LKLP CAC INC. . APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2016-CA-000163-WC
V. WORKERS' COMPENSATION BOARD
NO. 09-WC-97826
BRANDON FLEMING; APPELLEES
HON. R. ROLAND CASE,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
In 2010, an Administrative Law Judge.(ALJ)·awarded Brandon Fleming
permanent partial disability benefits"based on a finding that Fleming had a
physical impairment rating of 13% 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
different ALJ found that Fleming had a physical impairment rating of 23% and
a psychological impairment rating of 12% for a combined permanent
impairment rating of 32%.I 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. Before us, as it did before the
Board and the Court of Appeals, LKLP argues that the AW's opinion is not
supported by evidence of substance because the AW 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 AW's findings are not properly supported by the
evidence and affirm.
I. BACKGROUND.
Fleming worked as a yquth 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. In 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
1The 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 Impairment (5th ed. 2012).
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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. During· the litigation of that claim, the parties
introduced the following pertinent medical evidence. Dr. David Herr diagnosed
Fleming ~th a herniated disc at L5-S1 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.
· Based on that evidence, the A!-J 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 AW did not award ·Fleming the three multiplier under Kentucky Revised
Statute (KRS) 342:730(l)(c)l.
On March 26, 2014, Fleming filed a motion to reopen, alleging that his
condition had worsened. During the reopening litigation, the parties filed the
following pertinent evidence.
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 2011. That device proved to be helpful in partially alleviating
\
3
Fleming's leg symptoms; however, his physician had to remove it within a year
because of a malfunction.
In addition to 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. Furthermore, Dr. Brackett stated that Fleming could not
return to the type of work he performed at·the time of his injury, and that
Fleming should avoid: prolonged walking, standing, stooping, squatting, hip.
bending, climbing, and excessive flexion, extension, and rotation of his back._
Dr. Guberman.stated that Fleming has a 28% permanent impairment rating,
which reflects a 15% increase from the permanent impairment rating initially
assessed by the AW. Dr. Guberman also stated that Fleming should avoid
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 state.d that
he would have assigned the same permanent impairment rating and imposed
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 AW undertook a thorough review of the evidence and concluded that
Fleming is not totally disabled. However, the AW found that Fleming;s
permanent physical impairment rating had increased from_ 13% to 23%. The
. AW 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 AW stated as follows:
The Administrative Law Judge in the original claim found the
plaintiff had a 13%. physfoal 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
Administrative 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 opinio:p. 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 AW.
. II. STANDARD OF REVIEW.
The AW as fact finder has the sole authority to judge the weight,
credibility, substance, and inferences to be drawn from the evidence.
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418,419 (Ky. 1985). In
5
reaching his decision, the AW 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). If the party with the
burden of proof is successful before the AW, the question cin appeal is whether
the AW's opinion was ·supported by substantial evidence. Whittaker v.
-
Rowland, 998 S.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. Smyzer v. B.F. Goodrich Chem. Co., 474
S.W.2d 367, 369 (Ky. 1971). However, the AW's discretion is not limitless and
we will reverse the AW 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. Hamilton, 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. 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).
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 µiedical evidence of worsening or
improvement of impairment due to a condition caused by the injury since the
date of the award.or order." Wl).ile KRS 342.125 permits an AW's award to be
6
reopened with regard to a change in disability, it does_ not permit that award to
be reopened for all purposes.
[O]nce an AW-adjudicated award and order becomes final, the
AW'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.3d 513, 522 (Ky. 2003). Although not
specifically in.the list of final non-reviewable determinations, .an AW'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 Mining,. the Court held that an AW could not award benefits
based on a 100% disability when a prior AW 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 AW, the majority of the Board, and the Court
of Appeals that the first AW's finding that Fleming had a 13% permanent
impairment rating is resju.dicata and that baseline rating cannot be revised on
reopening absent factors that are not present herein. To be clear, on
reopening, an AW can find that a claimanfs permanent impairment rating has
increased; however, an AW 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 th.e AW must use on reopening to
determine if there has been any increase. We recognize that KRS 342.125
states that an AW 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 AW's finding that Fleming had a 13%
permanent impairment rating is not subject to alteration on reopening, we
must determine if the AW'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 "I.ass of use, or derangement of a body part,
organ system, or organ function due to a condition caused by the injury."
Colwell u. Dresser Instrument Diu., 217 S.W.3d.213, 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.m KRS 342.0011(35). A permanent impairment rating··
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
8
determine the extent ofp,u-1:ial disability.2 Colwell, 217 S.W.3d at 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 AW 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 342.0011(34). Id. at 218. In such cases, the
AW 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 perrrianently.partially disabled
only has an increase in that partial disability, the AW must find that the
claimant's impairment and permanent impairment rating have increased. Id.
This is so because KRS 342.125 requires a claimant 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 also, KRS 342.730(l)(b). In 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 io KRS 342.00ll(lll(c) 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 AW found that Fleming had a 13% permanent impairment rating, a
finding that is resjudicatci,.i.e., "[a]n·issue that has been definitively settled by
judicial decision.~ Black's Law Dictionary (10th ed. 2014)._ The current AW
found that Fleming has a 23% permanent impairment rating. By 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
finder offact on reopening. It is t_he fact finder's opinion regarding a claimant's
permanent impairment rating that controls, not the opinion of a physician. As
noted above, the AW 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
:impairment 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 AW's choice.
Furthermore, we note that, had the AW 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.
We note LKLP's argument that Fleming "could have filed other evidence
of impairment during the. original litigation. He chose not to. He can riot [sic]
now re-litigate by disguising evidence of a higher impairment at the time of the
original AW decision as new evidence of a worsening. The AW'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. If he had
done so and the AW 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 perman,ent impairment rating. However, the same
. I
holds true for LKLP, It could have obtained an opinion that Flemi~g had a
permanent impairment rating other than 13%, but it chose not to do so. Just
as Fleming 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
AW on reopening.
Having determined that Fleming established that he has an increased
permanent impairment rating, we must address whether Fleming established a
"[c]liange of disability as shown- by objective medical evidence of worsening ...
of impairment." KRS 342.125. As this Court stated in Colwell, "greater
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\,;.,.
·~
permanent impairment rating is objective medical evidence of a worsening of
impairment." 217 S.W.3d·at 218. Thus, when the AW found that Flemiri_g has
an increased permanent impairment rating, _he simultaneously found that
C
Fleming had an increase in impairment. Furthermore, we note that the initial
AW found that Fleming's restrictions permitted him to return to the type of
work he performed at the time of his injury. The AW 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 AW 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 AW's finding that
Fleming has a change in disability as shown by objec_tive medical evidence of
worsening of impairment.
IV. CONCLUSION.
We discern no abuse of discretion in the AW's finding that Fleming has
an increase in his permanent impairment rating, in his impairment, and iri his
disability. Therefore, we affirm.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Hugh Brettelle Stonecipher
Ryan Thompson
Fogle Keller Purdy, PLLC
-COUNSEL FOR APPELLEE, BRANDON FLEMING:
John Earl Hunt
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Lklp Cac Inc. v. Brandon Fleming
Combined Opinion