Apple Valley Sanitation, Inc. v. Jon Stambaugh

RENDERED: APRIL 28, 2022
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0227-WC
APPLE VALLEY SANITATION, INC. APPELLANT
ON APPEAL FROM THE COURT OF APPEALS
V. NO. 2020-CA-0976
WORKERS’ COMPENSATION CASE NOS.
17-WC-85280 AND 19-WC-00205
JON STAMBAUGH; APPELLEES
HONORABLE RICHARD NEAL,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING
This case is before the Court on appeal as a matter of right1 by Apple
Valley Sanitation, Inc. of a workers’ compensation award. The Court of
Appeals’ opinion affirmed the Administrative Law Judge’s award of permanent
partial disability benefits to Jon Stambaugh. Apple Valley argues the Court of
Appeals erred in affirming the ALJ’s application of the three-multiplier to the
separate weekly rates of benefits awarded to Stambaugh for two separate work-
related injuries that occurred 85 days apart. We find no error, and we affirm
the Court of Appeals.
1 Ky. Const. § 115.
I. FACTUAL AND PROCEDURAL BACKGROUND
Stambaugh worked for Apple Valley for 23 years as a garbage truck
driver and loader. While at work on April 17, 2017, Stambaugh twisted his
right knee when exiting a garbage truck. The record provides no evidence or
assertion that Stambaugh ceased working because of the April 17 injury.
The day after the work-related injury, Stambaugh presented to Tracy
Hamilton, APRN, reporting right-knee pain and swelling. Hamilton noted
obvious effusion of the right knee, prescribed medications, and referred
Stambaugh to Dr. Donald Arms, an orthopedic surgeon. She recommended
that Stambaugh work on light duty. Over the course of several appointments,
Hamilton diagnosed Stambaugh with hypogonadism, chronic low-back pain,
degeneration of lumbar intervertebral disc, back pain, shoulder pain, and
bilateral knee pain.
On April 25, 2017, Stambaugh presented to Dr. Arms, who took x-rays of
Stambaugh’s knees, showing bilateral degenerative changes about the knees.
Dr. Arms recommended Stambaugh continue modified work duty; wear a
brace; and limit kneeling, squatting, climbing, and prolonged walking. On May
30, 2017, Dr. Arms released Stambaugh to resume his regular work duties.
On July 11, 2017, Stambaugh experienced another injury while working
for Apple Valley. This time, Stambaugh was diagnosed as having sustained
injuries to his lumbar spine and left knee over the course of his work for Apple
Valley through cumulative, repetitive trauma. Both his last day of work and
2
last day of exposure to the cumulative trauma was July 11, 2017. Stambaugh
has neither worked nor applied for work since that date.
Following his July 11 injury, Stambaugh again presented to Dr. Arms.
At that time, Dr. Arms diagnosed Stambaugh with degenerative
spondylolisthesis, morbid obesity, femoral acetabular impingement, and
degeneration of lumbar intervertebral disc. Dr. Arms recommended
Stambaugh cease regular work duties and commence desk duties only.
On October 9, 2018, Stambaugh presented to Dr. Ira Potter for treatment
of work-related injuries sustained to his knees, back, and shoulders. Over the
course of the next year, Dr. Potter diagnosed Stambaugh with low-back pain,
degenerative joint disease, joint pain in both shoulders, osteoarthritis,
impingement syndrome of both shoulders, and obesity. On November 5, 2018,
Dr. Potter concluded that Stambaugh was totally disabled from work. But, on
February 19, 2019, after Stambaugh was prescribed various medications, Dr.
Potter suggested that Stambaugh could return to work with extensive
restrictions.
At his attorney’s request, Stambaugh presented to Dr. Bruce Guberman
on November 28, 2018, for an independent medical evaluation (IME). Dr.
Guberman diagnosed Stambaugh with chronic post-traumatic strain and
aggravation of dormant degenerative changes of the right knee occurring on
April 17, 2017; cumulative trauma to the left knee; cumulative-trauma injury
to both shoulders; cumulative-trauma injury to the cervical spine; and
cumulative-trauma injury to the lumbar spine. Dr. Guberman stated that
3
Stambaugh had reached maximum medical improvement (MMI) by November
28, 2018.
Dr. Guberman assigned Stambaugh a 4% whole-person impairment for
his right-knee injury on April 17, 2017, and a 27% whole-person impairment
for his cumulative-trauma injuries.2 Dr. Guberman concluded that Stambaugh
lacked the physical capacity to perform the job that he was performing at the
time of his injuries.
On February 22, 2019, Stambaugh filed two claims for workers’
compensation benefits: one for his injury on April 17 and one for his injury on
July 11. The two claims were consolidated.
On May 21, 2019, Stambaugh presented to Dr. Daniel Primm for an IME
at Apple Valley’s request. Dr. Primm diagnosed Stambaugh with right-knee
strain or sprain from the April 17 injury,3 primary osteoarthritis in both knees,
rotator cuff tendonitis impingement syndrome of both shoulders, and age-
related mechanical neck- and low-back pain with no evidence of radiculopathy.
Dr. Primm stated that Stambaugh’s right knee had reached MMI and his other
injuries and symptoms did not exceed the expected condition of a male of
Stambaugh’s age. He assigned Stambaugh a 5% whole-person impairment
rating for the right-shoulder injury and a 6% whole-person impairment rating
2Specifically, Dr. Guberman assigned an 8% impairment for the right knee, 2%
impairment for the right shoulder, 7% impairment for the left shoulder, 5%
impairment for the cervical spine, and 8% impairment for the lumbar spine.
3 On the date of Dr. Primm’s examination of Stambaugh, Dr. Primm concluded
that the right knee strain or sprain was resolved and no permanent injury sustained.
4
for the left-shoulder injury. Dr. Primm concluded that Stambaugh had the
physical capacity to return to the job he was performing at the time of his
injury.
On June 11, 2019, Dr. Russell Travis performed a review of Stambaugh’s
treatment records. Dr. Travis assigned Stambaugh a 0% impairment rating
regarding his cervical-spine injury and a 0% impairment rating regarding his
thoracic-spine injury. He concluded that Stambaugh had no cervical, thoracic,
or lumbar degenerative changes, nor shoulder or knee arthritic conditions
greater than those expected in a man of Stambaugh’s age.
The ALJ ultimately issued an Opinion, Order and Award, awarding
Stambaugh benefits for both his April 17 and July 11 injuries. The ALJ found
that Stambaugh met his burden of proof of work-related injuries regarding his
April 17 acute right-knee injury and his July 11 cumulative traumas to his left
knee and lumbar spine.4
The ALJ awarded Stambaugh permanent partial disability benefits,
finding that he had a 4% whole-person impairment as a result of his April 17
injury and a 14% whole-person impairment as a result of his July 11 injuries.5
The ALJ applied the three-multiplier from KRS6 342.730(1)(c)1 to the benefits
4 The ALJ also concluded that Stambaugh failed to meet his burden of proof
with regard to his alleged cervical spine and shoulder injuries. This finding is not
contested in this appeal.
5 Upon Stambaugh’s Petition for Reconsideration, the ALJ issued a revised
Order stating that the proper impairment rating for Stambaugh’s cumulative traumas
was 15% rather than 14%.
6 Kentucky Revised Statutes.
5
for both Stambaugh’s April 17 and July 11 injuries, finding that Stambaugh
lacked the physical capacity to return to the type of work he performed at the
time of either injury.
Apple Valley appealed the ALJ’s order applying the three-multiplier to
both Stambaugh’s benefits awards. The Workers’ Compensation Board
affirmed the decision of the ALJ. The Court of Appeals affirmed the decisions
of the Board and the ALJ. For the following reasons, we affirm the Court of
Appeals’ decision.
II. STANDARD OF REVIEW
In workers’ compensation cases, this Court’s standard of review depends
upon whether the issue on appeal is a question of law or fact. In reviewing an
ALJ’s decision on a question of law or interpretation and application of a law to
the facts at hand, our standard of review is de novo.7 With regard to questions
of fact, “[t]he ALJ as fact finder has the sole authority to judge the weight,
credibility, substance, and inferences to be drawn from the evidence.”8
This Court’s review of an ALJ’s determination of an injured employee’s
retained capacity and application of a multiplier to that employee’s benefits
award is a question of fact based upon the medical and lay evidence provided.9
In a case, like the present one, in which the party with the burden of proof was
7 Ford Motor Co. v. Jobe, 544 S.W.3d 628, 631 (Ky. 2018).
8 LKLP CAC Inc. v. Fleming, 520 S.W.3d 382, 386 (Ky. 2017) (internal citation
omitted).
9 Carte v. Loretto Motherhouse Infirmary, 19 S.W.3d 122, 126 (Ky. App. 2000).
6
successful before the ALJ, the only issue we consider on appeal is whether the
ALJ’s conclusion is supported by substantial evidence.10 And we will reverse
the ALJ’s decision only if we find it to be unsupported by substantial evidence
of probative value.11
III. ANALYSIS
KRS 342.730(1)(c)1 provides that, if, due to a work-related 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 [PPD] shall be
multiplied by three (3) times . . . .” This provision is intended to compensate an
injured worker who has a permanent alteration to his ability to labor and earn
money due to his injury.12 The determination of both the permanence of an
employee’s injury and the effect of that injury on the employee’s capacity to
return to work is made by the ALJ based on the evidence presented.
Apple Valley’s primary argument on appeal is that the three-multiplier
cannot be applied to successive injury claims if the employee had no significant
change in job duties between those two injuries, citing Trane Commercial
Systems v. Tipton for that proposition.13 Apple Valley contends that the
application of the three-multiplier to Stambaugh’s benefits award for his April
17 injury precludes its application to the benefits award for his July 11 injury,
10 Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999).
11 Wilkerson v. Kimball Int’l, Inc., 585 S.W.3d 231, 236 (Ky. 2019).
12 Fawbush v. Gwinn, 103 S.W.2d 5, 12 (Ky. 2003).
13 481 S.W.3d 800 (Ky. 2016).
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reasoning that Stambaugh cannot, for a second time, lose the physical capacity
to return to his job. Apple Valley provides as dispositive evidence of this fact
Stambaugh’s return to his usual job duties during the period between his April
17 and July 11 injuries.
We find neither evidence nor precedent to support Apple Valley’s
position. KRS 342.730(1)(c)1 concerns whether an employee has the physical
capacity at the time of the benefits hearing to perform the type of work
performed pre-injury. The ALJ concluded, based upon the evidence, and in his
discretion, that both the April 17 and July 11 injuries individually precluded
Stambaugh from performing the work he performed at the time of each injury.
Such a decision is appropriately made with the complete knowledge of the
severity of Stambaugh’s injuries and the continued disability he experiences.
Additionally, we find no support for Apple Valley’s position in Trane
Commercial Systems.14 There, this Court considered the impact of an
employee’s limited post-injury return to work on an award of temporary total
disability benefits (TTD) to that employee.15 We concluded that an employee is
only capable of “returning to work” for purposes of ending entitlement to TTD
benefits when that employee is capable of performing the actual jobs previously
performed at the time of injury.16 Such a holding simply is not relevant to the
case at hand. Stambaugh continued working after his April 17 injury with
14 Id.15 Id. at 802.
16 Id. at 803-04.
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minor accommodations, eventually returning to full-duty, and he did not
return to work at all after his July 11 injury. Upon consideration of the
medical and lay evidence presented, the ALJ concluded that Stambaugh
presently lacks the capability to perform the sort of work he did at the time of
his injuries. Because Stambaugh has not returned to work since his July 11
injury, Trane Commercial Systems has no bearing on our analysis.
Apple Valley has failed to identify any relevant case law that addresses
the impact of an employee’s relatively brief return to work post-injury as
preclusive of the application of the three-multiplier to the benefits awarded for
that injury.17 Finding no basis in law under which we may entertain Apple
Valley’s argument, we find application of the three-multiplier to be within the
sound discretion of the ALJ.
In the alternative, Apple Valley alleges that the ALJ combined evidence
from Stambaugh’s two injuries to conclude that the three-multiplier was
applicable to both injuries. Apple Valley cites Plumley v. Kroger, Inc. for the
proposition that successive injury claims must be decided separately and the
evidence for each claim must be weighed individually.18
17 Without providing exposition on the topic, both this Court and the Court of
Appeals have affirmed decisions by ALJs to apply the three-multiplier under
circumstances analogous to those in Stambaugh’s case: Morgan v. Bluegrass
Oakwood, Inc., ___S.W.3d___, No. 2019-CA-000423-WC, 2019 WL 3367190 (Ky. App.
July 26, 2019) aff’d, No. 2019-SC-000490-WC, 2021 WL 1679311 (Ky. Apr. 29, 2021);
Ford Motor Co. (LAP) v. Jones, No. 2016-CA-001588-WC, 2017 WL 729164 (Ky. App.
Feb. 24, 2017); Rock Drilling, Inc. v. Howell, No. 2012-CA-000490-WC, 2012 WL
3642476 (Ky. App. Aug. 24, 2012) aff’d, No. 2012-SC-000586-WC, 2013 WL 4680489(Ky. Aug. 29, 2013); Adkins v. Pike Cnty. Bd. of Educ., 141 S.W.3d 387 (Ky. App.
2004).
18 557 S.W.3d 905, 914-16 (Ky. 2018).
9
In Plumley, an employee experienced four work-related injuries, in 1998,
2006, 2009, and 2011, respectively. After each injury, the employee received
treatment and returned to work in generally the same capacity. When the
employee eventually brought a claim for benefits for the 2006, 2009, and 2011
injuries, the ALJ assigned each an impairment rating and applied a one-
multiplier to the 2006 and 2009 injuries and the three-multiplier to the 2011
injury, finding that only after the 2011 injury did the employee lose the
capacity to return to the same type of work performed at the time of the
injuries. On appeal, this Court affirmed the ALJ, finding that the employee
received no restrictions after the 2006 and 2009 injuries that were not already
in place because of his 1998 injury, so after the 2006 and 2009 injuries, he
was able to return to the type of work he performed at the time of the injury,
precluding application of the three-multiplier.
Apple Valley contends that, considering Plumley, this Court is required to
reverse the ALJ’s application of the three-multiplier to both Stambaugh’s
benefits awards. But we find Plumley distinguishable from the case at hand.
Unlike the employee in Plumley, Stambaugh returned to work for only 12 weeks
after his April 17 injury, and for six of those weeks he was restricted to light
duty. We do not find that Stambaugh’s continuation of work between his April
17 and July 11 injuries constitutes a “return to work” that reflects the capacity
to continue the type of work performed at the time of the injury for the
indefinite future.
10
Additionally, we find that the ALJ fulfilled his duty in this case by
providing separate analyses and making separate findings regarding the
successive injuries, even stating, “[T]he Plaintiff lacks the physical capacity to
return to his job due to both the April 17, 2017, acute injury to the right knee,
and the July 11, 2017, cumulative trauma injury, individually and
independently.”
The ALJ’s determination that Stambaugh cannot return to his pre-injury
job because of his April 17 right-knee injury is supported by substantial
evidence. Stambaugh suffers from chronic post-traumatic strain and
aggravation of dormant degenerative changes of the right knee, as noted by Dr.
Guberman, which would reasonably prevent him from sitting or standing for
long periods, kneeling, squatting, and crawling. The record clearly states that
the performance of Stambaugh’s pre-injury job duties involves continuous
walking and climbing in and out of the garbage truck. Ultimately, Dr.
Guberman found that Stambaugh could not perform his pre-injury work tasks
as a result of his April 17 injury. So the ALJ’s finding that Stambaugh’s benefit
award for his April 17 injury is eligible for application of the three-multiplier is
supported by substantial evidence.
We also find that the ALJ’s determination that Stambaugh cannot return
to his pre-injury job because of his July 11 cumulative-trauma injury is
supported by substantial evidence. Stambaugh suffers from degenerative disc
disease and degenerative joint disease of the lumbar spine, as well as
degenerative changes to the left knee, as noted by Dr. Guberman and Dr.
11
Potter, which would reasonably prevent him from using his arms and legs
repetitively and from carrying or pushing objects over 25 pounds (or 5-10
pounds frequently). The record includes evidence that Stambaugh’s pre-injury
job involves lifting bags of garbage ranging from 10 to 100 pounds each and
repetitively climbing in and out of the garbage truck. Dr. Guberman found that
Stambaugh could not perform his pre-injury tasks because of his July 11
injury. Thus, the ALJ’s finding that Stambaugh’s benefit award for his July 11
injury is eligible for application of the three-multiplier is supported by
substantial evidence.
IV. CONCLUSION
We find that the ALJ’s award in this case was supported by substantial
evidence, so we affirm the Court of Appeals.
All sitting. All concur.
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COUNSEL FOR APPELLANT:
W. Barry Lewis
Lewis and Lewis Law Offices
COUNSEL FOR APPELLEE:
John Earl Hunt
ADMINISTRATIVE LAW JUDGE:
Hon. Richard Neal
WORKERS’ COMPENSATION BOARD:
Michael W. Alvey
Chairman
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