Mary Wedding v. Collective Brand, Inc. ( 2016 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: FEBRUARY 18, 2016
NOT TO BE PUBLISHED
,Suprtint Court of 4tall-f-ariitt
LI Li
eb..
2015-SC-000028-WC
DA7 E 3-to €3,t1/41\-Ce-rok.)f+4 , ..
MARY WEDDING APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2013-CA-000633-WC
WORKERS' COMPENSATION NO. 08-75597 AND 10-99647
COLLECTIVE BRAND, INC.;
STRIDE-RITE CORP.;
HONORABLE EDWARD D. HAYS,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Mary Wedding, filed this appeal to contest the reversal of the
portion of her workers' compensation award based on an impairment rating
attributed to an injury to her left shoulder and aggravations to injuries to her
left and right wrists caused by a 2008 cumulative trauma injury. Wedding
contends that it was the responsibility of Appellees, Stride Rite and Collective
Brand, Inc., to file a petition for reconsideration to challenge the contested
benefits for certain injuries and that the Workers' Compensation Board
improperly shifted the burden to her. For the below stated reasons, we affirm.
Wedding began her employment with Stride Rite in 1997. Her job
involved opening boxes, putting shoes in boxes, removing shoes from boxes,
moving and stacking boxes, and pushing boxes down a conveyor line. Her job
required repetitive lifting, tugging, pushing, and overhead work.
While still employed by Stride Rite, Wedding visited Dr. Richard DuBou
on February 8, 2005, complaining that she experienced six months of
tenderness and numbness in both of her wrists. Wedding was diagnosed with
carpal tunnel syndrome in both wrists and she underwent a right and left
carpel tunnel release. Dr. DuBou released Wedding to full duty work on
September 29, 2005. Afterwards ; Dr. DuBou assessed a 2% impairment rating
for Wedding's right carpel tunnel syndrome and 0% for the left.
Wedding filed for workers' compensation for the right wrist impairment.
She received temporary total disability ("TTD") and medical benefits. Stride
Rite paid Wedding $1,686.97 to settle her claim. However, no Form 110 was
ever filed with the Department of Workers' Claims and an Administrative Law
Judge ("AI,J") did not approve the settlement. Stride Rite was acquired by
another company sometime after Wedding's 2005 injuries and was renamed
Collective Brand.
In 2007, Wedding again experienced pain in her wrists, but also in her
hands, arms, and right shoulder. Wedding participated in physical therapy in
2008 to relieve her pain. She also sought treatment from her primary care
provider, Dr. Mark Winders, on February 26, 2008. Wedding told Dr. Winders
that the pain in her right elbow and right shoulder persisted for one year and
2
the pain in her right wrist started a week earlier. Per the ALT, Dr. Winders
diagnosed Wedding with a right-wrist sprain, right-shoulder-bicep groove
tendonitis, and right-elbow epicondylitis. He also found Wedding's right
shoulder to be diffusely tender. Dr. Winders referred Wedding to Dr. Phillip
Dripchak, an orthopedic surgeon.
Dr. Dripchak had Wedding undergo an MRI which revealed she had
degenerative right joint AC with mild tendinopathy, full thickness tear of the
infraspinatus/ supraspinatus, and a type 1 SLAP lesion. A week later, after
further review of the x-rays, Dr. Dripchak found Wedding had right-shoulder
AC arthrosis and right-shoulder subacromial impingement with accompanying
rotator cuff tendonitis in a sequential fashion. Dr. Dripchak gave Wedding
several injections, which relieved her pain and referred her to Dr. Cyna Khalily,
an orthopedic surgeon, for surgery.
Dr. Khalily performed a right-shoulder arthroscopy on August 20, 2008.
Following the surgery, Wedding developed a stiff shoulder and another right-
shoulder arthroscopy was performed on November 7, 2008. Dr. Khalily placed
Wedding off work from July 22, 2008 to December 5, 2008. Dr. Khalily opined
that work-related cumulative trauma was the reason that Wedding had to
undergo surgery.
Wedding returned to work in. January 2009. However, Wedding stated
that she missed approximately twenty days of work due to pain in her wrists
and shoulders. Wedding's employment with Collective Brand was ultimately
terminated.
3
Wedding subsequently filed a Form 101 seeking compensation for the
2005 and 2008 injuries. Wedding claimed work-related injuries to her left
wrist, right wrist, and left elbow for the 2005 incident. For the 2008 incident,
Wedding claimed work-related injuries to her right wrist, left wrist, right
shoulder, and left shoulder. The ALJ consolidated the claims.
Dr. Warren Bilkey conducted an independent medical examination
("IME") of Wedding on June 16, 2010. He stated that Wedding's pain was
caused by repetitive work activities. He diagnosed Wedding with a work-related
right shoulder strain occurring on February 13, 2008, and aggravated right
wrist pain from repetitive work activities. Dr. Bilkey believed that due to
Wedding's right-shoulder pain she had to compensate with her left shoulder
which resulted in ongoing left shoulder soreness. He believed that Wedding
reached maximum medical improvement ("MMI") and found she had a pre-
existing 3% whole person impairment rating for each wrist as a result of the
2005 incident. He assessed her with a 10% whole person impairment rating,
dissected as follows: 3% for the right shoulder, 4% for the right wrist, and 3%
for the left wrist. Dr. Bilkey did not restrict Wedding's ability to work, but
doubted that she would be able to tolerate a job like the one she performed at
Collective Brands. Later, Dr. Bilkey provided an addendum altering his
impairment rating to include a 1% whole person impairment rating attributable
to Wedding's left shoulder. Dr. Bilkey stated that combining the 2005 and
2008 impairments yields a 15% whole person impairment.
4
Dr. Ellen Barrett performed an IME on June 1, 2010. Dr. Barrett
believed that Wedding's June 2008 MRI suggested a right-shoulder SLAP tear
and mild degenerative changes of the AC joint. Dr. Ballard opined that
Wedding's right shoulder injury did not result from cumulative trauma and
was not work-related. Dr. Ballard made that conclusion because a SLAP tear
is not caused by cumulative trauma, but from an acute injury which Wedding
did not allege occurred. Dr. Ballard assigned Wedding an impairment rating of
0% for her right shoulder and did not believe she needed further treatment.
Dr. DuBou re-examined Wedding on December 6, 2011. He reviewed the
evaluations performed by Dr. Ballard and Dr. Bilkey. Dr. DuBou agreed with
Dr. Ballard that the 2008 injury was not caused by cumulative trauma, but
resulted from a SLAP tear. He disagreed with Dr. Bilkey's 6% whole person
impairment rating for the 2005 surgery. Dr. DuBou also found that the 2008
injury did not worsen the 2005 injury.
The ALJ made the following pertinent findings regarding Wedding's
injuries:
3. [Wedding] sustained work-related injuries on January 24, 2005;
February 13, 2008; May 30, 2008; and June 17, 2008. April 23,
2008 has also been listed as an injury date. In reality, [Wedding]
is claiming only two work-related injuries actually occurred, the
first on January 24, 2005 and the second injury occurring in 2008
as a result of cumulative trauma.
4. The 2005 injury will be discussed first. [Wedding] claimed that
cumulative trauma while she was employed at Stride Rite
manifested on January 24, 2005 in left carpal tunnel syndrome
and left cubital tunnel syndrome. Dr. [DuBou] performed three
surgeries in 2005, one for left carpal tunnel on April 18, 2005; a
second surgery for right carpal tunnel on June 1, 2005; and a
third surgery to remove a foreign body on July 6, 2005.
5
5. It is undisputed that [Wedding] was paid temporary total
disability benefits while she was off work in 2005 and her medical
bills were also paid by [Stride Rite], and/or its workers'
compensation insurance carrier. It is also undisputed that
[Wedding] was issued a check on June 12, 2006 in the amount of
$1,686.97. This check was intended as a settlement of the claim
and this fact was acknowledged by [Wedding]. However, no Form
101 (Agreement as to Compensation) was ever executed or filed
with the [Department]. Apparently the settlement was never
approved by any [ALJ]. The treating physician, Dr. DuBou, opined
that [Wedding] retained a 2% permanent impairment to the body
as a whole as a result of the 2005 injuries. . . .
6. The ALT finds that [Wedding] did sustain a 2% permanent
impairment as a result of the 2005 injury. The finding is based
upon the opinion of the treating surgeon, Dr. DuBou. Dr. DuBou
has rendered treatment to [Wedding] since 2005 and he preformed
three surgical procedures upon [Wedding]. Whereas the AU has
considered the impairment rating rendered by Dr. Bilkey (6% to
the body as a whole), Dr. Ellen Ballard agrees with Dr. DuBou that
the 2% impairment from the 2005 carpal tunnel injury is the
accurate impairment rating. The AI,J . is persuaded by the opinions
of Dr. DuBou and Dr. Ballard with respect to the permanent
impairment rating for the 2005 injury.
••
9. After plaintiff had returned to work following the 2005 injury,
she began having some problems with her right wrist in 2007 and
underwent therapy with Kinetics. She also began to experience
some pain and discomfort in her right shoulder in late 2007.
Throughout her employment with Stride Rite, and later Collective
Brand, [Wedding's] job required her to do repetitive lifting, tugging,
pushing, and working above her head with cases of 6 to 24 pairs of
shoes. KRS 342.0011 defines 'injury' as 'any work-related
traumatic event or series of traumatic events, including cumulative
trauma, arising out of and in the course of employment which is
the proximate cause producing a harmful change in the human
organism evidenced by objective medical findings.'
10. (a) The next question to be considered by the ALJ is whether
or not [Wedding] sustained an 'injury' as defined by the Act, and
more specifically, whether or not the cumulative trauma sustained
during her work culminated in a harmful change in her human
organism in 2008.
(b) [Wedding] commenced treatment with Dr. Winders in early
2008. Dr. Winders noted on May 30, 2008 that [Wedding's] job
involved repetitive lifting. Dr. Winders referred [Wedding] to Dr.
Dripchak in July of 2008, who diagnosed her as having a
subacromial impingement of her right shoulder. In a
6
questionnaire dated June 24, 2008, Dr. Dripchak confirmed that
[Wedding's] repetitive work was the cause of her problems and he
took [Wedding] off from work as of June 24, 2008. He referred
[Wedding] to Dr. Khalily, who performed surgery on the right
shoulder on August 20, 2008. A second surgery involving the
manipulation of the right shoulder under anesthetic so as to
combat a 'frozen shoulder' was done on November 7, 2008 by Dr.
Khalily. Dr. Khalily released [Wedding] to return to work on
December 5, 2008, but she did not actually return to work until
January 2, 2009. The ALJ finds that [Wedding] was temporarily
totally disabled from June 24, 2008 until December 5, 2008, based
on the evidence from Dr. Khalily, who performed the surgeries on
[Wedding's] right shoulder. Dr. Khalily opined in a questionnaire
dated June 21, 2010 that the surgeries were caused and brought
about by cumulative trauma at work.
(c) Based on the evidence from the treating physicians, including
Dr. Winders, Dr. Dripchak, and Dr. Khalily, the repetitive nature of
the claimant's work for Collective Brand, Inc. was the cause of
[Wedding's] injury to her right shoulder.
14. (a) The next issue to be determined is [Wedding's] entitlement
to benefits under KRS 342.730, including multipliers.
(b) Both Dr. DuBou and Dr. Ballard assess 0% permanent
impairment as a result of the shoulder condition. They also deny
that [Wedding's] work activities contributed to the problem. The
evidence from Dr. DuBou and Dr. Ballard is countered by evidence
from the treating physicians, including Dr. Winders, Dr. Dripchak,
and Dr. Khalily. The ALJ is persuaded by the evidence from the
treating physicians and does hereby find that [Wedding] did
sustain a cumulative trauma injury to her right shoulder on or
about February 13, 2008.
(d) [Dr. Bilkey] has examined the claimant, reviewed all the
medical records, and has rendered multiple reports. Dr. Bilkey
opines that [Wedding] has a 10% permanent impairment to the
body as a whole due to the upper extremity conditions. More
specifically, he attributes 3% of the impairment to the right
shoulder, 1% of the impairment to the left shoulder caused by
having to over-compensate for the right shoulder condition, and
the remaining impairment based on pain. [Collective Brand] has
attacked Dr. Bilkey's methodology in his calculation of impairment
rating through reports from Dr. DuBou and Dr. Ballard. The ALJ
has carefully considered the criticisms by these physicians, as well
as Dr. Bilkey's response to such criticisms. The AI.0 is faced with
deciding between 0% impairment and 10% impairment to the body
as a whole. It cannot be ignored that [Wedding] has undergone
7
two surgical procedures to her right shoulder. [Wedding]
complains to have continuing pain of such severity that she
believes she is precluded from any of the former work which she
has ever done. . . . When faced with the decision of awarding this
claimant nothing versus the 10% impairment rating opined by Dr.
Bilkey, the ALJ will follow the opinion of Dr. Bilkey and does
hereby find [Wedding] to have a 10% permanent impairment under
the AMA Guidelines, Fifth Edition as a result of the 2008 injury.
The ALJ also applied the three multiplier, KRS 342.730(1)(c)1, to Wedding's
award and granted her vocational rehabilitation benefits pursuant to KRS
342.710.
Both parties filed petitions for reconsideration. Wedding only requested
that the ALJ hold Collective Brand, as opposed to Stride Rite, responsible for
all future medical treatment of her wrists. She did not request any clarification
regarding the injuries the ALJ found she sustained. Collective Brand asked the
ALT to reconsider his reliance upon the 10% impairment rating assessed by Dr.
Bilkey as the basis for the award of PPD benefits for the 2008 right shoulder
injury. Collective Brand noted that Dr. Bilkey's assigned impairment rating
was compound in nature in that it attributed 3% to her right-shoulder injury
and the remaining impairment was for pain in her wrists and left shoulder. Yet
the ALJ only specifically stated in the opinion and order that Wedding
sustained a work-related injury to her right shoulder. Thus, Collective Brand
contended that the ALJ could only choose between the 0% impairment rating
assessed by Dr. DuBou and Dr. Ballard or the 3% assessed by Dr. Bilkey for
the right shoulder injury. The ALJ denied the petitions.
8
Wedding and Collective Brand both appealed to the Board. The Board
sided with Collective Brand and held in pertinent part:
Dr. Bilkey's 10% impairment rating, which includes an
impairment rating for the left shoulder and both wrists, is not
consistent with the ALJ's finding regarding the nature of Wedding's
February 13, 2008, injury. Consequently, the ALJ should not have
considered Dr. Bilkey's impairment ratings for the left shoulder
and both wrists in determining the extent of the impairment of the
right shoulder. Stated another way, based on the ALJ's
determination Wedding sustained only a right shoulder injury, the
ALJ could not rely on upon the entirety of Dr. Bilkey's impairment
rating which included impairment ratings for each wrist and the
left shoulder.
Significantly, Collective Brand raised this issue in its petition
for reconsideration. Since the ALJ refused to alter his finding that
Wedding sustained only a cumulative trauma injury to her right
shoulder and there was no finding of left shoulder and bilateral
wrist injuries due to the 2008 event, the only impairment ratings
relevant to the 2008 injury are those assessed for the right
shoulder.. .
On remand, as the ALJ found Wedding only sustained a
cumulative trauma injury to her right shoulder as a result of the
February 13, 2008, event, he must only consider the impairment
ratings attributable to the right shoulder injury. If the ALJ
chooses to again accept Dr. Bilkey's impairment rating for the right
shoulder, his award of PPD benefits must be based on the 3%
impairment rating.. .
Similarly, on remand the decision concerning the
applicability of KRS 342.730(1)(c)1 must be based on the effects of
the 2008 right shoulder injury. Since the ALJ relied upon an
impairment rating for injuries to both wrists and the left shoulder
which is contrary to his finding regarding the nature of the injury,
it is necessary for him to determine whether only the 2008 right
shoulder injury resulted in Wedding being unable to perform the
job she was performing at the time of the injury.
The Board further held that Wedding was entitled to future medical benefits for
her right wrist injury, but not entitled to medical benefits for any injury to her
left wrist or left elbow. Finally, the Board vacated Wedding's award of
9
vocational rehabilitation benefits and remanded the matter for the AW to make
further findings of fact.
Wedding appealed to the Court of Appeals who affirmed in part, reversed
in part, and remanded the matter. The Court of Appeals affirmed the Board's
opinion except for the portion which vacated the ALJ's award of future medical
benefits, if any, for Wedding's 2005 left-wrist injury. Wedding filed this appeal.
The Board's review in this matter was limited to determining whether the
evidence is sufficient to support the ALJ's findings, or if the evidence compels a
different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).
Further, the function of the Court of Appeals 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." Id. at 687-88. Finally, review
by this Court "is to address new or novel questions of statutory construction,
or to reconsider precedent when such appears necessary, or to review a
question of constitutional magnitude." Id. The ALJ, as fact-finder, has the sole
discretion to judge the credibility of testimony and weight of evidence.
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). For the below
stated reasons, we affirm the Court of Appeals.
Wedding first argues that the Board and Court of Appeals failed to follow
the long standing rule which places the burden upon the non-prevailing party
to request specific findings of fact to preserve an appeal. Eaton Axle Corp. v.
Nally, 688 S.W.2d 334 (Ky. 1985); CR 54.02. Eaton Axle held that patent
10
errors in an ALJ's opinion and award are unpreserved for appellate review if
they are not asserted in a petition for reconsideration. 688 S.W.2d at 338.
"The purpose of this rule is to require that all justiciable issues are disposed of
before the appellate process begins." Id. at 338. Thus, to preserve a question
of fact for appeal, the party unhappy with a certain factual finding must file a
petition for reconsideration identifying the factual error. Halls Hardwood Floor
Co. v. Stapleton, 16 S.W.3d 327, 330 (Ky. App. 2000).
Based on the above stated principles, Wedding argues that Collective
Brand had to request in its petition for reconsideration a finding that Wedding
did not sustain work-related left shoulder and wrist injuries due to cumulative
trauma in 2008. Wedding believes that the ALJ's opinion and order implies
that she did suffer such injuries due to his reliance on Dr. Bilkey's combined
10% whole person impairment rating. Since Collective Brand did not request
additional findings on the 2008 cumulative trauma injury in its petition for
reconsideration, Wedding argues that it could not later challenge those
findings. We disagree.
The ALJ's opinion and award does not indicate he found that Wedding
suffered left shoulder and wrist injuries. There is also no basis to assume that
the ALJ implied the existence of a left shoulder and wrist injury by using Dr.
Bilkey's impairment rating. Further, in its petition for reconsideration,
Collective Brand asked the ALJ to reconsider the impairment rating he applied
to Wedding because it was calculated by Dr. Bilkey based on injuries to her
right shoulder, left shoulder, and wrists. Collective Brand stated that it
11
believed the impairment rating was wrong because the ALJ only found that
Wedding suffered from a work-related right-shoulder injury in 2008. Instead of
clarifying his findings by stating that he believed Wedding suffered injuries to
her left shoulder and wrists, he instead stated that the "impairment rating of
10% to the body as a whole is amply supported by the evidence herein and that
it accurately represents the permanent impairment of [Wedding]." Collective
Brand sufficiently challenged the ALJ's findings to preserve their right to
appeal that issue to the Board.
We note that Wedding argues that the Board and Court of Appeals have
adopted a minority rule called the "Indiana Rule" which makes it the prevailing
party's responsibility to seek and obtain essential findings not made by the
AI.J. See 146 A.L.R. 123 (1943). However, as stated above, Collective Brand
was the prevailing party and sufficiently challenged the ALJ's ruling in its
petition for reconsideration. The Indiana Rule was not applied in this matter.
Wedding next argues that the Board erred by making sua sponte findings
without remanding the matter to the ALJ for further fact finding. She correctly
notes that the ALJ . is the fact finder in a workers' compensation proceeding.
Paramount Foods, Inc., 695 S.W.2d 418. Wedding does not specifically state on
which issue the Board made the objectionable sua sponte ruling but, we will
assume she is referring to the findings limiting the 2008 cumulative trauma
injury to her right shoulder. We do not believe the Board made improper
factual findings. The Board's opinion states that since the AL‘J only stated a
right shoulder injury occurred, his application of the entire impairment rating
12
assigned by Dr. Bilkey based upon all of the alleged injuries was incorrect.
This was merely a review of the record to ensure the ultimate conclusion was
supported by the record. W. Baptist Hosp., 827 S.W.2d 685. There is no error
here.
Wedding finally•argues that this Court should not apply the deference
which is normally given to the Board and Court of Appeals' decisions pursuant
to W. Baptist Hosp. Wedding believes that this Court should review the de novo
legal issues which were raised and considered by the Board regardless of the
fact that review by this Court "is to address new or novel questions of statutory
construction, or to reconsider precedent when such appears necessary, or to
review a question of constitutional magnitude." Id. at 687-88. However, we
discern no reason to not follow precedent in this matter. There is nothing in
the Board or Court of Appeals opinions which requires reversal.
For the above stated reasons, we affirm the Court of Appeals.
All sitting. All concur.
13
COUNSEL FOR APPELLANT,
MARY WEDDING:
Eric M. Lamb
COUNSEL FOR APPELLEE,
COLLECTIVE BRAND, INC::
Erik Shane Branham
COUNSEL FOR APPELLEE,
STRIDE-RITE CORP.:
Donald Cameron Walton, III
Robert Johnson Powell
James Edward Skaggs
14