Mj Great Clips, Inc. v. Angela Johnson ( 2022 )

RENDERED: MAY 27, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0527-WC
MJ GREAT CLIPS, INC. APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-19-93999
ANGELA JOHNSON; HONORABLE
TONYA MICHELLE CLEMONS,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD APPELLEES
OPINION
AFFIRMING
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BEFORE: DIXON, MCNEILL, AND K. THOMPSON, JUDGES.
MCNEILL, JUDGE: On November 20, 2018, Appellee, Angela Johnson
(Johnson), sustained a work-related cumulative trauma injury to her shoulder,
while working for her employer, MJ Great Clips, Inc. (Great Clips). Johnson filed
her Form 101, Application for Resolution of Workers’ Compensation Claim, on
March 13, 2020. After a final hearing on the matter, the Administrative Law Judge
(ALJ) issued a sixteen-page opinion awarding Johnson temporary total disability
(TTD), permanent partial disability (PPD), and medical benefits. Great Clips
appealed to the Workers’ Compensation Board (Board), which unanimously
affirmed the ALJ’s determination. Great Clips now appeals to this Court as a
matter of right. Having reviewed the record and the law, we affirm the Board.
STANDARD OF REVIEW
The ALJ has “the sole discretion to determine the quality, character,
weight, credibility, and substance of the evidence, and to draw reasonable
inferences from the evidence.” Bowerman v. Black Equipment Co., 297 S.W.3d
858, 866 (Ky. App. 2009). Therefore, “appellate courts may not second-guess or
disturb discretionary decisions of an ALJ unless those decisions amount to
an abuse of discretion.” Id. at 866 (citing Medley v. Bd. of Educ., Shelby County,
168 S.W.3d 398, 406 (Ky. App. 2004)). “If the reviewing court concludes the rule
of law was correctly applied to facts supported by substantial evidence, the final
order of the agency must be affirmed.” Kentucky Unemployment Ins. Comm’n v.
Cecil, 381 S.W.3d 238, 246 (Ky. 2012) (citing Brown Hotel Co. v. Edwards, 365
S.W.2d 299, 302 (Ky. 1962)). “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 Chem. Co., 474 S.W.2d 367, 369 (Ky.
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1971) (citation omitted). “However, a reviewing court is entitled to substitute its
judgment for that of the agency where the agency’s ruling is based on an ‘incorrect
view of the law.’” Fresenius Medical Care Holdings, Inc. v. Mitchell, 507 S.W.3d
15, 19 (Ky. App. 2016) (quoting Kentucky Bd. of Nursing v. Ward, 890 S.W.2d
641, 642 (Ky. App. 1994)). Of particular import here, KRS 342.185(3) provides:
The right to compensation under this chapter resulting
from work-related exposure to cumulative trauma injury
shall be barred unless notice of the cumulative trauma
injury is given within two (2) years from the date the
employee is told by a physician that the cumulative
trauma injury is work-related. An application for
adjustment of claim for compensation with respect to the
injury shall have been made with the department within
two (2) years after the employee is told by a physician
that the cumulative trauma injury is work-related.
However, the right to compensation for any cumulative
trauma injury shall be forever barred, unless an
application for adjustment of claim is filed with the
commissioner within five (5) years after the last injurious
exposure to the cumulative trauma.
With these standards in mind, we now turn to the merits of the present case.
ANALYSIS
Great Clips’ sole argument on appeal is that it was erroneous as a
matter of law to award permanent benefits. The ALJ addressed the relevant
evidence most succinctly in its order denying Great Clips’ petition for
reconsideration as follows:
The Opinion indicates all evidence was fully considered
in determining that Plaintiff suffered a work-related
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cumulative trauma to her left shoulder as well as a
rationale for reliance on the opinions of Dr. [Jeffrey]
Fadel as the most credible and persuasive with respect to
dormant conditions and capacity to return to work.
Further, consistent with applicable law, the Opinion
identifies the date triggering notice [November 20, 2018]
and clocking of the statute of limitations based on the
opinion of Dr. [James] Bilbo.
In its opinion affirming the ALJ, the Board addressed the underlying evidence at
length, and ultimately agreed that Johnson’s cumulative trauma case was timely
filed. We also agree that the ALJ’s opinion was based on substantial evidence, i.e.,
“evidence of substance and relevant consequence having the fitness to induce
conviction in the minds of reasonable men.” Smyzer, 474 S.W.2d at 369 (citation
omitted). And although Great Clips’ argument is styled as an issue of law, much
of its argument actually concerns the sufficiency of the evidence. We hold that the
ALJ did not abuse its discretion here and certainly cannot say that the agency’s
ruling is based on an “incorrect view of the law.” Mitchell, 507 S.W.3d at 19(citation omitted).
CONCLUSION
For the foregoing reasons, we hereby affirm the Board, affirming the
decision issued by the ALJ.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
James Compton Haley S. Stamm
Lexington, Kentucky Fort Mitchell, Kentucky
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