Apple Valley Sanitation, Inc. v. Jon Stambaugh ( 2021 )

RENDERED: MAY 21, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0976-WC
APPLE VALLEY SANITATION, INC. APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NOS. WC-17-85280 AND WC-19-00205
JON STAMBAUGH;
HONORABLE RICHARD NEAL,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
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BEFORE: GOODWINE, MAZE, AND MCNEILL, JUDGES.
MAZE, JUDGE: Apple Valley Sanitation, Inc. (Apple Valley) petitions for a
review of an opinion and order by the Workers’ Compensation Board (Board)
affirming the Administrative Law Judge’s (ALJ) award of benefits to Jon
Stambaugh (Stambaugh). Apple Valley argues that the ALJ was not authorized to
impose the 3x multiplier on each of Stambaugh’s two awards. We agree with the
Board that the ALJ made sufficient findings to justify the imposition of each
multiplier in this case. Hence, we affirm.
Stambaugh worked as a garbage truck driver and loader for Apple
Valley from April 1994 to July 11, 2017. He operated a garbage truck on a
residential route in Johnson and Lawrence Counties. His position required driving
and loading residential garbage at two hundred and fifty to two hundred and eighty
stops per day. He previously injured his low back and ribs in 2012 when he
slipped and fell while working for Apple Valley. However, he missed no time
from that incident.
On April 17, 2017, Stambaugh climbed down from his truck to load
garbage. His right knee twisted when he slipped while stepping on loose
pavement. He immediately experienced pain, and his knee continued to swell until
he sought medical treatment the next day. He reported the injury the same day.
After attempting to treat the knee with ice, Stambaugh sought
treatment from Tracy Hamilton Hedrick, APRN (“Nurse Hedrick”). She
administered a steroid injection and prescribed a steroid dose pack. Stambaugh
then saw Dr. Donald Arms, an orthopedic surgeon, who drained fluid from his
right knee. During his assignment on light duty, Stambaugh drove the truck, while
an assistant loaded the garbage. Dr. Arms permitted Stambaugh to attempt to
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return to regular duty at the end of May 2017. Stambaugh worked until July 11,
2017. He testified his multiple physical problems prevented him from continuing
to work afterward. Stambaugh has neither worked nor applied for work since that
date.
In support of his claims, Stambaugh filed records and reports from his
medical providers. Stambaugh also filed a functional capacity evaluation report
from the Ashland Clinic dated August 30, 2018. Stambaugh testified that Drs.
Bruce Guberman and Ira Potter both advised him his conditions are work-related.
Dr. Guberman noted Stambaugh’s complaints of an acute injury to his right knee
on April 17, 2017, and cumulative trauma injuries to his neck, back, both
shoulders, and both knees on July 11, 2017. Dr. Guberman diagnosed Stambaugh
with a chronic post-traumatic strain and aggravation of preexisting dormant
degenerative changes of the right knee on April 17, 2017. In addition, he
diagnosed Stambaugh with cumulative trauma injuries to the left knee, both
shoulders, the cervical spine, and the thoracic spine. Dr. Guberman stated
Stambaugh had reached maximum medical improvement (“MMI”) by November
28, 2018. He opined all of the conditions he diagnosed were caused by
Stambaugh’s work for Apple Valley.
Dr. Guberman assessed a 27% impairment rating pursuant to the 5th
Edition of the American Medical Association, Guides to the Evaluation of
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Permanent Impairment (“AMA Guides”). Of this rating, he assessed 4% for the
right knee, 8% for the left knee, 2% to the right shoulder, 7% to the left shoulder,
5% for the cervical spine, and 8% for the lumbar spine. He also stated Stambaugh
does not have the capacity to return to the work performed on the date of his
injuries. Dr. Guberman recommended Stambaugh not sit for more than twenty to
thirty minutes at a time, and no more than four to five hours in an eight-hour work
day. He further advised against repetitive arm or leg use, and no lifting of more
than twenty-five to thirty pounds occasionally, or more than five to ten pounds
frequently.
Dr. Potter initially diagnosed Stambaugh with low back pain,
degenerative joint disease in both knees, bilateral shoulder pain, and osteoarthritis.
He noted Stambaugh had severe impairment of his functional capacity and was
incapable of even minimal sedentary activity. Dr. Potter found that Stambaugh
was unable to lift, stoop, carry, sit, or stand for long periods, and he is totally
disabled. In his later notes, Dr. Potter stated that Stambaugh is able to stand or
walk for up to two hours per day, at no more than half an hour at a time. He
indicated Stambaugh is able to sit for up to three hours during a workday, at no
more than one hour at a time. He also stated Stambaugh should never climb,
kneel, or crawl. In his May 23, 2019 report, Dr. Potter noted Stambaugh continued
to complain of pain with his osteoarthritis and degenerative joint disease.
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Stambaugh also filed Dr. Jack Steel’s February 28, 2018 office note.
Dr. Steel diagnosed patellofemoral osteoarthritis of both knees, hamstring tightness
of both lower extremities, and obesity. He recommended physical therapy to treat
the hamstring tightness.
Dr. John Gilbert evaluated Stambaugh on November 28, 2017, at the
request of his attorney. Dr. Gilbert diagnosed him with multilevel foraminal
stenosis at L4-L5, degenerative joint disease, spondylosis at L3-S1, chronic spinal
pain and bilateral radiculopathy, and numbness. He indicated he would proceed
with an L3-L5 facet block. Knee x-rays from the Highlands Regional Medical
Center indicated Stambaugh had bilateral knee osteoarthritis.
Dr. Arms’ record from April 18, 2017 indicates he treated Stambaugh
for his April 17, 2017 right knee injury. He also noted Stambaugh had a chronic
worsening of his low back pain. In his May 30, 2017 notes, Dr. Arms indicated
Stambaugh could work on his regular route with no assistance. But following
Stambaugh’s continued complaints of pain in his right shoulder, left shoulder and
low back, Dr. Arms diagnosed degenerative disc disease. He prescribed
medications and referred Stambaugh to a neurosurgeon. The notes from Nurse
Hamilton were consistent with those from Dr. Arms.
Dr. Daniel Primm evaluated Stambaugh on May 21, 2019, at Apple
Valley’s request. He diagnosed a right knee sprain/strain occurring on April 17,
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2017, primary osteoarthritis of both knees (right greater than left), rotator cuff
tendonitis and impingement syndrome of both shoulders, age-related mechanical
low back and neck pain with no radiculopathy. He stated the right knee problem
had resolved with no permanent injury. He opined Stambaugh had reached MMI
from that injury within eight weeks. He stated Stambaugh has no impairment of
the knee due to the work injury. He disagreed with Dr. Guberman’s assessments.
Dr. Primm stated Stambaugh has a 5% impairment rating for his right shoulder
condition, and a 6% impairment rating for his left shoulder condition, both based
upon the AMA Guides, but neither is related to his work. He stated Stambaugh has
no impairment rating for his left knee. He found no cumulative trauma injury to
the neck, thoracic spine, low back, right shoulder, left shoulder, or left knee.
Dr. Russell Travis performed a records review and issued a report at
Apple Valley’s request. In his June 11, 2019 report, Dr. Travis stated Stambaugh
has no impairment rating to either his cervical or thoracic spine. He stated
Stambaugh has a 5% impairment rating in accordance with the AMA Guides for his
lumbar spine due to his congenital pars defect, and spondylolisthesis, unrelated to
cumulative trauma. He agreed with Dr. Primm’s assessment. He stated
Stambaugh did not sustain cumulative trauma injuries.
The ALJ rendered a decision on September 18, 2019, finding
Stambaugh sustained an acute right knee injury on April 17, 2017, while stepping
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from the garbage truck he was driving. Relying upon the opinions of Dr. Travis,
the ALJ determined Stambaugh did not sustain a work-related cervical injury.
Relying upon Dr. Guberman, the ALJ determined Stambaugh sustained a work-
related lumbar spine injury caused by cumulative trauma. Relying upon the
opinions of Drs. Primm and Travis, the ALJ determined Stambaugh did not sustain
work-related shoulder injuries. Relying upon the opinions of Drs. Guberman and
Potter, the ALJ determined Stambaugh sustained a cumulative trauma injury to his
left knee. The ALJ determined Stambaugh was not entitled to an award of
temporary total disability benefits. The ALJ additionally determined Stambaugh is
entitled to medical benefits for his work-related right and left knee, and low back
injuries. He awarded permanent partial disability (PPD) benefits based upon a 4%
impairment rating for the April 17, 2017 right knee injury. He then awarded PPD
benefits based upon an 8% impairment for the left knee injury, and 8% impairment
for the lumbar condition, combined to 14% for the July 11, 2017 cumulative
trauma injuries. The ALJ enhanced both PPD benefit awards by the 3x multiplier
contained in KRS1 342.730(1)(c)1. Regarding the application of the three
multiplier, the ALJ found as follows:
The Plaintiff’s job was very physical in nature and
required him to lift bags weighing up to 100-pounds, as
well as get in and out of the garbage truck 250 to 280
1
Kentucky Revised Statutes.
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times per day. His abilities shown at the time of his
functional capacity evaluation would easily prevent him
from being able to perform this job, Dr. Guberman has
stated that the Plaintiff lacks the physical capacity to
perform the job, and the Plaintiff did not believe that he
could return to the job he performed at the time of injury.
The ALJ finds these opinions most credible given the
totality of the evidence. The ALJ specifically finds that
the Plaintiff lacks the physical capacity to return to his
job due to both the April 17, 2017, acute injury to the
right knee, and the July 11, 2017, cumulative trauma
injury, individually and independently. Further, it is
undisputed that he currently is earning less than he
earned at the time of his injury. As such, he is entitled to
have his benefits enhanced by the three multiplier for
both injuries.
Stambaugh and Apple Valley each filed petitions for reconsideration.
Based upon Plumley v. Kroger, Inc., 557 S.W.3d 905 (Ky. 2018), Apple Valley
argued the ALJ erred by enhancing both awards by the 3x multiplier. Apple
Valley also requested the ALJ state a specific manifestation date and set out
calculations of Stambaugh’s average weekly wage for each injury date.
On October 31, 2019, the ALJ sustained Stambaugh’s petition for
reconsideration, and amended the award of PPD benefits based upon 15%
impairment, rather than 14%, for the July 11, 2017 injury. The ALJ denied Apple
Valley’s petition for reconsideration, finding that Stambaugh had an April 17, 2017
acute injury to the right knee, and the cumulative trauma injury to his neck and low
back manifested on July 11, 2017. The ALJ continued to find that Stambaugh
lacked the physical capacity to perform the job that he performed at the time of his
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April 17, 2017 injury due to his acute right knee injury alone. But the ALJ also
concluded that the manifestation of the cumulative-trauma cervical spine and low
back conditions further diminished Stambaugh’s functional capacity. Based on
this finding, the ALJ concluded that both awards were subject to the 3x multiplier.
Apple Valley appealed the ALJ’s opinion and award to the Board.
The Board affirmed, concluding that the ALJ appropriately made separate PPD
awards for the two injury dates, as required by Plumley v. Kroger, Inc., supra.Apple Valley now petitions for review to this Court.
“Where the ALJ has found in favor of the party, who had the burden
of proof, the Board must determine whether the ALJ’s findings were supported by
substantial evidence.” Abbott Laboratories v. Smith, 205 S.W.3d 249, 253 (Ky.
App. 2006) (citing Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986)).
Substantial evidence is “evidence of substance and relevant consequence having
the fitness to induce conviction in the minds of reasonable [people].” Id. (quoting
Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971)). As the
fact-finder, the ALJ has the sole authority to judge 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). Where the evidence is conflicting,
the ALJ has the sole authority to believe or disbelieve various parts of the
evidence, regardless of whether it comes from the same witness or the same party’s
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total proof. Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
The function of this Court’s review is to correct the Board only where the Court
perceives that 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. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
In its petition for review, Apple Valley concedes that the ALJ was
authorized to make separate PPD awards for the awards for the April 17, 2017
acute injury and for the cumulative trauma that manifested on July 11, 2017. But
Apple Valley argues that the ALJ was not authorized to enhance both PPD awards
by the 3x-multiplier set out in KRS 342.730(1)(c)1. That multiplier applies if,
after an injury, an employee does not retain the physical capacity to return to the
type of work that the employee performed at the time of injury. In particular,
Apple Valley argues Stambaugh could not be entitled to the multiplier for both
awards because there was no significant change in his job duties between the April
17, 2017 injury and the July 11, 2017 manifestation of his cumulative trauma.
Likewise, Apple Valley contends that there was no evidence to support the
conclusion that Stambaugh’s functional capacity further decreased after July 11,
2017, since the cumulative trauma was not diagnosed until after that date.
Essentially, Apple Valley contends that, since Stambaugh was already unable to
return to work after the April 17, 2017 injury, he could not be found to be less able
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to return to those duties after July 11, 2017. As a result, Apple Valley contends
that the holding in Plumley precludes the assessment of the 3x multiplier for both
injuries.
But as the Board noted, the Supreme Court in Plumley merely held
that an ALJ may apply differing multipliers to separate injuries but is not required
to do so. Plumley, 557 S.W.3d at 916-17. In that case, the ALJ found that the
employee kept the same job responsibilities throughout the time he suffered his
various injuries, and no additional restrictions were imposed until after the
subsequent injury. Consequently, the ALJ found that the employee retained the
physical capacity to return to the type of work he performed at the time of his
injury. Based on this finding, the Supreme Court concluded that the ALJ was
authorized to use only the “1” multiplier for both awards. Id. at 917.
In this case, the ALJ set out detailed findings that Stambaugh was
unable to perform the daily tasks of a garbage truck driver after his April 17, 2017
injury. Although Stambaugh returned to light-duty work after that date, the
manifestation of his cumulative trauma injury further reduced his ability to perform
the essential tasks of his position. As set out in the ALJ’s findings in the order
denying Apple Valley’s petition for reconsideration:
Nevertheless, the ALJ finds that there is convincing and
persuasive evidence in the record that supports a finding
that the Plaintiff lacks the physical capacity to return to
the job he performed at the time of his April 17, 2017,
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acute injury to the right knee, and the July 11, 2017,
cumulative trauma injury respectively.
Concerning the Plaintiff’s April 17, 2017, acute
right knee injury, the Plaintiff testified that he continues
to have constant right knee pain, especially when sitting
for long periods. Dr. Guberman noted during his
evaluation of the Plaintiff in November 2018 that the
Plaintiff continued to have constant right knee pain and
that his right knee swelled an average of four to five
times per week. Dr. Guberman did not believe that the
Plaintiff could use his leg in a repetitive fashion, and that
the Plaintiff further had functional limitations in his knee.
Dr. Potter, the Plaintiff’s treating physician, documented
the Plaintiff’s knee pain as 7/10 as late as May 2019. Dr.
Gilbert and Dr. Potter thought that the Plaintiff would
eventually require a knee replacement, showing the
significance of his condition. The Plaintiff’s FCE
evaluation concluded that the Plaintiff should never
climb stairs or ladders – a mechanism that is similar to
getting in and out of a truck. Further, it was further
documented that during the FCE that the Plaintiff had
knee pain when sitting, standing, walking, climbing, and
repetitive trunk rotations while standing. Again, the
Plaintiff’s job required him to get in and out of his
garbage truck 250 to 300 times a day, as well as stand,
walk, and perform repetitive trunk rotations while
standing. Given the totality of the above circumstances,
the ALJ continues to find that the Plaintiff lacks the
physical capacity to perform the job that he performed at
the time of his April 17, 2017, injury due to his acute
right knee injury alone.
Considering the Plaintiff’s cumulative trauma
cervical spine and low back conditions, the Plaintiff
testified that he continues to have constant low back, as
well as neck pain to a lesser extent. He stated that he is
currently unable to throw garbage bags into the back of a
garbage truck. The Plaintiff’s lumbar and cervical x-rays
showed degenerative disc disease, and his examination
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with Dr. Guberman showed range of motion
abnormalities. He stated that the Plaintiff had functional
limitations in the cervical and lumbar spine. Dr.
Guberman credibly opined that the Plaintiff is not able to
lift, carry, push, or pull objects over 25-30 pounds, or 5-
10 pounds frequently. The Plaintiff’s FCE evaluation
showed that the Plaintiff could only lift 20 pounds from
floor to waist occasionally, 10 pounds from waist to eye
level occasionally, and two[-]handed carry 20 pounds.
Further the Plaintiff had low back pain when lifting 20
pounds from floor to waist, low back pain when lifting 10
pounds from waist to eye level, low back pain when
carrying 20 pounds, low back pain when while sitting
and standing, and low back pain with repetitive trunk
motion. Again, the Plaintiff’s job required him to get in
and out of his garbage truck 250 to 300 times a day, as
well as stand, walk, perform repetitive trunk rotations
while standing, and lift garbage bags weighing up to 100
pounds. Given the totality of the above circumstances,
the ALJ continues to find that the Plaintiff lacks the
physical capacity to perform the job that he performed at
the time of his July 11, 2017, cumulative trauma injury
due to low back and neck injury alone. The ALJ notes
that the Defendant, in its Petition, indicates that the
Plaintiff was working light duty after the acute work
injury. However, while the Plaintiff did return to light
duty initially, he eventually returned to full duty. It is the
Plaintiff’s full-duty job duties that the ALJ has
considered when determining whether the Plaintiff is
entitled to the three multiplier for the cumulative trauma
injury.
Contrary to Apple Valley’s assertion, the medical proof set out by the
ALJ was sufficiently detailed to constitute substantial evidence that the cumulative
trauma resulted in a new disability to Stambaugh not already present as a
consequence of the April 17, 2017 acute injury. Based on this finding, the ALJ
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was authorized to impose the 3x-multiplier to both awards. Consequently, the
Board properly affirmed the award.
Accordingly, we affirm the July 13, 2020 opinion and order of the
Workers’ Compensation Board affirming the September 18, 2019 opinion, order,
and award by the ALJ in the above-styled case.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE JON
STAMBAUGH:
W. Barry Lewis
Hazard, Kentucky John Earl Hunt
Allen, Kentucky
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