Ford Motor Company v. Larry Brown ( 2021 )

RENDERED: JANUARY 8, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0622-WC
FORD MOTOR COMPANY APPELLANT
PETITION FOR REVIEW
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-17-91338
LARRY BROWN;
HONORABLE JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
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BEFORE: CALDWELL, MAZE, AND MCNEILL, JUDGES.
MAZE, JUDGE: Appellee, Ford Motor Company (Ford), petitions for review of
the opinion from the Workers’ Compensation Board (Board) vacating and
remanding the opinion of the Administrative Law Judge (ALJ). For the following
reasons, we affirm.
BACKGROUND AND PROCEDURAL HISTORY
In 2016, Appellant, Larry Brown, began working at Ford. On
February 21, 2017, he injured his back while working. Brown filed a workers’
compensation claim, which Ford contested as barred by Kentucky Revised Statutes
(KRS) 342.165(2) because Brown had a previous back injury and surgery that he
failed to disclose in his Ford employment application.
The ALJ held a benefit review conference on December 4, 2018,
followed by a formal hearing on December 19, 2018. At the hearing, the parties
introduced various evidence and presented several witnesses. The evidence
relevant to this appeal is summarized below.
Brown testified that he injured his back in 1999 and underwent a
fusion surgery in 2003 but had no issues with his back when he began working for
Ford in 2016. In explaining his work injury, Brown testified that on February 21,
2017, he bent over to get a box of screws and, when he raised up, he felt pain shoot
to his buttocks. He continued to try to work but, when he leaned over again, he felt
fire shoot down to his waist. Brown was taken to the medical department by
gurney because he could not stand. He was then taken to the hospital by
ambulance, where he remained for several days. He developed several blood clots
in his left leg and had to stay in a nursing home for several weeks thereafter. He
ultimately returned to work at Ford on November 14, 2017. Brown admitted that
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his Ford employment application contained some inaccurate statements and he
failed to complete all the questions but testified he did not intend to deceive
anyone when filling out the employment documents.
To support his claim, Brown presented the opinions of Dr. Peter
Buecker, an orthopedic surgeon. Dr. Buecker opined that Brown, who had a spinal
stenosis in 2003, was asymptomatic until the 2017 work accident exacerbated
Brown’s condition.
Ford presented Dr. Russell Travis, a neurosurgeon, to refute the
opinions of Dr. Buecker. Dr. Travis opined that Brown only had age-related
degenerative changes with no evidence of neural compromise when comparing
Brown’s 2017 MRI with an MRI performed in 2008. Dr. Travis opined that, at
most, Brown suffered a lumbar strain and sprain in the work injury. Also, Dr.
Travis performed an independent medical exam on Brown in June 2017, and he
testified that Brown did not exert appropriate effort when he evaluated him, which
suggested symptom magnification.
Ford also presented its plant physician, Dr. Raymond Hart, who
testified that Brown indicated on his employment application that he had no prior
operations, back pain, or restrictions. Dr. Hart further testified that Ford relied on
that false information during the hiring process and, if Brown had been truthful and
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disclosed his 2003 fusion surgery and ongoing complaints in 2011, it was unlikely
that Ford would have hired Brown.
The ALJ’s February 18, 2019 opinion
On February 18, 2019, the ALJ dismissed Brown’s claim as barred by
KRS 342.165(2). Pursuant to KRS 342.165(2), the ALJ found that Brown
knowingly and willfully made a false representation as to his physical condition or
medical history, Ford relied on that false representation and this reliance was a
substantial factor in hiring him, and a causal connection between the false
representation and Brown’s injury existed. The ALJ also found that Dr. Travis
“effectively refuted” the opinions of Dr. Buecker, and the ALJ was “particularly
convinced and persuaded” by Dr. Travis’ comparison of Brown’s MRIs from 2008
and 2017, which revealed no evidence of neural compromise.
Brown petitioned the ALJ to reconsider his opinion. In his petition,
Brown also requested the ALJ to make additional findings of fact, specifically
about Brown’s lack of symptoms between 2011 and 2016 and the causal
connection between the false statement and Brown’s injury.
The ALJ’s March 28, 2019 order
On March 28, 2019, the ALJ entered further findings of fact, some of
which repeated portions of his original opinion. The ALJ found that Brown’s 2017
MRI results “were essentially unchanged from the results seen in 2008.”
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Therefore, the ALJ found “an unmistakeable [sic] causal connection between the
prior undisclosed medical history and the injury claimed herein for which benefits
are sought.” Brown then petitioned the Board for review.
The Board’s August 9, 2019 opinion
In an August 9, 2019 opinion, the Board affirmed in part and vacated
in part the ALJ’s opinion and order. The Board affirmed the ALJ’s decision that
Brown knowingly and willfully falsified his job application and that Ford relied on
this falsification as a substantial factor in his hiring, which satisfied the first and
second prongs of KRS 342.165(2). However, the Board vacated the ALJ’s
decision regarding the third prong, the causal connection between the falsification
and Brown’s injury, and remanded the case to the ALJ for additional findings. The
Board stated:
Standing alone, Dr. Travis’ finding of no structural
change appears to establish that Brown’s current
complaints are unrelated to his previous injury for which
surgery was performed. There appears to be no evidence
in the record establishing that Brown sustained any
structural lumbar injury on February 21, 2017 while
working for Ford. The ALJ failed to provide a finding as
to how a possible strain in 2017 is related to a previous
structural injury without interval change demonstrated on
imaging studies. Dr. Travis acknowledged that Brown
might have sustained a sprain or strain, despite his
opinions regarding symptom embellishment. This would
seem to establish his complaints are unrelated to the
previous structural changes which were not disclosed to
Ford.
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Essentially, the Board needed additional findings because Dr. Travis’ opinions did
not seem to support a causal connection between Brown’s back strain/sprain in
2017 and his previous back injury for which surgery was performed in 2003.
The ALJ’s October 22, 2019 remanded opinion
On October 22, 2019, the ALJ issued his remanded opinion. The ALJ
once again found that Dr. Travis’ opinion supported the causal connection between
Brown’s previous back condition and his work injury because Brown had no
changes when comparing the 2008 and 2017 MRIs.
Brown petitioned the ALJ for reconsideration asserting that, despite
the Board’s opinion, the ALJ failed to cite other evidence to establish a causal
connection. Brown also requested additional findings of fact regarding: whether
he sustained a work-related lumbar injury; the condition of his low back in the five
years prior to the work injury; whether he was under restrictions or taking
medication for his low back at the time of his work injury; and whether Brown had
difficulty performing his job at Ford.
The ALJ’s November 22, 2019 order
On November 22, 2019, the ALJ denied Brown’s petition stating:
The ALJ finds that the false representation and the
alleged work injury involved the same body part and
injury as confirmed by the MRI dated February 22, 2017,
which showed minimal changes when compared to the
prior one dated September 11, 2008, as referenced by Dr.
Travis and previously cited by the ALJ.
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The ALJ finds based upon this comparison and the
observation made by Dr. Travis that there is an
unmistakable causal connection between the prior fusion
and the back injury claimed herein.
The above two paragraphs were the only findings made by the ALJ in its order.
The ALJ did not make the additional findings requested by Brown in his motion to
reconsider.
Brown then appealed the ALJ’s remanded opinion and order to the
Board. Brown argued that the ALJ relied upon the same evidence as in his original
opinion, which the Board previously found insufficient to support a causal
connection.
The Board’s February 28, 2020 opinion
On February 28, 2020, the Board vacated the ALJ’s October 22, 2019,
remanded opinion and November 22, 2019, order and remanded the claim to the
ALJ for entry of an amended opinion in conformity with the Board’s opinion. The
Board held that the ALJ failed to identify other evidence in the record to support
his conclusion that Brown’s 2017 work injury was causally connected to his prior
back injury.
We find the evidence cited by the ALJ does not establish
Brown sustained an injury at the fusion site while
working for Ford. On remand, the ALJ again failed to
provide a finding as to how a possible strain in 2017 is
related to a previous structural injury without interval
change demonstrated on imaging studies. Dr. Travis’
diagnosis of a possible lumbar sprain/strain establishes
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Brown’s complaints are unrelated to the previous
structural changes, which were not disclosed to Ford.
Because the ALJ failed to provide additional findings regarding the causal
connection as the Board directed in its August 9, 2019, opinion, the Board vacated
the ALJ’s decision and remanded the claim for a determination of all remaining
issues.1
Ford now petitions this Court for review.
STANDARD OF REVIEW
The Court’s role in reviewing decisions of the Workers’
Compensation Board “is to correct the Board only when we perceive that the
Board has overlooked or misconstrued controlling law or committed an error in
assessing the evidence so flagrant as to cause gross injustice.” Butler’s Fleet
Service v. Martin, 173 S.W.3d 628, 631 (Ky. App. 2005). “To properly review the
Board’s decision, this Court must ultimately review the ALJ’s underlying decision.
Where the ALJ has found in favor of the party who had the burden of proof, this
Court 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)
1
In this case, the ALJ was asked to decide: benefits per KRS 342.730, work-
relatedness/causation, average weekly wage, unpaid or contested medical expenses, exclusion for
pre-existing disability/impairment, Temporary Total Disability (TTD), and application of
multipliers. Because the ALJ dismissed Brown’s workers’ compensation claim based on KRS
342.165(2), the remaining issues were rendered moot and not decided by the ALJ in his February
18, 2019 opinion.
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(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)). And, as the fact-
finder, the ALJ, not this Court or the Board, has “sole discretion to determine the
quality, character, and substance of the evidence.” Id. Not only does the ALJ
weigh the evidence, but the ALJ may also choose to believe or disbelieve any part
of the evidence, regardless of its source. Id.ANALYSIS
Ford argues that the Board exceeded its authority by vacating and
remanding the ALJ’s opinion and order because it reweighed the evidence and
came to a different conclusion than the ALJ. Specifically, Ford argues that the
ALJ properly drew an inference from Dr. Travis’ report and direct expert
testimony is not needed to establish a causal connection under KRS 342.165(2).
Ford claims that, by insisting that the ALJ establish a causal connection, the Board
impermissibly substituted its judgment for the ALJ’s. We disagree.
KRS 342.165(2) was enacted in 1994 as a legislative response to cases
in which an injured worker misrepresented his physical condition to the employer
in the process of obtaining employment and later received an injury that was
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causally related to the misrepresentation. Baptist Hosp. East v. Possanza, 298
S.W.3d 459, 462 (Ky. 2009). The statute states:
No compensation shall be payable for work-related
injuries if the employee at the time of entering the
employment of the employer by whom compensation
would otherwise be payable falsely represents, in writing,
his physical condition or medical history, if all of the
following factors are present:
(a) The employee has knowingly and willfully
made a false representation as to his physical
condition or medical history;
(b) The employer has relied upon the false
representation, and this reliance was a substantial
factor in the hiring; and
(c) There is a causal connection between the false
representation and the injury for which
compensation has been claimed.
KRS 342.165(2). If all three prongs of KRS 342.165(2) are present, compensation
is barred to a worker. Id. The third prong, “a causal connection between the false
representation and the injury for which compensation has been claimed,” is at issue
in this case. KRS 342.165(2)(c).
In Baptist Hospital East, supra, the Kentucky Supreme Court
explained the third prong of KRS 342.165(2). “If subsection (c) requires only
proof that the injury would not have occurred because the worker would not have
been hired, an employer will always win simply by showing that it relied on a
misrepresentation and would not have hired the worker had it known the truth.”
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Baptist Hosp. East, 298 S.W.3d at 463. Instead, the third prong requires a causal
connection between the false representation and the work injury. Id.
Here, the issue is whether Brown’s back injury from lifting a box of
screws at work is causally connected to Brown’s previous back condition and
surgery that he failed to disclose to Ford. Like the Kentucky Supreme Court held
in Baptist Hospital East, we view this as a medical question. Id. at 463. A back
injury in 1999 that required surgery is not automatically connected to a back injury
in 2017 occurring at work.
The Board reviewed this case twice before. Both times, the Board
noted that the ALJ’s findings were insufficient to support the causal connection.
Yet, the ALJ continued to rely on Dr. Travis’ opinion that Brown’s MRIs from
2008 and 2017 were unchanged to support the causal connection.
For instance, in its first opinion, the Board specifically identified the
problem with the causal connection and remanded the case to the ALJ to make
additional findings to cure the deficiency: “The ALJ failed to provide a finding as
to how a possible strain in 2017 is related to a previous structural injury without
interval change demonstrated on imaging studies.” The Board explained that,
while Dr. Travis acknowledged that Brown may have suffered a back strain or
sprain at work, Dr. Travis also opined that he saw no changes on Brown’s MRIs.
Yet, on remand, the ALJ failed to make additional findings to support
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his decision. The ALJ simply relied, once again, on Dr. Travis’ opinion that he
saw no changes between Brown’s 2008 and 2017 MRIs. Because the ALJ failed to
identify other evidence in the record to support a causal connection between the
previous back injury and the 2017 work injury, the Board concluded that Ford
could not succeed under KRS 342.165(2) as a defense.
Accordingly, we disagree with Ford’s argument that the Board
reweighed the evidence or impermissibly substituted its judgment for the ALJ’s.
The Board was very clear on what additional findings were needed to satisfy the
causal connection under the third prong of KRS 342.165(2). When the ALJ failed
to identify other evidence in the record to support the causal connection, the Board
was compelled to vacate the ALJ’s decision. This is not a “reweighing” of the
evidence or a substitution of the Board’s judgment for the ALJ’s. Brown testified
that he had no problems with his back when he began working at Ford, and Dr.
Travis opined that Brown may have suffered a lumbar strain or sprain in the work
injury. Dr. Travis’ opinion that Brown’s 2008 and 2017 MRIs were unchanged
does not explain why Brown’s prior back injury and surgery were related or
causally connected to his 2017 work injury. Simply because Dr. Travis opines that
the previous back injury and 2017 work injury are related does not make it so. He
must have objective medical evidence to support this conclusion.
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Based on our review, we hold that the Board did not overlook or
misconstrue controlling law and did not commit an error in assessing the evidence
so flagrant as to cause gross injustice. Butler’s Fleet Service, 173 S.W.3d at 631.
While Brown injured his back at work and his false representation involved his
back condition, KRS 342.165(2)(c) requires substantial evidence of a causal
connection between the false representation and the subsequent work injury. The
ALJ’s findings did not support such a causal connection between the prior back
condition and the work injury.
CONCLUSION
For the foregoing reasons, we affirm the Board’s decision.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE LARRY
BROWN:
Joshua W. Davis
Priscilla C. Page John W. Spies
Louisville, Kentucky Louisville, Kentucky
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