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RENDERED: AUGUST 24, 2017
NOT TO BE PUBLISHED
§upreme Court of Beni[§x{ng AL
2016~sC-000451-Wc @ATE q/[qh., gm M,,,,,,pc,
TRIM MASTERS, INC. APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2015-CA-000923-WC
V. WORKERS’ COMPENSATION BOARD
NO. 1 1-WC-66743
EVA BETH ROBY; ' APPELLEES
HON. WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The Administrative Law Judge (ALJ) found that Eva Beth Roby is
permanently and totally disabled as a result of a work~related injury. T he
Workers’ Compensation Board (Board) reversed the ALJ and remanded with
instructions for the ALJ to make an award of permanent partial disability. The
Court of Appeals, holding that the Board had substituted its judgment for that
of the ALJ, reversed the Board and reinstated the ALJ’s opinion. Having
reviewed the record, we affirm the Court of Appeals.
I. BACKGROUND.
The underlying facts are essentially not in dispute. Roby, who worked as
an assembler for Trim Masters, suffered a repetitive trauma injury to her right
upper extremity that became manifest on April 22, 2011. At the time, Roby
was thirty-three years of age; had a high school education with no specialized
or vocational training; and had worked as a retail and fast food cashier and an
assembler for another manufacturer. As a result of her injury, Roby
experienced pain throughout her right upper extremity with loss of right hand
grip strengt.h.
Dr. Gabriel initially treated Roby conservativer but, when she did not
improve, he performed surgery in October 2011. Following that surgery, Roby
continued to experience right upper extremity pain and weakness, and Dr.
Gabriel advised her to refrain from repetitive use of her right upper extremity
and to avoid lifting more than 10 pounds. Roby has not returned to work since
October 201 1.
In November 2012, Roby filed an Application for Resolution of Injury
v Claim. The parties thereafter litigated this matter with Roby filing a medical
report from Dr. Bilkey, who concurred with Dr. Gabriel’s restrictions and who
assessed a 6% permanent impairment rating. Roby also filed a vocational
report from William Ellis who opined that, because of the limitations on the use
of her right upper extremity, Roby was totally disabled. Ellis indicated that
Roby might benefit from vocational rehabilitation but not until her pain
decreased and her use of her upper extremity improved.
2
Trim Masters filed the vocational evaluation report of Paula Shif`flett.
Shifflett noted that Roby had enrolled as a full-time student in the nursing
program at St. Catherine College, with the intent of becoming a pediatric nurse.
Shifflett did not address the extent of Roby’s disability but provided a detailed
cost/ benefit analysis of attending St. Catherine College versus attending
Bluegrass Community and Technical College. Trim Masters also filed Dr.
Gabriel’s records and a job description, which indicated that Roby was required
to use her hands constantly and lift up to 20 pounds.
Roby testified in her deposition and at the final hearing that she was
attending St. Catherine College with the goal of becoming a pediatric nurse.
According to Roby, nurses, counselors, and teachers had advised her that she
would be able to work as a pediatric nurse with her restrictions.
Based on the preceding evidence, the ALJ rendered an opinion on May
13, 2013, finding that Roby is totally and permanently disabled. Trim Masters
appealed to the Board. On January 3, 2014, the Board vacated the ALJ’s
opinion and remanded with instructions for the ALJ to undertake additional
analysis regarding his finding of permanent and total disability. In particular,
the Board ordered the ALJ to address how Roby’s age and her “current
schooling and nursing aspirations factor into his decision.” Furthermore, the
Board stated that “[a]lthough there may be substantial evidence in the record
supporting the ultimate determination Roby is permanently and totally
disabled, the ALJ must provide an adequate explanation of the basis for his
decision.” Finally, the Board stated that it was not directing the ALJ to make
any particular finding as to the extent and duration of Roby’s disability.
On February 14, 2014, the ALJ rendered an amended opinion, again
finding that Roby is totally and permanently disabled. As noted by the Court of
Appeals, the ALJ’s second opinion:
[R]estated key points from the testimony of [Dr.] Bilkey, noting that
it was the most compelling evidence presented. With regard to age,
the ALJ only noted that [Roby] was in “early middle age.” In regard
to Roby’s education, the ALJ noted that she received her high
school diploma “many years ago” and it was reasonably probable
that if Roby received vocational rehabilitation and completed her
degree, she could find gainful employment, which would operate as
grounds for Trim Masters to move to reopen the matter under
[Kentucky Revised Statute] KRS 342.125.
Roby v. Tn'm Masters, Inc., 2015-CA-000923-WC, 2016 WL 3962602, at *2 (Ky.
App. July 22, 2016). Trim Masters again appealed to the Board.
On July 3, 2014, the Board again vacated the ALJ’s opinion, finding that
he had again failed to adequately address how Roby’s age and educational
pursuits factored into his opinion. Additionally, the Board stated that the ALJ
had failed to factor into his opinion Roby’s testimony that a number of people
had advised her that she would be able to work as a pediatric nurse within her
\
restrictions.
On August 11, 2014, the ALJ rendered a third opinion, noting that he
observed Roby and was in the best position to judge her credibility. The ALJ
also found that Roby’s “age places her in early middle age for the purposes of
re-employment in the highly competitive job market.” As to her education, the
ALJ noted that it had been several years since Roby completed high school and
4
that she had no vocational education or training, which also had an adverse
impact on her ability to find employment As to Roby’s physical capabilities,
the ALJ found that her restrictions limited her to one-handed work and that
her level of pain further restricted her employment options. Based on the
preceding, as well as Ellis’s opinion that Roby is incapable of returning to work,
the ALJ again found her to be permanently and totally disabled. Trim Masters
again appealed to the Board.
On December 5, 2014, the Board again vacated the ALJ’s opinion,
finding that he had failed to adequately address Roby’s pursuit of a nursing
degree in his conclusion. The Board also stated that the ALJ’s finding that
Roby is “early middle age” did not adequately address how he factored Roby’s
age into his conclusion.
On January 15, 2015, the ALJ rendered his fourth opinion, which as the
Court of Appeals found,
was largely identical to the opinion he issued on August 11, 2014,
with several exceptions. The ALJ underlined pertinent facts
throughout his recitation of the evidence which tend to support his
findings. Regarding Roby’s age, the ALJ offered the following
finding: “Ms. Robv is now 37 vears of a:ge and I make the
determination that her ge places her in the early middle age for
purposes of re-emplovment in the highly competitive iob market
under Bureau of Labor Statistics studies” (emphasis in original).
He further opined that the fact that Roby is 37 years old and has
not worked in three years supports a finding of P'I`D, with no
further elaboration. The ALJ also repeated Ellis' conclusions just
as he had done in the previous order, but with underlining for
emphasis. The ALJ also addressed the new concern raised by the
Board in its previous order, by noting that no vocational evidence
was produced which tended to show Roby would be physically
capable of performing the job duties of a pediatric nurse, and the
only evidence to the contrary is anecdotal. The ALJ ultimately
reached the same conclusion as in the previous three orders [sic].
5
Id. at *3. Trim Masters appealed to the Board for the fifth time.
As the Court of Appeals indicated, it appears that “[t]he patience of the
[Board] members had clearly grown thin by this point.” Id. This time, the
Board vacated the ALJ’s opinion stating as follows:
After having been afforded the opportunity to do so on
multiple occasions, the ALJ has failed to provide more than mere
conclusory statements in determining Roby is permanently totally
disabled. Regarding the impact of Roby’s college enrollment, the
ALJ merely stated there was no “expert testimony”. Regarding
Roby’s age, the ALJ repeated the fact Roby is thirty-seven years of
age, which he found to be “early middle age”, again without
explaining the impact, or how this supports his finding of PTD.
The ALJ’s statement Roby has not worked in over three years is
based on an assumption since there is no such testimony in the
record. The ALJ merely assumes Roby had not worked since the
claim was initially taken under submission.
Authority generally establishes an ALJ must effectively set
forth adequate findings of fact from the evidence in order to
apprise the parties of the basis for his decision, although he is not
required to recount the record with line-by-line specificity nor
engage in a detailed explanation of the minutia of his reasoning in
reaching a particular result. Shields v. Pittsbln"gh and Midway
Coal Min. Co., 634 S.W.2d 440 (Ky. App. 1982); Big Sandy Cmg.
Action PrQLam v. Chaffins, 502 S.W.2d 526 (Ky. 1973).
We agree the ALJ was not required to discuss every shred of
evidence which factored into his decision, However, after being
directed to do so, and having been afforded the opportunity to
provide some explanation for his reasoning, the ALJ has failed to
explain how the fact Roby is now thirty-seven years of age
translates into her being permanently totally disabled. Likewise,
although directed to do so, the ALJ has failed to address how the
fact Roby is attending college has factored into his reasoning
The ALJ has failed to respond to the directive of this Board,
and has only provided conclusory statements. Merely making
conclusory statements without citation to supporting substantial
evidence amounts to an abuse of discretion. Abuse of discretion
has been defined, in relation to the exercise of judicial power, as
that which “implies arbitrary action or capricious disposition under
the circumstances, at least an unreasonable and unfair decision.”
Kentuckv Nat. Park Commissi