Trane v. Brandon Barnett ( 2022 )

RENDERED: JUNE 3, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1263-WC
TRANE COMPANY APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-20-00411
BRANDON BARNETT;
KENTUCKY WORKERS’
COMPENSATION BOARD; AND
HONORABLE TONYA CLEMONS,
ADMINISTRATIVE LAW JUDGE APPELLEES
OPINION
AFFIRMING
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BEFORE: JONES, MAZE, AND TAYLOR, JUDGES.
MAZE, JUDGE: Trane Company (Trane) appeals from an opinion of the
Workers’ Compensation Board affirming those portions of the award of the
Administrative Law Judge (ALJ) relating to causation and application of the three-
multiplier. We affirm.
On October 25, 2019, appellee Brandon Barnett filed a workers’
compensation Form 101 alleging work-related injuries to his neck, back, shoulders,
and knees as result of cumulative trauma from his approximately 24 years of
employment with Trane. On the same date, Barnett filed Form 103 alleging a
work-related hearing loss due to repetitive exposure to loud noise in the workplace.
Although the ALJ initially consolidated those claims, her subsequent dismissal of
the hearing loss claim is not before us in this appeal.
Barnett described the nature of his work for Trane in a May 2020
deposition. Trane hired Barnett as a temporary worker in January 1996 and
employed him as a full-time employee on March 25, 1996. Barnett testified that
during his employment with Trane he initially worked for four years in coil
assembly. For the next six years, Barnett did top and bottom seal work which
required pulling large metal sheets from their stacks, loading them on carts, and
taking them to a table where he would work on them by operating a big punching
machine. Barnett testified that he suffered an acute injury to his right shoulder in
2006 while pulling a metal sheet. He reported the injury and received physical
therapy but could not recall whether he missed work due to that event.
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For approximately the next four years, Barnett next worked on the
custom valve line where he built custom air conditioning units. He testified that
this job required repeated lifting of panels weighing up to 50 to 60 pounds. In his
deposition testimony concerning this phase of his employment, Barnett
emphasized that it was the heavy lifting and the constant nature of the work which
was the most physically demanding:
Well, you, I mean, did it all day long, but you got, you
know, three breaks out of the day, you got two tens and a
15-minute lunch break. But, yeah, it’s all day long, you
know, you put one part on and then you have to go back
and put the next part. It’s just, you know, nonstop.
In his final position with Trane, Barnett worked in foam installation
for approximately 9 years. This job required Barnett to retrieve formed metal
pieces, place a pattern on them, and then inject foam into them. He also built doors
and door jambs. Barnett testified that pulling the panels and putting them into the
foam press was physically demanding, estimating that the panels he worked with
weighed between a couple pounds to 30 to 40 pounds. In response to a question as
to the most physically demanding aspects of that particular work, Barnett testified:
I would say having to pull a – pull the panels, which were
pretty good size, out of the racks. I got – I got panels just
piled up into this metal rack, it’s on wheels, and they’re –
they’re vertical, you know, and they’re formed metal. So
I’ve got to – I’ve got to grab one, each one individually
out of a vertical rack and lay it horizontally by myself
and then do what I’ve got to do to it and then I’ve got to
put it right back in the same rack I just got it out of. And
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then, you know, of course, you’ve got to drag that rack –
you know, I’m going to have to drag it to – push it, you
know, a hundred feet to the next – to the next person,
who’s across – you know, across the way.
And then another aspect was picking these panels
up and putting them in this foam press. That was a – that
was a lot of work because you had to pick them up and –
of course, you know, this press has got different shells in
it, so you’ve got to put them in there and then you’ve got
to take them back out, constantly handling them, then
picking – picking them back up, putting them back in
another rack when you got done. A lot of twisting and
turning and pulling and tugging.
In exchange for his voluntary resignation in October 2019, Trane
offered, and Barnett accepted, a severance package amounting to roughly
$15,000.00. The offer stemmed from the fact that the plant at which Barnett
worked was moving to South Carolina. At the time of his resignation, Barnett was
earning $21.40 per hour and worked approximately a 40-hour week. Although
Barnett was not under any work restrictions at the time his employment with Trane
terminated, he stated in his deposition that even had the plant not been closing he
could not have continued working:
No, I was actually trying to find a way out. I just
couldn’t do this work no more. It’s – it’s breaking me
down, which is why I went ahead and got my – a degree
[in HVAC design and installation].
Concerning the problems which precipitated the filing of his claim,
Barnett testified that at the time of his deposition he was experiencing pain at the
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back of his neck at the shoulder blades, shooting pain in his knees, and lower back
pain which sometimes radiated into his legs. Barnett stated his belief that
constantly looking down at the conveyor lines caused his neck condition and that
working on Trane’s concrete flows for twenty-four years caused his knee
problems.
In support of his claim, Barnett offered a Form 107 medical report of
Dr. Bruce Guberman who diagnosed chronic posttraumatic strain and degenerative
joint and disc disease of the lumbosacral spine, chronic posttraumatic strain and
degenerative joint and disc disease of the cervical spine, and chronic posttraumatic
strain of both knees, all of which he attributed to the cumulative trauma of
Barnett’s work at Trane. Dr. Guberman opined that Barnett reached maximum
medical improvement on July 15, 2020, assessed a 15% combined impairment
rating, and stated his opinion that Barnett was not able to return to the type of work
he was performing at the time of his injury. In addition, Dr. Guberman imposed
the following restrictions:
In my opinion, he is unable to stand and/or walk
combined for a total of more than 30 minutes at a time or
more than 4 or 5 hours in an 8-hour day. In my opinion,
he is unable to sit for more than 30 minutes at a time or
more than 4 or 5 hours in an 8-hour day. In my opinion,
he should avoid kneeling, crawling, and squatting.
Furthermore, in my opinion, he is unable to lift, carry,
push or pull objects weighing more than 25 pounds
occasionally or more than 5 pounds frequently. He is not
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able to climb up and down ladders or should avoid stairs
and inclines.
Barnett also supported his claim with the report of Dr. Julie Ann
Martin, a chiropractor. Dr. Martin diagnosed hand pain, knee pain, lumbar facet
syndrome, cervical segmental dysfunction, thoracic segmental dysfunction, and
cervical myofascitis. In response to a series of questions, Dr. Martin confirmed her
opinion that Barnett’s current neck, back, shoulder, and knee problems were
caused either wholly or in part by his job activities, as well as affirming that
continuation in his job duties would have additional adverse health consequences.
Trane countered with an independent medical examination report of
Dr. Stacie Grossfield who found no cumulative trauma injuries to Barnett’s lumbar
spine, cervical spine, or bilateral knees due to his work. Having found no harmful
change, Dr. Grossfield stated that she could not explain Barnett’s subjective
complaints of pain because she found no anatomical reasons to match his pain
complaints.
With regard to causation, the ALJ found Dr. Guberman’s testimony to
be most credible and persuasive with respect to Barnett’s alleged cumulative
trauma injuries to his cervical spine, lumbar spine, and bilateral knees. Stating that
Dr. Guberman provided detailed documentation of his examination and
explanation of his findings with respect to the medical causes of Barnett’s
complaints, the ALJ found that Barnett had sustained work-related cumulative
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trauma injuries to his cervical spine, lumbar spine, and bilateral knees with a
manifestation date of October 25, 2019. Based upon the testimony of Dr.
Guberman, and to a lesser degree that of Dr. Grossfield, the ALJ determined that
Barnett had failed to meet his burden of establishing cumulative trauma injuries to
his bilateral shoulders and therefore dismissed that portion of Barnett’s claim. The
ALJ thereafter awarded Barnett permanent partial disability benefits based upon a
15% disability rating, applying the three-multiplier set out in Kentucky Revised
Statute (KRS) 342.730(1)(c)1. Based upon Dr. Guberman’s opinions and
restrictions, the ALJ concluded that Barnett did not retain the capacity to return to
his pre-injury employment with Trane which qualified him for application of the
three-multiplier. After finding that Barnett had reached maximum medical
improvement on July 15, 2020, the ALJ awarded temporary total disability benefits
from the date of his layoff on October 25, 2019, through July 15, 2020.
Both Barnett and Trane moved for reconsideration with Barnett
arguing that the ALJ erred in failing to award medical expenses for the injuries to
the cervical spine, lumbar spine, and knees and Trane citing error in the finding of
a work-related injury, in the application of the three-multiplier, and in the award of
temporary total disability benefits. The ALJ furnished additional findings in
denying Trane’s petition. The ALJ also sustained Barnett’s contention that there
was a patent error in that the prior award identified a work-related wrist injury,
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clarifying that the award of medical expenses was associated with his compensable
cumulative trauma injuries to his cervical spine, lumbar spine, and bilateral knees.
Trane’s subsequent appeal to the Workers’ Compensation Board resulted in an
opinion affirming the award of permanent partial disability benefits and application
of the three-multiplier. However, the Board reversed and remanded the award of
temporary total disability benefits for additional findings and entry of an amended
opinion and, if appropriate, a revised award. In this appeal, Trane continues to
predicate error on the finding that Barnett sustained his burden of establishing an
injury that was causally related to his employment and in the application of the
three-multiplier to the award of permanent partial benefits.
We commence with a reiteration of the standards which confine our
review. In Whittaker v. Rowland, 998 S.W.2d 479, 491 (Ky. 1999), the Supreme
Court of Kentucky explained that “[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.” (Citation omitted.) Substantial evidence “means
evidence of substance and relevant consequence having the fitness to induce
conviction in the minds of reasonable men.” Smyzer v. B.F. Goodrich Chemical
Company, 474 S.W.2d 367, 369 (Ky. 1971). Because Barnett bore the burden of
proof before the ALJ, our analysis focuses upon whether the decision of the ALJ is
supported by substantial evidence. To prevail in this appeal, Trane must
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demonstrate that no evidence of substantial probative value supports the ALJ’s
decision. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
Turning to the first of Trane’s allegations of error, we concur in the
Board’s assessment that the opinions of Drs. Guberman and Martin constitute
substantial evidence supporting the decision that Barnett had proven work-related
cumulative trauma injuries. Trane’s primary objection to both doctors’ opinions
focuses upon the sufficiency of their causation analysis. We find no reversible
error.
Dr. Guberman unequivocally expressed his opinion that the
cumulative trauma of his work had caused Barnett to experience “more severe
symptoms, range of motion abnormalities, interference with activities of daily
living, and functional limitations associated with his cervical spine, lumbar spine,
and bilateral knees than would be expected for a man of his age[.]” Similarly, Dr.
Martin expressed her opinion as to causation by responding in the affirmative to
the following question: “Do you believe that his present medical issues
[handwritten “neck, back, shoulder, knees”] is caused, either wholly or in part, by
his job activities?” Like the Board, we are persuaded that the fact that Drs.
Guberman and Martin did not provide more detailed explanations of their opinions
merely goes to the credibility of their assessments, not the admissibility of their
opinions. Our Supreme Court has repeatedly instructed that matters of credibility
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are exclusively assigned to the ALJ, Paramount Foods, Inc. v. Burkhardt, 695
S.W.2d 418 (Ky. 1985); that the ALJ has sole authority to determine the weight,
credibility and substance of the evidence, Square D Company v. Tipton, 862
S.W.2d 308 (Ky. 1993); and importantly, that the mere existence of evidence
contrary to the ALJ’s decision alone is an insufficient basis for requiring reversal
on appeal. Special Fund v. Francis, supra. Here, the ALJ carefully explained her
reliance upon the opinions of Drs. Guberman and Martin over that expressed in the
opinion of Dr. Grossfield, citing in particular Dr. Guberman’s “detailed
documentation of his examination of Mr. Barnett and explanation of his findings
with respect to the medical cause of [Barnett’s] complaints.”
We find no error in the Board’s conclusion that Dr. Grossman’s
contrary opinion, that Barnett had not suffered a cumulative trauma injury related
to his employment, was nothing more than conflicting evidence which the ALJ had
the sole authority to resolve. As the Board correctly observed, “if the physicians in
a case genuinely express medically sound, but differing, opinions as to the severity
of a claimant’s injury, the ALJ has the discretion to choose which physician’s
opinion to believe.” Jones v. Brasch-Barry Gen. Contractors, 189 S.W.3d 149,
153 (Ky. App. 2006). The opinions of Drs. Guberman and Martin cannot be
construed as so lacking in substance that the ALJ’s reliance upon them constituted
reversible error. Like the Board, we cannot accept Trane’s invitation to second-
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guess the decision of the ALJ and her stated rationale for choosing to rely upon the
opinions of Drs. Guberman and Martin over that of Dr. Grossman. To do so would
invade the exclusive province of the ALJ.
Concerning application of the three multiplier, KRS 342.730(1)(c)1.
provides the framework for our review:
If, due to 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, the benefit for
permanent partial disability shall be multiplied by three
(3) times the amount otherwise determined under
paragraph (b) of this subsection, but this provision shall
not be construed so as to extend the duration of
payments[.]
Trane insists that the ALJ erred in relying upon Dr. Guberman’s work restrictions
in applying the three-multiplier arguing there is no evidence Barnett stopped
working at Trane because he lacked the physical capacity to do the type of work he
was performing at the time of his injury. Rather, Trane argues that Barnett stopped
working at Trane only because the plant was closing and moving to South
Carolina.
In concluding that Dr. Guberman’s opinion and restrictions supported
the application of the three-multiplier, the Board cited the direction of our Supreme
Court in Ford Motor Company v. Forman, 142 S.W.3d 141, 145 (Ky. 2004), that
in cases concerning the applicability of the three-multiplier, ALJ’s “must analyze
the evidence to determine what job(s) the claimant performed at the time of injury
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and to determine from the lay and medical evidence whether [he or] she retains the
physical capacity to return to those jobs.”
The Board correctly observed that this case presents an odd situation
in that Barnett stopped working at Trane because the plant was closing and he was
offered an attractive severance package to voluntarily terminate his employment.
Barnett described the situation as similar to a “volunteer layoff,” stating “[t]here
were work shortages and I got laid off.” Nevertheless, we agree with the Board
that the pivotal inquiry is not the reason Barnett stopped working but whether he
retains the capacity to perform his customary employment.
Further, we concur in the Board’s conclusion that the ALJ was free to
accept Barnett’s testimony as to his inability to perform his previous work for
Trane, in addition to accepting Dr. Guberman’s restrictions as precluding his return
to his prior employment. As the Supreme Court explained in Ira A. Watson
Department Store v. Hamilton:
Although the ALJ must necessarily consider the worker’s
medical condition when determining the extent of his
occupational disability at a particular point in time, the
ALJ is not required to rely upon the vocational opinions
of either the medical experts or the vocational experts.
See, Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky.
1985); Seventh Street Road Tobacco Warehouse v.
Stillwell, 550 S.W.2d 469 (Ky. 1976). A worker’s
testimony is competent evidence of his physical
condition and of his ability to perform various activities
both before and after being injured. Hush v. Abrams, 584
S.W.2d 48 (Ky. 1979).
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34 S.W.3d 48, 52 (Ky. 2000). Not only did Dr. Guberman clearly express the
reasons for his opinion that Barnett could not resume his previous employment,
Barnett himself testified at length that he was no longer capable of performing the
strenuous work at Trane due to the pain it caused in his back, neck, and knees. In
fact, he had been actively attempting to prepare himself to leave that type of work
by continuing his education.
Because this Court has consistently held that an ALJ is free to accept
an employee’s self-assessment of his or her ability to labor, Barnett’s own
testimony, coupled with the restrictions imposed by Dr. Guberman, clearly
constitute sufficient evidence to support the ALJ’s application of the three-
multiplier. In sum, we are convinced that ALJ’s determinations both as to the
existence of a work-related cumulative trauma injury and as to the application of
the three-multiplier fall squarely within the principles set out in Hamilton:
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. The crux of the inquiry on appeal is whether the
finding which was made is so unreasonable under the
evidence that it must be viewed as erroneous as a
matter of law.
Id. at 52 (citations omitted) (emphasis added). Nothing in this record or Trane’s
arguments would allow us to reach such a conclusion regarding the ALJ’s findings
in this appeal.
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Accordingly, the opinion of the Workers’ Compensation Board is in
all respects affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE BRANDON
BARNETT:
Donald J. Neihaus
Lexington, Kentucky Clayton D. Scott
Lexington, Kentucky
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