Charles David McGeorge v. Wal-Mart ( 2021 )

RENDERED: JANUARY 22, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0660-WC
CHARLES DAVID MCGEORGE APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-13-87035
WAL-MART; CHRIS DAVIS; AND
WORKERS’ COMPENSATION
BOARD APPELLEES
AND NO. 2020-CA-0715-WC
WAL-MART CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-13-87035
CHARLES DAVID MCGEORGE;
CHRIS DAVIS; AND WORKERS’
COMPENSATION BOARD CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
DIXON, JUDGE: Charles David McGeorge petitions, and Wal-Mart cross-
petitions, for review of the Workers’ Compensation Board (Board) opinion entered
April 17, 2020, affirming the opinion, award, and order on reopening, and order
denying reconsideration, entered October 14, 2019, and November 13, 2019,
respectively, by the Administrative Law Judge (ALJ). Following review of the
record, briefs, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
On April 13, 2013, McGeorge injured his lumbar spine at L5-S1 while
working for Wal-Mart as an order filler. He pursued a workers’ compensation
claim, and an award of temporary total disability (TTD), permanent partial
disability (PPD), and medical benefits was entered on June 30, 2014, based on an
8% impairment rating. The ALJ determined McGeorge was unable to return to the
type of work he performed on the date of injury but did not find him to be
permanently, totally disabled.
On June 13, 2016, McGeorge moved to reopen his claim, alleging a
worsening of his condition and “that his occupational disability has significantly
increased and that he is now permanently and totally disabled from any gainful
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employment.” ROA1 573. On August 24, 2018, following a hearing, the ALJ
entered an interlocutory opinion and order finding the spinal fusion surgery at L5-
S1 proposed by Dr. Amr O. El-Nagger to be compensable and awarding McGeorge
TTD benefits “from the date of the surgery through the date the Plaintiff reaches
[maximum medical improvement] or returns to work.” ROA 1224. McGeorge
underwent the surgery on November 16, 2018. Pre-surgery, McGeorge had back
pain with weakness and tingling in his legs and feet; post-surgery, McGeorge’s
right-sided symptoms resolved, but he still has back pain and occasional tingling
and numbness in his left leg and foot.
A final hearing was held on August 21, 2019. On October 14, 2019,
the ALJ entered an opinion, award, and order finding McGeorge sustained an
increase of impairment rating of 12%, for a total of 20%. The ALJ further found
that McGeorge is not permanently, totally disabled. Both Wal-Mart and
McGeorge petitioned the ALJ for reconsideration of this order. Wal-Mart asserted
the ALJ erred in awarding increased benefits from the date of reopening instead of
the date of surgery, while McGeorge claimed the ALJ erred in not finding him
permanently, totally disabled. On November 13, 2019, the ALJ entered an order
denying the parties’ requests for reconsideration. McGeorge appealed to the
Board, and Wal-Mart cross-appealed, using the same arguments presented to the
1
Record on appeal.
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ALJ in their respective petitions for reconsideration. On April 17, 2020, the Board
entered its opinion affirming the ALJ. This petition and cross-petition followed.
STANDARD OF REVIEW
The appropriate standard of review for workers’ compensation claims
was summarized in Bowerman v. Black Equipment Co., 297 S.W.3d 858, 866-67
(Ky. App. 2009).
Appellate review of any workers’ compensation
decision is limited to correction of the ALJ when the ALJ
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). Our standard of review differs in regard to
appeals of an ALJ’s decision concerning a question of
law or a mixed question of law and fact vis-à-vis an
ALJ’s decision regarding a question of fact.
The first instance concerns questions of law or
mixed questions of law and fact. As a reviewing court,
we are bound neither by an ALJ’s decisions on questions
of law or an ALJ’s interpretation and application of the
law to the facts. In either case, our standard of review is
de novo. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky.
App. 2001); Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky.
App. 1998). De novo review allows appellate courts
greater latitude in reviewing an ALJ’s decision.
[Purchase Transp. Servs. v. Estate of Wilson, 39 S.W.3d
816, 817-18 (Ky. 2001); Uninsured Emps.’ Fund v.
Garland, 805 S.W.2d 116, 117 (Ky. 1991)].
The second instance concerns questions of fact.
[Kentucky Revised Statutes (KRS)] 342.285 designates
the ALJ as finder of fact, and has been construed to mean
that the factfinder has the sole discretion to determine the
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quality, character, weight, credibility, and substance of
the evidence, and to draw reasonable inferences from the
evidence. Paramount Foods, Inc. v. Burkhardt, 695
S.W.2d 418, 419 (Ky. 1985); [McCloud v. Beth-Elkhorn
Corp., 514 S.W.2d 46, 47 (Ky. 1974)]. Moreover, an
ALJ has sole discretion to decide whom and what to
believe, 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
adversary party’s total proof. Caudill v. Maloney’s
Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
KRS 342.285 also establishes a “clearly
erroneous” standard of review for appeals concerning
factual findings rendered by an ALJ, and is determined
based on reasonableness. Special Fund v. Francis, 708
S.W.2d 641, 643 (Ky. 1986). Although an ALJ must
recite sufficient facts to permit meaningful appellate
review, KRS 342.285 provides that an ALJ’s decision is
“conclusive and binding as to all questions of fact,” and
that the Board “shall not substitute its judgment for that
of the [ALJ] as to the weight of evidence on questions of
fact[.]” Shields v. Pittsburgh & Midway Coal Mining
Co., 634 S.W.2d 440, 441 (Ky. App. 1982). In short,
appellate courts may not second-guess or disturb
discretionary decisions of an ALJ unless those decisions
amount to an abuse of discretion. [Medley v. Bd. of
Educ., Shelby County, 168 S.W.3d 398, 406 (Ky. App.
2004)]. Discretion is abused only when an ALJ’s
decision is arbitrary, unreasonable, unfair, or unsupported
by sound legal principles. Downing v. Downing, 45
S.W.3d 449, 454 (Ky. App. 2001).
....
Generally, “arbitrariness” arises when an ALJ
renders a decision on less than substantial evidence, fails
to afford procedural due process to an affected party, or
exceeds her statutory authority. [K & P Grocery, Inc. v.
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Commonwealth, Cabinet for Health Servs., 103 S.W.3d
701, 703 (Ky. App. 2002)].
Substantial evidence is “that which, when taken alone or in light of all the
evidence, has sufficient probative value to induce conviction in the mind of a
reasonable person.” Bowling v. Nat. Res. & Envtl. Prot. Cabinet, 891 S.W.2d 406,
409 (Ky. App. 1994). Our standard of review requires us to show considerable
deference to the ALJ and the Board.
PERMANENT TOTAL DISABILITY
On appeal, McGeorge contends the ALJ failed to define “permanent
total disability” and “work[.]” These terms are defined by the Act.2 “‘Permanent
total disability’ means 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 injury[.]” KRS 342.0011(11)(c). “‘Work’
means providing services to another in return for remuneration on a regular and
sustained basis in a competitive economy[.]” KRS 342.0011(34).
Wal-Mart claims the ALJ failed to comply with the law as set forth in
City of Ashland v. Stumbo, 461 S.W.3d 392 (Ky. 2015). In that case, the Court
held:
an ALJ is required to undertake a five-step analysis in
order to determine whether a claimant is totally disabled.
Initially, the ALJ must determine if the claimant suffered
2
KRS Chapter 342, known as the Workers’ Compensation Act (Act).
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a work-related injury. Here, the parties stipulated that
Stumbo suffered a work-related injury; therefore, the
ALJ was not required to make that finding. Next, the
ALJ must determine what, if any, impairment rating the
claimant has. Here, the ALJ listed the various
impairment ratings assigned to Stumbo by the physicians.
However, the ALJ never found which impairment rating
Stumbo actually has. Having failed to determine what
impairment rating Stumbo has, the ALJ could not then
determine what permanent disability rating Stumbo has.
Thus, the ALJ failed to satisfy the second and third steps
of the analysis. Next, an ALJ is required to determine
that the claimant is unable to perform any type of work.
Here, the ALJ attempted to undertake this analysis, but,
as noted by the Board and the Court of Appeals, he fell
short. An ALJ cannot simply state that he or she has
reviewed the evidence and concluded that a claimant
lacks the capacity to perform any type of work. The ALJ
must set forth, with some specificity, what factors he or
she considered and how those factors led to the
conclusion that the claimant is totally and permanently
disabled. Such findings are particularly crucial in a case
such as this where: part of Stumbo’s condition and
arguably some of his restrictions are related to his pre-
existing antiphospholipid syndrome; Stumbo testified he
could perform sedentary work with accommodations; no
physician imposed any restrictions that would foreclose
Stumbo from performing sedentary work; Stumbo has
performed a wide-range of work activity; and Stumbo
has obtained 90 hours of college credits. Finally, an ALJ
must determine that the total disability is the result of the
work injury.
Id. at 396-97. McGeorge complains that the ALJ never mentioned the factors to be
considered when evaluating the claimant for permanent total disability as set forth
in Stumbo. Nonetheless, the Board acknowledged that the ALJ appropriately
considered those factors even if he did not specifically cite to that case.
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The first step for finding permanent total disability discussed in
Stumbo, regarding a work-related injury, is undisputed here. The second and third
steps concern impairment rating. In the case herein, various doctors offered
opinions concerning McGeorge’s impairment rating. McGeorge claims there is no
discussion or explanation as to why the ALJ relied on the opinions of Dr. Russell
L. Travis as opposed to those of Dr. John J. Gilbert regarding his impairment
rating. This assertion is not borne out by the record. In his order, the ALJ stated:
Dr. Travis found Dr. Gilbert’s examination to be vague
and did not describe which muscles were involved. An
examination of the thoracic spine was not recorded and
Dr. Travis found no reason to assign an impairment
rating to the thoracic spine. Dr. Travis stated
McGeorge’s prior impairment rating should be subtracted
from his current impairment rating and this was not done
by Dr. Gilbert.
....
I will not rely on the rating from Dr. Gilbert. First, Dr.
Gilbert appears to rate McGeorge, at least in part, on two
non-work-related conditions, those to the thoracic spine
and at L3-4. Second, Dr. Gilbert’s overall exam findings
and conclusions are inconsistent with Dr. Travis’
findings, my own estimation of McGeorge’s credibility
and Dr. El-Nagger’s post-surgical findings. X-rays and
CT scans by Dr. El-Nagger found good placement of
hardware. Physical findings include a decrease in pain
and symptoms.
ROA 1477, 1480. The ALJ discussed the proffered impairment ratings and
specifically noted why he relied upon Dr. Travis’s impairment assessment instead
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of Dr. Gilbert’s. The fourth step requires the ALJ to determine the claimant is
unable to perform any type of work. Here, no medical testimony was presented
finding McGeorge unable to return to sedentary work. Dr. Travis opined
McGeorge could return to medium work, and Dr. Gilbert communicated
McGeorge could return to sedentary work. McGeorge relies solely on his own lay-
witness testimony, which the ALJ did not find credible, in his attempt to establish
that he is unable to perform any type of work. The fifth and final step is
inapplicable here because the ALJ did not find McGeorge to be permanently,
totally disabled as defined by the Act. The Board found the ALJ’s analysis and
determination that McGeorge is not permanently, totally disabled was not flawed.
The Board further determined the evidence of record did not compel a different
result and the ALJ’s findings were supported by substantial evidence—namely, the
expert testimony of Dr. Travis. We agree and, thus, affirm.
INCREASED BENEFITS AWARDED ON REOPENING
On cross-petition, Wal-Mart alleges the ALJ’s award of 20%
impairment from the date of reopening is erroneous based on KRS 342.125 and the
AMA Guides.3 Wal-Mart asserts that, pursuant to the AMA Guides, McGeorge
only had a herniated disc with a 12% impairment rating on the date of reopening
3
LINDA COCCHIARELLA & GUNNAR B. J. ANDERSON, AMERICAN MEDICAL ASSOCIATION,
GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT (5th ed. 2000).
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and did not have a 20% impairment rating until the fusion surgery on November
16, 2018.
In pertinent part, KRS 342.125(4) simply states, “any change in the
amount of compensation shall be ordered only from the date of filing the motion to
reopen.” The Board opined:
Based upon the plain reading of this [sic] KRS
342.125(4), we do not believe the ALJ erred as a matter
of law. As the ALJ noted, the basis for the motion to
reopen was the fact McGeorge’s condition had worsened,
and he needed surgery. He ultimately had the surgery,
and his impairment rating increased. Although it is not
directly on point, we find the holding in Sweasy v. Wal-
Mart [Stores, Inc.], 295 S.W.3d 835 (Ky. 2009),
analogous and instructive. There the Kentucky Supreme
Court determined Sweasy’s entitlement to benefits vested
at the time of the injury. In this instance, McGeorge’s
entitlement to enhanced benefits for the worsening of his
condition vested on the date he filed the motion to
reopen. The increase in impairment was a product of the
underlying condition requiring surgery, not necessarily
the surgery itself. While the surgery quantified the
impairment rating
utilized in the calculation, it was not determinative of
whether McGeorge’s condition has worsened. If that
were the case, no injured worker would ever be entitled
to an award of PPD benefits prior to surgery being
performed, contrary to the holding in Sweasy, supra. We
additionally find the increase in PPD benefits from the
date the motion to reopen was filed is consistent with the
holding in [Bartee v. Univ. Med. Ctr., 244 S.W.3d 91]
(Ky. 2008). We therefore affirm the ALJ’s determination
of increased benefits from the date the motion to reopen
was filed.
ROA 1557.
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Wal-Mart contends the Board’s interpretation of Sweasy and Bartee is
incorrect. However, even if Wal-Mart’s contention is correct, neither case is
directly on point when compared to the case herein, and we may affirm for any
reason supported by the record.4 In another—more recent—case our Supreme
Court held:
Workers’ compensation is a statutory creation. When a
claim is reopened, the combined effects of the
impairment present at the time of the initial award and
the additional impairment present at reopening entitle the
injured worker to income benefits based on the whole of
his disability from the date of the motion to reopen
through the end of the compensable period.
James T. English Trucking v. Beeler, 375 S.W.3d 67, 71 (Ky. 2012). In that case,
the Court ultimately held “KRS 342.730(1) entitled [the claimant] to receive from
the date of his motion to reopen through the end of the compensable period a triple
partial disability benefit that was based on all of the impairment resulting from his
2003 injury.” Id. There, the claimant sustained a knee injury, which was later
discovered to be a torn meniscus requiring surgery after the initial award. Here,
McGeorge experienced a back injury which was not determined to be a herniated
disc requiring surgical fusion until after the initial award. Both cases demonstrate
4
Sweasy discussed when to initially award benefits under KRS 342.730 as opposed to when to
increase benefits under KRS 342.125 on reopening and an increase in impairment. Bartee
focused on TTD benefits with the court holding, “the medical dispute did not encompass the
TTD issue and . . . KRS 342.125(4) prohibited a TTD award because the claimant filed her
motion to reopen after the period of TTD expired.” Bartee, 244 S.W.3d at 92.
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changes of condition arising from the work-related injury sufficient to support
reopening and awards of increased benefits based on increased impairment ratings
from the date of reopening.
“In any event, it has long been established that a worker’s right to
benefits for a post-award increase in disability vests when a motion to reopen is
filed, without regard to when the increased disability began.” Johnson v. Gans
Furniture Indus., Inc., 114 S.W.3d 850, 855 (Ky. 2003) (citing Rex Coal Co. v.
Campbell, 213 Ky. 636, 281 S.W. 1039 (1926)). Therefore, based on the plain
language of KRS 342.125(4) and its interpretation by our highest court, we cannot
say the ALJ erred in awarding additional benefits from the date of the motion to
reopen. Likewise, the Board did not err in affirming the ALJ’s award from that
date.
CONCLUSION
For the foregoing reasons, the Opinion of the Workers’ Compensation
Board is AFFIRMED.
ALL CONCUR.
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BRIEF FOR APPELLANT/CROSS- BRIEF FOR APPELLEE/CROSS-
APPELLEE: APPELLANT WAL-MART:
McKinnley Morgan Brandon L. Rosen
London, Kentucky Huntington, West Virginia
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