Lyon Company v. Michael Ford ( 2021 )

RENDERED: APRIL 30, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1001-WC
LYON COMPANY APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-17-74742
MICHAEL FORD;
HONORABLE W. GREG HARVEY,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
JONES, JUDGE: Lyon Company (Lyon) appeals the decision of the Workers’
Compensation Board (the Board), which affirmed the administrative law judge’s
(ALJ’s) order granting Michael Ford permanent partial disability benefits as a
result of a work-related injury to his left knee. After careful review, we affirm.
Factual and Procedural History
Ford began working for Lyon in 2009 performing sheet metal and
plumbing work. As part of his job, Ford would regularly climb ladders to install
ductwork in ceilings; this activity required him to lift items weighing up to sixty
pounds over his head while doing so. On July 7, 2017, Ford was on a ladder at
work when he twisted or pivoted his body and immediately felt severe pain in his
left knee, which began to swell. Ford gave notice to Lyon of the injury and sought
medical treatment. The treating clinic referred Ford to Dr. Robert Riley, who
diagnosed Ford’s left knee as having “osteoarthritis in the lateral femoral
compartment with a complex radial tear of the posterior horn of the medical
meniscus.” (Record (R.) at 239.) Dr. Riley then placed Ford under work
restrictions. After conservative measures, including corticosteroid injections,
failed to successfully treat Ford’s left knee, Dr. Riley opined that Ford would
require a left knee replacement surgery. Dr. Riley also “completed a questionnaire
indicating Ford’s condition was caused by his July 7, 2017 left knee injury at
work.” (R. at 239.) Ford subsequently filed a Form 101 asserting his claim of
workplace injury.
For its part, Lyon asserted the condition of Ford’s left knee was not
the result of a workplace injury, but instead resulted from a preexisting condition.
Ford, who was fifty years old at the time of the July 7, 2017 injury, had a prior
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history of treatment for his right knee, which culminated in a knee replacement
surgery for the right knee in 2014. Ford’s medical records contained no specific
issues with his left knee prior to the workplace injury, although he had complained
to his primary care physician, Dr. Hume, about general pain in his left leg in
December 2016.
To support its defense, Lyon engaged Dr. Frank Bonnarens to
evaluate Ford. After reviewing the notes of the physician who replaced Ford’s
right knee, Dr. Bonnarens opined that Ford suffered “degenerative tearing of the
menisci” in his left knee as a result of osteoarthritis which was “long standing in
nature.” (R. at 241.) Dr. Bonnarens relied on Dr. Hume’s records in which Ford
complained of bilateral hip and lower extremity pain. Dr. Bonnarens also opined
that “any pain related to the work injury would have resolved with[in] three to four
weeks.” (R. at 242-43.) However, in his deposition, Dr. Bonnarens admitted that
Ford’s previous medical records do not specifically identify any complaints with
his left knee. Furthermore, Dr. Bonnarens admitted there was nothing to indicate
Ford had any difficulty performing his job or routine daily activities prior to the
workplace injury.
On July 19, 2018, Ford moved to bifurcate the proceedings in order to
settle the issue of the compensability regarding his left knee replacement surgery
and temporary total disability (TTD) benefits. After a hearing, the ALJ issued an
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interlocutory opinion, award, and order in which he resolved the causation issue in
Ford’s favor. The ALJ found that Ford carried his burden of persuasion regarding
the asymptomatic nature of his left knee’s condition prior to the workplace
incident, and Ford’s account was consistent with Dr. Riley’s opinion. The ALJ
also specifically found Dr. Riley’s opinion more persuasive than that of Dr.
Bonnarens. The ALJ’s order granted Ford his left knee surgery as medically
reasonable and necessary for the relief of his workplace injury. The ALJ also
awarded medical and TTD benefits until Ford reached maximum medical
improvement. Despite these findings, the ALJ allowed for the possibility “that
some portion of Ford’s left knee condition was impairment ratable” prior to the
workplace injury; therefore, the ALJ would permit Lyon to argue that issue at a
later time. The ALJ also reserved all issues regarding permanency for later
adjudication.
After the left knee replacement surgery, Ford underwent physical
therapy and continued to see Dr. Riley until September 20, 2019. Ford was
eventually permitted to return to work with light-duty restrictions, but Lyon could
not accommodate those restrictions. Even after Dr. Riley lifted these light-duty
restrictions, Ford did not return to work with Lyon or any other employer. Ford’s
prior work experience was in manual labor, which he no longer believed he had the
ability to perform due to his left knee injury. Ford testified before the ALJ about
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these physical limitations. Ford cannot bend or squat. He still suffers from
residual pain in his left knee, and he can only stand for about fifteen minutes at a
time without increasing pain or swelling. Ford also can no longer participate in
many routine activities of daily living, and other activities can only be undertaken
with difficulty. Regarding his leisure activities, he can no longer hunt or fish, nor
can he play with his grandchildren in the same way as he did before the injury.
In addition to the medical evidence adduced previously, Ford
submitted a medical evaluation performed by Dr. Jules Barefoot on October 15,
2019. Dr. Barefoot took note of Ford’s previous medical history, including the
non-work related right knee replacement. Dr. Barefoot diagnosed the left knee
injury and the resulting surgery as caused by the work injury on July 7, 2017. Dr.
Barefoot acknowledged the presence of preexisting osteoarthritis but asserted “that
condition was asymptomatic, dormant, nondisabling, and non-impairment-rateable
prior to his workplace accident.” (R. at 279.) Dr. Barefoot opined that the
treatment provided by Dr. Riley was reasonable and necessary to treat Ford’s
work-related injury. Dr. Barefoot also opined that Ford could no longer work on
ladders or scaffolding, and thus it would be “extremely doubtful” he could return
to working for Lyon. (R. at 282.) Finally, pursuant to the American Medical
Association’s Guides to the Evaluation of Permanent Impairment, 5th Edition
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(2000) (AMA Guides), Dr. Barefoot assessed Ford with twenty percent whole-
person impairment attributed entirely to the work-related injury to Ford’s left knee.
Lyon submitted its own medical evaluation of Ford, which was
performed by Dr. Stacie Grossfeld on December 9, 2019. She noted Ford as
having undergone a successful total left knee replacement. Dr. Grossfeld opined
that “Ford suffered a left knee strain on July 7, 2017 and . . . the meniscal
pathology was secondary to the advanced degenerative changes in the knee which
. . . were preexisting and active prior to the work accident.” (R. at 430.) Dr.
Grossfeld found Ford had preexisting active osteoarthritis which was secondary to
his morbid obesity. The doctor also noted it was “common to have meniscal
pathology if there is advanced osteoarthritis.” (R. at 430.) Finally, Dr. Grossfeld
assessed Ford as having fifteen percent whole-person impairment under the AMA
Guides for his left knee, of which she apportioned ten percent to Ford’s preexisting
active osteoarthritis. Pointing to Dr. Grossfeld’s opinion, Lyon argued that, even if
the July 7, 2017 injury was work related, ten percent of the whole-person
impairment rating should be carved out of the award because it was a symptomatic
preexisting condition.
After a hearing in which the ALJ considered the foregoing evidence
as it related to permanent disability, the ALJ confirmed his interlocutory finding
that Ford suffered a compensable left knee injury while working for Lyon on July
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7, 2017. The ALJ acknowledged the opinion provided by Dr. Grossfeld was
consistent with that of Dr. Bonnarens but stated “additional evidence of the same
character, however, does not compel the ALJ to reconsider the initial finding of
causation and work-relatedness of the left knee injury and replacement.” (R. at
432.) Instead, the ALJ determined “the incident in question was found to have
exacerbated that otherwise dormant condition such that it came into a disabling
reality.” (R. at 432.) The ALJ considered the impairment evidence submitted by
the parties and determined Ford suffered fifteen percent whole-person impairment,
consistent with Dr. Grossfeld’s opinion. However, because the ALJ was not
persuaded that the left knee was actively symptomatic prior to the July 7, 2017
incident, the ALJ declined to carve out a portion of the fifteen percent whole-
person impairment as preexisting and active.
After performing an analysis pursuant to City of Ashland v. Stumbo,
461 S.W.3d 392 (Ky. 2015), the ALJ declined to award permanent total disability
(PTD) benefits to Ford. The ALJ agreed with Dr. Barefoot that Ford would not be
able to return to his previous work with Lyon in which he regularly worked on
ladders. However, the ALJ pointed out that “no physician opined Ford was
incapable of returning to gainful employment.” (R. at 437.) The ALJ
acknowledged it would be difficult for Ford to become work-ready. However,
both Dr. Riley and Dr. Grossfeld opined that Ford obtained a good surgical result
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and had no restrictions bearing on employability. Instead, the ALJ awarded
permanent partial disability (PPD) benefits based on fifteen percent whole-person
impairment, enhanced by the three-multiplier found in KRS1 342.730(1)(c) due to
Ford’s being physically incapable of returning to work on ladders. The ALJ
concluded by reaffirming its previous award of TTD benefits and medical benefits,
in addition to the new award of PPD benefits.
Lyon filed a petition for reconsideration, again arguing Ford’s
osteoarthritis constituted a ten percent preexisting impairment which should be
carved out of the award. The ALJ denied Lyon’s petition. Lyon thereafter
appealed to the Board, which affirmed the ALJ. This appeal followed.
Analysis
In its sole argument on appeal, Lyon argues the medical evidence
should have compelled the ALJ to find Ford had a preexisting left knee impairment
which must be carved out of the PPD award. Lyon contends all of the medical
evidence, including Dr. Riley’s diagnosis, pointed to preexisting osteoarthritis in
Ford’s left knee. Furthermore, Lyon contends the osteoarthritis was active prior to
the workplace injury, arguing Ford had complained of arthritic pain in both legs to
his primary care physician in 2016. Finally, Lyon relies on the opinions provided
by Dr. Bonnarens and Dr. Grossfeld to support its theory that Ford was suffering
1
Kentucky Revised Statutes.
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from active impairment due to osteoarthritis prior to the injury. In particular, Lyon
argues the ALJ should have credited Dr. Grossfeld’s opinion that there was ten
percent whole-person impairment due to osteoarthritis prior to the injury; therefore,
Lyon should be only liable for a five percent impairment rating caused by the
workplace injury.
Our review of the Board’s opinion is limited. “When reviewing the
Board’s decision, we reverse only where it has overlooked or misconstrued
controlling law or so flagrantly erred in evaluating the evidence that it has caused
gross injustice.” GSI Commerce v. Thompson, 409 S.W.3d 361, 364 (Ky. App.
2012) (citing Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992)).
“The burden of proof in a Workers’ Compensation claim is on the claimant . . . to
prove each and every essential element of his claim.” Ford Motor Company (LAP)
v. Curtsinger, 511 S.W.3d 922, 926 (Ky. App. 2017) (citing Snawder v. Stice, 576
S.W.2d 276 (Ky. App. 1979)). “When the decision of the fact-finder favors the
person with the burden of proof, his only burden on appeal is to show that there
was some evidence of substance to support the finding, meaning evidence which
would permit a fact-finder to reasonably find as it did.” Special Fund v. Francis,
708 S.W.2d 641, 643 (Ky. 1986).
The Board affirmed the ALJ’s opinion and order on two separate
grounds, first by asserting the ALJ has the sole authority to determine the weight of
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the evidence. We agree. Under KRS 342.285, the ALJ is the sole factfinder in all
workers’ compensation claims. “KRS 342.285 designates the ALJ as finder of
fact, and has been construed to mean that the factfinder has the sole discretion to
determine the quality, character, weight, credibility, and substance of the evidence,
and to draw reasonable inferences from the evidence.” Bowerman v. Black
Equipment Co., 297 S.W.3d 858, 866 (Ky. App. 2009).
Here, the Board correctly noted the medical evidence in this case was
conflicting. Dr. Barefoot and Dr. Riley considered Ford’s left knee injury to have
been caused by the workplace incident on July 7, 2017, while Dr. Bonnarens and
Dr. Grossfeld came to a different conclusion. “The fact-finder 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, 96 (Ky. 2000). In addition, where
conflicting medical evidence is concerned, the question of whom to believe is one
exclusively for the factfinder. Yocom v. Gentry, 535 S.W.2d 850, 851 (Ky. 1976).
Finally, “[e]vidence that would have supported but not compelled a different
decision is an inadequate basis for reversal on appeal.” Gaines Gentry
Thoroughbreds/Fayette Farms v. Mandujano, 366 S.W.3d 456, 461 (Ky. 2012)
(citing McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974)). We agree
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with the Board and decline Lyon’s invitation to reweigh the medical evidence in its
favor.
Next, the Board correctly determined that Lyon failed to meet its
burden of proving the existence of Ford’s osteoarthritis as a preexisting condition:
It is well-established that the work-related arousal of a
pre-existing dormant condition into disabling reality is
compensable. . . . To be characterized as active, an
underlying pre-existing condition must be symptomatic
and impairment ratable pursuant to the AMA Guidelines
immediately prior to the occurrence of the work-related
injury. Moreover, the burden of proving the existence of
a pre-existing condition falls upon the employer. Wolf
Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky.
App. 1984).
Finley v. DBM Techs., 217 S.W.3d 261, 265 (Ky. App. 2007). The Board held
“the ALJ properly found there was no evidence in the record indicating the left
knee condition was symptomatic immediately prior to the work incident.” (R. at
514.) Although the medical evidence indicated Ford suffered from osteoarthritis,
Dr. Riley and Dr. Barefoot opined the condition was asymptomatic prior to the
injury. Ford’s testimony, which the ALJ specifically credited, also supports the
asymptomatic nature of his condition prior to July 7, 2017. The ALJ was within
his discretion in choosing to believe this evidence. We discern no error.
Conclusion
For the foregoing reasons, we affirm the Board’s opinion affirming
the ALJ’s opinion, award, and order.
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ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE
MICHAEL FORD:
Whitney M. Kunjoo
Donald C. Walton, III Christopher P. Evensen
Lexington, Kentucky Louisville, Kentucky
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