wages were $618.82 per week, and
post-injury wages are $592.32 per week.
Napier testified she received short-term disability benefits from an
insurance policy, for which she paid the premiums, during the period of time she was off work due to the May 2017 surgery.
In
support of her claim, Napier filed Dr. Joshua Murphy’s April 26, 2017 office
note. Dr. Murphy noted Napier’s
complaints of right knee pain due to her work injury. He also noted the history of a previous right
knee replacement by Dr. Richard Goldfarb.
Dr. Murphy diagnosed a mechanical loosening of the right knee prosthetic
joint, and recommended a revision of the right knee
arthroplasty.
Napier
filed additional records from Dr. Murphy for treatment from April 26, 2017
through September 6, 2017. In the May
30, 2017 operative note, Dr. Murphy noted that he performed a right knee arthroplasty
revision surgery. The follow up office
notes outline Napier’s progression after the surgery, and recommendations for
physical therapy. Napier also filed Dr.
Murphy’s October 19, 2015 office note recommending physical therapy for chronic
pain.
Napier
also filed Dr. Thomas Bender’s May 15, 2018 report, who evaluated Napier at her
attorney’s request on May 8, 2018. Dr.
Bender outlined the history of Napier falling to her knees as she was going to
check supplies at the coffee bar. He
also noted the previous history of right knee replacement in 2014 due to the
2013 motor vehicle accident. Dr. Bender
opined that because of the July 13, 2016 fall, Napier sustained a right
knee/lower leg contusion with acceleration of the mechanical loosening of the
right knee prosthesis. Dr. Bender
assessed a 20% impairment rating pursuant to the 5th Edition of the
American Medical Association, Guides to the Evaluation of Permanent
Impairment (“AMA Guides”). Of
this rating, he apportioned 15% to the prior right knee replacement, and 5% to
the July 13, 2016 injury and surgery.
Dr. Bender additionally stated Napier was temporarily totally disabled
from working from May 30, 2017 through August 26, 2017, but that she has no permanent
restrictions.
TA
Operating filed the office notes of Dr. Monica Flynn for treatment she
administered to Napier on September 30, 2013 and October 3, 2013. Dr. Flynn noted Napier had twisted the medial
aspect of her right knee, and diagnosed a right knee
strain. She noted Napier complained of
sharp, severe pain. Dr. Flynn restricted
Napier from climbing, squatting and walking.
We note this treatment occurred prior to Napier’s December 2013 accident
which necessitated the right knee replacement in 2014.
Dr.
Deerhake evaluated Napier at TA Operating’s request on July 26, 2017. He noted the July 13, 2016 incident when
Napier tripped over a tile and fell to her hands and knees, and the development
of a right knee contusion. He also noted
the history of the previous right knee replacement in 2014, and her history of
myasthenia gravis. In his October 31,
2017 note, Dr. Deerhake stated he had reviewed additional medical records. He noted Napier had been having right knee
pain prior to July 13, 2016, and there was a concern of the loosening of her
knee joint prior to her fall. He stated
there is no evidence the fall substantially aggravated her condition. He did not believe she had reached maximum
medical improvement (“MMI”), and would not do so until
a year after the May 2017 surgery. Dr.
Deerhake indicated he would limit Napier from squatting, kneeling, climbing,
and lifting more than twenty pounds.
Dr.
Deerhake testified by deposition on June 25, 2018. He testified the medical records outline
Napier’s continuing complaints with her right knee after the 2014
replacement. He testified it is unlikely
the fall, as Napier described, would cause the loosening of her
prosthesis. Dr. Deerhake stated Napier
has a 20% impairment rating pursuant to the AMA Guides, due to the 2014
arthroplasty, and no impairment attributable to the July 13, 2016 trip and
fall. Dr. Deerhake testified the surgery
performed by Dr. Murphy for the loosening of Napier’s prosthesis was reasonable
and necessary. He also testified the period of time Napier was temporarily disabled from work was
reasonable and necessary.
In
a subsequent note dated August 6, 2018, Dr. Deerhake stated Napier would have
no additional impairment due to the July 13, 2016 injury. He also stated she requires no additional
treatment for the residuals of the incident.
He stated she reached MMI from two months after July 13, 2016. He also stated she has no restrictions due
to the July 13, 2016 incident, but would have some restrictions due to the 2014
knee replacement.
A
Benefit Review Conference (“BRC”) was held on July 10, 2018. TA Operating did not stipulate that Napier
sustained a work-related injury on July 13, 2016. The parties stipulated that Napier has the
physical capacity to return to the type of work performed at the time of the
injury. The issues listed in the BRC
order include work-relatedness/causation, injury as defined by the Act,
benefits per KRS 342.730, TTD, pre-existing active, medical benefits, and
whether TA Operating was aware of Napier’s concurrent employment.
The
ALJ issued the Opinion, Award and Order on September 29, 2018. The ALJ outlined the evidence and found
Napier sustained a work-related right knee injury on July 13, 2016. He determined Napier has a 5% impairment
rating due to the work-related injury. He
found TA Operating was aware of Napier’s concurrent employment, and she had a
pre-injury average weekly wage (“AWW”) of $618.82. The ALJ noted the parties stipulated Napier’s
post-injury AWW, considering the concurrent employment, is $594.32 per week. The ALJ found TA Operating is responsible for
Napier’s medical treatment stemming from the July 13, 2016 injury. The ALJ awarded TTD benefits from May 30,
2017 through August 26, 2017. He also
awarded PPD benefits based upon the 5% impairment rating assessed by Dr. Bender, but found none of the multipliers contained in KRS
342.730(1)(c) are applicable.
TA
Operating filed a petition for reconsideration, arguing the ALJ erred in
failing to rely upon Dr. Deerhake’s opinions.
The petition was denied by the ALJ in an order issued December 5, 2018.
We initially note that as the claimant in a workers’ compensation proceeding, Napier had
the burden of proving each of the essential elements of her cause of
action. See KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky.
App. 1979). Since she was successful in
her burden regarding the causation and entitlement to TTD benefits and PPD
benefits, the question on appeal
is whether substantial evidence supports 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).
As fact-finder, the ALJ has the sole
authority to determine the weight, credibility and substance of the
evidence. Square
D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ
has the sole authority to judge all reasonable inferences to be drawn from the
evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329
(Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky.
1979). Where evidence is conflicting, the ALJ may choose whom or what to
believe. Pruitt v. Bugg Brothers,
547 S.W.2d 123 (Ky. 1977). The
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); Whittaker
v. Rowland, 998 S.W.2d 479 (Ky. 1999); Caudill v. Maloney's Discount Stores, 560 S.W.2d 15 (Ky. 1977). Mere evidence contrary to the ALJ’s
decision is not adequate to require reversal on appeal. Id. In order to reverse the decision of the ALJ, it
must be shown there was no substantial evidence of probative
value to support his decision. Special
Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
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 reasonable inferences that
otherwise could have been drawn from the evidence. Whittaker v. Rowland,
998 S.W.2d 479 (Ky. 1999). It is well established, an ALJ is vested with wide
ranging discretion. Colwell v. Dresser Instrument Div., 217 S.W.3d 213
(Ky. 2006); Seventh Street Road Tobacco Warehouse v. Stillwell, 550
S.W.2d 469 (Ky. 1976). If the ALJ’s rulings are reasonable under the evidence,
they may not be disturbed on appeal. Special Fund v. Francis, 708 S.W.2d
641, 643 (Ky. 1986).
While we note that Dr. Deerhake
opined Napier sustained no more than a temporary contusion to her right knee,
he also determined the surgery performed by Dr. Murphy was reasonable and
necessary. He also determined the period
Napier was restricted from working was also reasonable and necessary. We additionally note that Dr. Bender
disagreed with Dr. Deerhake regarding the extent of the injury Napier sustained
on July 13, 2016. Dr. Bender
specifically opined the loosening of the right knee prosthesis was attributable
to the July 13, 2016 trip and fall.
Likewise, contrary to Dr. Deerhake’s opinion, he determined Napier
sustained a 5% impairment rating attributable to the July 13, 2016 injury and
subsequent surgery.
The ALJ acted within the discretion afforded
him in determining Napier sustained a compensable work-related injury to her
right knee. As stated above, this
determination is supported by Dr. Bender’s opinion. The ALJ was not compelled to rely upon Dr.
Deerhake’s contrary opinion. We
acknowledge TA Operating’s ability to point to the contradictory and
conflicting opinions of Dr. Deerhake.
However, the ALJ as fact-finder, not the Board, determines the
credibility of the evidence. The ALJ may
choose whom and what to believe when faced with conflicting evidence. It was the ALJ’s prerogative to rely on the
opinions of Drs. Murphy and Bender in making his determination. The ALJ properly exercised his discretion in arriving at his
determinations regarding the occurrence of a work-related injury, the award of
TTD benefits, PPD benefits, and medical benefits, and we will not disturb his
decision.
We
likewise find the ALJ did not err in determining Napier is not entitled to an
enhancement of her award of PPD benefits pursuant to the multipliers contained
in KRS 342.730(1)(c). The
ALJ’s determinations fall squarely within the discretion afforded to him, and
his assessment of the multipliers contained in KRS 342.730(1)(c) is supported
by the record. Hush
v. Abrams, 584 S.W.2d 48 (Ky. 1979).
The transcript of the hearing held July 24, 2018,
reflects as follows:
JUDGE LAYSON: Okay.
So just to summarize, and this is pretty consistent
with what is in the BRC order, if Ms. Napier had concurrent employment, her
pre-injury average weekly wage is $618.82.
If the concurrent wages aren’t included, her pre-injury average weekly
wage is $555.75. Is that correct
counsel?
MR. GUENTHER: Yes.
MR. DURBIN: Yes.
JUDGE LAYSON: Now, with regard to
Ms. Napier’s post injury average weekly wage, if we include the concurrent
employment, her post injury average weekly wage is $594.32. And if the concurrent wages aren’t included,
the post injury average weekly wage is $529.63.
Is that correct, Counsel?
MR. DURBIN: Yes.
MR. GUENTHER: Yes.
We
initially note that the three multiplier contained in
KRS 342.730(1)(c)1 is not applicable since it is undisputed that Napier
returned to the work she was performing at the time of the injury, and she has
no permanent restrictions. The ALJ determined Napier’s concurrent wages
should be included in the determination of her AWW. The ALJ additionally acknowledged the parties
agreed and stipulated the post-injury AWW is less than Napier earned prior to
the date of the accident. Pursuant to KRS 342.730(1)(c)2,
in order to qualify for the two multiplier, an employee must return to work at
equal or greater wages than the pre-injury AWW, and that work must cease in
accordance with the standards set forth in accordance with the standards set forth in
Livingood
v. Transfreight, LLC., 467 S.W.3d 249 (Ky. 2015).
In this instance, the parties stipulated to the pre- and post-injury AWWs,
both inclusive and exclusive of Napier’s concurrent wages. The ALJ included the concurrent wages, and noted the stipulation regarding the inclusion of
those wages on Napier’s return to work.
Although Napier now argues she is entitled to the two multiplier contained in KRS 342.730(1)(c)2, this was not
an issue specifically preserved in the BRC order, nor was it raised at the hearing. As reflected above, at the hearing, Napier,
through her attorney, agreed with the ALJ regarding the stipulation of her pre-
and post-injury wages. Napier did not
move at any time afterward for relief from this stipulation. Therefore, this was not an issue properly
preserved for determination by the ALJ or for review by this Board. Based upon the ALJ’s determination and the
stipulations of the parties, there is no evidence that Napier is entitled to an
enhancement of her award of PPD benefits by the two multiplier.
That
said, if Napier ever returns to work at a wage equal to or greater than she
earned at the time of injury, based upon her combined wage, she may be entitled
to the application of the two-multiplier, pursuant to KRS 342.7301(1)(c)2. However, we acknowledge this enhancement
would be precluded if the loss of employment is due to her “conduct that is
shown to be an intentional deliberate action with a reckless disregard of the
consequences either to himself or another” pursuant to Livingood v.
Transfreight, LLC, supra.
Accordingly, the September 29, 2018 Opinion, Award, and
Order, and the October 22, 2018 Order denying TA Operating’s petition for
reconsideration, rendered by Hon. Jeff V. Layson, III, Administrative Law
Judge, are hereby AFFIRMED.
ALL CONCUR.
DISTRIBUTION:
COUNSEL FOR PETITIONER TA OPERATING: LMS
HON
MARK R BUSH
HON
CLARKE D COTTON
250
GRANDVIEW DR, STE 550
FT
MITCHELL, KY 41017
COUNSEL FOR RESPONDENT WANDA NAPIER: LMS
HON
SCOTT M GUENTHER
40
WEST PIKE STREET
COVINGTON,
KY 41011
ADMINISTRATIVE LAW JUDGE: LMS
HON
JEFF V LAYSON
657
CHAMBERLIN AVE
FRANKFORT,
KY 40601
