M&M Cartage Co., Inc. v. James Garrison ( 2021 )

RENDERED: SEPTEMBER 17, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0417-WC
M&M CARTAGE CO., INC. APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-10-098764
JAMES GARRISON; HONORABLE
JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND K. THOMPSON, JUDGES.
CLAYTON, CHIEF JUDGE: M&M Cartage Co., Inc. (M&M) appeals from an
opinion of the Workers’ Compensation Board which affirmed the second amended
opinion and award on remand of the Administrative Law Judge (ALJ) and his
subsequent order overruling M&M’s petition for reconsideration. Upon review,
we affirm.
Background
This case has a lengthy and complex procedural history. We set forth
below those facts which are pertinent to the resolution of this appeal.
The Work-Related Injury and First Surgery
James Garrison was employed by M&M driving an 18-wheeler on
local and over-the-road routes. On December 29, 2009, he suffered a work-related
neck injury when a semi-trailer door he was holding jerked up. In May 2010, he
underwent a two-level cervical spinal fusion at C5-6 and C6-7, performed by Dr.
Wayne Villanueva. Garrison entered into a settlement agreement with M&M
which provided for temporary total disability (TTD) benefits and a weekly
monetary settlement that was later converted into a lump sum of $17,168.47.
Meanwhile, Garrison continued to experience neck pain. Dr.
Villanueva diagnosed a broken screw and non-union at C5-6 but did not
recommend any additional surgery. Garrison sought a second opinion from Dr.
George Raque, who recommended further surgery to address the broken screw, to
re-fuse C5-6 and to extend the fusion to the adjacent level C4-5.
-2-
The Motion to Reopen and Second Surgery
On October 20, 2016, Garrison filed a motion to reopen based on Dr.
Raque’s recommendations. M&M disputed the compensability of the proposed
surgery and submitted the medical report of Dr. Michael Doyle, who also
recommended a fusion from C4-6 and opined that the surgery at C5-6 was related
to the 2009 work injury but the problems at C4-5 were not.
On August 3, 2017, the ALJ relied on Dr. Doyle’s opinion to
determine that the proposed treatment and surgery for C4-5 were not work-related
and consequently not compensable, whereas the treatment and surgery for the C5-6
level were work-related and compensable. On September 5, 2017, the ALJ
awarded TTD benefits to commence on the date of the surgery.
On October 11, 2017, Dr. Raque re-fused the level C6-7, extended the
fusion to C4-6, and performed a C5 corpectomy.
Garrison’s symptoms improved but Dr. Raque later determined that
the fusion at C5-6 had failed again and that a screw at that level had come out of its
proper position. Dr. Raque recommended no further surgical intervention and
placed Garrison at maximum medical improvement (MMI) in September 2018.
The ALJ’s Opinion and Award of July 22, 2019
Following a benefit review conference, the ALJ issued an opinion and
award finding that Garrison’s cervical condition was compensable at the C5-7
-3-
levels but that the condition at C4-5 was not work-related. He found that Garrison
was entitled to the TTD benefits already awarded following the second surgery.
He also determined that Garrison was not permanently totally disabled (PTD),
finding there was insufficient proof that the restrictions recommended by Dr.
Robert Sexton were work-related, and that Garrison had not proven that he would
be unable to provide services to another for remuneration on a sustained basis in a
competitive economy.
Both parties filed petitions for reconsideration. The ALJ issued an
order on September 3, 2019, reiterating that M&M was only responsible for the
C5-7 levels, that Garrison was entitled to TTD benefits dating from the surgery
(but did not provide a termination date), and that Garrison was not permanently
disabled. The ALJ assigned Garrison a 29 percent impairment rating.
The First Opinion of the Board, January 31, 2020
Both parties appealed to the Board, which held that the ALJ failed to
perform the necessary evaluation in deciding that Garrison is not permanently
totally disabled, as he merely stated that he found Dr. Sexton’s opinions to be
credible without any further analysis. The Board remanded the case for him to
perform the requisite analysis pursuant to City of Ashland v. Stumbo, 461 S.W.3d
392, 396 (Ky. 2015), which requires an ALJ to undertake a five-step analysis in
order to determine whether a claimant is totally disabled, and Ira A. Watson Dept.
-4-
Store v. Hamilton, 34 S.W.3d 48, 51 (Ky. 2000), which holds that “[a]n analysis of
the factors set forth in [Kentucky Revised Statutes] 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.” The Board also stated that
any impairment stemming from the C4-5 condition, which was determined not to
be work-related, could not be included in any increased award of permanent partial
disability (PPD) benefits. Neither party petitioned for review of this opinion of the
Board.
The ALJ’s First Amended Opinion and Award of March 31, 2020
On remand, the ALJ rendered an amended opinion and award, again
finding Garrison was not permanently totally disabled. He determined, in reliance
on Dr. Sexton’s report, that Garrison was entitled to TTD benefits for the second
surgery from October 11, 2017, the date of the second surgery, through November
1, 2018, the date of MMI. The ALJ further determined that Garrison’s impairment
rating increased 4 percent as a result of the second surgery.
The ALJ denied the parties’ subsequent motions for reconsideration.
The parties then appealed to the Board.
The Second Opinion of the Board, October 2, 2020
On appeal to the Board, Garrison argued that the ALJ did not make
sufficient findings to support the conclusion that he is not permanently totally
-5-
disabled and that he was entitled to TTD benefits from the date of reopening, rather
than the date of the second surgery. M&M argued that the ALJ failed to carve out
the portion of the increased impairment rating which is attributable to the non-
work-related C4-5 fusion.
Upon review, the Board held that the ALJ had failed to set forth
adequate findings to support his determination that Garrison was not permanently
totally disabled. It further held that a “carve out” was unnecessary because Dr.
Sexton’s impairment rating, which the ALJ relied upon, related only to the work-
related portion of the surgery. The Board remanded for entry of an amended
opinion and order finding the increase to be 3 percent, noting that the ALJ based
his finding of 4 percent on Dr. Sexton’s report, but that Dr. Sexton’s report actually
found the amount to be 3 percent and the ALJ also found elsewhere that the
increase was 3 percent. Neither party appealed from the October 2, 2020 opinion
of the Board.
The ALJ’s Third Opinion
On remand, the ALJ found that Garrison is permanently and totally
disabled; determined Garrison’s impairment rating increased by 3 percent; and
awarded PTD benefits commencing on the date of the motion to reopen, October
20, 2016. M&M filed a petition for reconsideration which the ALJ overruled. It
then appealed to the Board.
-6-
The Board’s Third Opinion
The Board affirmed the ALJ’s second amended opinion and order on
remand of November 25, 2020, and the ALJ’s order denying the petition for
reconsideration. This appeal by M&M followed.
Standard of Review
As the claimant, Garrison bore the burden of proving the elements of
his claim. Trevino v. Transit Authority of River City, 569 S.W.3d 400, 403 (Ky.
2019). When, as in this case, the party with the burden of proof is successful
before the ALJ, “the issue on appeal is whether substantial evidence supported the
ALJ’s conclusion. Substantial evidence means evidence of substance and relevant
consequence having the fitness to induce conviction in the minds of reasonable
men.” Miller v. Tema Isenmann, Inc., 542 S.W.3d 265, 270 (Ky. 2018) (internal
quotation marks and citations omitted).
Upon review, we “correct the Board only where the Court perceives
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).
Analysis
M&M argues that the ALJ’s reversal of his previous finding that
Garrison was not permanently totally disabled is arbitrary and capricious. It
-7-
contends that an ALJ may not reverse factual findings on the merits in a
subsequent opinion, absent a showing of new evidence, fraud, or mistake. M&M
relies on Bowerman v. Black Equipment Co., which states: “[A]bsent newly
discovered evidence, fraud, or mistake, parties have a reasonable expectation that
they may rely on factual findings that have been fully and fairly adjudicated by an
ALJ, even when rendered in an interlocutory decision.” 297 S.W.3d 858, 868 (Ky.
App. 2009).
But the standard is different when, as here, the opinion of the ALJ is
vacated by the Board. In its October 2, 2020 opinion, the Board vacated the ALJ’s
determination that Garrison is not permanently totally disabled and remanded for
additional findings. In this situation, “when the Board vacates an ALJ’s opinion, it
‘nullif[ies] or cancel[s]; make[s] void; invalidate[s]’ that opinion. BLACK’S LAW
DICTIONARY (10th ed. 2014).” Hampton v. Flav-O-Rich Dairies, 489 S.W.3d 230,
234 (Ky. 2016). In effect, the ALJ’s earlier opinion “ceased to exist[.]” Id. The
ALJ is thereafter
required to write a new opinion on remand; he cannot,
. . . simply supplement his existing opinion with
additional findings of fact. In the process of writing that
new opinion, there is nothing to prevent the ALJ from
entering a different award, nor is there anything to
compel the ALJ to enter the same award. By vacating the
ALJ’s opinion and requiring him to make additional
findings, the Board has implicitly authorized him to enter
a different award[.]
-8-
Id. at 234-35.
Under the foregoing clear precedent, the Board correctly held that the
ALJ was not bound by the prior disability determination because that previous
award was vacated and remanded by the Board and neither side appealed.
M&M further argues that because the facts underlying the ALJ’s
ultimate determination of his level of disability had not changed since his earlier
opinion, his reversal of the finding regarding permanent total disability based on
those same facts was inconsistent and unjustified. But the grounds for the reversal
by the Board was the ALJ’s application of the wrong legal standard to assessing
the facts, not the validity of the facts themselves. The ALJ’s findings were
sufficient to support his determination that Garrison was permanently totally
disabled.
M&M’s next argument concerns the ALJ’s finding that Garrison was
entitled to PTD benefits from the date of reopening, rather than from the date of
the surgery a year later. M&M argues that because the ALJ and the Board had
previously held that Garrison was not entitled to TTD benefits commencing on the
date of reopening, PTD benefits should not have been awarded from that date
either.
In addressing this argument, the Board held that the ALJ’s award was
in accordance with Sweasy v. Wal-Mart Stores, Inc., 295 S.W.3d 835 (Ky. 2009)
-9-
which held that entitlement to benefits commenced at the time of the injury.
“[T]he impairment deemed to be permanent at MMI ‘arises’ when a harmful
change in the human organism occurs.” Id. at 836. The Board stated that
Garrison’s increase in impairment “was a product of the underlying cervical
condition requiring surgery, not necessarily the surgery itself.”
The Board further held that the ALJ was not bound by his previous
determination because the ALJ did not determine Garrison is entitled to PTD
benefits commencing on the date of the motion to reopen until the second opinion
on remand rendered on November 25, 2020. We agree with the Board that this
issue was not res judicata, and the language of the statute permits the ALJ to make
a fresh determination regarding the commencement date of benefits as part of his
reconsidering whether Garrison was entitled to PPD benefits.
Third and finally, M&M argues that the ALJ improperly combined the
non-work-related impairment resulting from the non-work-related fusion at C4-5
with the work-related impairment and disability. M&M argues that Garrison’s
disability stems from both work-related and non-work-related impairments and
contends the ALJ should have analyzed and carved out what percentage of the
disability is attributable solely to the work-related impairment. It points out that no
physician has opined that Garrison’s disability is completely attributable to the
work injury.
-10-
In addressing the issue of the “carve out,” the Board repeated the
analysis in its opinion of October 2, 2020, which stated there was no support for
the suggestion that Dr. Sexton offered any impairment rating for that portion of the
second surgery implicating C4-5 (the non-work-related portion of the repair). The
Board further noted that M&M did not appeal from the October 2, 2020 opinion
and therefore that determination has become the law of the case. In arriving at this
conclusion, the Board did not misconstrue the law nor did it err in assessing the
evidence. The ALJ’s award does not improperly attribute a portion of Garrison’s
disability to a non-work-related impairment.
For the foregoing reasons, the opinion of the Board affirming the
second amended opinion and award on remand and the order overruling the
petition for reconsideration are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE JAMES
GARRISON:
Ann F. Batterton
Thomas M. Edelen Alan S. Rubin
Louisville, Kentucky Louisville, Kentucky
-11-