amazon.com v. Vickie Henry ( 2020 )

RENDERED: AUGUST 28, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-000621-WC
AMAZON.COM APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-18-98085
VICKIE HENRY; HON. ROLAND CASE,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
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BEFORE: GOODWINE, K. THOMPSON, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Amazon.com appeals from an opinion of the Workers’
Compensation Board (hereinafter referred to as the Board) which affirmed in part,
vacated in part, and remanded an opinion, award, and order of an administrative
law judge (hereinafter referred to as ALJ). The Board affirmed the findings made
by the ALJ, but still vacated the award in order for the ALJ to make additional
findings of fact in regard to whether Vickie Henry, Appellant’s employee, is
permanently and totally disabled. On appeal, Appellant argues that the Board
should not have remanded for additional findings of fact as to Appellee’s level of
disability, that the ALJ erred in relying on the medical opinion of Dr. James Bilbo,
and that the ALJ erred in not making other findings of fact as requested by
Appellant. We conclude that the ALJ’s findings regarding the level of disability
were adequate, and the Board erred in vacating the award and remanding for
additional findings. We also conclude that the ALJ did not err in relying on Dr.
Bilbo’s medical opinion. Finally, we hold that the Board erred in not requiring the
ALJ to make more specific findings as to the impairment rating. Specifically,
Appellant requested the ALJ to determine an impairment rating for each shoulder.
This should have been done. We must, therefore, reverse and remand only for the
ALJ to determine an impairment rating for each individual shoulder.
FACTS AND PROCEDURAL HISTORY
Appellee was an employee of Appellant where she was required to
routinely lift heavy items. On July 29, 2017, Appellee was performing her typical
duties when she developed pain in her right shoulder and elbow. She was seen by
Appellant’s on-site medical care team, Amcare, given aspirin and an ice pack, and
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she eventually returned to her duties. She continued working, but would
periodically present to Amcare for treatment. On December 16, 2017, Appellee
was lifting cases of water when she developed a severe pain in her left shoulder.
This injury also aggravated her right shoulder. She again presented to Amcare,
was given aspirin and an ice pack, and she later returned to her duties.
Appellee eventually began physical therapy at a medical facility
called Concentra where she was diagnosed with a sprain or strain in both
shoulders. She was later seen by Dr. Sam Koo, an orthopedic surgeon, who
diagnosed her with bilateral shoulder pain with no improvement after physical
therapy. Dr. Koo also diagnosed Appellee with bilateral shoulder rotator cuff
tendinitis, and degenerative joint disease. Dr. Koo recommended surgery, but
Appellee declined.
Appellee also began treating at OrthoCincy, an orthopedics and sports
medicine facility. Her primary doctor there was Dr. Bilbo. Records from Dr.
Bilbo indicate a diagnosis of a right shoulder partial rotator cuff tear, bilateral
tendinitis, adhesive capsulitis, bursitis, impingement syndrome, and
acromioclavicular degenerative joint disease. Dr. Bilbo opined that Appellee’s
conditions were related to her work injuries. He also gave Appellee a 30% whole
body impairment rating based on the American Medical Association’s Guides to
the Evaluation of Permanent Impairment, Fifth Edition (hereinafter referred to as
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the AMA Guides). Dr. Bilbo also did not think Appellee could return to the type
of work she was performing. Dr. Bilbo also recommended surgery, but Appellee
declined.
Dr. Steven Shockey also performed an independent medical
evaluation on Appellee. Dr. Shockey reviewed all of Appellee’s medical records
and treatment history regarding the shoulder injuries. Dr. Shockey also performed
a thorough physical examination. Dr. Shockey diagnosed Appellee with shoulder
pain with evidence of rotator cuff tendinopathy. Dr. Shockey gave Appellee a 4%
impairment rating for her right shoulder and a 3% impairment rating for her left
shoulder based on the AMA Guides. Dr. Shockey did not believe Appellee’s
injuries were caused by her work incidents, but that there could have been some
degree of exacerbating a pre-existing condition.
After reviewing the medical evidence and Appellee’s testimony, the
ALJ relied on Dr. Bilbo’s opinion and assigned Appellee a 30% impairment rating
for the bilateral shoulder injury. The ALJ did not assign an impairment rating for
each individual shoulder. The ALJ also held that Appellee’s injury was partial, not
total. Using the 30% impairment rating, the ALJ found that Appellee was entitled
to a multiplication factor of 1.351 for a permanent partial disability rating of 40.5%.
1
The permanent partial multiplication factors can be found in Kentucky Revised Statute (KRS)
342.730(1)(b).
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The ALJ made other findings, but they are not relevant for the purposes of this
Opinion.
Both parties then appealed to the Board. The Board affirmed the
ALJ’s reliance on Dr. Bilbo’s opinion; however, the Board believed the ALJ did
not perform the requisite analysis for determining if Appellee was entitled to
permanent partial disability benefits or permanent total disability benefits. The
Board remanded the case to the ALJ with instructions for the ALJ to analyze the
issue in accordance with City of Ashland v. Stumbo, 461 S.W.3d 392 (Ky. 2015),
and Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
Appellant requested that the Board remand in order for the ALJ to assign specific
impairment ratings for each individual shoulder, but the Board declined to do so.
This appeal followed.
ANALYSIS
Appellant’s first argument on appeal is that the Board erred in
remanding the case back to the ALJ for the ALJ to determine if Appellee is
partially or totally disabled. Appellant argues that the ALJ analyzed the issue
appropriately and remanding the case was not necessary. We agree with
Appellant.
“The function of further review of the [Board] in the Court of Appeals
is to correct the Board only where [the] Court perceives the Board has overlooked
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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).
KRS 342.285 designates the ALJ as the finder of
fact. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d
418 (Ky. 1985), explains that the fact-finder has the sole
authority to judge the weight, credibility, substance, and
inferences to be drawn from the evidence. Special Fund
v. Francis, 708 S.W.2d 641, 643 (Ky. 1986), explains
that a finding that favors the party with the burden of
proof may not be disturbed if it is supported by
substantial evidence and, therefore, is reasonable.
AK Steel Corp. v. Adkins, 253 S.W.3d 59, 64 (Ky. 2008). “The claimant bears the
burden of proof and risk of persuasion before the [ALJ]. If he succeeds in his
burden and an adverse party appeals to the [Board], the question before the [Board]
is whether the decision of the [ALJ] is supported by substantial evidence.” Wolf
Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984).
Substantial evidence is defined as evidence, taken alone
or in light of all the evidence, that has sufficient
probative value to induce conviction in the minds of
reasonable people. If there is substantial evidence to
support the agency’s findings, a court must defer to that
finding even though there is evidence to the contrary. A
court may not substitute its opinion as to the credibility
of the witnesses, the weight given the evidence, or the
inferences to be drawn from the evidence. A court’s
function in administrative matters is one of review, not
reinterpretation.
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Thompson v. Kentucky Unemployment Ins. Comm’n, 85 S.W.3d 621, 624 (Ky.
App. 2002) (citations omitted).
The Board held that the ALJ did not properly analyze the partial or
total disability issue and instructed the ALJ to utilize the cases of City of Ashland
v. Stumbo, 461 S.W.3d 392 (Ky. 2015), and Ira A. Watson Department Store v.
Hamilton, 34 S.W.3d 48 (Ky. 2000), to do so. In Thornsberry v. Ford Motor
Company, No. 2018-SC-000203-WC, 2019 WL 1168021 (Ky. Feb. 14, 2019), the
Kentucky Supreme Court discussed these cases and clearly set forth how they
apply to this situation.
In City of Ashland v. Stumbo, this Court outlined a
five-step analysis for determining whether a person has a
permanent-total disability under KRS 342.0011(11)(c).
We later summarized that analysis as follows:
First, the ALJ must determine if the claimant
suffered a work-related injury. Second, the
ALJ must determine if the claimant does or
does not have an impairment rating. Third,
based on the impairment rating, the ALJ
then must determine the claimant’s
permanent disability rating. Fourth, the ALJ
must determine whether the claimant is
unable to perform any type of work.
Finally, it must be determined that the
claimant’s total disability is a result of the
work-related injury. In determining whether
a claimant is able to perform any type of
work [under step four], the ALJ must
consider “factors such as the worker’s post-
injury physical, emotional, intellectual, and
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vocational status and how those factors
interact.”
While it is not entirely clear from this analysis, the
exact permanent disability rating is irrelevant to the
determination of whether a claimant has a permanent-
total disability. Instead, KRS 342.0011(11)(c) simply
requires the claimant to have a permanent disability
rating—and, necessarily, a permanent impairment
rating—for the ALJ to find them totally and permanently
disabled because they have a “complete and total
inability to perform any type of work as a result of an
injury.” Whether the claimant has such an inability is
then determined by weighing the factors set forth
in Hamilton. Such factors include “the worker’s post-
injury physical, emotional, intellectual, and vocational
status and how those factors interact, [and] the likelihood
that the particular worker would be able to find work
consistently over normal employment conditions,” which
“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.”
Id. at *3-4 (footnotes and citations omitted). To summarize, there is a five-step
analysis in Stumbo to determine if a person is partially or totally disabled and part
four of that analysis requires the ALJ to examine certain factors found in Hamilton.
We believe that the ALJ met the Stumbo and Hamilton requirements.
The ALJ found that Appellee’s injury was work-related, assigned her a 30%
impairment rating, and assigned her a 40.5% permanent partial disability rating.
This satisfies the first three steps in Stumbo. As it pertains to the fourth step, the
ALJ determined that Appellee could still perform some type of work. In making
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this determination, the ALJ considered the following: that Appellee was born in
1961, that she has a high school diploma, that she has no specialized or vocational
training, and that after her injury at Amazon she was employed by the Elks Club
preparing food for $9.00 an hour. The ALJ also stated the following:
Although the ALJ believes the [Appellee] to be a
credible witness, he is not persuaded she is totally
disabled. No physician specifically indicated she was
totally disabled. Although she has significant restrictions
in the use of her shoulders, she still has the ability to
perform at least sedentary work or essentially any job not
requiring significant lifting. The ALJ in view of the
[Appellee’s] education, work experience and restrictions,
believes the [Appellee] could perform a wide range of
occupations not requiring significant lifting.
We believe this meets step four of Stumbo and the factors found in Hamilton. As
for step five, the ALJ found there was no total disability. It is clear that the ALJ
satisfied the requirements of Stumbo and Hamilton; therefore, the Board erred in
vacating Appellee’s award and remanding for a new analysis.
Appellant’s second argument on appeal is that the ALJ erred in
relying on Dr. Bilbo’s impairment rating because it does not comport with the
AMA Guides. Appellant argues that Dr. Bilbo’s rating did not follow the AMA
Guides because Dr. Bilbo’s medical records do not have any measurements
indicating how he determined the impairment rating. Appellant also finds fault
with Dr. Bilbo not setting forth an impairment rating for each individual shoulder.
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Finally, Appellant believes Dr. Bilbo utilized the wrong impairment rating table
found in the AMA Guides. We disagree.
“Under our law, the AMA Guides are an integral tool for assessing a
claimant’s disability rating and monetary award. So to be useful for the fact-
finder, a physician’s opinion must be grounded in the AMA Guides[.]” Jones v.
Brasch-Barry General Contractors, 189 S.W.3d 149, 154 (Ky. App. 2006). “To
be grounded in the Guides is not to require a strict adherence to the Guides, but
rather a general conformity with them.” Plumley v. Kroger, Inc., 557 S.W.3d 905,
912 (Ky. 2018) (emphasis in original). “The proper interpretation of the Guides
and the proper assessment of impairment are medical questions.” Lanter v.
Kentucky State Police, 171 S.W.3d 45, 52 (Ky. 2005) (citation omitted). “Per our
repeated standard of review articulated in these types of cases, unless the evidence
compels a contrary finding, the ALJ’s reliance on certain medical reports and
opinions over others is entitled to considerable deference.” Plumley, 557 S.W.3d
at 914 (citation omitted).
Here, the medical records of Dr. Bilbo indicate that the ALJ did not
err in relying on Dr. Bilbo’s opinion. The medical records set forth Dr. Bilbo’s
examinations of Appellee, Appellee’s complaints, range of motion measurements
on both shoulders, and MRI results. Further, the ALJ relied on Appellee’s
testimony regarding her injury and her ongoing pain.
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Dr. Bilbo also utilized table 16-35 of the AMA Guides to determine
Appellee’s impairment rating. Table 16-35 concerns measuring strength deficits of
shoulders and elbows. Appellant points out that the AMA Guides state:
“Decreased strength cannot be rated in the presence of decreased motion, painful
conditions, deformities, or absence of parts (eg, thumb amputation) that prevent
effective application of maximal force in the region being evaluated.” AMERICAN
MEDICAL ASSOCIATION, GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT,
Section 16.8a, p. 508 (5th ed. 2000) (emphasis in original). Appellant argues that
Dr. Bilbo could not utilize an impairment rating based on a strength deficit because
Appellee’s shoulders had decreased motion and painful conditions. We believe Dr.
Bilbo could still determine an impairment rating even if Appellee’s shoulders had
decreased motion and painful conditions. Dr. Bilbo’s opinion only had to be
grounded in the AMA Guides, not exactly adhere to it. Dr. Bilbo, in his medical
opinion, could have concluded that a strength deficit rating for Appellee’s
shoulders was appropriate in her case. Appellee did not seek to depose or cross-
examine Dr. Bilbo as to his methods. In addition, Dr. Shockey did not opine as to
whether Dr. Bilbo’s methods were incorrect.
We do agree, however, that the ALJ should have indicated impairment
ratings for each individual shoulder. There were two separate injuries to two
separate body parts. If Appellee ever seeks to reopen her claim due to a worsening
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of the injury in one of her shoulders, individual impairment ratings would be
needed. This, however, does not require the ALJ to disregard Dr. Bilbo’s
impairment rating or make his medical opinion invalid. In Plumley, supra, the
claimant suffered three separate injuries, but the ALJ relied on a single, whole
person impairment rating of 22%. The ALJ, therefore, separated that rating into
three individual ratings for each injury. We must remand this case for the Board to
instruct the ALJ to determine impairment ratings for each shoulder. On remand,
the ALJ can separate Dr. Bilbo’s 30% impairment rating into two ratings as
occurred in Plumley.
Overall, the ALJ’s findings and conclusions are based on substantial
evidence. Relying on Appellee’s testimony and the records and reports of Dr.
Bilbo, the ALJ found Dr. Bilbo’s impairment rating to be more credible. There
was no error in relying on Dr. Bilbo’s medical opinion.
Appellant’s third argument on appeal is that the ALJ failed to make
more specific findings of fact regarding Dr. Bilbo’s impairment rating. We believe
additional findings were unnecessary because Dr. Bilbo’s opinion, and the ALJ’s
reliance on it, was based on substantial evidence found in the record.
Appellant also raises two issues regarding a neck injury sustained by
Appellee and a claim for past medical expenses raised by Appellee. The ALJ held
that the neck injury was not work-related and that one of the medical expenses was
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not work-related. These issues were found in favor of Appellant, and Appellee did
not appeal these issues to this Court. We are unclear as to why Appellant would
raise them and conclude they do not need to be ruled upon.
CONCLUSION
Based on the foregoing, we affirm in part, reverse in part, and remand.
We reverse the determination that the ALJ needs to reexamine the permanent
partial disability award. On remand, the Board should determine whether the ALJ
erred in determining whether Appellee was not totally disabled based on the record
as is. Also, we remand with instructions to the Board to require the ALJ to
determine an impairment rating for each shoulder. The ALJ may still utilize Dr.
Bilbo’s overall impairment rating and separate it for each shoulder, similar to what
occurred in Plumley. On all other issues, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE VICKIE
HENRY:
Lori V. Daniel
Lexington, Kentucky Gregory N. Schabell, Sr.
Covington, Kentucky
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