Megan Shoemaker v. Kelly Services, Inc. ( 2021 )

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RENDERED: JANUARY 21, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0630-WC
MEGAN SHOEMAKER APPELLANT
ON APPEAL FROM COURT OF APPEALS
v. NO. 2019-CA-0039
WORKERS’ COMPENSATION BOARD
NO. 17-WC-99744
KELLY SERVICES, INC.; HON. JOHN APPELLEES
H. MCCRACKEN, ADMINISTRATIVE
LAW JUDGE; AND WORKERS'
COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Megan Shoemaker appeals from the Court of Appeals’ decision upholding
an Administrative Law Judge’s (ALJ) denial of her claims for temporary total
disability benefits and medical benefits relating to her cervical surgery.
Shoemaker argues that the ALJ erred by making findings not supported by
substantial evidence, and misinterpreted Kentucky law regarding cumulative
and acute trauma injuries. Because the ALJ’s findings actually were supported
by substantial evidence, and the distinction between cumulative and acute
injuries is immaterial to the resolution of Shoemaker’s claims, we disagree with
Shoemaker. For the reasons stated below, we affirm the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
Megan Shoemaker worked for Kelly Services, Inc., a job placement
company, from March 4, 2015 until November 13, 2016, and worked
throughout that time at Toyota Manufacturing, Inc. She had been employed
for approximately eleven months at the time of her February, 2016 injury. She
was hired by Toyota and began working as a Toyota employee on November 14,
2016. She worked approximately 40-50 hours per week and her job required
her to operate a forklift and a tugger. While operating the forklift she delivered
parts to specific lanes at the Toyota facility, and was not required to manually
pick up any parts. While working the tugger job she had to physically cut
plastic, flip lids and organize materials, which required her to lift, twist and
bend. She stated that some of the materials were heavy but could not
approximate a weight range. At each delivery stop, she manually took products
off the tugger and left them at the delivery location.
On February 22, 2016, she was operating on the U Lane and described it
as heavy work. She was working overtime with no break and stated it was
hard to lift the boxes and stay on time, so she began to slow down. The job she
was working that day required a lot of lifting and moving. While working, her
“traps” (trapezius muscle) began to tighten and her arms got tired. She
finished her shift and went home. She was lying on the couch and leaned up
to grab her puppy. When she made a quick turn of her neck, she felt her neck
lock up and also experienced a significant increase in pain.
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The next morning Shoemaker sought treatment at Toyota’s medical
facility. On the intake form she stated that she had neck and shoulder blade
spasms that resulted from moving too fast after her muscles were fatigued.
The APRN diagnosed her with a neck muscle strain and recommended ice,
ibuprofen or Tylenol, and gentle stretching and self-massage. She was placed
on work restrictions which required her to sort parts. She sought treatment
with her primary care physician who prescribed muscle relaxers. Toyota would
not allow her to work while taking muscle relaxers, so she was off work for a
few days. Shoemaker testified that during her time off her symptoms
improved.
In a follow-up appointment with the Toyota medical facility on February
29, 2016, the same APRN noted Shoemaker’s complaints, but stated that
Shoemaker was doing better, had increased her range of motion and decreased
pain. On March 21, 2016 Shoemaker denied any pain, numbness, tingling or
swelling. She was allowed to return to work with reintroduction for two days,
then regular full duty work. A week later she reported no issues or complaints
during a follow-up visit and said she was doing well. Shoemaker had a full
range of motion without pain or tenderness. She was released to full duty and
advised to return as needed. During her deposition Shoemaker testified that
over the next several months between March and November, her symptoms
intermittently recurred but were manageable.
Shoemaker began receiving treatment from Dr. Rice on January 20, 2017
and she reported neck and right upper extremity pain. Dr. Rice noted
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decreased strength and reflex and placed her on a ten-pound weight
restriction. On February 16, 2017 she had an epidural steroid injection that
she said made her symptoms worse. Dr. Rice diagnosed herniated discs at C5-
C6 after reviewing an MRI. He noted during a visit on March 10, 2017 that
Shoemaker reported persistent pain and that she was having trouble working
at Toyota. Because all conservative treatment options had failed, Dr. Rice
recommended a discectomy with cervical disc replacement at C5-C6.
Shoemaker saw Dr. John Vaughan for a second opinion on March 30, 2017.
He also noted a two-level disc herniation at C5-C6 and C6-C7. Dr. Vaughan
also believed surgery was a good option for Shoemaker, but provided other
treatment options, like physical therapy.
Shoemaker’s last day of work at Toyota was April 12, 2017. She filed a
claim for workers’ compensation benefits on May 2, 2017, claiming repetitive
motion injuries to multiple body parts that occurred on February 22, 2016.1
During a June 9, 2017 visit with Dr. Rice, Shoemaker reported new left-
sided symptoms that went into her neck and trapezius down to her arm.
During this visit Shoemaker had an MRI to make sure she was still a candidate
1 Shoemaker stated that approximately one week before December 2, 2016, her
previously manageable symptoms grew increasingly worse to the point where she
could not get relief. She ultimately sought medical treatment at Toyota’s medical
facility on December 2, 2016. She testified that the symptoms were so bad that she
tried to seek treatment from her family doctor but was unable to be seen so she went
to the hospital. She was referred to a specialist, Dr. James Rice. Shoemaker filed a
repetitive motion claim against Toyota with a disability manifestation date of
December 2, 2016 and this claim was settled prior to the Final Hearing. Therefore,
the claim against Toyota is not before the Court in this appeal.
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for cervical surgery. After review, Dr. Rice concluded that a decompression
procedure with a discectomy and fusion was an appropriate treatment option.
On August 18, 2017 Dr. Rice performed the cervical fusion surgery.
During a follow up appointment, she reported having some tingling and
numbness in her upper extremity, but that her pain overall had improved.
Generally, Dr. Rice noted that Shoemaker was doing well but he recommended
maintaining lifting restrictions and limiting overhead activity. During a follow
up appointment on September 22, 2017 Shoemaker reported a lot of pain in
her shoulder blade and a stiff neck but stated that she did not have any arm
pain. On October 20, 2017 Shoemaker reported right arm numbness and
tingling, stiffness in her neck and back upon waking up, and back pain. She
reported that she had trouble standing for any period of time and believed her
symptoms were work-related. Dr. Rice recommended home exercises for her
low back and to continue using the anti-inflammatory and muscle relaxant
medication she had taken in the past. Overall, regarding her cervical spine
surgery, Dr. Rice stated that Shoemaker was “doing as expected.”
Shoemaker underwent several medical evaluations at both her attorney’s
and Kelly Services’ requests. Dr. Philip Corbett evaluated Shoemaker on behalf
of Kelly Services on November 27, 2017 and concluded that the episode from
which her problems developed occurred at home, not at work. He opined that
there was no traumatic pathology in Shoemaker’s right shoulder and noted
that there was evidence of radiculopathy at the C5-C6 and C6-C7 levels. He
also stated that further surgical intervention may be necessary at the C7 level.
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Dr. Corbett opined that if Shoemaker is at MMI, no work restrictions are
necessary but that whether she reached MMI was arguable since further
surgical intervention could be necessary.
Kelly Services filed the medical report of Dr. Rafid Kakel who conducted
an IME on December 21, 2017. Shoemaker reported neck pain that radiated
into her right arm. Dr. Kakel reviewed her symptom history and past medical
treatment, including the cervical MRI studies. Dr. Kakel diagnosed her with
disc protrusions at C5-C6 and C6-C7. He stated that the only conditions she
has that are causally related to her work for Kelly Services are the cervical and
right shoulder strain. He opined that her work activities with Kelly Services
were not ones that would cause her to have cervical spinal disc protrusions.
Dr. Kakel noted the gap in treatment from March to December 2016 and that
the disc changes at more than one level were more consistent with naturally
occurring changes rather than with changes occurring from work activities or
injury. He specifically stated that there was no causal relationship between the
cervical surgery and Shoemaker’s employment with Kelly Services.
Dr. Kakel concluded that Shoemaker has no functional impairment that
is causally related to her employment at Kelly Services. He opined that
Shoemaker had a 25% impairment rating because of the cervical surgery
regardless of causation. He also reviewed Dr. Vaughan’s January 2018 report
and issued an addendum report dated December 21, 2017. Dr. Kakel
disagreed with Dr. Vaughan’s opinion as to causation and noted that Dr.
Vaughan failed to consider the alleged mechanism of injury or gap in treatment
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when forming his opinion. He also opined that the February 2017 MRI
findings, relied on by Dr. Vaughan, were far too removed from the date of
injury to be causally related.
Dr. Vaughan evaluated Shoemaker at the request of her attorney on
January 22, 2018. He obtained a history that Shoemaker developed neck pain
with pain radiating into her right arm with numbness following the February
22, 2017 incident. According to Dr. Vaughan, there was no evidence of pre-
existing active conditions, and a very clear history of causation. He diagnosed
a herniated disc at C5-C6 and status post anterior cervical discectomy and
fusion at C5-C6. He attributed both diagnoses to the work incident and noted
that all healthcare providers stated that her symptoms began with the work
injury. He placed Shoemaker at MMI on February 18, 2018, which was six
months after her surgery. Dr. Vaughan assessed a 27% impairment rating and
recommended work restrictions that would preclude her from returning to work
at Toyota. He did not anticipate a need for further surgical treatment.
In an addendum report on April 11, 2018, Dr. Vaughan stated that he
reviewed Dr. Corbett’s report and disagreed regarding causation. During both
of Dr. Vaughan’s visits with Shoemaker, initially for a second opinion on March
30, 2017 and again for the IME on January 22, 2018, Shoemaker made no
mention of the incident with her puppy. After reviewing Shoemaker’s
deposition, Dr. Vaughan noted that it was clear that Shoemaker’s neck and
arm pain began with her work at Toyota on February 22, 2016 and was merely
exacerbated when she reached for her dog and felt her neck lock up. Dr.
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Vaughan did not believe that this type of reaching episode caused any
significant stress on the cervical spine and could not cause this type of injury.
Dr. Henry Tutt examined Shoemaker on April 13, 2018 and reviewed
Shoemaker’s deposition testimony and treatment records. He opined that
Shoemaker sustained a cervical strain or sprain because of the February 22,
2016 work incident which resolved no later than March 28, 2016 with
restricted duty, physical therapy and the passage of time. Dr. Tutt noted that
Shoemaker clearly suffered an increase in symptoms after sitting up on her
couch and reaching for her dog. Dr. Tutt stated that following the February 22,
2016 incident Shoemaker became completely asymptomatic and reached
maximum medical improvement (MMI) no later than March 28, 2016. He
opined that Shoemaker did not have an impairment rating and did not require
work restrictions because of the February 22, 2016 injury. Because of the
cervical surgery, Dr. Tutt assessed an impairment rating of 25%, but noted
that this impairment rating has no relationship to the alleged work injury on
February 22 or to any workplace activities at Toyota. He believed the disc
herniation that led to the cervical surgery was spontaneous.
Dr. Kakel prepared an addendum to his IME on April 18, 2018. Dr.
Kakel reviewed Dr. Vaughan’s IME report and opined that Dr. Vaughan did not
take the mechanism of injury or gap in treatment into consideration when
forming his opinions. Dr. Kakel criticized Dr. Vaughan for relating
Shoemaker’s cervical condition to her work injury primarily because she did
not have any pre-existing neck injuries or conditions. He again highlighted the
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fact that Shoemaker’s condition improved with treatment and her return to her
regular job. He also reiterated that there was a gap in treatment, which is
consistent with a sprain.
A final hearing was held on May 21, 2018. Shoemaker testified that as of
that date she experienced stiffness in the mornings and occasionally her neck
locks up. The more active she is, the more her symptoms flare up. Her neck
injury affects her range of motion and at times causes pain to radiate down her
right arm. Although she still performs daily tasks, she must take breaks and
does not lift anything heavy. In his July 18, 2018 Opinion and Order, the ALJ
found that Shoemaker failed to meet the burden of proving that she sustained
anything more than a temporary injury while employed at Kelly Services. The
ALJ noted that Shoemaker did not testify that lifting any particular part caused
her injury. Relying on the opinions of Dr. Kakel and Dr. Tutt, the ALJ
concluded that Shoemaker suffered a temporary cervical strain/sprain and
right shoulder strain injury that resolved on March 28, 2016, the date she
reached MMI and returned to her regular duty work.
Additionally, the ALJ relied on Drs. Kakel and Tutt in concluding that the
gap in time between March 28, 2016 and December 2, 2016 was sufficient to
terminate any nexus between the original February 22 work injury and her
subsequent cervical surgery. The ALJ dismissed Shoemaker’s claim for
permanent partial disability benefits because she did not sustain a permanent
injury. He also dismissed her claim for temporary total disability benefits
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because she did not miss more than seven days of work, but awarded medical
benefits from February 22, 2016 to March 28, 2016.
Shoemaker filed a petition for reconsideration arguing that the ALJ
misinterpreted Dr. Vaughan’s report, and that the reports of Dr. Kakel and Dr.
Tutt did not constitute substantial evidence. The ALJ denied the petition on
August 15, 2018, stating that Shoemaker was rearguing her case and
explaining that while he found that Shoemaker sustained a work-related
injury, it was temporary and not permanent in nature. Further, the ALJ
explained that the gap in time between the date of the injury and Shoemaker’s
cervical surgery was too long to relate the cervical surgery to the work injury.
Shoemaker appealed to the Workers’ Compensation Board (Board). In an
opinion rendered December 7, 2018, the Board found that there was
substantial evidence to support each of the ALJ’s findings. Further, the Board
rejected Shoemaker’s argument that the ALJ was not fully aware of Dr.
Vaughan’s opinions, and noted that the ALJ was not required to rely on Dr.
Vaughan’s opinions. The Board determined that the opinions of Dr. Kakel and
Dr. Tutt that Shoemaker sustained only a temporary injury constituted
substantial evidence and are supported by the Toyota medical records and
Shoemaker’s testimony. The Board affirmed the ALJ’s Opinion and Order and
the August 15, 2018 Order on Reconsideration.
In an opinion rendered September 27, 2019 the Court of Appeals
affirmed the Board, agreeing that the ALJ’s assessment of the evidence was
supported by substantial evidence and not clearly erroneous. Noting the
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function of its review is to correct the Board only where it committed an error
in assessing the evidence so flagrant as to cause gross injustice, W. Baptist
Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992), the Court of Appeals
determined that the Board did not err by affirming the ALJ’s opinion. The
Court of Appeals noted its difficulty in understanding how a 23-year-old
employee with no history of degenerative cervical conditions could
spontaneously develop such a dramatic injury, but reluctantly affirmed the
Board. Shoemaker appealed to this Court, arguing that the opinions of Dr.
Kakel and Dr. Tutt cannot constitute substantial evidence, that the ALJ
misinterpreted the law, and that the ALJ denied her claim based on findings
that are factually inaccurate.
ANALYSIS
The ALJ, as fact-finder, has the sole authority to determine the quality,
character and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d
308, 309 (Ky. 1993). “A party who fails to meet its burden before the ALJ must
show on appeal that the unfavorable finding was clearly erroneous because
overwhelming evidence compelled a favorable finding, i.e., that no reasonable
person could have failed to be persuaded by the favorable evidence.” Kroger v.
Ligon, 338 S.W.3d 269, 273 (Ky. 2011). “[T]he ALJ’s findings of fact are entitled
to considerable deference and will not be set aside unless the evidence compels
a contrary finding.” Finley v. DBM Technologies, 217 S.W.3d 261, 264 (Ky. App.
2007). The ALJ awarded Shoemaker medical benefits from February 22, 2016
through March 28, 2016 but denied her claim for permanent income benefits
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and temporary total disability benefits. Therefore, Shoemaker must prove that
“overwhelming evidence compelled” a finding in favor of permanent income
benefits and temporary total disability benefits. Kroger, 338 S.W.3d at 273.
In awarding benefits, the ALJ relied primarily on the medical opinions of
Dr. Kakel and Dr. Tutt, who both concluded that Shoemaker’s injury was
temporary and there was no causal connection between the injury and the
cervical surgery. Shoemaker points to the ALJ’s conclusion that the gap in
time between March 28, 2016 and December 2, 2016 is sufficient to terminate
any nexus between the original injury and her subsequent cervical surgery and
argues that because she was seen at KentuckyOne Primary Care Associates on
April 27, 2016, the ALJ’s opinion is based on a factual finding that is clearly
erroneous. Despite references to the April 27 visit in the IME reports, there is
no record of the April 27, 2016 appointment with KentuckyOne Health in
evidence. The ALJ could not consider evidence that was not in the record,
although several of the physicians who examined her referred to an April 27
visit in their reports. If this particular treatment note was important for the
ALJ’s consideration, then Shoemaker should have made it part of the record.
In any event, even if the April 27 office note was in the record, there still would
have been a gap in treatment from April 27 to December 2—more than seven
months.
The ALJ recognized Shoemaker’s testimony that she continued having
problems a few weeks after she returned to work on March 28, 2016. However,
the ALJ highlighted the fact that Shoemaker did not present these problems to
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anyone at Kelly Services or Toyota. Shoemaker argues that she is not required
to re-report her injury when her symptoms recurred, which is correct.
However, nothing prohibits the ALJ from considering this fact in determining
whether disability benefits are appropriate. The fact that Shoemaker did not
report any symptoms to her employers is consistent with the gap in treatment
and obviously suggests that her symptoms resolved.
Shoemaker also argues that Dr. Kakel and Dr. Tutt ignored evidence and
gave no explanation as to how Shoemaker could have reached MMI on March
28, 2016, then experienced the same previously reported symptoms on April
27, 2016. Although there was evidence to support a different finding, the ALJ,
as fact finder, has the sole authority to determine the weight, credibility,
substance and inferences to be drawn from the evidence. Paramount Foods,
Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Again, to prevail on appeal
Shoemaker must show that “overwhelming evidence compelled” a finding in her
favor. Kroger, 338 S.W.3d at 273. The evidence contrary to the ALJ’s findings
was not overwhelming and the ALJ’s conclusions were reasonably supported by
the medical evidence. “[A] finding which can reasonably be made is, perforce,
not clearly erroneous. A finding which is unreasonable under the evidence
presented is ‘clearly erroneous’ and, perforce, would ‘compel’ a different
finding.” Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
In his opinion, the ALJ stated that he relied on Shoemaker’s testimony as
well as the medical reports of Dr. Kakel and Dr. Tutt in determining that
Shoemaker’s injury was temporary and that no nexus existed between the
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cervical surgery and the work injury. Much of the evidence suggests that
Shoemaker sustained a temporary work injury and it was entirely reasonable
for the ALJ to reach that conclusion. The Board specifically noted that the
ALJ’s conclusions were consistent with Shoemaker’s deposition testimony and
her Toyota medical records. The Court of Appeals likewise held that the ALJ
did not commit error in assessing the evidence. We agree.
Shoemaker cites Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky.
2004), arguing that a medical opinion based on a corrupt history cannot
constitute substantial evidence. However, in Cepero the workers’
compensation claimant himself neglected to provide substantial information to
his examining physicians regarding a major injury to the same injured body
part prior to the work injury. The opinions of Dr. Kakel and Dr. Tutt were not
corrupted in that fashion. Dr. Tutt reviewed all medical records, and the IME
reports of Dr. Kakel and Dr. Vaughan, as well as Shoemaker’s deposition
testimony. Dr. Kakel reviewed Shoemaker’s medical records and considered
the information she provided during the examination. He also reviewed two
MRI studies of Shoemaker’s cervical spine. We cannot say that either of these
physicians cited incomplete or inaccurate information. Both physicians were
aware of Shoemaker’s medical history and formed their opinions based on
several sources of information. Therefore, these opinions constitute
substantial evidence and the standard to reverse the ALJ’s findings on appeal
has not been met.
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Dr. Kakel stated that Shoemaker “went several months without the need
for any formal treatment from March 2016 to December 2016.” Even though
Shoemaker apparently sought treatment at KentuckyOne Primary Care
Associates on April 27, 2016 (again, no medical record substantiating this is in
the record), this isolated statement by Dr. Kakel does not render his entire
examination and report inaccurate. It is unclear what constitutes “formal
treatment,” and we cannot conclude that this statement constitutes inaccurate
or incomplete information. Further, in the list of “Records Review” Dr. Kakel
lists that he reviewed the records of Nikita Sutton, APRN. Although the April
27 KentuckyOne record is not available, Dr. Tutt noted that during that visit,
Nikita Sutton, APRN recommended an MRI. It is possible that Dr. Kakel
reviewed the missing record, and merely overlooked the fact that Shoemaker
sought treatment on that date in concluding that she did not need formal
treatment between March 2016 and December 2016. We also note that
Shoemaker failed to inform Dr. Kakel about the incident at home with her
puppy on the evening of February 22, 2016, an incident which other
physicians believed to be a potential cause of her February 22 injury.
Shoemaker also argues that the ALJ misinterpreted the law regarding
single trauma and cumulative trauma injuries and did not properly consider
whether Shoemaker had a cumulative trauma injury. In her view, the ALJ’s
misinterpretation of the law caused him to reject Dr. Vaughan’s opinion
without proper consideration.
In his opinion, the ALJ stated
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Miss Shoemaker pled the case, and has testified, that her injury
occurred because of the repetitive motion caused by the fast pace
movements required in the tugging portion of her job. This job
required her to lift parts that she stated were heavy. However, she
had been at this job for just under a year when she complained of
her neck and right shoulder spasms and pain. She has not
testified to lifting any specific part that caused a traumatic incident
that produced her symptoms. . . . There is a difference in the
required proof for a cumulative trauma claim as opposed to an
acute trauma claim.
The ALJ did not misinterpret the law pertaining to cumulative trauma
and acute trauma injuries, and regardless, this distinction is irrelevant in this
case because absolutely no medical evidence supported a cumulative trauma
claim. None of the physicians who conducted an IME concluded that
Shoemaker suffered a cumulative trauma injury. Dr. Kakel labeled
Shoemaker’s temporary injury as “acute,” and Dr. Vaughan attributed
Shoemaker’s symptoms to the single work injury on February 22. Dr. Tutt
attributed Shoemaker’s cervical strain to the single work incident, and Dr.
Corbett opined that “the episode” for which her problems developed occurred at
home, not in the workplace.
Despite Shoemaker’s deposition testimony that arguably suggested a
cumulative trauma injury and her description on her initial workers’
compensation claim forms that she suffered a cumulative trauma injury, no
physician opined that her injuries were cumulative. Each physician pointed to
her work on February 22 as a basis for her complaints, and the ALJ relied on
these opinions in concluding that Shoemaker sustained a temporary injury.
In Robertson v. United Parcel Service, 64 S.W.3d 284, 286 (Ky. 2001), the Court
reviewed temporary versus permanent disability benefits. “[I]n order to qualify
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for an award of permanent partial disability under KRS 342.730, the claimant
was required to prove not only the existence of a harmful change as a result of
the work-related traumatic event, he was also required to prove that the
harmful change resulted in a permanent disability as measured by an AMA
impairment.” Id. Therefore, a claimant can suffer a temporary work-related
injury, but fail to prove a permanent injury. The ALJ’s opinion makes it clear
that the only harmful change Shoemaker experienced because of the work-
related injury was temporary in nature. Any other conditions which
necessitated the cervical surgery were not work related. The ALJ properly
relied on the medical evidence in the record in reaching his conclusions.
“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.” Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d
48, 52 (Ky. 2000) (citing McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky.
1974)). While there is conflicting medical evidence in the record, Shoemaker
must demonstrate that the evidence was so overwhelming as to compel a
favorable finding. Kroger, 338 S.W.3d at 273. She failed to do so. Therefore,
the ALJ did not err in denying her claim for permanent disability benefits.
CONCLUSION
The ALJ did not misconstrue the evidence or ignore Shoemaker’s legal
arguments. The determination that Shoemaker suffered a temporary injury
was supported by her deposition testimony and the medical records.
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Accordingly, we affirm the Court of Appeals decision affirming the Board and
upholding the ALJ’s opinion and order.
Minton, C.J.; Conley, Hughes, Lambert, Nickell, and VanMeter, JJ.,
concur. Keller, J., concurs in result only.
COUNSEL FOR APPELLANT:
Jackson Wayne Watts
COUNSEL FOR APPELLEE,
KELLY SERVICES, INC.
Rodney Joseph Mayer
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