RENDERED: DECEMBER 3, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0308-WC
BRENDA DORNACHER APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-2017-90399
COVINGTON PUBLIC SCHOOLS;
HONORABLE STEPHANIE KINNEY,
ADMINISTRATIVE LAW JUDGE;
KENTUCKY WORKERS’
COMPENSATION BOARD; AND
DANIEL CAMERON, KENTUCKY
ATTORNEY GENERAL APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; TAYLOR AND L. THOMPSON,
JUDGES.
CLAYTON, CHIEF JUDGE: Brenda Dornacher appeals from an opinion of the
Workers’ Compensation Board which affirmed the Administrative Law Judge’s
(ALJ) opinion, award, and order. Dornacher, who was injured while working as a
school bus driver, argues that the ALJ erred in finding that she is not permanently
totally disabled and that her cervical spine injury is not work-related. She further
argues that Kentucky Revised Statutes (KRS) 342.730(4), which applies
retroactively to limit her income benefits on the basis of her age, is
unconstitutional. Upon review, we affirm the opinion of the Board.
Dornacher began working as a bus driver for Covington Public
Schools on December 1, 2016. She was injured on March 9, 2017, while on her
way to pick up a group of students. When she pulled over to allow an emergency
vehicle to pass, another vehicle struck the bus. Dornacher got out to inspect the
damage, tripped on some broken pavement, and fell, hitting her head and right
shoulder, and tearing her rotator cuff. She was 73 years of age on the date of the
injury. She underwent right shoulder surgery on April 17, 2017, and again on
September 19, 2017. Dornacher continues to experience right shoulder pain and
limited strength as well as arm numbness and a decrease in range of motion. She
also suffers from pain in her neck and back. Dornacher alleged that as a result of
the fall, she sustained a right shoulder injury, a cervical injury, and aggravation of
pre-existing cervical degenerative changes.
Dornacher, who was 73 years of age at the time of the injury, has not
been employed since then. Her prior employment history includes working as an
-2-
EMT from the late 1960s to the early 1970s, as a photographer assisting her
husband, as a mail processor at an investment firm, and as a medical records clerk
at a hospital. She began working as a bus driver in 1997. There were also lengthy
periods when she was not employed, from 2003 through 2010, and from April
2011 through November 2015.
The ALJ found that Dornacher had sustained a work-related injury to
her right shoulder as a result of the March 9, 2017 accident, but had not sustained a
cervical injury or an aggravation of pre-existing cervical degenerative changes as a
result of the accident. The ALJ awarded her temporary total disability (TTD)
benefits from April 17, 2017 through February 15, 2019. She awarded permanent
partial disability (PPD) benefits based upon a 25 percent impairment rating for the
right shoulder injury. The benefits were limited based upon her age, pursuant to
KRS 342.730(4).
The ALJ further found that Dornacher was not permanently totally
disabled. In her analysis, the ALJ described Dornacher’s age as “perhaps the
strongest factor” in favor of an award of permanent total disability, but noted that
she has a twelfth-grade education and a plethora of experience performing
sedentary jobs. The ALJ balanced Dornacher’s vocational skills against her work
restrictions, and noted that Dr. John Wolf of Case Consultants of Ohio, who
evaluated Dornacher at her request, did not opine that she was precluded from
-3-
performing any type of work and that Dr. Thomas Bender, who evaluated
Dornacher at Covington’s request, recommended restrictions limited to her upper
right extremity. The ALJ concluded that Dornacher was not permanently totally
disabled because she is capable of obtaining and performing light duty or sedentary
work.
The Board affirmed the opinion, award, and order of the ALJ and this
petition for review by Dornacher followed.
Dornacher’s first argument concerns the constitutionality of KRS
342.730(4), which provides in pertinent part: “All income benefits payable
pursuant to this chapter shall terminate as of the date upon which the employee
reaches the age of seventy (70), or four (4) years after the employee’s injury or last
exposure, whichever last occurs.” The provision became effective on July 14,
2018, and applies prospectively and retroactively. Dornacher argues that the
retroactive effect of the provision in reducing her benefits on the basis of her age is
unconstitutional. The Board refused to address the constitutional issues because
they exceeded the bounds of its jurisdiction as an administrative body. See Blue
Diamond Coal Co. v. Cornett, 300 Ky. 647, 649, 189 S.W.2d 963, 964 (1945).
Shortly after the briefing was completed in this appeal, the Kentucky
Supreme Court rendered an opinion finding the provision at issue to be
constitutional, holding that “the current version of KRS 342.730(4) is not violative
-4-
of the Equal Protection Clause because the age classification is rationally related to
a legitimate state purpose.” Cates v. Kroger, 627 S.W.3d 864, 871 (Ky. 2021). It
further found “no arbitrary exercise of legislative authority in the retroactive
application of the amendment.” Id. Consequently, the statutory limitation of
Dornacher’s benefits on the basis of her age and its retroactive application were not
unconstitutional.
Next, Dornacher contests the ALJ’s determination that she was not
totally permanently disabled.
As the claimant, Dornacher bore the burden of proving the elements
of her claim. Trevino v. Transit Authority of River City, 569 S.W.3d 400, 403 (Ky.
2019). “If the board finds against a claimant who had the burden of proof and the
risk of persuasion, the court upon review is confined to determining whether or not
the total evidence was so strong as to compel a finding in claimant’s favor.”
Snawder v. Stice, 576 S.W.2d 276, 280 (Ky. App. 1979). “The ALJ as fact finder
has the sole authority to judge the weight, credibility, substance, and inferences to
be drawn from the evidence.” LKLP CAC Inc. v. Fleming, 520 S.W.3d 382, 386
(Ky. 2017) (citation omitted). Upon review, we “correct the Board only where the
. . . Court perceives the Board has overlooked or misconstrued controlling statutes
or precedent, or committed an error in assessing the evidence so flagrant as to
-5-
cause gross injustice.” Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88
(Ky. 1992).
KRS 342.0011(11)(c) defines permanent total disability as “the
condition of an employee who, due to an injury, has a permanent disability rating
and has a complete and permanent inability to perform any type of work as a result
of an injury[.]” In order to determine if a claimant is totally disabled, the ALJ is
required to perform a five-step analysis. City of Ashland v. Stumbo, 461 S.W.3d
392, 396-97 (Ky. 2015). These five steps may be summarized as follows: first,
the ALJ must determine if the claimant suffered a work-related injury; second, the
ALJ must determine if the claimant has an impairment rating; third, based on the
impairment rating, the ALJ then must determine the claimant’s permanent
disability rating; fourth, the ALJ must determine whether the claimant is unable to
perform any type of work; and fifth, the ALJ must determine if the claimant’s total
disability is a result of the work-related injury. Id.
Dornacher’s argument focuses on the fourth step, contending that the
ALJ ignored the facts of the case as they relate to deciding whether she is unable to
perform any type of work. In making this determination, the ALJ must consider
“factors such as the worker’s post-injury physical, emotional, intellectual, and
vocational status and how those factors interact.” Ira A. Watson Dep’t Store v.
Hamilton, 34 S.W.3d 48, 51 (Ky. 2000). Dornacher contends that the ALJ gave
-6-
insufficient weight to her advanced age and placed too much stress on the fact that
she has a twelfth-grade education, which she contends has no relevancy to jobs in
the twenty-first century. She also disputes the ALJ’s statement that Dornacher had
performed a large amount of sedentary work. She argues that her work as an EMT
and photographer occurred many years ago and in any event was not sedentary.
She contends that her relevant work experience must focus on her last twenty years
of employment, which was primarily as a bus driver. She argues that the ALJ
ignored the effects of her right-shoulder condition, which essentially renders her a
one-armed person, and the evidence of her severe and chronic pain and resulting
depression. She also points to the fact that she has difficulty performing simple
day-to-day activities such as housekeeping and food preparation.
Dornacher’s arguments challenge the weight and emphasis the ALJ
placed on different parts of the evidence. Assessing the evidence in this manner is
a task exclusively within the purview of the ALJ and may not be disturbed on
appeal unless the evidence compels a different conclusion. Snawder, 576 S.W.2d
at 280. There is evidence in the record that Dornacher had performed sedentary
jobs such as a mail clerk or medical records clerk in the past. Although she may be
incapable of driving a school bus, the evidence does not compel a finding that she
is incapable of performing any kind of work.
-7-
Dornacher further argues that the ALJ erred in not finding she
suffered a work-related cervical neck injury. On this issue, the ALJ found as
follows:
CPS [Covington] argues Dornacher did not sustain a
cervical injury as a result of the March 9, 2017 work
accident, relying on Dr. Bender. Dornacher submitted
Dr. Wolf’s report in support of causation. Dr. Wolfe
[sic] diagnosed an acute cervical strain superimposed on
pre-existing degenerative multiple cervical disc disease
and possible right-side cervical radiculopathy.
This ALJ is not convinced Dornacher suffers from a
cervical radiculopathy based upon the two EMGs
[electromyogram] she underwent. Each of those EMGs
failed to show objective evidence of a radiculopathy.
Thus, the most objective evidence in this claim does not
support Dr. Wolf’s opinion. Furthermore, while Dr.
Wolf felt Dornacher sustained an acute cervical strain, he
did not assess any cervical impairment. Conversely, Dr.
Bender opined Dornacher’s cervical degenerative
changes were not aggravated by the work injury. As a
result, this ALJ determined the evidence supports Dr.
Bender’s opinion that Dornacher did not sustain a
permanent cervical work injury.
Dornacher contends that the ALJ erroneously believed that because the EMG tests
failed to show objective evidence of radiculopathy, all the uncontroverted evidence
of significant cervical symptoms had to be ignored. These symptoms included
Dornacher experiencing pain in the cervical region, radicular pain, numbness and
weakness in her upper extremity extending into her hands and fingers, and
receiving extensive medical care for her neck. “Not only does the ALJ weigh the
-8-
evidence, but the ALJ may also choose to believe or to disbelieve any part of the
evidence, regardless of its source.” Abbott Laboratories v. Smith, 205 S.W.3d 249,
253 (Ky. App. 2006) (footnote omitted). The ALJ chose to rely on the evidence
presented by the EMGs and the report of Dr. Bender. Her findings in this regard
were not “so unreasonable under the evidence that [they] must be viewed as
erroneous as a matter of law.” Trevino, 569 S.W.3d at 403 (citations omitted).
Furthermore, the employer in this case did meet its burden of proving the existence
of a pre-existing condition. Finley v. DBM Technologies, 217 S.W.3d 261, 265
(Ky. App. 2007). Dr. Bender simply did not believe that this pre-existing cervical
condition was exacerbated by the March 9, 2017 accident. The ALJ was fully
entitled to rely on his opinion.
For the foregoing reasons, the opinion of the Workers’ Compensation
Board is affirmed.
THOMPSON, L., JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE
OPINION.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE COVINGTON
PUBLIC SCHOOLS:
Gregory N. Schabell
Covington, Kentucky Scott M. Guenther
Covington, Kentucky
-9-