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LKLP cAc INC.' ., 4 ' APPELLANT

 

 

ON APPEAL FROM COURT OF APPEALS _
' . C_ASE NO. 2016-CA-OOOl63-WC
V. WORKERS’ COMPENSATI`ON BOARD
NO. 09-WC-97826

BRANDON FLEMING; ' _ ! APPELLEES
HON. R. ROLAND CASE, '

ADMINISTRATIVE LAW JUDGE; AND

WORKERS’ COMPENSATION BOARD

OPIN_ION_ OF THE COURT BY JUSTICE KELLER
AFFIRMING

In 2010, an Administrative Law Judge'(ALJ] awarded Brandon Fleming
permanent partial disabilit_§'r benefitspbased. on a finding that Fleming had a
physical impairment rating of 1'3% and a psychological impairment rating of
5% ‘for a combined permanent impairment rating of 17%. Fleming filed a
motion to reopen his claim in 2014 alleging that his condition had Worsened. A
ciiffereri_c ALJ round ihat Fieming had a physical impairment rating of 23% ana l

a psychological impairment rating of 12% for a combined permanent

impairment rating of 32%.1 LKLP CAC Inc. (LKLP) appealed, and a divided
`Workers’ Compensation Board (the Board) affirmed. LKLP then sought review
before the Court of Appeals, which also affirmed Bef`ore us, as it did before thel
Board and the Court of Appeals, LKLP argues that the ALJ’s opinion is not
supported by evidence of substance because the ALJ relied on a physician who
stated that Fleming’s permanent impairment rating had not changed following
the 2010 opinion and award. As did the majority of the Board and the Court of
Appeals, we disagree that the ALJ’s-findings are not properly supported by the
evidence and affirm. `

n I. BACKGROUN]:').

Fleming Worked as a youth director for LKLP, a community action
agency. On October 22, 2007, Fleming suffered a work-related back injury
when the van he was driving was struck from behind. ln September 2008,

_ Fleming underwent lumbar spine fusion surgery, which initially alleviated some
of his leg symptoms, and he returned to work. However, Fleming continued to
suffer from low back pain that was aggravated by standing or sitting for long
periods and he stopped working in August 2010. We note that, in addition to
his physical complaints, Fleming complained of irritability and depression

However, the only issues before us are related to Fleming’s physical

 

, 1 The 17% and 32% permanent impairment ratings were calculated using the
“Combined Values Chart” on pages 604~06 in Linda Cocchiarella and Gunnar B.J.
Andersson, AMA Guides to the Evaluation of Permanent Irnpairrnent (5'-h ed. 2012).

complaints; therefore, we do not further address Fleming’s psychological
condition.

LKLP disputed'the work~relatedness of Fleming’s injury, and Fleming
filed a claim for benefits. Duri'ng"the litigation of that claim, the parties
introduced the following pertinent medical evidence. Dr. David Herr diagnosed
Fleming with a herniated disc at L5-Sl that had been surgically repaired. He
assigned Fleming a 13% permanent physical impairment rating and stated that
Fleming should avoid heavy lifting and repetitive bending and should change
positions frequently. 4

" Based on that evidence, the ALJ found that Fleming had a 13%
permanent physical impairment rating and that Fleming was capable of
performing the type of work he performed at the time of his injury. Therefore,
the AI.J did not award Fleming the three multiplier under Kentucky Revised‘ _
statute (KRS) 342.'730(1)(¢)1." ' in '

On March 26, 2014, Fleming filed a motion to reopen, alleging that his
y condition had worsened. During the reopening litigation, the parties filed the
_ following pertinent evidence. n - l

Fleming testified that, after the 2010_ opinion and award, his back and
leg pain _increased, and he was no longer able to: work, mow his lawn, perform
most non-sedentary household chores, or_ drive long distances. In an attempt
to alleviate his pain, Fleming had undergone implantation of a spinal cord

stimulator in 201 1. That device proved to be helpful in partially alleviating

\

Fleming’sleg symptoms; however, his physician had to remove it Within a year
because of a malfunction.

In addition t`o his testimony, Fleming filed voluminous medical records as
well as reports from Drs. Brackett and Guberman. Dr. Brackett stated that
Fleming has a 47% permanent impairment rating, 15% attributable to his
' cervical spine, 6% attributable to his thoracic spine, and 28% attributable to

_ his lumbar spine, F.urthermore, Dr.- Brackett stated thatl Fleming could not
return to the type of Work he performed at"the time of his injury, and that
Fleming should avoid: prolonged walkin'g, standing,l stooping, squatting, hip"
bending, elimbing, and excessive flexion, extension, and rotation of his back._r
Dr. Guberman stated that Fleming has a 23% permanent impairment rating,

7 which reflects a 15% increase from the permanent impairment rating initially
assessed by the ALJ. Dr. Guberman also stated that Fleming should avoid
l prolonged sitting,_ traveling? carrying, lifting, pushing, and pulling. Finally,

Fleming filed a functional capacity assessment indicating that he could perform
light'and sedentary work as long as he could frequently change positions.

LKLP filed a medical report from Dr. Vaughan and the transcript of Dr.
Vaughan’s deposition. Dr. Vaughan, who did not evaluate Fleming during the .`
initial litigation, stated that Fleming has a 23% permanent impairment rating,
should avoid lifting more than 25 pounds and repetitive bending and twisting,
and should alternate between sitting and standing. Dr. Vaughan stated that
he would have assigned the same permanent impairment rating and imposed

t the same restrictions if he had seen Fleming following his surgery. LKLP also

4

filed a functional capacity assessment that indicated Fleming could perform a
wide range of sedentary to medium level work.

The_ ALJ undertook a thorough review of the evidence and concluded that
Fleming is not totally disabled. However, the ALJ found that Fleming’s
permanent physical impairment rating had increased from_13% to 23%. The
_ ALJ also found that Fleming is incapable of returning to his pre-injury work
activity, and he awarded permanent partial disability benefits accordingly In
determining Fleming’s permanent impairment rating; the AI.J stated as follows:

The Administrative Law Judge in the original claim found the
plaintiff had a 13% physical impairment This finding is res
judicata The Administrative Law Judge has reviewed the medical
evidence and is persuaded by the IME report done at the request of
the defendant-employer that the plaintiff now has a 23%
impairment rating. The impairment rating of Dr. Brackett is
rejected since it includes impairment ratings for the thoracic and
cervical area. Dr. Guberman assessed a 15% impairment but after
comparing the reports of Dr. Guberman and Dr. Vaughn [sic], the
Adrninistrative Law Judge is persuaded.by the report of Dr.
Vaughn [sic] that the plaintiff has a 23% impairment rating. Since
the plaintiff only had a 13% impairment rating at the time of the
original opinion and now has a 23% impairment, there has
obviously been an increase in his impairment and the
Administrative Law Judge will so find. As previously indicated the
findings of .the 13% impairment in the original opinion is res
judicata and the defendant cannot now argue that he actually had
a 23% impairment the whole time.

As previously noted, the Board and the Court of Appeals affirmed this opinion
by the ALJ.
' rr. s'rANDARD oF REerw.
The ALJ as fact finder has the sole authority to judge the Weight,
credibility, substance, and inferences to be drawn from the evidence.

` Paramouanoods, rnc. v. Burkhardi, 695 s.W.Qd 413, 419-(Ky. 1985). in
' v 5 .

reaching his decision, the ALJ is free to choose to believe or disbelieve parts of
-the evidence from the total proof, no- matter which party offered it. Caudill v.
Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). I_f the party with the
burden of proof is successful before the ALJ, the question on appeal is whether
the ALJ’s opinion was'supported by substantial evidence. Whittaker v. .
Rowland, 998 .lSl.W.2d 479, ‘_481 (Ky. 1999). Substantial evidence is- evidence of
` substance and relevant _consequence, having the fitness to induce conviction in
the minds of reasonable people. Sniyzer v. B.F. Goodrich Chem. Co., 474
S.W.2d' 367, -369 (Ky. 1971). However, the ALJ’s discretion is not limitless and
we will reverse the ALJ if his opinion “is so unreasonable under the evidence
that it must be viewed as erroneous as a matter of law.” Ira A. Watson Dep’t.
Store v. Hami'lton, 34 S.W.3d 48, 52 (Ky. 2000). Furthermore, when there are
mixed questions of fact and law, we have greater latitude in determining if the
underlying decision is supported by the evidence. Purchase Transp. Sen)s. v.
Estate of V[/ilson, 39 S.W.Sd 816, 817-18 (Ky. 2001); Uninsured Emplogers'
Fund v. Garland, 805 S.W.2d 116, 117 (Ky. 1991).
III. ANALYSIS.
-KRS 342.125(1) provides in relevant part that “an administrative law

judge may reopen and review any award or order” upon a showing of a
'“[c]hange of disability as shown by objective medical evidence of worsening or
improvement of impairment due to a condition caused by the injury since the

date of the award'or order.” While KRS 342.125 permits an ALJ’s award to be

reopened with regard to a change in disability, it does not permit that award to

be reopened for all purposes.

[O]nce an ALJ-adjudicated award and order becomes final, the

ALJ's determinations with respect to,` e.g., causation, notice,

apportionment, etc., cannot be readdressed under KRS 342. 125

except upon an allegation of fraud, newly discovered evidence, or

mistake, grounds that do not exist and are not asserted in this

case. The reason, of course, is that revisiting issues previously

decided is precluded by the principle _of res judicata.
- Garrett Mining Co. v. Nye, 122 S.W.Sd 513, 522 (Ky'. 2003).l Alth'ough not
specifically in.the list of final non-reviewable determinations, _an ALJ’s finding .-
regarding a claimant’s permanent impairment rating at the time of the initial
award is non-reviewable once final._ We reach this conclusion for two reasons.
First, a finding of a permanent impairment rating, like a finding as to
causation, notice, etc., is a threshold issue that forms the basis of an .award.
Second, in Garrett Minin.g,.the Court held that an AlJ could not award benefits
based on a 100% disability when a prior ALJ had found that 22% of the
claimant’s disability actively pre-existed his injury. Id. at 522-23. Because a
permanent impairment rating forms the basis for an award _of disability
benefits, it cannot be ignored any more than a finding of pre-existing disability
can be. Thus,‘we agree with the ALJ, the majority of the Board, and the Court
of Appeals that the first ALJ’s finding that Fleming had a 13% permanent
impairment rating is res judicata and that baseline rating cannot be revised on
reopening absent factors that are not present herein. To be clear, on
reopening, an ALJ can find that a claimant*s permanent impairment rating has

» increased; however, an AL_J on reopening cannot revisit a predecessor’s finding

7

regarding a claimant’s permanent impairment rating. The initial permanent
impairment rating is the baseline which the ALJ must use on reopening to-
determine if there has been any increase. We recognize that KRS 342. 125
states that an'Al..J on reopening can find an increase or decrease in
“impairment.” However, as set_ forth below, “impairment” and “permanent
impairment rating,” although related, are not the same.

Having determined that the initial ALJ’s finding that Fleming had a 13% -
permanent impairment rating is not subject to alteration on reopeningj we
must determine if the ALJ’s finding of a 23% permanent impairment rating on
reopening is appropriate Before undertaking that analysis, we set forth the
difference between “impairment,” as used in KRS 342.125, and “permanent
impairment rating.”

“Impairment” involves the “l_oss of use, or derangement of a body part,
organ system, or organ function due to a condition caused by the injury.”
colw'sll v. presser instrument Dly., 217 S.w.3d_2'13, 218 (Ky. 2006). Thus,
impairment involves a claimant’s ability to function. “Permanent impairment
rating" is the “percentage of whole body impairment caused by the injury or
occupational disease as determined by the ‘Guides to the Evaluation of
Permanent Impairmerit.”’r -KRS 342.001 1(35). A permanent impairment ratingi‘
measures the impact an impairment has on a claimant’s ability to perform

activities of daily living and is used in the Workers"'Compensation Act to

determine the extent of partial disability,2 Colwell, 217 S.W.Sd`a__t 217 . Thus, a
permanent impairment rating is a number used to quantify the extent to which
an injury impedes a worker’s ability to function`.

On reopening, an ALJ may find that a claimant who was initially
permanently partially disabled is permanently totally disabled if the claimant
has established`his impairment has increased to the extent that he is no longer
able to work as defined in KRS 342.001 1(34). Icl. at 21-8. ln such cases, the
ALJ is not required to find, and the claimant is not required to establish, that
he has an increase in permanent impairment rating. Id. On- the other hand, in
order to find that a claimant who was initially permanently partially disabled
only has an increase in that partial disability, the ALJ must find that the `
claimant’ s impairment and permanent impairment rating have increased. Id.
This is so because KRS 7342.125 requires a.clai-mant to show an increase of `
impairment on reopening and the extent of a claimant’s permanent partial
disability is inexorably tied to the claimant’s permanent impairment rating. Id.
See'qlso, KRS ‘342.730('1)(b). ln other words, to show a change from a
permanent partial disability to a permanent,total disability on reopening, a
claimant need only show an increase in impairment, i.e., additional loss of the

use of body part, organ, -etc. However, to show an increase in permanent

 

2 Pursuant to KRS 342.0011(11](0] and KRS 342.0011(36}, a claimant must also
have a permanent impairment rating in order to qualify for permanent total disability.
Fleming has not challenged the ALJ’ s finding of only an increase in permanent partial
disability; therefore, our analysis focuses on permanent partial disability

9

partial disability on reopening, a claimant must show both an increase in
impairment and in permanent impairment rating.

Applying the preceding to this matter, it is clear that Fleming has
established that he had an increase in_permanent impairment rating. The
initial ALJ found that Fleming had a 13% permanent impairment rating, a
finding that is res judicatcl,,i.e., ‘la]n'issue that has been definitively settled by
judicial .decision.?’ Black's Law Dic;tionary (10th ed. 2014).`_ The current ALJ
found that Fleming has a 23% permanent impairment rating. l§y using simple `
arithmetic, it is clear that Fleming'_ has a 10% greater permanent impairment
rating now than he had in 2010.

We recognize LKLP’s argument that Dr. Vaughan stated that Fleming had
a 23% permanent impairment rating in 2010. However, Dr. Vaughan- did not
evaluate Fleming in 2010, was not the finder of fact in 2010, and was not the l
finder of fact on reopening lt is the fact finder’s opinion regarding a claimant’s
permanent impairment rating that controls, not the opinion of a physician As
` noted above, the ALJ was free to choose what evidence to believe. He chose to
believe Dr. Vaughan, who opined that Fleming has _a 23% permanent -
impairment rating, which is greater than the initial baseline permanent
_`impai_'rment rating of 13%. As did the majority of the Board and the panel of
the Court of Appeals, we discern no abuse of discretion in the ALJ’s choice.

Furthermore, we note that, had the ALJ chosen not to rely on Dr.
Vaughan’s permanent impairment rating, he could have relied on Dr.

Guberman’s permanent impairment rating or Dr. Brackett’s lumbar spine .

`10

permanent impairment rating, either of which would have resulted in a finding
of a 15% increase in permanent impairment rating,

l We note LKLP’s argument that Fleming “could have filed other evidence
of impairment during the original-litigation He chose not to. He can not [sic]
now re-litigate by disguising evidence of a higher impairment at the time of the
original ALJ decision as new evidence of a Worsening. The ALJ’s decision is
ultimately allowing such re-litigation.” While, that argument initially has Some
appeal, its underlying premise is flawed. There was no evidence during the

' initial litigation that Fleming had a 23% permanent impairment rating.
Certainly, Fleming may have been able to obtain such an opinion. lf he had
done so and the ALJ had rejected that evidence, he would not now be able to
argue that the rejected permanent impairment rating amounted to new
evidence of an increase in permanent impairment rating. However, the same
holds true for LKLP, lt could have obtained an opinion that Fleming had a
permanent impairment rating other than 13%, but it chose not to do so. Just
as lf`leming could not argue that rejected evidence supported an increase in
permanent impairment rating, LKLP cannot now argue that evidence that did
not exist at the time of the initial litigation is,binding on that issue before the
ALJ on reopening.

Having determined that Fleming established that he has an increased
permanent impairment rating, we must address whether Fleming established a
“[c]hange of disability as shown by objective medical evidence of worsening . . .

of impairment.” KRS 342.125. As this Court stated in Colwell, “greater

ll

\. .‘§c
.;5

permanent impairment rating is objective medical evidence of a worsening of
impairment.” 217 S.W.3d'at 218.. Thus, when the ALJ found that Fleming has
an increased permanent impairment rating, he simultaneously found that
Fleming had an increase in impairmentl F`urthermore, we note that the initial
ALJ found that Fleming’s restrictions permitted him to return to the type of

- work he performed at the time of his injury. The ALJ on reopening found that

' _ Fleming is not capable of performing that type of work, which is evidence of a

change in impairment, That finding by the ALJ is supported by Fleming’s self~-
reported restrictions, the restriction against travelling imposed by Dr.
Guberman, and Dr. Brackett’s opinion that Fleming cannot return to that type
of work. Therefore; we discern no abuse of discretion in the ALJ’s finding that
Fleming has a change in' disability as shown by° objective medical evidence of
worsening of impairment n
IV. CONCLUSION.

We discern no abuse of discretion in the ALJ’s finding that Fleming has
an increase in his permanent_impairment rating, in his impairment, and in his
disability Thstafsi-a, tva ailirm. l

All sitting. All concur.

COUNSEL FOR APPELLANT:

Hugh Brettelle Stonecipher

Ryan Thomp`son

Fogle Keller Purdy, PLLC

-COUNSEL FOR APPELLEE, BRANDON FLEMING:

John Earl Hunt
12 `

