Trim Masters, Inc. v. Eva Beth Roby ( 2017 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR.USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY.COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS, ·
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONS.IDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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ACTION.
RENDERED: AUGUST 24, 2017
NOT TO BE PUBLISHED
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2016-SC-000451-WC
TRIM MASTERS, INC. APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NO: 2015-CA-000923-WC
V. WORKERS' COMPENSATION BOARD
NO. l l-WC-66743
EVA BETH ROBY; APPELLEES·
HON. WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The Administrative Law Judge (AW) found that Eva.Beth Roby is
permanently and totally disabled as a result of a work-related injury. The
Workers' Compensation Board (Board) reversed.the AW and remanded with
instructions for the AW to make an award of permanent partial disability. The
Court of Appeals, holding that the Board had substituted its judgment for that
of the AW, reversed the Board and reinstated the AW's opinion. Having
reviewed the record, we affirm the Court of Appeals.
I. BACKGROUND.
The underlying facts are essentially not in dispute. Roby, who worked as
an assembler for Trim Masters, suffered a repetitive trauma injury to her right
upper extremity that became manifest on April 22, 2011. At the time, Roby
was thirty-three years of age; had a high school education with no specialized
or vocational training; and had worked as a retail and fast food cashier and an
assembler for another manufacturer.· As a result of her injury, Roby
experienced pain throughout her right upper extremity with loss of right hand
grip strength .
. Dr. Gabriel initially treated Roby conservatively but, when she did not
improve, he performed surgery in October 2011. Following that surgery, Roby
continued to experience right upper extremity pain and weakness, and Dr.
Gabriel advised her to refrain from repetitive use ofher right upper extremity
and to avoid lifting more than 10 pounds. Roby has not returned to work since
October 2011.
In November 2012, Roby filed an Application for Resolution of Injury
Claim. The parties thereafter litigated this matter with Roby filing a medical
report from Dr. Bilkey, who concurred with Dr. Gabriel's restrictions and who
assessed a 6% permanent impairment rating. Roby also filed a vocational
report from William Ellis who opined that, because of the limitations on the use
of her right upper extremity, Roby was totally disabled. Ellis indicated that
Roby might benefit from vocational rehabilitation but not until her pain
decreased and her use of her upper extremity improved.
2
Trim Masters filed the vocation?l evaluation report of Paula Shifflett.·
Shifflett noted that Roby had enrolled as a full-time student in the nursing
program at St. Catherine College, with the intent of becoming a pediatric nurse.
Shifflett did not address the extent of Roby's disability but provided a detailed
cost/benefit analysis of attending St. Catherine College versus attending
Bluegrass Community and Technical College. Trim Masters also filed Dr.
Gabriel's records and a job description, which indicated that Roby was required
to use her hands constantly and lift up to 20 pounds.
Roby testified in her deposition and at the final hearing that she was
attending St. Catherine College with the goal of becoming a pediatric nurse.
According to Roby, nurses, counselors, and teachers had advised her that she
would be able to work as a pediatric nurse with her restrictions.
I
Based on the preceding evidence, the AW rendered an opinion on May
13, 2013, finding that Roby is totally and permanently disabled. Trim Masters
appealed to the Board. On January 3, 2014, the Board vacated the AW's
opinion and remanded with instructions for the AW to undertake additional
analysis regarding his finding of permane~t and total disability. In parti6ular,
the Board ordered the AW to address how Roby's age and her "current
schooling and nursing aspirations factor into his decision." Furthermore, the
Board stated that "[a]lthough there may be substantial evidence in the record
supporting the ultimate determination Roby is permanently and totally
disabled, the AW must provide an adequate explanation of the basis for his
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decision." Finally, the Board stated that it was not directing the AW to make
?UY particular finding al:l to the extent and duration of Roby's disability.
On February 14, 2014, the AW rendered an amended opinion, again
finding that Roby is totally and permanently disabled. As noted by the Court of
Appeals, the AW's second opinion:
[R]estated key points from the testimony of [Dr.] Bilkey, noting that
it was the most compelling evidence presented. With regard to age,
the AW only noted that [Roby] was in "early middle age." In regard
to Roby's education, the AW noted that she received her high
school diploma "many years ago" and it was reasonably probable
that if Roby received vocational rehabilitation and completed her
degree, she could find gainful employment, which would operate as
grounds for Trim Masters to move to reopen the matter under
[Kentucky Revised Statute] KRS 342.125.
Roby v. Trim Masters, Inc., 2015-CA-000923-WC, 2016 WL 3962602, at *2 (Ky.
App. July 22, _2016). Trim Masters again appealed to the Board.
On July 3, 2014, the Board again vacated the AW's opinion, finding that
he had again failed to adequately addresii how Roby's age and educational
pursuits factored into his opinion. Additionally, the Board stated that the AW
had failed to factor into his opinion Roby's testimony that a number of people
had advised her that she would be able to work as a pediatric nurse within her
restrictions. '
On August 11, 2014, the AW rendered a third opinion, noting that he
observed Roby and was in the best position to judge her credibility. The AW
also found that Roby's "age places her in early middle age for the purposes of
re-employment in the highly competitive job market." As to her education, the
AW noted that it had been several years since Roby completed high school and
4
that she had no vocational edu,cation or training, which also had an adverse
impact on her ability to find employment. As to Roby's physical capabilities,
the AW found that her restrictions limited her to one-handed work and that
her level of pain-further restricted her employment options. Based on the
preceding, as well as Ellis's opinion that Roby is incapable of returning to work,
the AW again found her to be permanently and totally disabled. Trim Masters
again appealed to the Board.
On December 5, 2014, the Board again vacated the AW's opinion,
finding that he had failed to adequately address Roby's pursuit of a nursing
degree in his conclu~ion. The Board also stated that the AW's finding that
Roby is "early middle age" did not adequately address how he factored Roby's
age into his conclusion.
On January 15, 2015, the AW rendered his fourth opinion, which as the
Court of Appeals found,
was largely identical to the opinion he issued on August 11, 2014,
with several exceptions. The AW underlined pertinent facts
throughout his recitation of the evidence which tend to support his
findings. Regarding Roby's age, the AW offered the following
finding: "Ms. Roby is now 37 years of age and I make the
determination that her age places her in the early middle age for
purposes of re-employment in the highly competitive job market
under Bureau of Labor Statistics studies" (emphasis in original).
He further opined that the fact that Roby is 37 years old and has
not worked in three years supports a finding of PTD, with no
further elaboration. The AW also repeated Ellis' conclusions just
as he had done in the previous order, but with underlining for
emphasis. The AW also addressed the new concern raised by the
Board in its previous order, by noting that no vocational evidence
was produced which tended to show Ro.by would be physically
capable of performing the job duties of a pediatric nurse, and the
only evidence to the contrary is anecdotal. The AW ultimately
reached the same conclusion· as in the previous three orders [sic].
5
_Id. at *3. Trim Masters appealed to the. Board for the fifth time.
As the Court ofAppeals indicated, it appears that "[t]he patience of the
[Board] members had clearly grown thin by this point." Id. This time, the
Board vacated the AW's opinion stating as follows:
After having been afforded the opportunity to do so on
multiple occasions, the AW has failed to provide more than mere
conclusocy statements in determining Roby is permanently totally
disabled. Regarding the impact of Roby's college enrollment, the
AW merely stated there was no "expert testimony". Regarding
Roby's age, the AW repeated the fact Roby is thirty-seven years of
age, which he found to be "early middle age", again without
explaining the impact, or how this supports his finding of PTD.
The AW's statement Roby has not worked in over three years 1s
based on an assumption since there is no such testimony in the
record. The AW merely assumes Roby had not worked since the
claim was initially taken under submission.
Authority generally establishes an AW must effectively set
forth adequate findings of fact from the evidence in order to
apprise the parties of the basis for his decision, although he is not
required to recount the record with line-by-line specificity nor
engage in a detailed explanation of the minutia of his reasoning in
reaching a particular result. Shields v. Pittsburgh and Midway
Coal Min. Co., 634 S.W.2d 440 (Ky. App. 1982); Big Sandy Cmty.
Action Program v. Chaffins, 502 S.W.2d 526 (Ky. 1973).
We agree the AW was not required to discuss every shred of
evidence which factored into his decision. However, after being
directed to do so, and having been afforded the opportunity to
provide some explanation for his reasoning, the AW has failed to
explain how the fact Roby is now thirty-seven years of age
translates into her being permanently totally disabled. Likewise,
although directed to do so, the AW has failed to address how the
fact Roby is attending college has factored into his reasoning.
The AW has failed to respond to the directive of this Board,
and has only provided conclusocy statements. Merely making
conclusocy statements without citation to supporting substantial
evidence amounts to an abuse of discretion. Abuse of discretion
has been defined, in relation to the exercise of judicial power, as
that which "implies arbitrary action or capricious disposition under
the circumstances, at least an unreasonable and unfair decision."
Kentucky Nat. Park Commission, ex rel. Comm., v. Russell, 301
6
Ky. 187, 191 S.W.2d 214 (Ky. 1945). Bullock v. Goodwill Coal Co.,
. 214 S.W.3d 890, 893 (Ky. 2007).
Because the AW has inexplicably failed to point to ·
substantial evidence supporting his decision, the award of PTD
benefits is hereby reversed. On remand, the AW is directed to
make a determination regarding the extent of Roby's entitlement to
PPD benefits. In arriving at this decision, we are not engaging in
fact-finding. The AW has had multiple opportunities to cite to the
evidence which supports his determination, and has been unable
to do so.
As noted in the dissent from the December 5, 2014 opinion,
it is not in the interest of judicial economy to remand this case for
additional fact-finding regarding entitlement to PTD benefits. We
note the evidence has established Roby sustained a serious injury,
but the AW has failed to provide substantial evidence supporting
an award of PTD benefits. However, clearly Roby is entitled to an
award of PPD benefits. Therefore, we remand for the AW to make
an award of PPD benefits supported by the evidence.
Roby appealed to the Court of Appeals, which reversed, finding that
substantial evidence supported the AW's opinion and that the Board had
engaged in impermissible fact finding. Trim Masters now appeals to us,
arguing that the Board was simply performing one of its duties by "reel[ing] in
an AW when that AW has made a decision that is clearly erroneous and is not
supported by substantial evidence of record."
II. STANDARD OF REVIEW .
.The AW has the sole discretion to determine the quality, character, and
substance of the evidence and may reject any testimony and believe or
disbelieve various parts of the evidence, regardless of whether it comes from
the same witness or the same party's total proof. Paramount Foods, Inc. v.
Burkhardt, 695 S.W.2d 418,419 (Ky. 1985). Roby had the burden of proving
every element of her claim, including the extent and duration of :her disability.
See Gibbs v. Premier Scale Co./Indiana Scale Co., 50 S.W.3d 754, 763 (Ky.
7
2001), as modified on denial of reh'g (Aug. 23, 2001). Because she was
successful before the AW, the question for us on appeal is whether the AW's
finding of permanent and total disability is supported by substantial evidence.
Whittaker v. Rowland, 998 S.W.2d 479,481 (Ky. 1999). "Substantial evidence
has been defined as some evidence of substance and relevant consequence,
having the fitness to induce conviction in the minds of reasonable men." Id. at
481-82. Thus, the determinative question to be answered on review is whether
the AW's finding that Roby is permanently and totally disabled "is so
unreasonable under the evidence that it must be viewed as erroneous as a
matter of law." KRS 342.285; Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d.
48, 52 (Ky. 2000).
III. ANALYSIS.
There are essentially two issues before us: (1) whether the AW's ultimate
finding of permanent and total disability was supported by substantial
evidence; and (2) whether the AW's opinion was adequate to support his
finding of permanent total disability. We address those issues in that order
below.
A. The AL.J's finding of permanent and total disability was supported
by substantial evidence.
In pertinent part, KRS 342.0011(1 l)(c) defines permanent total disability
as "the condition of an employee who, due to an injury, has a permanent
disability rating and has a complete and permanent inability to perform any
type of work as a result of an iajury." Work is defined as "providing services to
another in return for remuneration on a regular and sustained basis in a
8
competitive economy." KRS 342.0011(34). In determining whether a claimant
is totally and permanently disabled an AW is required to undertake:
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.
Ira A. Watson Dept. Store, 34 S.W.3d at 51.
The undisputed evidence established that Roby has a 6% permanent
impairment rating, cannot lift more than lb pounds with her right arm, cannot
use her. right arm repetitively, and has increased
. pain with use of her right
arm. Roby has a high school education and, based on the record before the
AW at the time he completed his opinion, Roby_had completed no other
vocational or specialized training. In terms of work-experience, Roby's past
jobs required her to use her upper extremities repetitively and she has not
worked since 2011.l Based on this evidence, and noting in particular Roby's
1 The Board stated that the AW's statement that Roby had not worked for three
years was based on an assumption as there was no such testimony in the record. We
note that the parties stipulated that Roby last worked in ·october 2011. This
stipulation is suppo'rted by Roby's February 15, 2013 deposition testimony that she
was receiving unemployment benefits and her April 24, 2013 hearing testimony that
she continued to receive unemployment. Neither party introduced evidence following .
the hearing, and there is no evidence in the record that Roby ever returned to work.
9
complaints of pain with use of her right arm, Roby's vocational expert, Ellis,
.concluded that she is totally disabled. Furthermore, Ellis stated that Roby's
status would remain unchanged until she completed her education; however,
he doubted she would be able to do so until she could get her pain under
control. Based on the preceding, and considering Roby's age, which he
described as "early middle age," the AW concluded that Roby is permanently
and totally disabled.
Although we might not have reached the same conclusion, we cannot say
that the AW's conclusion was, as a matter of law, unsupported by the
evidence. Certainly, based on Roby's age, continuing education efforts, and
belief that she could perform work in the future as a pediatric nurse, the AW
could have concluded that Roby is only partially disabled. However, the
evidence did not compel that finding. Furthermore, the Board acknowledged as
much in its first opinion, stating that "there may be substantial evidence in the
record supporting the ultimate determination Roby is permanently and totally
disabled." Therefore, we affirm the AW's determination that Roby is
permanently and totally disabled.2
B. The AL.J's Opinion was sufficient.
KRS 342.275(2) and KRS 342.285 contemplate an opinion.that
summarizes the conflicting evidence concerning disputed facts;
Therefore, the AW's assumption was a permissible inference based on the evidence of
record.
· 2 As the Court of Appeals noted, while the ALJ found Roby to be permanently
and totally disabled based on the record as it existed, he recognized that completion of
her education could lead to employment. If that occurs, Trim Masters can certainly
reopen the award pursuant to KRS 342.125.
10
weighs that evidence to make findings of fact; and ·determines the
legal significance of those findings. Only when an opinion
summarizes the conflicting evidence accurately and states the
evidentiary basis for the AW's finding does it enable the Board and
reviewing courts to determine in the summary manner
contemplated by KRS 342.285(2) whether the finding is supported
by substantial evidence and reasonable.
Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 61-62 (Ky. 2012) (footnote
omitted).
As set forth above, the Board found, on four occasions, that the AW's
opinions were deficient. The Court of Appeals disagreed, as do we. The AW set
forth the evidence in some detail, noting Roby's education, work-experience,
and medical and vocational deficits. He also noted that she was attending
college and seeking a degree which would lead to employment she believed she
could perform. However, he concluded that she was, at the time of his opinion,
unable to perform any work in a competitive economy.
The Board, with each remand, found that the AW's opinions were
deficient because the AW did not sufficiently explain how Roby's age and her
pursuit of a college degree had an impact on her disability rendering his
opinion deficient. While we understand the Board's frustration with an ·Aw it
. .
perceived to be uncooperative, we disagree th~t the AW's opinion was deficient.
We agree that the AW did not explicitly.state that Roby would be precluded or
even impaired from finding work because of her age. However, it is implicit in
the AW's statement that Roby's "age places her in the early middle age for
purposes of re-employment in the highly competitive job market" that he
believed her age was a partial impediment to h,er returning to work. ("Implicit
11
in the AW's decision to reject the employer's argument that the shoulder injury
did not prevent the claimant from working until November 2008 are findings
that pain from the irtjury contributed to causing [his) stress and depression."
Id. at 62.) Furthermore, the AW did address the impact Roby's continuing
education had on his assessment of disability, stating that she might be able to
return to work after completing that education. Again, implicit in that finding
is a finding that Roby would not be able to return to work until she had
completed that education.
Finally, although we believe the AW's last opinion was sufficient, the
Board should not, based on this opinion, simply "rubber stamp" AW opinions
that do not meet the requirements of KRS 342.285 and Tudor and its progeny.
However, the solution for deficient opinions is to require more thorough
opinions, as the Board attempted to do, not to make independent findings of
fact, which is what the Board did here. Here, the AW'.s opinion is sufficient to
enable reviewing courts to determine that it is reasonable and supported by
substantial evidence; therefore, the Board's remand for a finding that Roby
only suffers from a permanent partial disability was inappropriate.
IV, CONCLUSION.
Having reviewed the record and the arguments of the parties, we affirm
the Court of Appeals.
Minton, C.J.; Cunningham, Hughes, Keller, Venters and Wright, JJ.,
sitting. All concur. VanMeter, J., not sitting'.
12
COUNSEL FOR APPELLANT:
Russell Scott Borders
Sarah Hays
Fogle Keller Purdy, PLLC
Emily Wetmore
COUNSEL FOR APPELLEE, EVA BETH ROBY:
Audrey Haydon
Ben Thomas Haydon, Jr.
13