Trane Co. v. Tommy Hafley ( 2022 )

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NOT TO BE PUBLISHED OPINION
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RENDERED: SEPTEMBER 22, 2022
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0410-WC
TRANE CO. APPELLANT
ON APPEAL FROM COURT OF APPEALS
NO. 2021-CA-0134
WORKERS’ COMPENSATION BOARD
NOS. WC-2020-00103 & 2020-0104
V.
TOMMY HAFLEY; APPELLEES
HONORABLE GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This case is before the Court on appeal as a matter of right1 by Trane
Co., the Appellant, from the Court of Appeals’ ruling affirming the finding that
Tommy Hafley, the Appellee, is permanently and totally disabled. Trane Co.
first argues that it was clearly erroneous for the ALJ to rely upon the opinion of
Dr. Gilbert to support a finding of a work-related injury; and second, that it
was an abuse of discretion and contrary to public policy for the ALJ to find
Hafley permanently and totally disabled due to his “voluntary” retirement. For
the following reasons, we affirm.
1 Ky. Const. § 115.
I. Facts and Procedural Posture
As recounted by the Workers’ Compensation Board,
Hafley’s Form 101 alleges cumulative trauma injuries to his neck,
back, knee and elbow on October 31, 2018, caused by his
employment at Trane. Hafley also filed a claim alleging hearing loss
due to the repetitive exposure to loud noise in the workplace. By
Order dated February 20, 2020, the ALJ consolidated both claims.
Hafley submitted the report of Dr. Gilbert and the report and
completed medical questionnaire of Dr. Julie Martin, D.C. Trane
submitted the independent medical evaluation (“IME”) reports of
Drs. Rafid Kakel and Daniel Primm.
Hafley testified at a March 30, 2020, deposition and the June 24,
2020, hearing. His deposition testimony establishes he was born
on October 26, 1958, and began working for Trane on March 17,
1980. He last worked for Trane on August 31, 2018. Hafley
completed the 10th grade and did not obtain a GED. He has no
vocational training.
From the ALJ’s summary of evidence,
[A]round 20 years of his time there [Trane] was in the stockroom.
His duties included running a forklift, running a stacker (a
standup forklift type vehicle), pulled parts, lifting boxes weighing
30-50 pounds onto skids, then onto the lifts to move them on to
other departments. He claims he did a lot of lifting, pulling,
tugging, a lot of walking on concrete, and climbing ladders.
He claims he was subjected to loud noises from all the metal
banging and machinery, as well as all the fork trucks running up
and down the aisles. He reported that he wore hearing protection
100% of the time.
He reported that he worked approximately 80% of his time running
the forklift (50% of that time on the stand up) and the other 20%
loading skids.
His current symptoms include lower back pain, he gets a lot of
headaches and stiffness in his neck, pain in his left knees for
which he wears a brace on his left knee and gets injections every 2-
3 months. He stated he cannot walk or sit for long periods of time,
or ride in a car for long without standing up. His pain interrupts
his sleep. He stated he has pain trying to lift even a sack of
potatoes.
2
His last day of work was on October 31, 2018, the day he retired.
He applied for social security, which was approved.
Trane has argued in its briefing that the plant Hafley worked at was
scheduled to be closed, and that closure plan had been announced to all
employees some months before Hafley’s retirement. In short, Trane alleges
Hafley decided to retire only after finding out the plant he had worked at for
most of his adult life was closing down; not because of any cumulative injury
or inability to continue working.
As for the reports of the physicians on behalf of Trane, Dr. Kakel
evaluated Hafley on May 7, 2020. He diagnosed bilateral osteoarthritis of the
knees; degenerative disease of the cervical spine; degenerative disease of the
lumbar spine; and left elbow gouty arthritis. The ALJ summed up Dr. Kakel’s
opinion:
There is no evidence of cumulative trauma injuries to the cervical
spine, lumbar spine, knees or left elbow, which are related to his
employment with Trane. He found no evidence of any work related
injuries or any specific work activities that would have accelerated
any knee, neck, back or elbow conditions beyond what would
normally be expected to be seen in a male of his age.
He assigned impairments ratings for the lumbar spine of 8%, the
cervical spine of 8%, the left elbow 0%, left knee 8% and 0% for the
right knee, and 2% for pain. This translates to a 24% WPI.
However, in his opinion, none of the impairments are due to
cumulative trauma from his employment with Trane.
…
In his opinion, Mr. Hafley does not retain the physical capacity to
return to the previous type of work he performed. He could work
with permanent restrictions in a less strenuous type job. He
recommends no ladders, crouching, kneeling, no work on uneven
surfaces, no lifting of more than 10 lbs. constantly or 20 lbs.
occasionally. However, these restrictions are not work related. No
malingering or exaggeration were detected.
3
Dr. Primm evaluated Hafley on May 19, 2020. He only found “age related
degenerative changes” with the cervical spine, “consistent with age” and
“negative for advanced osteoarthritis, or nerve root compression.” He also
found “primary osteoarthritis, both knees, aggravated by, what appears to be, a
history of congenial tibia vara.” The ALJ summarized Dr. Primm’s findings as
Mr. Hafley’s diagnosis was not from cumulative trauma from his
employment with Trane. The only objective findings are
degenerative and congenital in nature, unrelated to his work. He
notes that Hafley’s work at Trane neither exacerbated, accelerated,
or contributed to any of his alleged injuries.
Dr. Primm assessed 8-10% impairment for his knees and recommended
restrictions on “prolonged standing, walking or any regular crouching,
crawling, or squatting, due to his knee osteoarthritis.” Lastly, he believed he
could return to his previous type of work.
Dr. Gilbert evaluated Hafley on February 12, 2020. He diagnosed “spinal
pain, muscle spasms, cervical and lumbar radiculopathy, in a dermatonal and
myotomal distribution with bilateral knee pain and weakness, which is
reproducible in the bilateral knee flexors and extensors secondary cumulative
traumas over the years.” He found all these caused by Hafley’s work. He
assessed impairment ratings of “15% for cervical, 10% for lumbar[,] 10% for the
right knee, 10% for the left knee, and 5% for thoracic, for a combined total WPI
of 42%.” He restricted Hafley from any heavy manual labor and concluded “Mr.
Hafley is 100% occupationally disabled from any occupation for the foreseeable
future.”
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Finally, Dr. Raleigh Jones diagnosed “occupational related, noise induced
sensorineural hearing loss. [Hafley] has a 4.7% hearing impairment, which
translates to 2% WPI.”
The ALJ found permanent harmful changes to Hafley’s neck, knees, and
lower back, citing Dr. Gilbert and Dr. Kakel. He found these were work-related
citing Dr. Gilbert and Hafley’s own descriptions of his job duties over 38 years.
But the ALJ also concluded that Hafley suffered no work-related injury to his
left elbow, noting Dr. Gilbert had failed to provide a rating for it and Hafley had
not mentioned it at the final hearing. The ALJ determined the impairment
ratings as 8% each for cervical and lumbar impairment, citing Dr. Kakel, and
10% impairment to both knees, citing Dr. Gilbert.
The ALJ then addressed the heart of the appeal now before us—“The real
question is whether plaintiff’s injuries prevent him from returning to any
gainful employment on a regular and sustained basis.”2 The ALJ found
permanent and total disability, stating
The ALJ is persuaded from both Dr. Gilbert and Dr. Kakel that the
plaintiff does not retain the physical ability to return to the job he
held at the time of his injury. Dr. Gilbert indicated his belief that
plaintiff cannot return to any employment, all [sic] Dr. Kakel
indicated plaintiff could only return to light duty. However, the ALJ
is persuaded plaintiff’s age, education and work experience take
[sic] it highly unlikely he would be able to attain and retain light
duty employment within his physical capabilities. Plaintiff is
currently 61 years old, has only a 10th grade education, and most
2 There is a five-step analysis to determine permanent, total disability. City of
Ashland v. Stumbo, 461 S.W.3d 392 (Ky. 2015). The ALJ cited this case and
summarized the steps of this analysis. Because Trane Co. has not argued the ALJ did
not comply with this analysis, we see no need to review this area of law in any depth.
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of his adult worklife has been with the defendant, to which he
cannot physically return, even based on the defendant’s expert.
Given plaintiff’s advanced age, limited education, and singular
work history for the defendant, the ALJ is persuaded plaintiff is not
likely to be able to find and maintain suitable employment in a
competitive economy. For these reasons, it is determined plaintiff
is permanently and totally disabled.
Trane appealed to the Workers’ Compensation Board. The Board affirmed the
ruling in a thorough and well-written, 34-page opinion. Although the legal
conclusions of the Board were correct, its ruling was mainly predicated upon
the deference to the ALJ as factfinder and the presence of substantial evidence
in the record. Trane appealed to the Court of Appeals. So impressed was the
lower court with the Board’s analysis that it adopted approximately one-third of
it as its own opinion and affirmed. We now address the merits of the appeal.
II. Standard of Review
An ALJ has “has the sole discretion to determine the quality, character,
and substance of evidence . . . .” Whittaker v. Rowland, 998 S.W.2d 479, 481
(Ky. 1999). He “may reject any testimony and believe or disbelieve various parts
of the evidence, regardless of whether it came from the same witness or the
same adversary party's total proof . . . .” Id. “[W]here the party with the burden
of proof was successful before the ALJ, the issue on appeal is whether
substantial evidence supported the ALJ's conclusion . . . .” Id. “Although a
party may note evidence which would have supported a conclusion contrary to
the ALJ's decision, such evidence is not an adequate basis for reversal on
appeal.” Id. at 482.
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III. Analysis
Trane advances two specific arguments. First, that a finding of
permanent and total disability for a voluntarily retired claimant, who never had
any work restrictions, is contrary to public policy. Second, that Dr. Gilbert’s
opinion could not be relied upon by the ALJ because he had an inadequate or
inaccurate work history. As to the first argument, Trane states, “Finding
someone who has never had any restrictions and who voluntarily retired to be
permanently and totally disabled is an egregious abuse of discretion and
contrary to the plain language and purpose of the Workers’ Compensation Act.”
But we have held “that a worker's ability to perform his usual occupation is not
dispositive of whether he has sustained an occupational disability,” and “a
worker is not required to undertake less demanding work responsibilities or to
quit working entirely in order to establish an occupational disability.” Alcan Foil
Products, a Div. of Alcan Aluminum Corp. v. Huff, 2 S.W.3d 96, 101 (Ky. 1999).
Hafley’s continued employment for 38.5 years without restrictions, therefore, is
simply a factor for the ALJ to consider in determining whether he is
permanently and totally disabled. It is not a legal ground to reverse such a
finding.
As to the question of retirement, it was answered decades ago in Inland
Steel Co. v. Terry, where the Court stated,
We reject the contention that voluntary retirement and removal
from the labor market, as such, extinguishes or in any way limits
the right to workmen's compensation benefits. While it is true as a
general proposition that the ultimate objective of the law is to offset
lost earnings, it is accomplished through payment for lost earning
power. If an otherwise compensable injury or disease has impaired
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a claimant's ability to earn a livelihood, what he actually intended
to do with his time in the future is immaterial, and the acceptance
of retirement benefits is irrelevant.
464 S.W.2d 284, 285 (Ky. 1970). This remains good law. Trane argues KRS
342.0011(11)(c) requires a finding of “complete and permanent inability to
perform any type of work as a result of an injury[,]” to be awarded permanent
and total disability; therefore, Hafley’s voluntary retirement and lack of
testimony that he could not perform any kind of work precludes the ALJ’s
finding. But the ALJ specifically cited to the conclusion of Dr. Gilbert that
Hafley is 100% occupationally disabled. The Board concluded this was
substantial evidence supporting the ALJ, and we agree.
Additionally, we note that whether Hafley “voluntarily retired” because of
the plant closure, as Trane alleges, is a question of fact inappropriate for this
Court to consider. The ALJ obviously rejected that explanation, despite its
facial plausibility, and there simply is nothing in the record demonstrating this
rejection was clearly erroneous, compelling us to reverse. Special Fund v.
Francis, 708 S.W.2d 641, 643 (Ky. 1986). Thus, even if voluntary retirement
did preclude the awarding of workers’ compensation benefits as a matter of
law, we still could not reverse the award at issue since there has been no
factual finding that Hafley voluntarily retired and remains capable of
employment.
In its second argument, Trane Co. contends reliance upon Dr. Gilbert’s
opinion was clearly erroneous because he allegedly did not have a full work
history of Hafley. Because of this, Trane Co. asserts this case falls under the
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rule announced in Cepero v. Fabricated Metals, 132 S.W.3d 839 (Ky. 2004). In
Cepero, we affirmed and adopted the reasoning of the Worker’s Compensation
Board, that
where it is irrefutable that a physician's history regarding work-
related causation is corrupt due to it being substantially
inaccurate or largely incomplete, any opinion generated by that
physician on the issue of causation cannot constitute substantial
evidence. Medical opinion predicated upon such erroneous or
deficient information that is completely unsupported by any other
credible evidence can never, in our view, be reasonably probable.
Id. at 842. Irrefutable is a high bar indeed and our second condition should not
be overlooked—“completely unsupported by any other credible evidence . . . .”
Id. (Emphasis added). Trane has failed to meet this burden. The Board found
the record devoid of any support for this argument, and so do we. Dr. Gilbert
described the work activities of Hafley as “heavy manual labor at train [sic]
corporation for 38.5 years.” The ALJ explained, “Although his report only
ascribes plaintiff’s injuries to ‘wear and tear’ without further elaboration, that
description is, in context, Dr. Gilbert’s summary of the job duties plaintiff
explained to him during the examination, but which were not detailed in Dr.
Gilbert’s report.” This is far from “irrefutable proof” that Dr. Gilbert did not
have an accurate work history of Hafley. Moreover, other credible evidence
supports Dr. Gilbert’s opinion and report. Hafley’s testimony of his job duties
and the work restrictions put in place by Dr. Kakel both constitute substantial
evidence that Hafley did do heavy manual labor. The Court of Appeals (and the
Board) correctly held that Dr. Gilbert’s terseness in describing the work history
only went to credibility, not admissibility.
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Trane further argues, however, that Hafley did not accurately describe
his job duties. It insists that his work was light duty and cites video evidence
as proof. Hafley, however, was obviously competent to testify to his own work
duties and the ALJ as factfinder was free to believe or reject that testimony.
Once again, substantial evidence compels affirmation. Trane Co. further
complains the ALJ did not account for this video evidence in reaching his
decision. The Board held this particular argument unpreserved as Trane Co.
made no specific request for findings of fact on this issue nor raised it in its
petition for reconsideration. Because it was not properly preserved for review
before the Board, it was not properly before the Court of Appeals nor is it
properly before this Court for review. KRS 342.281; Uninsured Employers’ Fund
v. Stanford, 399 S.W.3d 26, 31 (Ky. 2013). The Court of Appeals is affirmed.
Minton, C.J.; Conley, Hughes, Keller, Nickell, VanMeter, JJ., sitting. All
concur. Lambert, J., not sitting.
COUNSEL FOR APPELLANT:
Donald J. Niehaus
Walton Niehaus Law, PLLC
COUNSEL FOR APPELLEE:
McKinley Morgan
Dan Scott
Morgan, Collins, Yeast & Salyer
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ADMINISTRATIVE LAW JUDGE:
Hon. Grant S. Roark
WORKERS’ COMPENSATION BOARD:
Michael Wayne Alvey,
Chairman
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