Charles David McGeorge v. Wal-Mart ( 2022 )

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NOT TO BE PUBLISHED OPINION
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RENDERED: APRIL 28, 2022
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0084-WC
CHARLES DAVID MCGEORGE APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. NO. 2020-CA-0660
WORKERS’ COMPENSATION NO. WC-13-87035
WAL-MART; HON. CHRIS DAVIS, APPELLEES
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Charles David McGeorge appeals from the Court of Appeals’ decision
upholding an Administrative Law Judge’s (ALJ) finding that he is not
permanently, totally disabled as a result of a 2013 work injury. McGeorge
argues that the ALJ failed to perform the proper analysis and articulate the
basis for his decision. We disagree. For the reasons stated below, we affirm.
FACTS AND PROCEDURAL HISTORY
On April 13, 2013, McGeorge injured his lumbar spine at L5-S1 while
working for Wal-Mart as an order filler. He filed a workers’ compensation claim
and was awarded temporary total disability, permanent partial disability, and
medical benefits on June 30, 2014. The ALJ based these awards on an 8%
impairment rating and determined that McGeorge was unable to return to the
type of work he performed on the date of the injury but did not find him to be
permanently, totally disabled. This decision was not appealed.
Following a request for preauthorization for a proposed L5-S1 fusion
surgery by Dr. Amr O. El-Naggar, Wal-Mart filed a medical dispute and a
motion to reopen the claim on December 29, 2015. In support of the medical
dispute, Wal-Mart filed the utilization review report of Dr. Ricky Mendel who
found the recommended surgery was not reasonable or necessary. While the
medical dispute was pending, McGeorge filed a motion to reopen his claim
pursuant to Kentucky Revised Statute (KRS) 342.125(1)(d) on June 9, 2016,
alleging “that his occupational disability has significantly increased and that he
is now permanently and totally disabled from any gainful employment.” On
November 11, 2017, the claims were bifurcated to separate the compensability
of the proposed surgery claim from the worsening condition claim. Two
months later, the ALJ determined that there were no medical records in
evidence to support the proposed spinal fusion surgery.
The parties subsequently filed additional medical records and the
deposition testimony of Dr. El-Naggar. Following a hearing, the ALJ entered an
interlocutory Opinion and Order on August 27, 2018, finding the proposed
spinal fusion surgery at L5-S1 compensable and awarding McGeorge temporary
total disability benefits from the date of the surgery through the date he
reached maximum medical improvement or returned to work. The ALJ
specifically reserved the issues regarding McGeorge’s claim that his condition
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had worsened for a later date. McGeorge underwent the surgery on November
16, 2018. Pre-surgery, he had back pain with weakness and tingling in both
legs and feet. Post-surgery, McGeorge’s right-sided symptoms resolved but he
still has back pain and occasional tingling and numbness in his left foot.
Three months after the surgery, Dr. El-Naggar noted good placement of the
surgical hardware and that McGeorge was doing very well post-operatively.
Dr. Russell Travis conducted an independent medical evaluation on May
30, 2019. During this examination McGeorge explained that the fusion surgery
alleviated his right leg symptoms but not his left leg symptoms and reported
back pain. Dr. Travis opined that McGeorge has congenital lumbar spinal
stenosis and did not feel that McGeorge was ever a candidate for the fusion
surgery. He assigned a 20% impairment rating with 12% of that rating
attributable to the fusion surgery. Dr. Travis found no objective basis for
restricting McGeorge’s activities once he fully recovered from the fusion
surgery, which takes approximately one year. Dr. Travis stated that at six
months after the fusion McGeorge could return to medium work activity. After
full recovery from the fusion, Dr. Travis opined that McGeorge could return to
the same type of work he performed at the time of his injury.
On June 20, 2019, Dr. John J. Gilbert examined McGeorge. At that time
McGeorge reported mid and low back pain and left leg numbness and
weakness, noting his trouble walking and lifting. According to Dr. Gilbert, the
physical examination revealed spasms, tenderness and decreased range of
motion in the mid and low back. Dr. Gilbert assigned a 23% impairment rating
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for McGeorge’s lumbar condition and an 8% impairment rating to his thoracic
spine, although McGeorge never claimed injury to his thoracic spine. He also
opined that McGeorge lacked the physical capacity to return to the type of work
performed at the time of his injury but stated that McGeorge could return to
sedentary work.
A final hearing regarding the worsening of McGeorge’s condition was
conducted on August 21, 2019, and on October 14 the ALJ entered an
Opinion, Award and Order finding McGeorge sustained a 12% increase in
impairment for a total impairment rating of 20%. The ALJ also determined
that McGeorge is not permanently, totally disabled. Wal-Mart argued that
because the worsening of McGeorge’s condition is due to his surgery, the date
of onset for purposes of an increased award should be the date of the surgery.
However, the ALJ determined that McGeorge is entitled to an increase in award
from the date of the motion to reopen pursuant to KRS 342.125(4).
Both Wal-Mart and McGeorge filed petitions for reconsideration. Wal-
Mart asserted that the ALJ erred in awarding increased benefits from the date
of reopening instead of the date of surgery, while McGeorge claimed the ALJ
erred in not finding him permanently, totally disabled. The ALJ denied both
petitions and both parties appealed to the Workers’ Compensation Board
(Board).
The Board affirmed the ALJ’s Opinion, Order and Award and held that
the ALJ acted squarely within his discretion in finding McGeorge is not
permanently, totally disabled. The ALJ considered the factors used to
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determine if a claimant is totally disabled. Further, the ALJ specifically noted
that McGeorge is 49 years old, stating he “could return to some type of gainful
employment if he so wishes.” Regarding the applicable date for the increase in
permanent partial disability benefits, the Board concluded that the ALJ did not
err because the increase in impairment was a product of the underlying
condition requiring surgery, not the surgery itself.
The Court of Appeals affirmed the Board, holding that the ALJ properly
analyzed whether McGeorge is permanently and totally disabled and that the
ALJ’s findings were supported by substantial evidence, namely the expert
testimony of Dr. Travis. Because the ALJ did not err in determining that
McGeorge is not permanently, totally disabled, the Court of Appeals affirmed
the Board.1
ANALYSIS
On appeal McGeorge argues that the ALJ erred in finding that he is not
permanently, totally disabled. The claimant has the burden of proving every
element of his workers’ compensation claim. Gibbs v. Premier Scale Co./Ind.
Scale Co., 50 S.W.3d 754, 763 (Ky. 2001). “A party who fails to meet its burden
1 The ALJ, Board, and Court of Appeals also considered Wal-Mart’s argument
that the ALJ’s award of 20% impairment from the date of reopening is erroneous. KRS
342.125(4) states that “any change in the amount of compensation shall be ordered
only from the date of filing the motion to reopen.” The Court of Appeals relied on this
subsection and Johnson v. Gans Furniture Indus., Inc., 114 S.W.3d 850, 855 (Ky. 2003)
(citing Rex Coal Co. v. Campbell, 281 S.W. 1039 (Ky. 1926)), in determining that “a
worker’s right to benefits for a post-award increase in disability vests when a motion to
reopen is filed, without regard to when the increased disability began.” Wal-Mart does
not present any argument with regard to the proper date of increased benefits in this
appeal.
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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). McGeorge cannot
meet this heavy burden.
McGeorge takes issue with the ALJ’s failure to define “permanent total
disability” and “work.” “Permanent total disability” is defined as “the condition
of an employee who, due to an injury, has a permanent disability rating and
has a complete and permanent inability to perform any type of work as a result
of an injury . . . .” KRS 342.0011(11)(c). “Work” is defined as “providing
services to another in return for remuneration on a regular and sustained basis
in a competitive economy.” KRS 342.0011(34). While these terms were not
explicitly defined in the ALJ’s Opinion, Order, and Award, it is apparent that
the ALJ understood these terms and correctly applied them to McGeorge’s
claim. Indeed, the ALJ found McGeorge “could return to some type of gainful
employment if he so wishes.”
McGeorge asserts that the ALJ failed to comply with City of Ashland v.
Stumbo, 461 S.W.3d 392 (Ky. 2015), and the required assessment of
permanent total disability. According to McGeorge, the ALJ also failed to
provide a sufficient basis to support his determination. Cornett v. Corbin
Materials, Inc., 807 S.W.2d 56 (Ky. 1991). We disagree.
An ALJ is required to conduct a five-step analysis to determine whether a
claimant is totally disabled. Stumbo, 461 S.W.3d at 396-97. First, the ALJ
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must determine that the claimant suffered a work-related injury. Second, the
ALJ must determine whether the claimant has an impairment rating. Third,
based on the impairment rating, the ALJ must determine the claimant’s
permanent disability rating. Fourth, the ALJ must consider whether the
claimant is unable to perform any kind of work. Finally, the ALJ must
determine whether the claimant’s total disability is a result of the work-related
injury. Id.
The ALJ performed the first step of the total disability analysis. In 2014
an ALJ determined that McGeorge suffered a work-related injury and the
present ALJ reiterated that finding. As to the impairment rating, the ALJ
increased McGeorge’s impairment rating by 12% for a total whole person
impairment of 20%, relying on Dr. Travis’s opinions and assessment.
McGeorge asserts that there is no explanation as to why the ALJ relied on Dr.
Travis’s opinion rather than Dr. Gilbert’s opinion. However, the ALJ explained
why he did not rely on Dr. Gilbert’s impairment rating:
First, Dr. Gilbert appears to rate McGeorge, at least in part, on two
non-work-related conditions, those to the thoracic spine and at L3-
4. Second, Dr. Gilbert’s overall exam findings and conclusions are
inconsistent with Dr. Travis’[s] findings, my own estimation of
McGeorge’s credibility and Dr. El-Naggar’s post-surgical findings.
X-rays and CT scans by Dr. El-Naggar found good placement of
hardware. Physical findings include a decrease in pain and
symptoms.
Rather, in reliance on Dr. Travis I find that McGeorge has a
20% impairment rating, an increase of 12%. The rating from Dr.
Travis is in accordance with the range listed in the [American
Medical Association] Guides. It is the lowest possible rating.
Again, however, McGeorge does have good hardware placement, as
shown by diagnostic testing, and there is no objectively provable
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reason as to why he should have such severe on-going symptoms
as he alleges.
The ALJ also stated he “did not know what [made] Dr. Gilbert add previously
unlitigated, unclaimed and unrelated body parts” to his report, regarding the
assigned 8% impairment to the thoracic spine. In explaining his reliance on
Dr. Travis’s opinion, the ALJ assigned a 20% permanent impairment rating,
satisfying the third step of the analysis. In an addendum to his original report,
Dr. Travis discussed his review and criticisms of Dr. Gilbert’s report,
highlighting Dr. Gilbert’s vague descriptions of his diagnoses and failure to
personally review McGeorge’s imaging studies. Dr. Travis also noted that the
multiple MRIs he reviewed did not show a disc herniation at L3-L4 as
diagnosed by Dr. Gilbert.
In determining whether McGeorge is unable to perform any type of work,
the ALJ recognized McGeorge’s pain and limitations, but did not believe that
McGeorge is totally disabled. The ALJ relied on the CT scans, which showed
good hardware placement from the fusion surgery, and his age. The ALJ also
noted that he did not believe McGeorge’s symptoms were as severe as he
alleges. Further, the ALJ stated that McGeorge’s “testimony would be
necessary under these facts to find him totally disabled and I am not
persuaded by his testimony.”
There was no medical testimony suggesting that McGeorge was unable to
return to sedentary work. Dr. Gilbert opined that McGeorge could return to
sedentary work and Dr. Travis opined that he could return to medium work
while recovering from the fusion surgery and the same work he previously
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performed once recovered from the fusion. McGeorge relies on his own
testimony to support his assertion that the ALJ should have found him to be
permanently, totally disabled. 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). The ALJ was unpersuaded by
McGeorge’s testimony and did not find it credible. An ALJ may reject any
testimony and believe or disbelieve various parts of the evidence. Magic Coal
Co. v. Fox, 19 S.W.3d 88 (Ky. 2000). The fifth step of the analysis is
inapplicable because the ALJ did not find that McGeorge suffers a permanent
total disability.
While the ALJ did not cite Stumbo, 461 S.W.3d at 392, the Opinion,
Order and Award outlines the proper analysis. “[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 Tech., 217 S.W.3d 261, 264 (Ky.
App. 2007). Because the ALJ found against McGeorge, the party with the
burden of proof, “his burden on appeal is infinitely greater. It is of no avail in
such a case to show that there was some evidence of substance which would
have justified a finding in his favor.” Special Fund v. Francis, 708 S.W.2d 641,
643 (Ky. 1986). McGeorge relies on his own testimony, which the ALJ
determined lacked credibility. This testimony is insufficient to support a
finding that he is permanently, totally disabled. Therefore, the ALJ’s findings
were not clearly erroneous.
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CONCLUSION
Based on the foregoing, we affirm the Courts of Appeals’ decision
affirming the Board and upholding the ALJ’s Opinion and Order.
Minton, C.J.; Conley, Hughes, Keller, Nickell, and VanMeter, JJ., sitting.
All concur. Lambert, J., not sitting.
COUNSEL FOR APPELLANT:
W. Gerald Vanover
McKinnley Morgan
Morgan, Collins, Yeast & Salyer
COUNSEL FOR APPELLEE,
WAL-MART:
Brandon Lawrence Rosen
Pohl & Aubrey, P.S.C.
ADMINISTRATIVE LAW JUDGE:
Hon. Chris Davis
WORKERS’ COMPENSATION BOARD:
Michael Wayne Alvey, Chairman
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