Trane Co. v. Tommy Hafley ( 2021 )

RENDERED: AUGUST 20, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0134-WC
TRANE CO. APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NOS. WC-20-00104 & WC-20-00103
TOMMY HAFLEY;
HONORABLE GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE;
and WORKERS’ COMPENSATION
BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, KRAMER, AND L. THOMPSON, JUDGES.
KRAMER, JUDGE: An administrative law judge (“ALJ”) awarded workers’
compensation benefits to appellee Tommy Hafley based upon a determination that
Hafley sustained work-related cumulative trauma injuries to his neck, lower back,
and knees during his 38.5 years of employment with the appellant, Trane Co.
Specifically, the ALJ found Hafley totally occupationally disabled and awarded
him permanent total disability and medical benefits. Trane subsequently appealed
to the Workers’ Compensation Board (“Board”), asserting the ALJ: (1) improperly
relied upon what Trane believes is deficient evidence from Hafley’s medical
expert, Dr. John Gilbert; (2) failed to enter an award otherwise supported by
substantial evidence; and (3) committed an abuse of discretion by finding Hafley
permanently and totally disabled. The Board affirmed. Trane thereafter filed this
appeal, asserting the same arguments it did before the Board. Upon review, we
likewise affirm.
The function of this Court is to review the Board’s decision solely to
determine whether 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). Having reviewed the matter thoroughly and evaluated the Board’s
opinion for error, we conclude its reasoning is sound and discern nothing indicative
of error. Consequently, we adopt its analysis and conclusions as follows:
Hafley, as the claimant in a workers’ compensation
proceeding, had the burden of proving each of the
essential elements of his cause of action, including
causation. See KRS[1] 342.0011(1); Snawder v. Stice,
1
Kentucky Revised Statute.
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576 S.W.2d 276 (Ky. App. 1979). Since Hafley was
successful in that burden, the question on appeal is
whether substantial evidence of record supports the
ALJ’s decision. Wolf Creek Collieries v. Crum, 673
S.W.2d 735 (Ky. App. 1984). “Substantial evidence” is
defined as evidence of relevant consequence having the
fitness to induce conviction in the minds of reasonable
persons. Smyzer v. B.F. Goodrich Chemical Co., 474
S.W.2d 367 (Ky. 1971).
In rendering a decision, KRS 342.285 grants an
ALJ as fact-finder the sole discretion to determine the
quality, character, and substance of evidence. Square D[]
Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). An ALJ may
draw reasonable inferences from the evidence, reject any
testimony, and believe or disbelieve various parts of the
evidence, regardless of whether it comes from the same
witness or the same adversary party’s total proof.
Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky.
1979); Caudill v. Maloney’s Discount Stores, 560
S.W.2d 15 (Ky. 1977). In that regard, an ALJ is vested
with broad authority to decide questions involving
causation. Dravo Lime Co. v. Eakins, 156 S.W.3d 283(Ky. [2005]). Although a party may note evidence that
would have supported a different outcome than that
reached by an ALJ, such proof is not an adequate basis to
reverse on appeal. McCloud v. Beth-Elkhorn Corp., 514
S.W.2d 46 (Ky. 1974). Rather, it must be shown there
was no evidence of substantial probative value to support
the decision. Special Fund v. Francis, 708 S.W.2d 641(Ky. 1986).
The function of the Board in reviewing an ALJ’s
decision is limited to a determination of whether the
findings made are so unreasonable under the evidence
that they must be reversed as a matter of law. Ira A.
Watson Department Store v. Hamilton, 34 S.W.3d 48(Ky. 2000). The Board, as an appellate tribunal, may not
usurp the ALJ’s role as fact-finder by superimposing its
own appraisals as to weight and credibility or by noting
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other conclusions or reasonable inferences that otherwise
could have been drawn from the evidence. Whittaker v.
Rowland, 998 S.W.2d 479 (Ky. 1999).
We find no merit in Trane’s argument the ALJ
erred in relying upon Dr. Gilbert’s opinions because he
possessed an inaccurate understanding of Hafley’s work
and also failed to provide an explanation for his opinion
Hafley’s injuries are work-related. In his February 12,
2020, report, Dr. Gilbert provided the following work
history:
Hafley is a 61-year-old white male who did
heavy manual labor at Trane for 38.5 years
as receiver. He describes wear and tear over
the years. He describes spinal pain mostly
in his neck and back and cervicogenic
headaches. He describes pain, numbness
and weakness radiating into the left arm and
both legs in a multidermatomal and
myotomal type distribution. He has tried to
just tough it out with ibuprofen, Aleve,
Advil, and Tylenol. He says his knees give
him a lot of pain, both knees. He describes
pain and mainly weakness in both knees.
He has troubled [sic] stooping, crawling,
crouching or doing any heavy lifting. He
has tried chiropractic, physical therapy off
and on over the years. He saw Dr. Marin in
12/2019 who did x-rays showing
spondylolisthesis at C3-C4 grade 1 and
degenerative changes i.e., osteoarthrosis
from C2 through T1 as well as changes in
the thoracic spine and diagnosed elbow and
knee pain and spinal dysfunction and facet
syndrome.
Dr. Gilbert’s physical examination revealed spasm,
tenderness, and limited range of motion in the cervical,
thoracic, and lumbar regions. Hafley had positive
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Spurling’s test bilaterally and positive straight leg raise
test bilaterally. There was “reproducible 4+/5 strength in
the bilateral knees, flexion, extension, and tenderness in
both knees.” Dr. Gilbert diagnosed:
Spinal pain, muscle spasms, cervical and
lumbar radiculopathy in a dermatomal and
myotomal distribution with bilateral knee
pain and weakness, which is reproducible in
the bilateral knee flexors and extensors
secondary cumulative traumas over the year.
Dr. Gilbert believed the work event described to
him by Hafley was the cause of his impairment and none
of the impairment was due to a cause other than the work
event described. Pursuant to the 5th Edition of the
American Medical Association, Guides to the Evaluation
of Permanent Impairment (“AMA Guides”), he assessed
a 15% rating for the cervical spine condition, 10% rating
for the lumbar spine condition, 10% rating for each knee
condition, and 5% rating for the thoracic spine condition
yielding a total whole person impairment rating of 42%.
In response to whether Hafley described the physical
requirements of the type of work performed at the time of
injury, Dr. Gilbert stated “Heavy manual labor at train
[sic] corporation for 38.5 years.” He opined Hafley’s
“spinal pain, cervical and lumbar radiculopathies and
bilateral knee pain and weakness preclude the type of
work previously performed.” He rated Hafley as
“sedentary” and “100% occupationally disabled from any
occupation for the foreseeable future.”
Based on Dr. Gilbert’s report, the ALJ could
reasonably infer Hafley provided him with a description
of the job duties he performed as well as the physical
nature of each of those jobs. The ALJ could also
reasonably conclude Dr. Gilbert’s opinion Hafley
sustained work-related cumulative trauma injuries to his
knees, neck and lower back were premised upon the
history received from Hafley regarding the type of work
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he performed and physical exertion required in
performing those job duties. Significantly, the ALJ did
not solely rely upon Dr. Gilbert’s report in finding Hafley
sustained cumulative trauma injuries due to his
employment with Trane for 38.5 years performing
strenuous manual labor. The ALJ cited to Hafley’s
testimony regarding his job duties including repetitive
pulling and stacking parts weighing up to 50 pounds. He
noted Hafley explained that although he worked in
different jobs over the many years, none of them would
be considered light duty and most of them required
standing most of the day. Hafley’s testimony combined
with Dr. Gilbert’s opinions, constitute substantial
evidence supporting the ALJ’s determination Hafley
sustained work-related injuries to his knees, back, and
shoulders.
We find nothing in the record indicating Dr.
Gilbert had an inaccurate understanding of Hafley’s job
duties. Trane’s argument that Dr. Gilbert had an
inaccurate understanding of Hafley’s work is
unaccompanied by a reference to the specific evidence
which supports its argument. Further, the fact Dr. Gilbert
did not provide a detailed explanation supporting his
opinion the injuries are work-related merely went to the
credibility of his opinions and not the admissibility. Dr.
Gilbert’s opinions, though succinct, qualify as substantial
evidence sufficiently supporting the ALJ’s finding
concerning the cause of the injuries. While the contrary
opinions pertaining to causation expressed by Drs. Kakel
and Primm [Trane’s experts] may have been articulated
in greater detail, such testimony represented nothing
more than conflicting evidence compelling no particular
outcome. Copar, Inc. v. Rogers, 127 S.W.3d 554 (Ky.
2003). Likewise, Dr. Gilbert’s lack of specificity in
explaining his expert opinion regarding causation merely
went to the weight and credibility to be afforded his
testimony, which was a matter to be decided exclusively
within the ALJ’s province as fact-finder. Paramount
Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).
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Hence, we find no error in the ALJ’s reliance upon Dr.
Gilbert’s opinions.
Similarly, Hafley’s testimony that none of his
treating physicians linked the problems with his knees,
neck, and lower back to his work at Trane is something
the ALJ within his discretion may attribute significance.
However, the ALJ enjoys the discretion to ignore that
fact in light of the remaining record and this Board has
no authority to invade his discretion.
We also find no merit in Trane’s assertion the ALJ
failed to review the videotape depicting Hafley’s duties
in the stockroom. Although the ALJ failed to reference
the videotape, Trane did not request additional findings
of fact or a more explicit ruling concerning this omission
in its Petition for Reconsideration. Thus, the issue is not
properly preserved for review by this Board. See Bullock
v. Goodwill Coal Co., 214 S.W.3d 890, 893 (Ky. 2007)
(failure to make statutorily-required findings of fact is a
patent error which must be requested in a petition for
reconsideration in order to preserve further judicial
review).
After examination of the record, we believe
Cepero [v. Fabricated Metals Corp., 132 S.W.3d 839,
840 (Ky. 2004)] is inapplicable in the case sub judice.
Cepero, [] was an unusual case involving not only a
complete failure to disclose but affirmative efforts by the
employee to cover up a significant injury to the left knee
only two and a half years prior to the alleged work-
related injury to the same knee. The prior, non-work-
related injury had left Cepero confined to a wheelchair
for more than a month. The physician upon whom the
ALJ relied in awarding benefits was not informed of this
prior history by the employee and had no other apparent
means of becoming so informed. Every physician who
was adequately informed of this prior history opined
Cepero’s left knee impairment was not work-related but,
instead, was attributable to the non-work-related injury
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two and a half years previous. We find nothing akin to
Cepero in the case sub judice.
Because the opinions of Dr. Gilbert and Hafley’s
testimony regarding the physical tasks he performed for
Trane over 38.5 years constitute substantial evidence
supporting the ALJ’s determination Hafley sustained
work-related cumulative trauma injuries to his neck,
lower back, and knees, the ALJ’s decision in that respect
must be affirmed. Stated another way, because the ALJ’s
finding of work-related injuries to Hafley’s knees, neck,
and lower back are supported by substantial evidence,
this Board has no authority to disturb the ALJ’s
determination. Special Fund v. Francis, supra.
Likewise, we find no error in the ALJ’s
determination Hafley is permanently totally
occupationally disabled. As an initial matter, we note
Trane does not assert the ALJ failed to conduct the five-
step analysis required by City of Ashland v. Stumbo, 461
S.W.3d 392 (Ky. 2015). Rather, Trane complains that
because Hafley retired without work restrictions and
received minimal treatment he is not permanently totally
disabled. Trane offers no evidentiary support for its
assertion Hafley retired due to an impending plant
closure. Hafley denied the well-advertised impending
plant closure was the basis for his retirement explaining
he could no longer physically perform the work at Trane.
Within his discretion, the ALJ may accept Hafley’s
explanation for leaving Trane.
Trane also complains Hafley only took over-the-counter
medication while working and never advised Trane
personnel he was experiencing any physical problems
during his employment with Trane. It contends the
ALJ’s analysis is deficient because he did not explain
why Hafley is unable to continue performing his job in
the supermarket area which is a sedentary job. In his
report, Dr. Gilbert expressly stated Hafley’s spinal pain,
cervical and lumbar radiculopathies and bilateral knee
pain and weakness preclude him from returning to work
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at Trane. Although he rated Hafley as sedentary, he also
stated Hafley was 100% occupationally disabled from
any occupation. Apparently, the ALJ concluded Hafley’s
little use of medication and lack of physical complaints
were of little import in comparison to Dr. Gilbert’s
opinions.
Moreover, in his May 7, 2020, IME report, as
noted by Trane, Dr. Kakel concluded Hafley’s diagnosed
conditions did not comprise cumulative trauma injuries
related to his employment at Trane. However, Dr. Kakel
determined that, pursuant to the AMA Guides, Hafley’s
cervical condition merited an 8% impairment rating.
Similarly, pursuant to the AMA Guides, he found
Hafley’s lumbar condition also merited an 8%
impairment rating. Dr. Kakel assessed no impairment
rating for Hafley’s right knee condition but assessed an
8% impairment rating for the left knee condition.
Regarding Hafley’s ability to return to work at Trane, Dr.
Kakel expressed the following opinion:
No, it is my opinion he does not retain the
physical capacity to return to the previous
type of work he performed. He could work
with permanent restrictions in a less
strenuous type of job. He does have
bilateral knee arthritis and degenerative
disease of the cervical spine which are
progressive and cause him pain and
limitations.
The opinions of Drs. Gilbert and Kakel set forth
herein constitute substantial evidence supporting the
ALJ’s finding Hafley is totally occupationally disabled.
Both physicians were unequivocal in their opinions that
Hafley was not capable of returning to his previous
employment at Trane. Further, Dr. Gilbert concluded
Hafley was totally occupationally disabled.
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In conducting his analysis pursuant to the City of
Ashland, supra, the ALJ noted the impairment ratings
yielded disability ratings under KRS 342.730.
Concerning the remaining elements of the analysis,
relying upon Drs. Gilbert and Kakel, the ALJ concluded
Hafley did not retain the physical ability to return to the
job he held at the time of his injuries. In light of the
opinions of Drs. Gilbert and Kakel, the ALJ was
persuaded Hafley’s age, education, and work experience
made it unlikely he could “attain and retain light duty
employment within his physical capabilities.”
Significant to the ALJ was the fact Hafley was 61-years-
old, possessed a 10th grade education, and had worked
most of his adult life for Trane performing a job to which
Drs. Gilbert and Kakel opined he could not return.
Therefore, based on all these factors, the ALJ concluded
Hafley would not be able to find and maintain suitable
employment in a competitive economy and was thus
permanently totally disabled. We are unable to conclude
the ALJ’s determination is unsupported by the record.
Notably, during his deposition, Hafley identified
the physical problems he currently experiences as a result
of the problems with his neck, lower back, and knees and
stated he was incapable of returning to his job at Trane.
His testimony succinctly set forth his physical problems
and why this prevented him from returning to his work at
Trane. This testimony also constitutes substantial
evidence supporting the ALJ’s determination Hafley is
permanently totally disabled.
In determining whether a particular worker is
partially or totally occupationally disabled as defined by
KRS 342.0011, in Ira A. Watson Dept. Store v.
Hamilton, 34 S.W.3d 48, 51 (Ky. 2000), the Kentucky
Supreme Court explained the analysis “requires a
weighing of the evidence concerning whether the worker
will be able to earn an income by providing services on a
regular and sustained basis in a competitive economy.”
(Emphasis ours). The Supreme Court explained further:
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An analysis of the factors set forth in KRS
342.0011(11)(b), (11)(c), and (34) clearly
requires an individualized determination of
what the worker is and is not able to do after
recovering from the work injury. Consistent
with Osborne v. Johnson, [432 S.W.2d 800(Ky. 1968)], it necessarily includes a
consideration of factors such as the worker’s
post-injury physical, emotional, intellectual,
and vocational status and how those factors
interact. It also includes a consideration of
the likelihood that the particular worker
would be able to find work consistently
under normal employment conditions. A
worker’s ability to do so is affected by
factors such as whether the individual will
be able to work dependably and whether the
worker’s physical restrictions will interfere
with vocational capabilities. The definition
of “work” clearly contemplates that a
worker is not required to be homebound in
order to be found to be totally
occupationally disabled. See, Osborne v.
Johnson, supra, at 803.
…
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. Hush v. Abrams, Ky.,
584 S.W.2d 48 (1979).
Id. at 51-52.
The Supreme Court reaffirmed this holding the next year
in McNutt Construction/First General Services v. Scott,
40 S.W.3d 854, 860 (Ky. 2001). There, the Supreme
Court stated:
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An analysis of the factors set forth in KRS
342.0011(11)(b), (11)(c), and (34) clearly
requires an individualized determination of
what the worker is and is not able to do after
recovering from the work injury. Consistent
with Osborne v. Johnson, supra, it
necessarily includes a consideration of
factors such as the worker’s post-injury
physical, emotional, intellectual, and
vocational status and how those factors
interact. It also includes a consideration of
the likelihood that the particular worker
would be able to find work consistently
under normal employment conditions. A
worker’s ability to do so is affected by
factors such as whether the individual will
be dependable and whether his
physiological restrictions prohibit him from
using the skills which are within his
individual vocational capabilities. The
definition of “work” clearly contemplates
that a worker is not required to be
homebound in order to be found to be totally
occupationally disabled. See, Osborne v.
Johnson, supra, at 803. (Emphasis ours).
...
It is among the functions of the ALJ to
translate the lay and medical evidence into a
finding of occupational disability. 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. See,
Eaton Axle Corp. v. Nally, Ky., 688 S.W.2d
334 (1985); Seventh Street Road Tobacco
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Warehouse v. Stillwell, Ky., 550 S.W.2d 469(1976). 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. Hush v.
Abrams, Ky., 584 S.W.2d 48 (1979).
Here, the ALJ stated he considered Hafley’s age,
61, education, and the fact that in the last 38.5 years he
had worked solely for Trane. Accordingly, these factors
caused the ALJ to conclude Hafley was incapable of
sedentary employment in another field. Consequently,
because of his advanced age, lack of a high school
diploma, and previous work experience, the ALJ
concluded Hafley was not able to obtain physically
suitable employment in a competitive economy. Those
findings by the ALJ are supported by the opinions of Dr.
Gilbert, Hafley’s testimony, and to some extent, Dr.
Kakel’s opinions.
As noted by the Supreme Court, the facts of each
claim involve an individualized determination of whether
an injured worker will be able to earn income on a
regular and sustained basis in a competitive economy.
Here, the ALJ was presented with a worker who had
engaged in strenuous work for one employer for 38.5
years. Drs. Gilbert and Kakel agreed Hafley could not
return to work at Trane. Further, Dr. Gilbert opined
Hafley was totally occupationally disabled. Thus, the
ALJ’s findings are supported by the record and we may
not disturb them.
Trane’s assertion aside, the ALJ was not required
to resolve what it perceived as the discrepancy of how
Hafley was able to perform work without restrictions
until October 21, 2018. Rather, the ALJ was free to
accept Hafley’s testimony he was physically unable to
work after that date. The fact Hafley’s treating
physicians assigned no work restrictions while he was
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employed by Trane is a fact the ALJ may or may not
consider.
Finally, we find nothing in the record indicating
Hafley worked in a sedentary supermarket job. Rather,
his testimony establishes he worked in the stockroom for
the last twenty years which Hafley identified as strenuous
manual labor. He provided a description of the nature of
his work in the stockroom and that testimony was not
rebutted by Trane.
In conclusion, because substantial evidence
supports the ALJ’s determinations Hafley sustained
cumulative trauma work-related injuries to his knees, low
back, and neck and is permanently totally occupationally
disabled, we are without authority to disturb his decision
on appeal. Special Fund v. Francis, supra.
As noted, we discern no error with the Board’s disposition of this
matter. Accordingly, we AFFIRM.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE TOMMY
HAFLEY:
Donald J. Niehaus
W. Clayton Stone, II2 W. Gerald Vanover
Lexington, Kentucky London, Kentucky
2
Subsequent to briefing in this matter, Appellant filed a notice of substitution of counsel
substituting Donald J. Niehaus for W. Clayton Stone, II. However, Mr. Stone appears on
Appellant’s brief.
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