IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, RAP 40(D) THIS
OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR
CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN
UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A
COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG
WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO
THE ACTION.
RENDERED: APRIL 27, 2023
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0566-WC
KELLOGG’S APPELLANT/CROSS-APPELLEE
V. ON APPEAL FROM COURT OF APPEALS
2020-CA-0709
WORKERS’ COMPENSATION BOARD
WC-14-90651
LESLIE LAWRENCE APPELLEE/CROSS-APPELLANT
HONORABLE CHRIS DAVIS, APPELLEES
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
2022-SC-0010-WC
LESLIE LAWRENCE APPELLANT/CROSS-APPELLEE
V. ON APPEAL FROM COURT OF APPEALS
2020-CA-0709
WORKERS’ COMPENSATION BOARD
WC-14-90651
KELLOGG’S APPELLEE/CROSS-APPELLANT
HONORABLE CHRIS DAVIS, APPELLEES
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART, REVERSING IN PART & REMANDING
This case is before the Court on appeal as a matter of right.1 Kellogg’s
argues the ALJ did not comply with the requirements laid down in City of
Ashland v. Stumbo, 461 S.W.3d 392 (Ky. 2015), when he ruled that Leslie
Lawrence was permanently, totally disabled. Lawrence, on the other hand,
appeals from the ALJ’s ruling, arguing for “an award of Permanent Partial
Disability benefits based on the 8% Whole person impairment beginning with
the date of injury, offset by periods of temporary total disability benefits, until
the date he became permanently totally disabled.” The Worker’s Compensation
Board reversed the ALJ as to the issue of compliance with City of Ashland but
affirmed the ALJ’s refusal to grant PPD payments. The Court of Appeals
reversed the Board as to compliance with City of Ashland but affirmed the
refusal to grant PPD payments. For the following reasons, we affirm in part,
reverse in part, and remand to the ALJ for further consideration.
I. Facts
Lawrence worked for Kellogg’s from 1977 to April 9, 2016, the day he
retired. In 1999, he was transferred to the shipping and receiving department
where he loaded orders using a forklift. On March 11, 2014, he was struck by a
co-worker operating a forklift, injuring his right foot underneath the vehicle. As
recounted by the Court of Appeals,
As a result of the accident, Lawrence sustained significant injuries
to his right ankle. Lawrence sought treatment from Dr. Kevin
Harreld, who diagnosed Lawrence with a fractured right ankle and
initially placed his ankle in a cast. Dr. Harreld subsequently
performed an open reduction and internal fixation procedure to
1 Ky. Const. § 115.
2
repair Lawrence's injured ankle. On May 5, 2014, Dr. Harreld
noted that Lawrence could return to work with restrictions of sit-
down duty only and the ability to elevate his right leg and take
breaks as necessary. In September of 2014, Lawrence returned to
work for Kellogg's on full duty. Lawrence testified that upon
returning to regular duty, his ankle swelled and his back hurt from
standing for long periods of time while working.
Lawrence was on full-duty work release until November of 2015
when he returned to Dr. Harreld with complaints of continued
ankle pain. At that time, Dr. Harreld gave Lawrence work
restrictions to allow him to take breaks at work every two hours as
needed to elevate his right leg, ice his ankle, and limit forklift use
to two hours at a time. On January 20, 2016,
at Lawrence's request, Dr. Harreld performed an operation to
remove the surgically placed hardware from Lawrence's right
ankle. Thereafter, on March 1, 2016, Dr. Harreld
released Lawrence to return to work at full duty, with the
restriction that he could take breaks every two hours to elevate
and ice his right ankle. Lawrence testified that he returned to work
for two days following the hardware removal surgery but ultimately
decided to retire in the spring of 2016[.]
The Court of Appeals further summarized the medical evidence in this
case related to Lawrence’s ankle injury,2
On November 4, 2014, Dr. Harreld stated Lawrence had reached
maximum medical improvement (MMI) for his right ankle fracture.
At this point, Dr. Harreld assigned a 3% impairment rating
pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2000). Dr. Harreld
believed Lawrence required no further restrictions and could
return to work for Kellogg's on full duty. The ALJ considered all of
the above-mentioned medical treatment by Dr. Harreld, including
the work restrictions he assigned Lawrence on March 1, 2016.
Dr. Guarnaschelli performed an independent medical evaluation
(IME) on September 7, 2016. Dr. Guarnaschelli
diagnosed Lawrence with a right ankle fracture caused by a work-
related injury. He assigned Lawrence a 21% total impairment
2 Lawrence’s original claim had also sought compensation for a psychological
condition, lower back condition, and left knee condition. The ALJ ruled against all
three claims. Lawrence did not appeal those rulings to the Court of Appeals nor this
Court so we will not discuss the evidence related to those claims.
3
rating and believed Lawrence would experience difficulty returning
to full-time employment without significant ability to sit, rest, and
take frequent breaks. Dr. Guarnaschelli further observed that
persistent standing or walking would exacerbate the healing
process of Lawrence's right ankle fracture.
Lawrence was examined by Dr. Roberts on February 14, 2018 as
part of an additional IME. Dr. Roberts diagnosed a fractured right
ankle and noted that he believed the injury was the result of the
forklift incident. Dr. Roberts noted that he
believed Lawrence reached MMI on October 11, 2014 and assigned
him an 8% impairment rating due to his right ankle injury.
Further, Dr. Roberts acknowledged that he did not
believe Lawrence was capable of returning to any competitive
employment on a regular and sustained basis.
Dr. Larkin conducted an IME on Lawrence on April 4, 2018. The
physical examination of Lawrence's right ankle showed a reduced
range of motion. Dr. Larkin assigned an 8% impairment rating and
indicated that he believed Lawrence reached MMI on March 2,
2016. Dr. Larkin further opined that Lawrence could return to the
type of work done at the time of his injury.
[Robert] Tiell conducted a vocational evaluation of Lawrence on
December 17, 2016. Tiell reported that Lawrence was considered
an older adult and that his ankle injury was a significant deterrent
for employability. Tiell defined Lawrence's work for Kellogg's from
1977 through April 2016 as semi-skilled in nature and requiring at
least medium exertion. Finally, Tiell noted that he
believed Lawrence had a 100% occupational loss due to his ankle
injury, and “did not believe Lawrence had skills to transfer into
other jobs such as clerical.”
Dr. Conte conducted a vocational evaluation of Lawrence on April
12, 2018 in which he performed a review of Lawrence's medical
records and administered to Lawrence various vocational skills
tests. Dr. Conte reported that Lawrence's test scores indicated the
capacity to perform a variety of occupations in the “semi-skilled
and unskilled labor market” and that he believed Lawrence has the
capacity to acquire additional vocational skills.
The ALJ also made note of this evidence in his Opinion, Award and
Order. The ALJ made findings of fact that Lawrence was “permanently and
totally disabled as a result of the work injury[,]” and that he “is totally disabled
solely as a result of his work-related right ankle injury.” The ALJ adopted an
4
impairment rating of 8% based on Dr. Roberts’ report. Opining further on the
permanent, total disability, the ALJ wrote,
I have the FCE from Rick Pounds, which states the Plaintiff can
work as a lift truck operator. I have the restrictions from Dr.
Larkin, which are that the Plaintiff can work in medium duty
seated position with some weight bearing and ambulation. These
would seem to indicate that the Plaintiff could find jobs within in
[sic] abilities, maybe even return to the type of work done on the
date of injury. However, I do not adopt these restrictions.
Rather I adopt the restrictions assigned by the treating physician
an surgeon, Dr. Harreld. When Dr. Harreld did finally discharge
the Plaintiff after a long course of treatment, including two
surgeries, he said that the Plaintiff would need to ice and elevate
his right ankle periodically throughout the day.
This restriction alone would render most people totally disabled.
Much less a man who has spent his entire professional life, almost
40 years, in factories and shipping departments. It is doubtful that
many employers would tolerate this for an extended period. The
Plaintiff’s high school education does not create sufficient
opportunities to overtime this severe restriction nor does his work
experience.
While some may seek a more detailed explanation, I doubt many
people could envision hiring, on a permanent basis, a 58-year-old
man with factor [sic] and shipping experience, and a high school
education, who had to elevate and ice his ankle every so often.
The ALJ determined the award for permanent, total disability should be
retroactive to March 14, 2014, excluding periods Lawrence actually worked. He
also gave a credit to Kellogg’s “against any past due benefits for overpayment of
TTD as to rate.” The parties stipulated that TTD payments were made between
March 12, 2014 through May 11, 2014, and January 2, 2016 through March 1,
2016. The ALJ’s original opinion did not discuss the PPD benefits Lawrence
had requested. Both parties filed petitions for reconsideration, arguing
substantially the same arguments presented on this appeal. The ALJ rejected
both, stating that Kellogg’s was not entitled to an opinion which analyzed
5
evidence the ALJ had reviewed and rejected. He also stated that he found Dr.
Conte to be “entirely uncredible[.]” Finally, he rejected Lawrence’s claim for
PPD benefits, stating
While I understand the Plaintiff was working with some pain I do
not believe he was solely out of necessity. It was light duty, but not
made up work. He was paid equal or greater wages. He hoped to
make a full recovery. His actual disability began as outlined in the
Opinion.
Both parties appealed to the Worker’s Compensation Board. The Board
concluded the ALJ’s analysis regarding the permanent, total disability was not
in compliance with the requirements of City of Ashland v. Stumbo, 461 S.W.3d
392, 396-97 (Ky. 2015). The Board wrote, “The ALJ’s opinion does not
sufficiently set forth a detailed analysis, properly weighing the evidence of
record in determining whether Lawrence will be able to earn income by
providing services on a regular and sustained basis in a competitive economy.”
As to the PPD payments, the Board wrote, “Lawrence has not cited to any
authority authorizing an award of PPD prior to the award of PTD.” Despite that,
the Board went on to reason that Lawrence’s
condition was not at MMI until after his recovery from the second
surgery for hardware removal. Lawrence received TTD benefits, or
earned equal or greater wages until he recovered from his second
surgery. Because the condition was not at MMI during his return
to work, Lawrence would not be entitled to PTD benefits while
earning full wages.
It is unclear if the reference to PTD (as opposed to PPD) benefits in the last
sentence was a typographical error.
6
The Court of Appeals reversed the Board as to compliance with City of
Ashland but affirmed the Board as to the denial of PPD benefits. Further
analysis of the Court of Appeals decision will be discussed below.
II. Standard of Review
The ALJ is the sole fact-finder and has “discretion to determine the
quality, character, and substance of the evidence and to draw reasonable
inferences from the evidence.” City of Ashland, 461 S.W.3d at 396 (quoting
Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000)). “[T]he ALJ ‘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.’” Id. On appeal,
The function of further review of the WCB in the Court of Appeals
is to correct the Board only where the the [sic] Court perceives the
Board has overlooked or misconstrued controlling statutes or
precedent, or committed an error in assessing the evidence so
flagrant as to cause gross injustice. The function of further review
in our Court is to address new or novel questions of statutory
construction, or to reconsider precedent when such appears
necessary, or to review a question of constitutional magnitude.
Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). The party
with the burden of proof before the ALJ, and is successful, need only show that
the decision is supported by substantial evidence. French v. Rev-A-Shelf, 641
S.W.3d 172, 178 (Ky. 2022). If the party with the burden of proof loses before
the ALJ, then “the test is whether the evidence compelled a finding in his
favor[.]” Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
7
III. Analysis
A. The ALJ Complied with City of Ashland
City of Ashland delineates five-steps the ALJ must take prior to making
an award for total disability. The ALJ must “determine if the claimant suffered
a work-related injury[;]” “determine what, if any, impairment rating the
claimant has[;]” determine the “permanent disability rating[;]” “determine that
the claimant is unable to perform any type of work;” and finally, “determine
that the total disability is the result of the work injury.” City of Ashland, 461
S.W.3d at 396-97.
The Court of Appeals noted that only the fourth requirement is at issue
in this case. Thus, regarding that particular step,
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.
Id. The factors which have previously been identified by this Court to consider
include,
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.
Ira A. Watson Dep’t Store v. Hamilton, 34 S.W.3d 48, 51 (Ky. 2000).
8
The ALJ’s analysis in this case was pithy, and perhaps something more
could have been said in order to clarify his reasoning to the parties and better
facilitate review on appeal. But editorial preferences are one thing; legal
sufficiency is another. We agree with the Court of Appeals’ analysis below and
adopt it as our own.
The ALJ properly determined based on the medical proof that
Lawrence would have to spend part of his day seated, would need
breaks, and would need the opportunity to ice his ankle
throughout the day. The ALJ next determined that Lawrence's age
(fifty-eight), work experience (factory and shipping work), and
education (a high school diploma) were not sufficient to create
other work opportunities for him within his restrictions. The ALJ
then determined that it was not realistic to believe that an
employer would want to hire an employee for a factory job where
the employee had to take multiple breaks throughout the day to ice
his ankle.
This analysis comports with [City of Ashland v.] Stumbo. It is clear
from the ALJ's opinion that he determined that Lawrence would
not be a good candidate for a more sedentary position that would
fit within his restrictions due to his limited work history, age, and
education, and the prospect of Lawrence finding factory work
within his restriction was bleak. More extensive findings were not
necessary. Therefore, the Board misconstrued what was necessary
under Stumbo and erred in vacating and remanding for additional
findings on this matter because there was evidence of sufficient
probative value to support the ALJ's opinion.
Of particular note, the evidence in this case, though not cited by the ALJ,
which supports the decision are Dr. Harreld’s medical reports and restrictions,
as well as Robert Tiell’s vocational evaluation that determined Lawrence was
100% occupationally disabled. Even if it could be argued that Dr. Harreld’s
restrictions do not foreclose the proposition that Lawrence could work in some
capacity, it is the ALJ’s prerogative “to translate the lay and medical evidence
into a finding of occupational disability.” Id. at 52. There was substantial
9
evidence in the record to support the ALJ’s decision. The Court of Appeals is
affirmed.
B. Error as to PPD Benefits
In his original Opinion, Award, and Order, the ALJ failed to mention PPD
benefits at all. In his Order subsequent to Lawrence’s petition for
reconsideration on that issue, the ALJ opined,
While I understand the Plaintiff was working with some pain I do
not believe he was solely out of necessity. It was light duty, but not
made up work. He was paid equal or greater wages. He hoped to
make a full recovery. His actual disability began as outlined in the
Opinion.
We are at a loss to understand why the ALJ, the Board, and the Court of
Appeals found this analysis sufficient, but it is not sufficient. The Worker’s
Compensation statute states, “If an employee returns to work at a weekly wage
equal to or greater than the average weekly wage at the time of injury, the
weekly benefit for permanent partial disability shall be determined under
paragraph (b) of this subsection for each week during which that employment
is sustained.” KRS 342.730(1)(c)(2). Obviously then, the return of Lawrence to
work at equal or greater wages cannot preclude an award of PPD. Moreover, the
ALJ stated Lawrence’s “disability began as outlined in the Opinion.” But we
have previously stated that “an award of permanent partial disability
under KRS 342.730(1)(b) is based solely on a finding that the injury resulted in
a particular AMA impairment rating, with the amount of disability being
determined by statute.” Roberts Bros. Coal Co. v. Robinson, 113 S.W.3d 181,
183 (Ky. 2003). “Impairment and disability are not synonymous.” Id. Thus, the
10
beginning of Lawrence’s disability is irrelevant to whether he was entitled to
PPD benefits. The issue is impairment; and while the ALJ did make a finding
for an impairment rating of 8%, he nowhere makes a finding of fact as to the
date this impairment became effective. The ALJ never made a finding of fact of
the date Lawrence reached MMI. And, because impairment and disability are
not synonymous, the 8% impairment rating the ALJ did find for the award of
PTD benefits may not even be applicable to an award for PPD benefits. Id.
Finally, before the ALJ, Lawrence “had to establish three elements to be
entitled to PPD benefits . . . including: a statutory injury; an impairment rating
pursuant to the Guides; and the ability to work, albeit with restrictions.”
Greene v. Paschall Truck Lines, 239 S.W.3d 94, 108 (Ky. App. 2007); KRS
342.0011(11)(b). Hence, the motivating factor for a worker’s return to work—
not solely out of necessity, as noted by the ALJ—is likewise irrelevant. The
motivation for a worker’s return to work is not mentioned in either KRS
342.0011(11)(b) nor in KRS 342.730(1)(b). Because the ALJ’s reasoning, so far
as this Court can discern, is based on several reasons not actually relevant as
a matter of law to an award of PPD benefits, the ALJ’s refusal to grant PPD
benefits was clearly erroneous for overlooking and misconstruing controlling
statutes. Western Baptist, 827 S.W.2d at 687.
What is available in the record does not allow for meaningful review of
the particular question of PPD benefits, thus the Board ought to have
remanded back to the ALJ for more specific findings of fact on that issue. Tyron
Trucking, Inc. v. Medlin, 586 S.W.3d 233, 238 (Ky. 2019). Instead, the Board
11
noted first, that no judicial authority exists authorizing the award of PPD
benefits before PTD benefits; and second, it conducted its own analysis of the
merits of the question based on when Lawrence reached MMI. But the Board is
not a fact-finder. KRS 342.285(2). The failure of the ALJ to assign a date as to
when MMI was reached, and to even explicitly adopt or decline to adopt an
impairment rating for PPD benefits, precluded the Board from analyzing the
question further. We consider the question of whether the Worker’s
Compensation statute authorizes an award of PPD benefits prior to an award of
PTD benefits to be unripe at this time for adjudication. We note, however, that
Lawrence has cited two cases from the Worker’s Compensation Board
approving of an award of PPD benefits followed by an award of PTD benefits,
and we see no reason why the Board should not look to its own decisions for
guidance when the courts have as yet been silent.
To be clear, if an appellate court has not definitively spoken on a
particular question, then the proper analysis for an ALJ and the Board to
conduct is to refer to the statutory text and determine whether the statute
authorizes or precludes that which is being contended for. There is a hint of
arbitrariness in an ALJ or the Board refusing an award simply by saying the
courts have not spoken, we are helpless. Clearly, it is the job of an ALJ and the
Board to apply the Worker’s Compensation statute to the particular facts of a
claimant’s case. The lack of judicial authority on a particular question,
standing alone, is not a sufficient reason to approve or deny an award. There
must be an analysis of the statutory text and application of the text to the facts
12
of the claimant’s case, as determined by the ALJ. The Court of Appeals is
reversed.
IV. Conclusion
For the following reasons, we affirm in part, reverse in part, and remand
to the ALJ for further consideration consistent with this opinion.
VanMeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell, JJ., sitting.
All concur. Thompson, J., not sitting.
COUNSEL FOR KELLOGG’S:
Mark R. Bush
Samantha Steelman
Reminger Co., L.P.A.
COUNSEL FOR LESLIE LAWRENCE:
Stephanie Nicole Wolfinbarger
Cotton Wolfinbarger & Associates, PLLC
ADMINISTRATIVE LAW JUDGE:
Hon. Chris Davis
WORKER’S COMPENSATION BOARD:
Michael Wayne Alvey
Chairman
13