Frances Dunbar v. Jennie Stuart Medical Center ( 2020 )

RENDERED: SEPTEMBER 25, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2018-CA-0972-WC
FRANCES DUNBAR APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-13-64482
JENNIE STUART MEDICAL CENTER;
HON. CHRISTINA D. HAJJAR, ADMINISTRATIVE
LAW JUDGE; AND KENTUCKY WORKERS’
COMPENSATION BOARD APPELLEES
AND NO. 2018-CA-1095-WC
JENNIE STUART MEDICAL CENTER CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NOS. WC-05-68114 AND WC-13-64482
FRANCES DUNBAR; DR. JOHN LACH;
HON. THOMAS POLITES, ADMINISTRATIVE
LAW JUDGE; HON. CHRISTINA D. HAJJAR,
ADMINISTRATIVE LAW JUDGE; AND
KENTUCKY WORKERS’ COMPENSATION
BOARD CROSS-APPELLEES
OPINION
AFFIRMING IN PART, VACATING
IN PART, AND REMANDING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND KRAMER, JUDGES.
ACREE, JUDGE: Appellant/Cross-Appellee, Frances Dunbar, appeals the
decision of the Workers’ Compensation Board, alleging: (1) the 2018 version of
KRS1 342.730(4) applies retroactively; (2) the Board erred in resurrecting the 1994
version of KRS 342.730(4); and (3) it was arbitrary and capricious for the
Administrative Law Judge (ALJ) to deny the “three-times multiplier” to enhance
her income benefits. Appellee/Cross-Appellant, Jennie Stuart Medical Center
(JSMC), appeals an interlocutory opinion and order compelling it to provide
surgery to Dunbar. After careful review, we affirm in part, vacate in part, and
remand.
1
Kentucky Revised Statute.
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BACKGROUND
The facts underlying these appeals describe two work-related
accidents. Dunbar, a 62-year-old woman, injured her lower back on July 14, 2005,
while working for Pennyroyal Hospice, Inc. She sought benefits, but the parties
ultimately settled. Dunbar continuously received treatment for her lower back.2
On October 10, 2013, Dunbar sustained another work-related injury to her lower
back, left hip, and left leg, while working as a floor nurse for JSMC. She sought
workers’ compensation benefits.
Dunbar’s claim was assigned to ALJ Polites. ALJ Polites concluded
that the 2013 injury permanently aggravated or exacerbated her pre-existing active
lower-back condition. ALJ Polites entered an interlocutory decision, ordering
JSMC to provide surgery to Dunbar and to pay temporary total disability from
October 10, 2013 until she reached maximum medical improvement.3 Because this
was an interlocutory order, JSMC did not appeal.
In 2017, after a period of abatement, Dunbar’s case was reassigned to
ALJ Hajjar for a final hearing. ALJ Hajjar agreed with ALJ Polites’ conclusion
that the 2013 accident permanently exacerbated Dunbar’s pre-existing active
2
Dunbar sought treatment approximately one week prior to her second work-related injury.
3
Dunbar underwent surgery and achieved maximum medical improvement approximately one
year later, on February 3, 2017.
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lower-back condition. Accordingly, Dunbar was awarded permanent partial
disability benefits. When, in Parker v. Webster County Coal, LLC (Dotiki Mine),
529 S.W.3d 759 (Ky. 2017), Kentucky’s Supreme Court found the benefit
termination provision of KRS 342.730(4) unconstitutional, ALJ Hajjar calculated
Dunbar’s benefits based on the 1994 version of the statute. The 1994 version
includes a “tier-down” calculation in which the ALJ calculates the injured party’s
benefits by reducing benefits 10% when the party reaches 65, and 10% each year
after that until the party reaches the age of 70. Additionally, ALJ Hajjar denied the
three-times multiplier to enhance Dunbar’s benefits.
Dunbar appealed to the Board, asserting ALJ Hajjar erred in applying
the tier-down provision of the 1994 version of KRS 342.730(4), and by failing to
apply the three-times multiplier. JSMC appealed the interlocutory order of ALJ
Polites, contending Dunbar’s surgery was not compensable. The Board affirmed.
This appeal and cross-appeal followed.
STANDARD OF REVIEW
Our review of an opinion of the Workers’ Compensation Board is
limited. We only reverse the Board’s opinion when “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 Hospital v. Kelly,
827 S.W.2d 685, 687-88 (Ky. 1992). In reviewing the Board’s opinion, we look to
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the ALJ’s opinion. The ALJ’s findings of fact will not be disturbed if supported by
substantial evidence. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky.
App. 1984). And, the ALJ, as fact-finder, possesses the discretion to judge the
credibility of testimony and weight of evidence. Paramount Foods, Inc. v.
Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985).
ANALYSIS
Retroactivity of 2018 version of KRS 342.730(4)
Dunbar first asserts the 2018 version of KRS 342.730(4), which
addresses the termination of benefits, should apply to her case. Given the
Kentucky Supreme Court’s recent decision in Holcim v. Swinford, 581 S.W.3d 37
(Ky. 2019), we agree.
We need say no more regarding this argument. Further explanation
can be had by reading Holcim, supra, and its progeny. “Consequently, we must set
aside that portion of the Board’s opinion and remand this matter to the ALJ for
entry of an award applying the 2018 version of KRS 342.730(4).” Lone Mountain
Processing v. Turner, 593 S.W.3d 72, 74 (Ky. App. 2020); see also Crittenden
County Fiscal Court v. Hodge, 591 S.W.3d 424, 426 (Ky. App. 2019) (“[W]e are
bound by the Kentucky Supreme Court’s ruling in Holcim.”); Pine Branch Mining,
LLC v. Hensley, 590 S.W.3d 268, 275 (Ky. App. 2019) (“[W]e vacate that portion
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of the Board’s opinion and remand this matter to the ALJ for entry of an award
applying the 2018 version of KRS 342.730(4).”).
Three-Times Multiplier
Dunbar contends the ALJ’s denial of the three-times multiplier was
arbitrary and capricious. Pursuant to KRS 342.730(1)(c)1., “[i]f, 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 . . . .” We find
substantial evidence supports ALJ Hajjar’s decision to deny the three-times
multiplier.
ALJ Hajjar placed emphasis on whether Dunbar is now able to
complete her pre-2013 injury job functions. Dunbar testified that prior to the 2013
accident, she was working shifts of 12 to 13 hours, two days per week, and would
also work an additional day or two if she was on call. Although floor nurse duties
include lifting patients, Dunbar acknowledged her inability to complete this task
even prior to 2013. Specifically, when discussing her pre-2013 job capabilities,
she noted she could not “pick-up the defendant’s attorney.” Moreover, she
testified that, “I just don’t want you to think that I did everything I was supposed to
do.” It was reasonable for ALJ Hajjar to infer that, before 2013, Dunbar was not
completing the full range of duties with which a floor nurse is tasked.
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ALJ Hajjar then relied on medical testimony to conclude that any
restrictions placed on Dunbar would not prevent her from completing her pre-2013
duties. She relied on testimony from Dr. Sheth, who noted Dunbar was having
difficulty performing her job tasks days before the 2013 injury, and Dr. McCord,
who noted that Dunbar’s physical health was improving and she was increasingly
more active due to the successful surgery.
Dr. Bilkey recommended restrictions of limiting lifting to 10 pounds
occasionally, no repetitive bending, and no sitting or standing for over 30 minutes
at a time. ALJ Hajjar found Dr. Bilkey not credible, due to Dr. McCord’s findings
that Dunbar’s health had actually improved from the surgery. Instead, she found
Dr. O’Brian more credible, who restricted Dunbar from repetitive lifting greater
than fifty pounds. ALJ Hajjar concluded, even after considering the restrictions of
Dr. Bilkey, that Dunbar retained the ability to perform her work at the level she
was performing prior to the 2013 injury. Given that Dunbar was not completing
the full range of duties typically assigned to floor nurses, we find substantial
evidence supports the conclusion that she is able to perform her pre-2013 job
duties.
Interlocutory Order
ALJ Polites, in his interlocutory opinion, ordered JSMC to provide
Dunbar with lower-back surgery recommended by Dr. McCord. Relying on Derr
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Construction Company v. Bennett, 873 S.W.2d 824 (Ky. 1994), ALJ Polites
determined the 2013 accident caused or hastened the need for surgery and,
therefore, JSMC was liable for the medical expenses. JSMC first contends that
ALJ Polites erred by relying on Derr. We disagree.
In Derr, the claimant was an iron worker who suffered arthritic
problems in his knees due to years of labor. Knee implant surgery was recognized
as likely in his future. He was later injured at work and sought compensation
benefits. The Kentucky Supreme Court held in relevant part:
KRS 342.120(4) [now KRS 342.120(6)] specifically
exempts the employer from paying income benefits for
prior, active disability or for disability resulting from the
arousal of a previously dormant condition. However, KRS
342.020 contains no such exemption regarding medical
benefits. Liability for medical expenses requires only that
an injury was caused by work and that medical treatment
was necessitated by the injury. . . .
....
In the instant case the ALJ determined . . . that claimant’s
arthritic condition, to which the last employment
contributed, was caused by the cumulative trauma of his
many years of iron work. Regardless of whether future
knee implant surgery had been recognized as an
eventuality before the incident of October, 1989, there was
testimony that the incident had hastened the date on which
the surgery would be required. Therefore, although it
might seem harsh on the facts of this case to impose
liability for future medical expenses necessitated by
claimant’s arthritic condition on this employer, it has been
determined that work done for the employer contributed,
at least to some degree, both to the condition and to
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claimant’s resulting disability. Under such circumstances,
where work has caused the disabling condition, the
resulting medical expenses ought to be borne by the
workers’ compensation system. See Larson, Workmen’s
Compensation Law, § 96.70. This theory is embodied in
the language of KRS 342.020. Because KRS 342.020
does not exempt an employer from liability for any portion
of a worker’s medical expenses in those instances where
the work-related injury constitutes a progression or
worsening of a prior, active work-related condition, we
hold that the employer is responsible for the medical
expenses necessary for the cure and relief of the arthritic
condition in claimant’s knees.
Derr, 873 S.W.2d at 827-28.
JSMC asserts Derr is not applicable because the pre-existing injury in
Derr was non-compensable, while Dunbar’s pre-existing injury was compensable,
but waived, when she settled with Pennyroyal Hospice. Although the pre-existing
condition in Derr was non-compensable, we find this had no bearing on the
Court’s holding. Derr clearly holds that an employer is liable to its employee for
medical expenses so long as the work-related injury contributed, at least in some
degree, to the pre-existing injury. Nowhere in its holding does the Court
distinguish between the compensability of the pre-existing active condition.
Therefore, we find Derr binding.4
4
Though not precedent, we note this Court in Res-Care, Inc. v. Fritz, No. 2004-CA-2167, 2005
WL 564279 (Ky. App. Mar. 11, 2005), previously applied Derr when the pre-existing condition
was compensable.
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JSMC next argues ALJ Polites committed clear error when he found
Dunbar was working full-time and was performing the full range of duties
associated with a floor nurse, and again when he contradicted himself as to
whether medical professionals recommended that Dunbar seek emergency or acute
treatment for her back prior to the 2013 injury.
However, we are concerned only with whether the fact-finding was
supported by substantial evidence. “Substantial evidence has been defined as that
which, when taken alone or in light of all the evidence, has sufficient probative
value to induce conviction in the mind of a reasonable person.” Stanford Health &
Rehab. Ctr. v. Brock, 334 S.W.3d 883, 884 (Ky. App. 2010). Here, it is
uncontested that Dunbar’s second injury occurred while she was working at JSMC.
Both Dr. Lach and Dr. Robbe, who treated Dunbar before and after 2013, opined
that her work injury that year was a substantial cause of her symptoms and her
need for surgery. Therefore, ALJ Polites’ determination that the 2013 work injury
caused or hastened the need for surgery is supported by substantial evidence.
CONCLUSION
For the reasons stated, we vacate the award and remand for a re-
calculation of benefits based on the 2018 version of KRS 342.730(4). In all other
respects, the award is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT/CROSS- BRIEF FOR APPELLEE/CROSS-
APPELLEE FRANCES DUNBAR: APPELLANT JENNIE STUART
MEDICAL CENTER:
Craig Housman
Paducah, Kentucky Samuel J. Back
Henderson, Kentucky
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