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                                    '   (




   THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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          J


                                              RENDERED: DECEMBER 14, 2017
                                                      NOT TO BE. PUBLISHED

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                                   2015-SC-000506-WC


 FANNIE L. CRUSE                                                    APPELLANT


                      ON APPEAL FROM COURT OF APPEALS
                         CASE NO. 2014-CA-001439-WC
 V.                    WORKERS' COMPENSATION BOARD
                              . NO. 10-WC-73734


 BENDERSON COUNTY BOARD OF                                          APPELLEES·
 EDUCATION; JANE RICE WILLIAMS,
 ADMINISTRATIVE LAW JUDGE; AND
 WORKERS' COMPENSATION BOARD



                     MEMORANDUM OPINION OF THE COURT

       AFFIRMING IN PART, REVERSING IN PART, AND REMANDIN.G



       Fannie L. Cruse alleged that she suffered a number of injuries as the

 result of a fall while working for the Henderson County Board of Education

 (Henderson County). The Administrative Law Judge (AW) found that only one .

of Cruse's alleged injuries was permanent and awarded income and medical

expense benefits accordingly. Based on KRS 342. 730(4) and Cruse's age, the

AW limited Henderson County's liability for income benefits to. two years. The

. Workers' Compensation Board (the Board) and the Court of Appeals affirmed

the AW. For the following reasons, we affirm the AW's findings regarding the
               ...
extent of Cruse's work-related injuries. However, because KRS 342. 730(4)
                            ·...
 violates Cruse's right to equal protection, we reverse the ALJ's finding

 regarding the duration of Cruse's entitlement to income benefits. Finally, we

 remand this matter to the AW for an award consistent with this opinion.

                                I. BACKGROUND.

       Cruse was born on February 27, 1939, completed the sixth grade, and

 obtained her GED in 200,2. Prior to working for Henderson County in 1999,

 Cruse occasionally worked babysitting and cleaning offices. For Henderson

 County, Cruse worked as a child care worker in one of the school syste:µi's
         ~                        .


·after:-school programs. Her job required her to assist children with various

 learning tasks in the classroom and to supervise them on the school

 playground .

      . On October 14, 2010, Cruse, who was 71 years of age at the time,

 tripped and fell on the school playground. Following this incident, Cruse filed

 an Application for Resolution of Injury Claim alleging that she suffered injuries

to her "left and right shoulders, bicep, knees, ankle, foot,   nee~,   back, and

toes." In support of her claim, Cruse filed medical records from Drs. Johnson,

. O'Neill, J?eppe, and Whitacre, a report from Dr. Barefoot, and miscellaneous

other medical records. Henderson County filed additional records from Drs.

Johnson and O'Neill, a report from Dr. Primm, and miscellaneous other
                        i
medical records. Additionally, the parties filed transcripts of Cruse's

deposition, Dr. Barefoot's deposition, and Dr. Primm's deposition. We

summarize the pertinent parts of the parties' proof below.




                                         2
                Dr. Johnson', who primarily treated Cruse   f~r   her complaints of left

      shoulder pain, performed left rotator cuff surgery on April 9, 2011. On May 12,

      2011, Dr. Johnson stated that Cruse had reached maximum medical

      improvement. He assigned Cruse a 6% impairment rating for her left shoulder
.\.
      condition and released Cruse to return to work with no restrictions.

                Dr. Deppe treated Cruse for complaints of bilateral knee pain. Although

      Dr. Deppe initially thought Cruse had a .torn meniscus in her left knee,

      diagnostic testing revealed only degenerative changes. Dr.         De~pe   last treated

      Cruse in July 2011 ·, when he released her to return to work with no

      restrictions. Dr. Deppe did not address whether Cruse has an impairment

      rating.

                br. Whitacre treated Cruse for complaints of neck pain that she related

      to the work injury. In June 2011, Dr. Whitacre performed a cervical spirie

      epidural, and he released Cruse from his care with no restrictions in July
                                       _.                                    .
      2011. Like Dr. Deppe, Dr. Whitacre did not address whether Cruse has an

      impairment rating.

            Dr. O'Neill treated Cruse conservatively for complaints of foot pain that

      Cruse related to the injury. Cruse last treated with Dr. O'Neill in November

      2012 and his only restriction was to wear comfortable shoes. Like Drs. Deppe
                                                                         .              .
      and Whitaker, Dr. O'Neill did not address whether Cruse has an impairment

      rating.

            Dr. Barefoot performed an independent medical evaluation of Cruse in

      July 2013 at the ·request of Cruse's attorney. In his report,-Dr. Barefoot noted

                                                3
Cruse's complaints of: neck pain radiating into both upper       e~tremities;   pain

and weakness in both shoulders, left greater than right; and left heel pain.

Following his examination, Dr. Barefoot made diagnoses of: left Achilles

tendonitis; metatarsalgia of the ~ght _foot; status post-left long finger surgery;

·left rotator cuff repair; degenerative osteoarthritis of the left knee; cervical

degenerative disc disease with radiculopathy; arthritis; hypertension; carpal

tunnel syndrome; and status post-2009 rotator cuff surgery. Dr. Barefoot

assigned Cruse a total impairment rating of 23%, some of which he .attributed

directly to the injury and some of which he attributed to the arousal. of pre-

existing dormant conditions by the injury. Finally, Dr. Barefoot stated that

Cruse would have difficulty crouching, walking distances, kneeling, crawling,

squatting, using her· arms above shoulder level, and lifting and using her

hands repetitively.

      In his deposition, Dr. Barefoot admitted that he was not aware that

Cruse was involved in several motor·vehicles accidents that preceded her work

injury and that resulted in temporary complaints of neck pain. He was also

unaware that Drs. Johnson, Deppe, Whitacre, and O'Neill had released Cruse

to return to work without.restrictions, and he did not have any of Cruse's

medical records pre-dating 2010. Finally, Dr. Barefoot stated that he had not

imposed any specific restrictions on Cruse's work activity, but opined that she

could perform sedentary work with no overhead activity.

      Dr. Primm performed an independent medical evaluation of Cruse in

August 2013 at the request of Henderson County. Cruse complained to Dr.

                                          4
 Primm of neck and shoulder pain. Following his examination, Dr. Primm made

 diagnoses of: history of chronic cervical pain; status post-spontaneous rotator

 cuff tear and repair; temporary aggravation of degenerative changes in the

 cervical spine as a result of the work injury; resolved left great toe strain; left

 shoulder rotator tear with surgical repair; and resolved bilateral knee

· contusions. Dr. Primm stated that the only permanent injury Cruse suffered

 as a result of her fall at work was to her left shoulder. Based on that injury,

 Dr. Primm assigned Cruse a 7% impairment rating and restricted her to lifting

 no more,than 8-10 pounds. Dr. Primm stated that all of Cruse's other

 conditions were either
                 '(
                        not related to the. work injury or had resolved. Dr.

 Primm's deposition testimony was essentially consistent with his report.

       Based on the.preceding the AW found as follows:

       It is clear [Cruse] has many long standing. [sic] problems and many
       degenerative changes which were not brought on by the work
       injury. Dr. Primm is found most persuasive. While Dr. Barefoot's
       report and deposition have been considered, his opinion is not
       convincing as he attributes so much of Cruse's complaints, even
       carpal tunnel syndrome, ·to the work injury. Clearly Cruse suffered
       a hard fall at work resulting in multiple injuries, most temporary.
       Only the shoulder injury is found to have resulted in permanent
       injury with the other injuries resolving completely to the pre-injury
       state within the following year. Furthermore, based on Cruse's
       shoulder condition alone, she could return to her former job.
       While Dr. Primm noted a few lifting restrictions and discussed
       those in his deposition, there is no proof this restriction would
       prohibit her from returning to work.

       The AW then awarded Cruse the appropriate amount of temporary total

and permanent partial disability income benefits based on her findings.

However, based on KRS 342. 730(4) and Cruse's age at the time of injury, the


                                          5
    AW limited Henderson County's       liabili~   for-income benefits to two years.

     Cruse appealed to the Board, which affirmed, as did the Court of Appeals.         1




    We set forth additional necessary background information below.

                               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
                                                       r
    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,   6~5   S.W.2d 418, 419 (Ky. 1985). Cruse had the burden of proving

    which of her conditions are related to the work injury. Gibbs v. Premier Scale

    Company/Indiana Scale Co., 50 S.W.3d 754, 763 (Ky. 2001), as modified on
                                  \._


    denial of reh 'g (Aug. 23, 2001). If the party with the burden of proof fails to

    convince the AW, that party must establish on appeal that the evidence was so

    ·overwhelming as to compel a favorable finding. _Special Fund v. Francis, 708

    S.W.2d 641, 643 (Ky. 1986). In other words, because Cruse was'unsuccessful

    ·before the AW, she must show that the AW's findings were clearly erroneous

    and unreasonable. Id. While we give great deference to the AW's factual

    findings, we review questions of law, i.e. whether KRS 342.370(4) is

    constitutional, de novo. See. U.S. Bank Home Mortgage v. Schrecker, 455

    S.W.3d 382, 384 (Ky. 2014).

          With the preceding
                     I
                             standards in mind, we first address Cruse's argument
\
    that the AW's finding that only 1her left shoulder condition is related to the

    work injury is clearly erroneous. We then address whether the evidence
                                                                                  /




                                              6
compelled a different finding regarding the extent and du.ration of Cruse's

disability. Finally, we address Cruse's arguments that KRS 342.730(4) has

been preempted by federal age discrimination law and that it violates her right

to equal protection.

                                III. ANALYSIS.

A.    The evidence did not compel the ALJ to find that the work injury
permanently aroused Cruse's pre-existing cervical spine, bilateral knee,
and right shoulder conditions.           ·

      Cruse argues that the evidence compelled a finding that she suffered

from pre-existing dormant degenerative changes in her cervical spine, knees,

and right shoulder, and the evidence compelled a finding that those

degenerative changes were permanently aroused into disabling reality by the

work injury. We disagree.

      As stated in Finley v. DBM Techs., 217 S.W.3d 261, 265 (Ky. App. 2007),

      a pre-existing condition that is both asymptomatic and produces
      no impairment prior to the work-related injury constitutes a pre-
      existing dormant condition. When a pre:..existing dormant condition
      is aroused into disabling reality by a work-related injury, any.
      impairment.or medical expense related solely to the pre-existing
      condition is compensable. A pre-existing condition may be either            /
      temporarily or permanently aroused. If the pre-existing condition
      completely reverts to its pre-injury dormant state; the arousal is
      considered temporary. If the pre-existing condition does not
      completely revert to its pre-injury dormant state, the arousal is
      considered permanent, rather than temporary.

      From ·the medical records it is clear that Cruse had pre-existing changes

to her cervical spine, knees, and right shoulder which. were asymptomatic

immediately prior to the work injury. There is no indication in Cruse's medical

records that any physician had assigned her any impairment rating or

                                       7
 restricted her activity because of those pre-existing conditions. Furthermore,

 based on Cruse's testimony, those pre-existing conditions becarrie symptomatic

 following the work injury. Fi_nally, via Dr. Barefoot's report and testimony,

 Cruse presented evidence that the arousal of those pre-existing conditions

 resulted in   perm~ent   impairment/disability. Therefore, Cruse met her

burden of proving that the work injury aroused the previously    ~ormant


conditions into disabling reality.

       However, Henderson County presented ·evidence to the contrary .. The

physicians who treated Cruse for her cervical spine, bilateral knee, and right

shoulder _complaints all released her from their care with no restrictions.

Furthermore, none of Cruse's treating physicians assigned Cruse any

impairment rating related to those conditions. · Based on his review of the

medical records, Dr. Primm stated Cruse's pre-existing cervical spine, bilateral

knee, and right shoulder conditions had only be~n temporarily exacerbated ..

Dr. Primm concluded that the only permanent work-related injury Cruse

SlJ.ffered was to her left shoulder. That medical evidence was sufficient to

support the AW's findings arid Cruse's evidence to the contrary did not c.ompel

. a different result. Thereforei we affirm the AW's finding that Cruse's only

permanently compensable injury was to her left shoulder.

B.   The evidence did not compel a different finding regarding the extent
and duration of Cruse's disability.

      The AW found that Cruse has a 7% permanent impairment rating and is

able to return to work. Based on those findings, the AW aw_arded Cruse

permanent partial disability income benefits rather than the permanent total
                                         8
disability benefits Cruse sought. Cruse argues that the evidence compelled a

finding that she is permanently and totally disabled. In the alternative, Cruse

argues that she is entitled to enhanced benefits pursuant to KRS

342.730(1)(c)l. We disagree.

1.    Permanent total disability.

      KRS 342.0011(1 l)(c) provides, in pertinent part, that permanent total

disability "means the condition of an employee who, due to an injury, has a

permanent disability rating ahd has a complete and permanent inability to

perform any type of work as a resul(of an injury." KRS 342.0011(34) defines

work as "providing services to another in return for remuneration on a regular

and sustained basis in a competitive economy." To determine if an employee is

permanently and totally disabled, an AW must consider:

      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.

Ira A. Watson Dep't Store v. Hamilton, 34 S.W.3d 48, 51 (Ky. 2000) (citation

omitted).

      Cruse testified that, because of her myriad complaints, she could. not

re.turn to work for Henderson County or any other employer. In a vacuum,

that t~~timony may have compelled a finding in her favor. However, none of

                                        9
Cruse's treating physicians imposed any permanent restriction.s on her ability

to perform work activity. Furthermore, although Dr. Barefoot stated that Cruse

would have difficulty performing numerous tasks, he did not impose any

specific restrictions and stated Cruse could perform sedentary work with no

overhead activity. 'Dr. Primm stated that he ~ould only restrict Cruse from

lifting more than 8 to 10 pounds above shoulder leveL Taking into account

Cruse's advanced age, education, training, experience, and the medical

evidence, we cannot say that the AW was compelled to find Cruse to be

permanently and totally disabled.
     '
2.       Enhanced benefits under KRS 342. 730(1)(c)l.

         Pursuant to KRS 342.730(1)(c)l, an employee who is able to return to
                                                 \

work but is unable to return to the type of work performed at the time· of injury

is entitled to receive benefits at three times the rate otherwise p~yable. Cruse

argues that the evidence compelled the AW to find that she cannot return to

the type of work she performed at Henderson County. We disagree.

         As set forth above, Cruse's treating physicians did not impose any

restrictions on her ability to work. Furthermore, while Dr. Barefoot stated that

Cruse would have difficulty performing various activities, he did not impose

any specific restrictions on Cruse. The only physician who imposed any

specific restrictions on Cruse was Dr. Primm, and those restrictions would not

impede Cruse's ability to return to work for Henderson County. Just as the

evidence did not compel the AW to find that Cruse is permanently and totally

disabled, it did not compel the· AW to find that Cruse is foreclosed from

                                         10
returning to her work for Henderson County. Therefore, we affirm the AW's

finding that Cruse is not entitled to enhanced benefits under KRS

342.730(1)(c)l.

C.    KRS 342. 7~0(4).

      KRS 342. 730(4) states in pertinent part that:

      All income benefits payab~e pursuant to this chapter shall
      terminate as of the date upon which the employee qualifies for
      normal old-age Social Security retirement benefits under the
      United States Social Security Act," 42 U.S.C. secs. 301 to 1397f, or
      two (2) years after the employee's injury or last exposure_,.
      whichever last occurs .

     .' At the time of her injury, Cruse was 71 years of age and qualified for·

"normal old-age Social Security retirement benefits." Under KRS 342.730(4),

the AW found that Cruse was only entitled to 104 we~ks of combined

temporary total and permanent partial income benefits. Cruse argues that

federal age discrimination statutes preempt state law and that KRS 342.730(4)

violates her rights under the Equal Protection Clauses of the United States and

Kentucky Constitutions. Henderson County argues to the contrary.

      Earlier this year, in Parker v. Webster Cnty. Coal, LLC, (Dotiki Mine),

2014-SC-000526-WC, 2017 WL 1536470 (Ky. Apr. 27, 2017) we held that KRS

342.730(4) unconstitutionally violated an older injured workers' right to equal

protection. Because the constitutional issue was raised by Cruse and this

matter was pending when we rendered Parker, it applies to Cruse's claim. See

Bums v. Level, 957 S.W.2d 218, 222 (Ky. 1997). Therefore, we reverse that

portion of the Court of Appeals opinion that affirms the AW's order limiting

Cruse's benefits based on KRS 342.730(4), and we remand with instructions to
                                        11
                                      )




 the AW to enter an opinion extending Cruse's benefits for the appropriate time-
                              '                               .

 period without regard to KRS 342. 730(4).
                                                                       /

                                  IV. CONCLUSION.

       For the foregoing reasons, we affirm in part, reverse in part, and remand.

      All sitting. Cunningham, Keller, Venters and Wright, JJ., concur.

Minton, C.J., concurs in part and dissents in part by separate opinion in which

Hughes and VanMeter, JJ., join.

      MINTON, C.J., CONCURRING IN PART AND DISSENTING IN PART: I

concur in part and dissent in part with the majority bpinion. Consistent with

·my dissent in Parker v. Webster County Coal, I must dissent from the majority's

portion that reverses the Court of Appeals opinion that affirmed the AW's order

limiting Cruse's benefits based on KRS 342.730(4).

      Hughes and VanMeter, JJ., join.



COUNSEL FOR APPELLANT:

Austin P. Vowels
Vowels Law PLC


COUNSEL FOR APPELLEE: .

David Leo Murphy
Murphy Law Offices, PLLC


COUNSEL FOR AMICUS CURIAE, AARP:
        ~


Timothy Jay Wilson
Wilson & McQueen
                                                                                    /


                                          12
COUNSEL FOR AMICUS CURIAE, KENTUCKY CHAPfER OF AMERICAN
FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS
(AFL-CIO):

Mary Michele Cecil
Caslin & Cecil




                     J




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