Lhc Group, Inc. v. Elizabeth Floyd ( 2021 )

RENDERED: JANUARY 29, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1453-WC
LHC GROUP, INC. APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-16-60946
ELIZABETH FLOYD; HON. GRANT
ROARK, ADMINISTRATIVE LAW
JUDGE; AND KENTUCKY
WORKERS’ COMPENSATION APPELLEES
BOARD
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, KRAMER, AND LAMBERT, JUDGES.
DIXON, JUDGE: LHC Group, Inc., (“LHC”) petitions for review of the Kentucky
Workers’ Compensation Board (Board) opinion entered October 16, 2020,
affirming the opinion, award, and order, and order denying reconsideration,
entered May 4, 2020, and June 8, 2020, respectively, by Administrative Law Judge
(ALJ) Grant S. Roark. It further petitions for review of the interlocutory opinion
and the order denying reconsideration entered June 24, 2019, and July 18, 2019,
respectively. Following review of the record, briefs, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
On May 4, 2015, Floyd injured her right shoulder, low back, and
ankle when she fell down an elevator shaft while employed as a home health nurse
by LHC. Floyd filed a workers’ compensation claim for her injuries associated
with that accident.
After obtaining medical treatment for her injuries sustained in the
elevator accident—including surgery to her right shoulder—Floyd returned to part-
time, light-duty work for LHC in April 2016. At the beginning of her workday on
November 16, 2016, Floyd used her left arm to reach down to the floor to turn on
her computer tower and then up to retrieve her headset from atop the computer
monitor on her desk. Floyd experienced immediate, acute pain in her left shoulder
due to the upward reaching movement. An MRI of her left shoulder taken shortly
after the incident showed a full-thickness rotator cuff tear. Floyd pursued a second
workers’ compensation claim for the injury to her left shoulder caused by this
incident. This appeal solely concerns the second workers’ compensation claim.
On June 23, 2017, Dr. Ronald Burgess performed an independent
medical evaluation (“IME”) of Floyd. Floyd failed to disclose her medical history
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of arthritis to Dr. Burgess at that time and denied pain in her left shoulder prior to
November 16, 2016. Dr. Burgess opined that the mechanism described by Floyd
did not cause her injury, and further, that her rotator cuff tear was not otherwise
caused by her work.
Dr. Burgess was provided with additional medical records and
performed a second IME of Floyd on August 15, 2018. Those records contained
generalized mention of arthritis involving Floyd’s hands, wrists, elbows, shoulders,
hips, knees, ankles, feet, and low back, as well as prescriptions for Methotrexate
and Humira, which predated the incident of November 16, 2016. Dr. Burgess
noted Floyd’s failure to disclose her treatment and medications for arthritis to him
prior to or during the first IME, asserting this further undermined his confidence in
the credibility of her version of events. He also opined Floyd’s condition was the
result of a degenerative tear, with her polyarthritis being a significant contributing
factor. Dr. Burgess was subsequently deposed on January 23, 2019, at which time
he again pointed out Floyd’s failure to disclose her medical history concerning
arthritis to him prior to the first IME. Dr. Burgess’s deposition testimony was
consistent with his IME reports.
Dr. Burgess performed yet another IME of Floyd on December 11,
2019, and he assigned an 11% whole person impairment rating. On January 20,
2020, Dr. Burgess authored a subsequent report opining that Floyd would be
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unable to return to the work she performed on the day of the incident based on her
job description.
On February 26, 2018, Floyd underwent an IME performed by Dr.
Frank A. Burke. Floyd failed to disclose her medical history concerning arthritis to
Dr. Burke at that time and denied pain in her left shoulder prior to November 16,
2016. Dr. Burke diagnosed Floyd with an acute work-related injury to the left
rotator cuff caused by the November 16, 2016, incident. Dr. Burke further placed
work restrictions on Floyd as she was unable to reach at or above waist level. He
opined that she was unable to return to the same work she performed on the day of
the incident.
After reviewing additional medical records concerning Floyd’s
arthritis, Dr. Burke authored an “Addendum to Independent Medical Evaluation of
2/26/18” dated April 18, 2019. Although the Addendum addressed these records,
the ultimate diagnosis remained largely unchanged.1 Dr. Burke also pointed out
1
In pertinent part, the Addendum stated:
The patient does have a history of an autoimmune arthritis,
possibly psoriatic arthritis. This condition I am intimately familiar
with as a patient with this condition, as well as a physician with a
long history of treating such patients. The principle [sic] problem
in autoimmune arthritis with respect to the joint is the weakening
of the attachments of ligaments and tendons adjacent to the joint.
This tendon was probably affected by her condition and was
possibly weakened but had not had a symptomatic tear occur prior
to 11/16/16. There is no evidence in the record from her
rheumatologists, from Dr. Mary Lloyd-Ireland, or her given history
to me that she had a problem in this left shoulder prior to this
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that both of Floyd’s shoulders had been examined by Dr. Ireland on November 2,
2016, just a few weeks before the incident, and no left shoulder problems were
noted at that time.2
Floyd was evaluated by Dr. Burke again on October 21, 2019,
following which he authored an “Independent Medical Reevaluation” report. At
that time, Dr. Burke assigned Floyd an 11% whole person impairment rating. Dr.
Burke’s February 21, 2020, supplemental report reaffirmed the restrictions
imposed on Floyd as set forth in the February 26, 2018, IME report.
Floyd testified by deposition on June 5, 2018, and at the hearing on
April 24, 2019, that she had no complaints of pain in her left shoulder prior to the
November 16, 2016, incident. Floyd also testified that she is unable to return to
the work performed on the day of the incident since it involved waist-level and
above reaching too painful to perform on a sustained basis.
accident of 11/16/2016. Any pre-existing condition was dormant
and aroused due to the work-related injury of 11/16/2016.
I have an extensive history of treatment of individuals with this
condition and although this mechanism of injury did not require
any significant amount of force except for reaching, this is
perfectly compatible with the type of injury, which was identified
on physical examination and subsequent MRI imaging as an acute
injury. Again, the MRI evidence is totally supportive of an acute
injury to the anterior leading edge of the rotator cuff tendon
supraspinatus.
2
The purpose of Dr. Ireland’s examination was a post-surgery follow-up of Floyd’s right
shoulder after the elevator accident.
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On June 24, 2019, the ALJ entered an interlocutory order finding
Floyd had indeed sustained a work-related injury to her left shoulder from the
incident described above. LHC petitioned the ALJ to reconsider, asserting the left
shoulder injury was not causally related to any work injury but, rather, due to a
pre-existing, degenerative condition. On July 18, 2019, the ALJ entered an order
denying reconsideration of the interlocutory order.
On March 4, 2020, a final hearing was held during which Floyd
testified she was unable to return to her light-duty work for LHC because typing
and using the phone would require the use of both arms all day and the pain would
render her unable to concentrate.
On May 4, 2020, the ALJ entered an order awarding Floyd benefits
based on an 11% whole person impairment rating with a three-multiplier pursuant
to KRS3 342.730(1)(c)1 because she sustained a work-related injury to her left
shoulder and was unable to return to the same work she performed at the time of
the injury. LHC petitioned the ALJ to reconsider regarding causation and the
three-multiplier. On June 8, 2020, the ALJ entered an order correcting a typo but
otherwise denying reconsideration.
LHC appealed to the Board. On October 16, 2020, the Board entered
its opinion affirming the ALJ’s opinion, award, and order. This appeal followed.
3
Kentucky Revised Statutes.
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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 Employers’ Fund v.
Garland, 805 S.W.2d 116, 117 (Ky. 1991)].
The second instance concerns questions of fact.
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 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
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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.
Commonwealth, Cabinet for Health Serv.’s, 103 S.W.3d
701, 703 (Ky. App. 2002)].
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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.
WORK-RELATED INJURY
On appeal, LHC argues the ALJ erred in accepting Dr. Burke’s
opinions and rejecting Dr. Burgess’s opinions. We first note that the proffered
whole person impairment rating was the same from both experts—11%. We next
note the ALJ discussed and specifically explained why he relied upon Dr. Burke’s
causation opinions, as opposed to those of Dr. Burgess. As we previously quoted,
“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[.]”
Bowerman, 297 S.W.2d at 866. Therefore, the ALJ was well within his discretion
to accept Dr. Burke’s opinions and reject those of Dr. Burgess.
Nonetheless, LHC contends the case herein is like Cepero v.
Fabricated Metals Corp., 132 S.W.3d 839, 842 (Ky. 2004). In Cepero, the
claimant injured his left knee while practicing martial arts in a foreign country and
was confined to a wheelchair for a few months during his recovery. A few years
later, the claimant filed a workers’ compensation claim alleging a left knee injury
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following a trip and fall at work. The claimant was seen by at least five doctors
after the fall and gave varying reports to each concerning the medical history of his
left knee. The three doctors he told about his martial arts injury attributed his knee
injury to that incident, while the two doctors he told only about the fall at work
attributed his condition to that accident. One of the doctors to whom he disclosed
only the fall at work was subsequently made aware of the martial arts injury and
then opined the knee condition was not due to a work-related injury but, rather, to
the prior martial arts injury. Nevertheless, the ALJ determined the claimant
sustained a work-related injury relying solely on the opinions of the doctors
without the full medical history concerning the left knee. The Court ultimately
held:
[I]n cases such as this, where it is irrefutable that a
physician’s history regarding work-related causation is
corrupt due to it being substantially inaccurate or largely
incomplete, any opinion generated by that physician on
the issue of causation cannot constitute substantial
evidence. Medical opinion predicated upon such
erroneous or deficient information that is completely
unsupported by any other credible evidence can never, in
our view, be reasonably probable.
Cepero, 132 S.W.3d at 842. Since substantial evidence did not support the ALJ’s
finding that the work-related accident caused the claimant’s left knee injury, the
ALJ was reversed.
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Here, it is undisputed that Floyd did not initially provide a detailed
patient history or medical records concerning her prior treatment of arthritis to
either Dr. Burgess or Dr. Burke. However, additional records and information
were provided to each, and subsequent IMEs were performed by both prior to the
hearings and awards herein. The additional records and the information contained
therein were specifically addressed and accounted for by Dr. Burke. Therefore, the
Board correctly determined that Dr. Burke’s opinions were not “corrupt” as
described in Cepero. The ALJ also noted that Dr. Burke personally reviewed the
MRI of Floyd’s left shoulder after the incident, whereas Dr. Burgess did not. Dr.
Burke further opined that the mechanism described by Floyd was sufficient to
cause her work-related injury and any pre-existing condition was dormant and not
aroused until—and due to—the work-related injury. Accordingly, Dr. Burke’s
opinions constituted substantial evidence upon which the ALJ was fully entitled to
rely in his award. Accordingly, we must affirm.
KRS 342.730(1)(c)1 THREE-MULTIPLIER
LHC also asserts that the ALJ erred in awarding Floyd a three-
multiplier under KRS 342.730(1)(c)1, which states,
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, but this provision shall
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not be construed so as to extend the duration of
payments[.]
The Board analyzed the ALJ’s application of KRS 342.730(1)(c)1 in
its award, observing:
As held by the Kentucky Supreme Court in the
case of Ford Motor Co. v. Forman, 142 S.W.3d 141, 145
(Ky. 2004), “[w]hen used in the context of an award that
is based upon an objectively determined functional
impairment, ‘the type of work that the employee
performed at the time of injury’ was most likely intended
by the legislature to refer to the actual jobs that the
individual performed.” The plain language of the statute
and the pertinent case law requires the ALJ to analyze the
actual tasks Floyd performed prior to the work-related
injury. [Voith Indus. Servs., Inc. v. Gray,] 516 S.W.3d
817 (Ky. App. 2017).
In the May 4, 2020, decision, the ALJ, in his
analysis of the applicability of the three multiplier, noted
Floyd’s pre-injury tasks included typing at waist level.
He determined Floyd is unable to return to the type of
work she was performing at the time of her injury (i.e.
typing), because she testified that she had difficulty
performing typing at waist level. Indeed, Floyd
unequivocally testified during her deposition and at the
hearing that she does not believe she can perform her
pre-injury tasks of typing and answering the phone
because these tasks are performed above waist level. An
ALJ enjoys the authority to give substantial weight to a
claimant’s testimony regarding her retained physical
capacity and occupational disability. Hush v. Abrams,
584 S.W.2d 48 (Ky. 1979). Further, a claimant’s post-
injury testimony is competent evidence as to whether he
or she retains the physical capacity to return to the type
of work performed at the time of injury. Carte v. Loretto
Motherhouse Infirmary, 19 S.W.3d 122 (Ky. App. 2000).
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Further, Floyd’s testimony regarding her inability
to type at waist level is consistent with Dr. Burke’s
opinions set forth in the February 26, 2018, IME report
that the November 16, 2016, injury prevents Floyd from
returning to her pre-injury job “that requires repetitive
use of the left shoulder, e.g. reaching or typing above
waist level.” Dr. Burke reaffirmed his opinions in the
April 18, 2019, Addendum, October 21, 2019, IME
report, and the February 21, 2020, Addendum.
As both Floyd’s and Dr. Burke’s opinions on the
issue of the ALJ’s award of Floyd’s ability to perform
her pre-injury job tasks constitute substantial evidence
supporting the ALJ’s decision to award the three
multiplier, we must affirm.
Contrary to LHC’s assertions, the ALJ and Board correctly interpreted
KRS 342.730(1)(c)1 and appropriately applied it to the case herein. Floyd was
restricted by Dr. Burke, as well as by Dr. Ireland, from performing tasks with her
left shoulder that involved repetitive movement at or above waist level. Floyd
testified she was unable to repetitively perform waist-level and above tasks, such
as typing and using the phone, as she did for LHC at the time of her second work-
related injury. The Board did not err in its determination that the ALJ was entitled
to rely on that evidence in determining Floyd was unable to return to the type of
work that she performed at the time of injury, qualifying her for the three-
multiplier under KRS 342.730(1)(c)1. Consequently, we affirm.
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CONCLUSION
For the foregoing reasons, the opinion of the Workers’ Compensation
Board is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE
ELIZABETH FLOYD:
Mark R. Bush
Clarke D. Cotton Mark D. Knight
Ft. Mitchell, Kentucky Somerset, Kentucky
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