Avi Food Systems v. Delorse Breeded ( 2020 )

RENDERED: AUGUST 14, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-000172-WC
AVI FOOD SYSTEMS APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-15-72461
DELORSE BREEDEN;
HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD OF KENTUCKY APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND K. THOMPSON, JUDGES.
CLAYTON, CHIEF JUDGE: AVI Food Systems (AVI) petitions for review of an
opinion of the Workers’ Compensation Board affirming an opinion and order of
the Administrative Law Judge (ALJ). The ALJ held that Delorse Breeden, a
former employee of AVI, was entitled to receive permanent total disability benefits
for a work-related injury to her back. AVI argues that the ALJ ignored evidence
that Breeden’s disability was attributable in part to a non-work-related knee
replacement and that she was capable of working in a lighter-duty position.
Having reviewed the record and the applicable law, we affirm the opinion of the
Board.
Breeden was fifty-six years of age at the time of her final hearing in
July 2019. She had completed the eleventh grade of high school and taken some
GED courses but had not obtained a GED. Before beginning work at AVI, she was
employed as a fast food restaurant manager, a corrections worker, and a factory
worker. She was hired by AVI in September 2014 as a route driver, which
required her to report to a warehouse at 4:00 a.m., load a truck with drinks and
food, and drive to various locations to restock vending machines. She used a dolly
to load and unload the truck. Breeden estimated the job required her to lift
between thirty and thirty-five pounds.
In March 2015, the regular box truck Breeden drove broke down, and
she was assigned to a Ryder truck which was the largest truck she had ever driven.
According to Breeden, she now had to lift the cases of soda and food above her
head to place them in the back of the truck. She also had trouble with the back
door which she had to pull extremely hard to close.
-2-
On May 12, 2015, Breeden began to experience lower back pain after
opening and closing the back of the Ryder truck several times. She was able to
complete her shift but the pain increased that evening and she called her supervisor
at 2:30 a.m. to report she would not be at work because of a back injury. She went
to the St. Elizabeth Hospital emergency room where she was diagnosed with likely
chronic minimal anterolisthesis of L4 relative to L3 and L5. X-rays indicated that
she had no acute dislocation or fracture. She was released with a diagnosis of
work-related lumbar strain. She was prescribed medication and referred to
physical therapy.
On October 20, 2016, Breeden underwent low back surgery for
lumbar region intervertebral disc replacement. The surgery was complicated by a
hematoma four days later that necessitated a second surgery. According to
Breeden, the surgery helped her but she continued to experience back pain.
Breeden returned to work at AVI in a “CSA” position following her
back surgery. The CSA position entailed stocking vending machines with soda
and food from an on-site storage closet. It required driving only a personal
vehicle, no loading or unloading of trucks, and lighter lifting. AVI’s branch
manager, Steve Crisp, testified in his deposition that soda cases weighing thirty-
two pounds still had to be moved but could be broken down instead of being lifted
all at once, and a cart was used to transfer the products from the storage closet to
-3-
the vending machines. He explained that Breeden may have been slower than the
other CSA workers but he still considered her a good employee for the job.
Breeden also experienced ongoing left knee pain for which she sought
treatment in 2015. In December 2017, she underwent left knee meniscus surgery
and eventually had a total left knee replacement on April 11, 2018. She was not
pleased with the outcome of the surgery, noting that her knee pain was worse
following the replacement.
Breeden’s last day as a CSA was on April 10, 2018, the day before her
knee surgery, and she never returned to work at AVI. She subsequently filed an
application for resolution of a claim for the low back injury.
In support of her claim, Breeden filed notes from Dr. Brian
Braithwaite, her pain management physician, who noted that her low back
condition continued to worsen from the date of onset, May 12, 2015. He
prescribed opiate medication and a spinal cord stimulator trial. The spinal cord
stimulator proved not to be effective.
Breeden filed a report from Dr. Jeffrey Fadel, who diagnosed her with
failed back syndrome stemming from her work-related low back injury and
surgeries, lumbar facet arthritis aroused by the work injury, and radiculopathy of
the L5 nerve root into the left lower extremity. He assessed a 13% impairment
rating pursuant to the 5th Edition of the AMA Guides to the Evaluation of
-4-
Permanent Impairment (AMA Guides). He opined that Breeden had reached
maximum medical improvement and should avoid lifting or carrying more than
twenty pounds and pushing or pulling more than forty pounds. He also advised her
to avoid repetitive twisting, bending, or rotating of her lumbar spine. He
concluded that these restrictions would not allow her to return to work as a route
driver.
A functional capacity evaluation (FCE) was performed by NovaCare
Rehabilitation which found that Breeden did not have the physical capacity to
work as a route salesperson but did have the capacity to perform light-duty work.
Light work was defined in the FCE according to the U.S. Department of Labor
guidelines as exerting up to twenty pounds of force occasionally, and/or up to ten
pounds frequently, and/or a negligible amount of force constantly.
AVI filed the office notes of Dr. Jonathan Spanyer, who performed
Breeden’s knee surgery. On August 16, 2018, about four months after the surgery,
Dr. Spanyer observed that she was functioning well but was complaining of
ongoing pain of unclear etiology. He described her range of motion as acceptable
with some stiffness, and allowed her to return to work with no knee restrictions.
When he saw her several months later, on December 4, 2018, she reported her left
knee pain was worse than before the surgery and she did not believe she could
-5-
return to work. Dr. Spanyer recommended conservative treatment with no
additional surgery.
Dr. Benjamin Wilson of U.K. Healthcare also evaluated Breeden’s left
knee and similarly noted that she complained it was worse than before the surgery.
He likewise did not recommend additional knee surgery.
Dr. Ellen Ballard evaluated Breeden on behalf of AVI on October 10,
2017. She noted that Breeden had undergone two lumbar surgeries and diagnosed
Breeden with low back pain with left leg radicular symptoms. She found Breeden
had reached maximum medical improvement (MMI), assessed an 11% impairment
rating pursuant to the AMA Guides, and advised Breeden to avoid lifting over
twenty pounds and repetitive bending or stooping. On November 13, 2018, Dr.
Ballard performed another evaluation and noted that Breeden had undergone two
knee surgeries since the last evaluation. She restated her prior conclusion that
Breeden had reached MMI by October 10, 2017, and has an impairment rating of
11%.
Dr. Ralph Crystal performed a vocational evaluation of Breeden on
April 5, 2018. Breeden was not working or looking for work at that time. She told
him she did not believe she could perform any of her past work or concentrate
sufficiently to obtain a GED. His testing showed she functions at the fourth or
fifth grade level in reading, spelling, and mathematics. Dr. Crystal found there was
-6-
no indication Breeden could not complete a normal workday or work week. He
opined there are numerous jobs she could perform with her restrictions, either
through direct entry or on-the-job training. He concluded that she was not disabled
from employment and did not necessarily have a loss of earning capacity.
Breeden testified that she did not feel well while employed in the
light-duty CSA position at AVI following her back surgeries. She explained that
when she got up in the morning, her pain level would be a two or a three but by the
end of the day it would have risen to a nine or a ten and she was unable to perform
any substantial physical activity when she got home. She further testified that she
believed her back condition had worsened since April 2018 when she left AVI and
there was no way her back would hold up if she returned to the CSA position.
Relying on the opinions of both Dr. Ballard and Dr. Fadel that
Breeden should not lift over twenty pounds, and Crisp’s testimony that a route
driver has to lift thirty-two pounds, the ALJ found that Breeden could not return to
her prior work as a route driver. The ALJ noted the limitations on bending,
stooping, standing, and twisting recommended by Dr. Fadel and Dr. Ballard, and
the FCE conclusion that she can work in a light-duty category but no higher, to
further conclude that she could not return to any of her prior employment as a fast
food worker, corrections officer, or factory worker. He discounted the opinions of
Dr. Crystal and relied in part on Breeden’s own testimony that she cannot return to
-7-
any type of employment. He emphasized her limited education and lack of
transferable skills, and found little chance that at her age, educational level, and
restrictions that any job retraining would realistically result in any actual job
opportunities. The ALJ found insufficient evidence that her knee problems and
knee surgery caused any occupational disability. The ALJ found that Breeden was
permanently totally disabled as a result of her work injury, assigned a 13%
impairment rating based on the rating provided by Dr. Fadel, and awarded
permanent total disability (PTD) benefits and medical benefits.
AVI filed a petition for reconsideration. The ALJ denied the petition
except as to a minor issue regarding the compensability of some medications. The
Board subsequently affirmed the opinion and order of the ALJ, holding that the
ALJ had performed the correct analysis, and the award of PTD benefits was
supported by substantial evidence. This appeal by AVI followed.
As the claimant, Breeden bore the burden of proving the elements of
her claim. Trevino v. Transit Authority of River City, 569 S.W.3d 400, 403 (Ky.
2019). When, as in this case, the party with the burden of proof is successful
before the ALJ, “the issue on appeal is whether substantial evidence supported the
ALJ’s conclusion. Substantial evidence means evidence of substance and relevant
consequence having the fitness to induce conviction in the minds of reasonable
-8-
men.” Miller v. Tema Isenmann, Inc., 542 S.W.3d 265, 270 (Ky. 2018) (internal
quotation marks and citations omitted).
Upon review, we “correct the Board only where the Court perceives
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.” Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
First, AVI argues that the ALJ failed to consider the effect of
Breeden’s non-work-related knee surgery and consequently erred in attributing her
entire disability solely to her low back injury. It questions the ALJ’s reliance on
the opinion of Dr. Fadel, pointing out that Dr. Fadel’s recommendations regarding
work restrictions were made following Breeden’s knee replacement surgery and
did not specify which restrictions relate specifically to her lower back. Similarly,
the FCE was performed after the knee replacement surgery and does not specify
which of the recommended restrictions are for the knee and which are for the low
back.
We agree with Breeden that AVI is attempting to reargue the merits of
the case and alter the weight to be given to different parts of the evidence. She
points to other evidence in the record, much of it introduced by AVI itself, that
clearly distinguishes between the lumbar injury and the knee problems. For
example, the records of Dr. Spanyer, the knee surgeon, indicate he told Breeden
-9-
she could return to work with no restrictions following the surgery. Dr. Spanyer
noted Breeden’s frustration with this recommendation, but opined it was
appropriate based on what appeared to be a normally functioning knee replacement
that a CT scan revealed was “essentially stable . . . without malrotation or evidence
of fracture or dislocation or other concerning features.” Dr. Crystal’s vocational
report stated that Breeden did not require physical work restrictions for her knee
and did not have a loss of employability or earning capacity attributable to her left
knee. The FCE recognized that Breeden had total knee replacement surgery which
continued to give her trouble and that she had applied for Social Security disability
benefits after the knee surgery, but found she “does not have a loss of
employability or earnings capacity based on her left knee.” Although Dr. Ballard’s
report stated that Breeden would require “other restrictions” relative to the knee,
Dr. Ballard did not elaborate on this statement.
AVI argues that the ALJ relied on the totality of the recommended
work restrictions, thereby impermissibly inferring they all related to the
compensable low back claim. But the ALJ’s opinion refutes this argument by
addressing the issue of the knee condition directly, stating as follows: “I recognize
the fact that the Plaintiff had a total knee replacement after the work injury. She
continued to complain about it to her doctors. She did not apply for social security
disability until after the knee surgery. However, she is under no doctor’s
-10-
restrictions for her knee. There is no evidence, only implication, that the knee has
caused any real occupational disability. The implication may be sound and
reasonable, but it is not supported by the evidence. Given the weight of the
evidence for the low back, I will not carve out any portion of the total disability
award for the knee.”
In arriving at this conclusion, the ALJ was relying on substantial
evidence in the record and acting well within his “sole discretion to determine the
quality, character, and substance of the evidence[.]” Trevino, 569 S.W.3d at 403
(citation omitted). The ALJ was not required to speculate about whether part of
Breeden’s disability was attributable to the knee condition.
Second, AVI argues that the ALJ erred in finding that Breeden was
incapable of doing any of her prior work and that there was no realistic level of
retraining she could complete that would enable her to work again. AVI contends
that the ALJ failed to consider that Breeden could continue working as a CSA,
which was a bona fide position that met all the recommended work restrictions.
AVI points out that Breeden successfully worked as a CSA following her back
injury and that Crisp, Breeden’s supervisor, testified that the CSA job could be
performed within the twenty-pound lifting restriction and various positional
restrictions recommended by Dr. Fadel.
-11-
An ALJ is required to make “an individualized determination of what
the worker is and is not able to do after recovering from the work injury.” Ira A.
Watson Dep’t Store v. Hamilton, 34 S.W.3d 48, 51 (Ky. 2000). “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.” Id. at 52 (citations omitted). The ALJ is required to consider
“factors such as the worker’s post-injury physical, emotional, intellectual, and
vocational status and how those factors interact.” Id. at 51.
The Kentucky Supreme Court has also expressly specified that the
ALJ may rely on a worker’s own testimony in performing this analysis: “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.” Id. at 52
(citation omitted). More recently the Supreme Court reiterated, as noted in the
Board’s opinion, that “a claimant can certainly know as a fact if he is in pain, as
well as he can know when it hurts to perform certain physical activities. He is
entitled to tell and our court will give credence and weight to such testimony.”
City of Ashland v. Stumbo, 461 S.W.3d 392, 397 (Ky. 2015) (Barber, J.,
concurring) (quoting Ruby Const. Co. v. Curling, 451 S.W.2d 610, 612 (Ky.
1970)).
-12-
The ALJ found that Breeden is unable to perform the type of work she
did before her back injury, due to restrictions on lifting more than twenty pounds,
bending, stooping, twisting, sitting, and standing. These restrictions, coupled with
her lack of education or training and her own testimony that her pain level
increased throughout the day when she was working as a CSA, that her back
condition had worsened since she left AVI, and that she would be unable to return
to the CSA position, which the ALJ found credible, constitute substantial evidence
supporting the ALJ’s finding of permanent occupational disability. The ALJ’s
determination was made well within the fact-finding parameters established by the
Kentucky Supreme Court and will not be overturned on appeal.
For the foregoing reasons, the opinion of the Board affirming the
opinion and order of the ALJ is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE DELORSE
BREEDEN:
Allison A. Zoeller
Louisville, Kentucky Scott C. Justice
Louisville, Kentucky
-13-