IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
' (
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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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
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12
COUNSEL FOR AMICUS CURIAE, KENTUCKY CHAPfER OF AMERICAN
FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS
(AFL-CIO):
Mary Michele Cecil
Caslin & Cecil
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Fannie L. Cruse v. Henderson County Board of Education
Combined Opinion