Tractor Supply Company v. Shirley Johnson

RENDERED: JANUARY 28, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0934-WC
TRACTOR SUPPLY COMPANY. APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-19-89274
SHIRLEY JOHNSON;
HONORABLE JONATHAN
WEATHERBY, ADMINISTRATIVE
LAW JUDGE; AND WORKERS’
COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND McNEILL, JUDGES.
CETRULO, JUDGE: An Administrative Law Judge (“ALJ”) awarded Shirley
Johnson (“Johnson”) temporary total disability (“TTD”) benefits, permanent partial
disability (“PPD”) benefits, and medical benefits for an injury she sustained while
working in the course of her employment with Tractor Supply Company (“TSC”).
TSC filed a petition for reconsideration, which the ALJ overruled. TSC then
appealed to the Workers’ Compensation Board (“Board”), which affirmed the
ALJ’s decision. Upon review, we agree with the ALJ and Board.
FACTUAL AND PROCEDURAL HISTORY
Johnson worked for TSC for three and a half years. There, her work
consisted of moderate-to-heavy manual labor as an assistant manager and receiver.
In those roles, Johnson helped customers load their vehicles, unloaded pallets of
dog food (each pallet containing 40-50 bags), readied inventory for shipment, and
scanned items and returned them to shelves. On February 25, 2019, while
unloading bags of dog food, Johnson sustained a lower-back injury. In July 2019,
Johnson returned to “light duty” work at TSC. In that new capacity, she worked
the cash register while sitting on a stool and assisted with rearranging seasonal
shelves. At some point thereafter, TSC instructed Johnson to finish using her
Family and Medical Leave Act (“FMLA”) leave until she was cleared to return to
full-duty work. Then in January 2020, TSC terminated Johnson’s employment.
At the time of the hearing, Johnson was looking for a new job that did
not require any lifting. Johnson testified that she was no longer able to perform the
same duties she did before her injury because she still had back pain that radiated
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down her hip and legs. She also testified that she was able to pick up her 15-pound
grandson but could only do so for a few minutes at a time.
Through the course of her treatment, Johnson saw three doctors who
later offered testimony on her condition: Dr. Rice, Dr. Primm, and Dr. Madden.
Initially, Johnson sought treatment from her primary care physician, who then
referred her to Dr. Rice, an orthopedic surgeon. According to Dr. Rice’s treatment
notes, he diagnosed Johnson with a lumbar strain, recommended physical therapy,
and restricted her to light duty. Dr. Rice also ordered a lumbar MRI, which he
interpreted as showing a small central disc bulge at L5-SI without any significant
central foraminal stenosis. After Johnson continued to complain of low-back pain
radiating into both buttocks, Dr. Rice recommended medial branch blocks, which
were performed in September of 2019 and in February of 2020. He also prescribed
pain medication and recommended radiofrequency ablations, which were
performed in July and October of 2020. Most recently, Dr. Rice diagnosed
Johnson with a lumbar strain and spondylosis in October 2020. Dr. Rice stated
that Johnson complained of radicular pain without objective evidence of
radiculopathy. He further explained that a physician can ascertain radiculopathy
by manipulating the spine.
Next, Dr. Primm, another orthopedic surgeon, examined Johnson and
reported that he agreed with many of Dr. Rice’s findings and recommendations for
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treatment. He then noted that he believed Johnson fell under a diagnosis related
estimate (“DRE”) Lumbar Category I, 0% impairment rating pursuant to the 5th
Edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (“AMA Guides”).
Finally, Dr. Madden, an osteopathic physician, examined Johnson and
reported that he reviewed Dr. Rice’s MRI report, which showed “L4-5, L5-S1
HNP with left and central protrusions.” He also performed a physical exam and
diagnosed Johnson with low-back pain, lumbosacral disc herniations at L4-S1,
lumbar degenerative disc disease, and lumbosacral radiculopathy. He then
assessed a 13% impairment rating, citing to DRE Lumbar Category III pursuant to
the AMA Guides. He further noted that Johnson reached maximum medical
improvement (“MMI”) on December 13, 2019 and restricted her from lifting over
10 pounds; lower extremity repetitive motion; and bending, twisting, climbing,
crouching, stooping, kneeling, and prolonged sitting and standing. Due to these
restrictions, he explained, Johnson did not retain the physical capacity to return to
the job she was performing at the time of the injury.
In January 2021, the ALJ held a benefit review conference followed
by a formal hearing a couple of weeks later. After hearing the evidence, the ALJ
found the most recent physician’s – Dr. Madden’s – testimony was most credible
and adopted his determinations that Johnson’s impairment rating was 13% and that
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Johnson reached MMI on December 13, 2019. Using these findings, the ALJ
determined Johnson was entitled to the three-multiplier income benefit
enhancement, pursuant to Kentucky Revised Statute (KRS) 342.730(1)(c)1.1 The
ALJ awarded Johnson TTD, PPD, and medical benefits for her injury in the March
2021 order. TSC then filed a petition for reconsideration requesting further
findings of fact. The ALJ overruled that petition and TSC appealed to the Board.
The Board affirmed the ALJ’s decision because it found the ALJ based his findings
on substantial evidence.
TSC claims the ALJ – and the Board, by affirming the ALJ – erred
when it (1) accepted the physician’s determination that Johnson’s impairment
rating was 13% and (2) enhanced Johnson’s income benefits by the three-
multiplier specified in KRS 342.730(1)(c)1.
STANDARD OF REVIEW
The ALJ is the finder of fact in workers’ compensation matters. Ira
A. Watson Dep’t Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). In that regard,
KRS 342.285(2) provides that the Board shall not
reweigh the evidence and substitute its judgment for that
of the ALJ with regard to a question of fact. The
standard of review with regard to a judicial appeal of an
administrative decision is limited to determining
whether the decision was erroneous as a matter of
law. American Beauty Homes v. Louisville & Jefferson
County Planning & Zoning Commission, Ky., 379
1
KRS 342.730(1)(c)1. is discussed in detail below.
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S.W.2d 450, 457 (1964). Where the ALJ determines that
a worker has satisfied his burden of proof with regard to
a question of fact, the issue on appeal is whether
substantial evidence supported the determination.
Special Fund v. Francis, Ky., 708 S.W.2d 641, 643
(1986). Substantial evidence has been defined as some
evidence of substance and relevant consequence, having
the fitness to induce conviction in the minds of
reasonable people. Smyzer v. B.F. Goodrich Chemical
Co., Ky., 474 S.W.2d 367 (1971). Although a party may
note evidence which would have supported a conclusion
contrary to the ALJ’s decision, such evidence is not an
adequate basis for reversal on appeal. McCloud v. Beth-
Elkhorn Corp., Ky., 514 S.W.2d 46 (1974). The crux of
the inquiry on appeal is whether the finding which was
made is so unreasonable under the evidence that it must
be viewed as erroneous as a matter of law. Special Fund
v. Francis, supra, at 643.
Id. (emphasis added).
ANALYSIS
I. Impairment Rating
TSC first argues that Dr. Madden’s report did not conform to the
AMA Guides’ standards when assessing Johnson’s impairment rating.
Specifically, TSC claims that Dr. Madden’s examination of Johnson – which
consisted of the palpation of her spine, review of her MRI, and analysis of her deep
tendon reflexes – did not meet the burden to establish “radiculopathy” under the
AMA Guides and therefore did not justify the 13% impairment rating. TSC further
claims that Dr. Madden’s findings were inaccurate and did not adhere to the AMA
Guides because, it claims, they contradicted Dr. Rice’s and Dr. Primm’s findings.
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However, Kentucky caselaw provides clear guidance on how a
physician must use the AMA Guides:
Under our law, the AMA Guides are an integral
tool for assessing a claimant’s disability rating and
monetary award. So to be useful for the fact-finder, a
physician’s opinion must be grounded in the AMA
Guides. . . .
To be grounded in the Guides is not to require a
strict adherence to the Guides, but rather a general
conformity with them. We also note that the Court of
Appeals in [Jones v.] Brasch-Barry [General
Contractors, 189 S.W.3d 149, 153 (Ky. App. 2006)]
seemingly also did not require strict adherence to the
Guides: An ALJ cannot choose to give credence to an
opinion of a physician assigning an impairment rating
that is not based upon the AMA Guides. An opinion that
is based upon the Guides is different from one that
strictly adheres to the Guides.
Plumley v. Kroger, Inc., 557 S.W.3d 905, 912-13 (Ky. 2018) (internal quotation
marks and citations omitted).
We agree with the Board that the ALJ considered substantial evidence
when adopting Dr. Madden’s impairment rating and determining it was based on
the AMA Guides:
The ALJ found Johnson’s testimony regarding her
symptoms and pain credible and consistent with Dr.
Madden’s opinions. The ALJ noted Dr. Madden
diagnosed low back pain, lumbosacral disc herniations at
L4-SI, lumbar degenerative disc disease, and lumbosacral
radiculopathy, and assessed a 13% impairment rating.
The ALJ found Dr. Madden’s assessment of impairment
most credible, noting it was made pursuant to the AMA
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Guides. He was persuaded by Dr. Madden’s testimony
that his opinion was based upon the objective medical
evidence available and Johnson’s demonstrated
symptoms. Therefore, the ALJ found, “the findings of
Dr. Madden were credibly rendered in accordance with
the AMA Guides and constitute objective medical
findings upon which a finding of work-related injury may
be properly based.”
Board opinion, p. 7.
This Court has stated that “if the physicians in a case genuinely
express medically sound, but differing, opinions as to the severity of a claimant’s
injury, the ALJ has the discretion to choose which physician’s opinion to believe”
so long as the opinion is based on the AMA Guides. Brasch-Barry, 189 S.W.3d at
153. Here, the ALJ analyzed Dr. Primm’s and Dr. Madden’s examination reports
and opinions concerning Johnson’s impairment rating.2 The ALJ, using his
discretion, determined Dr. Madden’s opinion was more credible. He outlined his
reasons for so concluding, one of which was that only Dr. Madden provided sworn
deposition testimony. Further, Dr. Madden’s deposition testimony showed his
methodology for determining Johnson’s impairment rating complied with the
AMA Guides. Moreover, there is no opinion from any other medical expert that
Dr. Madden’s impairment rating was not in compliance with the AMA Guides.
Therefore, there is substantial evidence Dr. Madden’s application of the AMA
2
Dr. Rice did not submit an opinion concerning Johnson’s impairment rating.
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Guides was based on medical evidence and properly supports the impairment
rating.
II. Multiplier
Next, TSC argues the ALJ erred when it adopted the three-multiplier,
pursuant to KRS 342.730(1)(c)1. Under KRS 342.730(1)(c)1.:
If, 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 otherwise determined under
paragraph (b) of this subsection . . . .
(Emphasis added.)
The statute makes clear that the ALJ must consider the type of work
the employee performed at the time of injury. TSC argues, however, that “the
spirit by which the statute was enacted” calls for “more sophisticated definition of
‘type of work.’” We disagree.
TSC claims that we should look to Johnson’s broader job title of
“manager” to determine whether she could return to the type of work she
performed. TSC further suggests we look to the work she conducted prior to her
job with TSC, more than three years before the injury. The statute and relevant
caselaw, however, require us to look to the “type of work that the employee
performed at the time of injury[.]” KRS 342.730(1)(c)1. See also Plumley, 557
S.W.3d at 917 (this Court looked to whether the employee “retain[ed] the physical
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capacity to return to the type of work that [he] performed at the time of injury . . .
.”).
This Court has clarified the same issue: “To determine if an injured
employee is capable of returning to the type of work performed at the time of
injury, an ALJ must consider whether the employee is capable of performing
‘the actual jobs that the individual performed.’” Trane Com. Sys. v. Tipton, 481
S.W.3d 800, 804 (Ky. 2016) (quoting Ford Motor Co. v. Forman, 142 S.W.3d 141,
145 (Ky. 2004)).
In Forman, the claimant worked as an assembler pre-injury. After she
recovered, she returned to work as an assembler, but was not able to perform all
the tasks in that classification. Unlike here, the ALJ did not apply the three-
multiplier to the claimant’s award because she returned to the same job
classification that she had pre-injury. However, the Board reversed, finding that
the ALJ erred by using the claimant’s job classification as the standard for refusing
to enhance the award. The Court of Appeals affirmed the Board and found that the
ALJ must analyze all the evidence to determine what jobs the claimant performed
at the time of her injury and then find whether she retains the physical capacity to
return to those jobs. Id. If she did not retain the physical capacity to return to
those jobs, even if she returned to the same job classification, she would be entitled
to the three-multiplier. Id.-10-
Pre-injury and before Johnson’s move to “light duty” work, she
regularly lifted moderate-to-heavy inventory and unloaded pallets. After the
injury, Johnson was no longer able to perform those tasks and instead sat at the
cash register, occasionally rearranging seasonal shelves before being terminated.
Even while on “light duty,” TSC provided assistance to Johnson to complete her
tasks. Under Dr. Madden’s direction, Johnson could not (and did not) return to the
same type of work she was performing prior to the injury.
This Court confirmed that KRS 342.730(1)(c)1. refers to the specific
acts an employee performed prior to an injury, not a broad reference to a job title
they once held. Forman, 142 S.W.3d 141. The ALJ’s finding that Johnson was
entitled to the three-multiplier was not erroneous and is supported by substantial
evidence.
CONCLUSION
For these reasons, we AFFIRM the Board.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE SHIRLEY
JOHNSON:
Walter E. Harding
Louisville, Kentucky Dan Scott
Lexington, Kentucky
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