Apple Valley Sanitation, Inc. v. Jon Stambaugh

• Court: Kentucky Supreme Court
• Decided: April 27, 2022
• Docket: 2021 SC 0227
• Status: Unknown

Opinion

RENDERED: APRIL 28, 2022 TO BE PUBLISHED

Supreme Court of Kentucky 2021-SC-0227-WC

APPLE VALLEY SANITATION, INC. APPELLANT

ON APPEAL FROM THE COURT OF APPEALS V. NO. 2020-CA-0976 WORKERS’ COMPENSATION CASE NOS. 17-WC-85280 AND 19-WC-00205

JON STAMBAUGH; APPELLEES HONORABLE RICHARD NEAL, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

AFFIRMING

This case is before the Court on appeal as a matter of right1 by Apple

Valley Sanitation, Inc. of a workers’ compensation award. The Court of

Appeals’ opinion affirmed the Administrative Law Judge’s award of permanent

partial disability benefits to Jon Stambaugh. Apple Valley argues the Court of

Appeals erred in affirming the ALJ’s application of the three-multiplier to the

separate weekly rates of benefits awarded to Stambaugh for two separate work-

related injuries that occurred 85 days apart. We find no error, and we affirm

the Court of Appeals.

1 Ky. Const. § 115. I. FACTUAL AND PROCEDURAL BACKGROUND

Stambaugh worked for Apple Valley for 23 years as a garbage truck

driver and loader. While at work on April 17, 2017, Stambaugh twisted his

right knee when exiting a garbage truck. The record provides no evidence or

assertion that Stambaugh ceased working because of the April 17 injury.

The day after the work-related injury, Stambaugh presented to Tracy

Hamilton, APRN, reporting right-knee pain and swelling. Hamilton noted

obvious effusion of the right knee, prescribed medications, and referred

Stambaugh to Dr. Donald Arms, an orthopedic surgeon. She recommended

that Stambaugh work on light duty. Over the course of several appointments,

Hamilton diagnosed Stambaugh with hypogonadism, chronic low-back pain,

degeneration of lumbar intervertebral disc, back pain, shoulder pain, and

bilateral knee pain.

On April 25, 2017, Stambaugh presented to Dr. Arms, who took x-rays of

Stambaugh’s knees, showing bilateral degenerative changes about the knees.

Dr. Arms recommended Stambaugh continue modified work duty; wear a

brace; and limit kneeling, squatting, climbing, and prolonged walking. On May

30, 2017, Dr. Arms released Stambaugh to resume his regular work duties.

On July 11, 2017, Stambaugh experienced another injury while working

for Apple Valley. This time, Stambaugh was diagnosed as having sustained

injuries to his lumbar spine and left knee over the course of his work for Apple

Valley through cumulative, repetitive trauma. Both his last day of work and

2 last day of exposure to the cumulative trauma was July 11, 2017. Stambaugh

has neither worked nor applied for work since that date.

Following his July 11 injury, Stambaugh again presented to Dr. Arms.

At that time, Dr. Arms diagnosed Stambaugh with degenerative

spondylolisthesis, morbid obesity, femoral acetabular impingement, and

degeneration of lumbar intervertebral disc. Dr. Arms recommended

Stambaugh cease regular work duties and commence desk duties only.

On October 9, 2018, Stambaugh presented to Dr. Ira Potter for treatment

of work-related injuries sustained to his knees, back, and shoulders. Over the

course of the next year, Dr. Potter diagnosed Stambaugh with low-back pain,

degenerative joint disease, joint pain in both shoulders, osteoarthritis,

impingement syndrome of both shoulders, and obesity. On November 5, 2018,

Dr. Potter concluded that Stambaugh was totally disabled from work. But, on

February 19, 2019, after Stambaugh was prescribed various medications, Dr.

Potter suggested that Stambaugh could return to work with extensive

restrictions.

At his attorney’s request, Stambaugh presented to Dr. Bruce Guberman

on November 28, 2018, for an independent medical evaluation (IME). Dr.

Guberman diagnosed Stambaugh with chronic post-traumatic strain and

aggravation of dormant degenerative changes of the right knee occurring on

April 17, 2017; cumulative trauma to the left knee; cumulative-trauma injury

to both shoulders; cumulative-trauma injury to the cervical spine; and

cumulative-trauma injury to the lumbar spine. Dr. Guberman stated that

3 Stambaugh had reached maximum medical improvement (MMI) by November

28, 2018.

Dr. Guberman assigned Stambaugh a 4% whole-person impairment for

his right-knee injury on April 17, 2017, and a 27% whole-person impairment

for his cumulative-trauma injuries.2 Dr. Guberman concluded that Stambaugh

lacked the physical capacity to perform the job that he was performing at the

time of his injuries.

On February 22, 2019, Stambaugh filed two claims for workers’

compensation benefits: one for his injury on April 17 and one for his injury on

July 11. The two claims were consolidated.

On May 21, 2019, Stambaugh presented to Dr. Daniel Primm for an IME

at Apple Valley’s request. Dr. Primm diagnosed Stambaugh with right-knee

strain or sprain from the April 17 injury,3 primary osteoarthritis in both knees,

rotator cuff tendonitis impingement syndrome of both shoulders, and age-

related mechanical neck- and low-back pain with no evidence of radiculopathy.

Dr. Primm stated that Stambaugh’s right knee had reached MMI and his other

injuries and symptoms did not exceed the expected condition of a male of

Stambaugh’s age. He assigned Stambaugh a 5% whole-person impairment

rating for the right-shoulder injury and a 6% whole-person impairment rating

2Specifically, Dr. Guberman assigned an 8% impairment for the right knee, 2% impairment for the right shoulder, 7% impairment for the left shoulder, 5% impairment for the cervical spine, and 8% impairment for the lumbar spine. 3 On the date of Dr. Primm’s examination of Stambaugh, Dr. Primm concluded

that the right knee strain or sprain was resolved and no permanent injury sustained.

4 for the left-shoulder injury. Dr. Primm concluded that Stambaugh had the

physical capacity to return to the job he was performing at the time of his

injury.

On June 11, 2019, Dr. Russell Travis performed a review of Stambaugh’s

treatment records. Dr. Travis assigned Stambaugh a 0% impairment rating

regarding his cervical-spine injury and a 0% impairment rating regarding his

thoracic-spine injury. He concluded that Stambaugh had no cervical, thoracic,

or lumbar degenerative changes, nor shoulder or knee arthritic conditions

greater than those expected in a man of Stambaugh’s age.

The ALJ ultimately issued an Opinion, Order and Award, awarding

Stambaugh benefits for both his April 17 and July 11 injuries. The ALJ found

that Stambaugh met his burden of proof of work-related injuries regarding his

April 17 acute right-knee injury and his July 11 cumulative traumas to his left

knee and lumbar spine.4

The ALJ awarded Stambaugh permanent partial disability benefits,

finding that he had a 4% whole-person impairment as a result of his April 17

injury and a 14% whole-person impairment as a result of his July 11 injuries.5

The ALJ applied the three-multiplier from KRS6 342.730(1)(c)1 to the benefits

4 The ALJ also concluded that Stambaugh failed to meet his burden of proof with regard to his alleged cervical spine and shoulder injuries. This finding is not contested in this appeal. 5 Upon Stambaugh’s Petition for Reconsideration, the ALJ issued a revised

Order stating that the proper impairment rating for Stambaugh’s cumulative traumas was 15% rather than 14%. 6 Kentucky Revised Statutes.

5 for both Stambaugh’s April 17 and July 11 injuries, finding that Stambaugh

lacked the physical capacity to return to the type of work he performed at the

time of either injury.

Apple Valley appealed the ALJ’s order applying the three-multiplier to

both Stambaugh’s benefits awards. The Workers’ Compensation Board

affirmed the decision of the ALJ. The Court of Appeals affirmed the decisions

of the Board and the ALJ. For the following reasons, we affirm the Court of

Appeals’ decision.

II. STANDARD OF REVIEW

In workers’ compensation cases, this Court’s standard of review depends

upon whether the issue on appeal is a question of law or fact. In reviewing an

ALJ’s decision on a question of law or interpretation and application of a law to

the facts at hand, our standard of review is de novo.7 With regard to questions

of fact, “[t]he ALJ as fact finder has the sole authority to judge the weight,

credibility, substance, and inferences to be drawn from the evidence.”8

This Court’s review of an ALJ’s determination of an injured employee’s

retained capacity and application of a multiplier to that employee’s benefits

award is a question of fact based upon the medical and lay evidence provided.9

In a case, like the present one, in which the party with the burden of proof was

7 Ford Motor Co. v. Jobe, 544 S.W.3d 628, 631 (Ky. 2018). 8 LKLP CAC Inc. v. Fleming, 520 S.W.3d 382, 386 (Ky. 2017) (internal citation omitted). 9 Carte v. Loretto Motherhouse Infirmary, 19 S.W.3d 122, 126 (Ky. App. 2000).

6 successful before the ALJ, the only issue we consider on appeal is whether the

ALJ’s conclusion is supported by substantial evidence.10 And we will reverse

the ALJ’s decision only if we find it to be unsupported by substantial evidence

of probative value.11

III. ANALYSIS

KRS 342.730(1)(c)1 provides that, if, due to a work-related injury, an

“employee does not retain the physical capacity to return to the type of work

that the employee performed at the time of injury, the benefit for [PPD] shall be

multiplied by three (3) times . . . .” This provision is intended to compensate an

injured worker who has a permanent alteration to his ability to labor and earn

money due to his injury.12 The determination of both the permanence of an

employee’s injury and the effect of that injury on the employee’s capacity to

return to work is made by the ALJ based on the evidence presented.

Apple Valley’s primary argument on appeal is that the three-multiplier

cannot be applied to successive injury claims if the employee had no significant

change in job duties between those two injuries, citing Trane Commercial

Systems v. Tipton for that proposition.13 Apple Valley contends that the

application of the three-multiplier to Stambaugh’s benefits award for his April

17 injury precludes its application to the benefits award for his July 11 injury,

10 Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999). 11 Wilkerson v. Kimball Int’l, Inc., 585 S.W.3d 231, 236 (Ky. 2019). 12 Fawbush v. Gwinn, 103 S.W.2d 5, 12 (Ky. 2003). 13 481 S.W.3d 800 (Ky. 2016).

7 reasoning that Stambaugh cannot, for a second time, lose the physical capacity

to return to his job. Apple Valley provides as dispositive evidence of this fact

Stambaugh’s return to his usual job duties during the period between his April

17 and July 11 injuries.

We find neither evidence nor precedent to support Apple Valley’s

position. KRS 342.730(1)(c)1 concerns whether an employee has the physical

capacity at the time of the benefits hearing to perform the type of work

performed pre-injury. The ALJ concluded, based upon the evidence, and in his

discretion, that both the April 17 and July 11 injuries individually precluded

Stambaugh from performing the work he performed at the time of each injury.

Such a decision is appropriately made with the complete knowledge of the

severity of Stambaugh’s injuries and the continued disability he experiences.

Additionally, we find no support for Apple Valley’s position in Trane

Commercial Systems.14 There, this Court considered the impact of an

employee’s limited post-injury return to work on an award of temporary total

disability benefits (TTD) to that employee.15 We concluded that an employee is

only capable of “returning to work” for purposes of ending entitlement to TTD

benefits when that employee is capable of performing the actual jobs previously

performed at the time of injury.16 Such a holding simply is not relevant to the

case at hand. Stambaugh continued working after his April 17 injury with

14 Id. 15 Id. at 802. 16 Id. at 803-04.

8 minor accommodations, eventually returning to full-duty, and he did not

return to work at all after his July 11 injury. Upon consideration of the

medical and lay evidence presented, the ALJ concluded that Stambaugh

presently lacks the capability to perform the sort of work he did at the time of

his injuries. Because Stambaugh has not returned to work since his July 11

injury, Trane Commercial Systems has no bearing on our analysis.

Apple Valley has failed to identify any relevant case law that addresses

the impact of an employee’s relatively brief return to work post-injury as

preclusive of the application of the three-multiplier to the benefits awarded for

that injury.17 Finding no basis in law under which we may entertain Apple

Valley’s argument, we find application of the three-multiplier to be within the

sound discretion of the ALJ.

In the alternative, Apple Valley alleges that the ALJ combined evidence

from Stambaugh’s two injuries to conclude that the three-multiplier was

applicable to both injuries. Apple Valley cites Plumley v. Kroger, Inc. for the

proposition that successive injury claims must be decided separately and the

evidence for each claim must be weighed individually.18

17 Without providing exposition on the topic, both this Court and the Court of Appeals have affirmed decisions by ALJs to apply the three-multiplier under circumstances analogous to those in Stambaugh’s case: Morgan v. Bluegrass Oakwood, Inc., ___S.W.3d___, No. 2019-CA-000423-WC, 2019 WL 3367190 (Ky. App. July 26, 2019) aff’d, No. 2019-SC-000490-WC, 2021 WL 1679311 (Ky. Apr. 29, 2021); Ford Motor Co. (LAP) v. Jones, No. 2016-CA-001588-WC, 2017 WL 729164 (Ky. App. Feb. 24, 2017); Rock Drilling, Inc. v. Howell, No. 2012-CA-000490-WC, 2012 WL 3642476 (Ky. App. Aug. 24, 2012) aff’d, No. 2012-SC-000586-WC, 2013 WL 4680489 (Ky. Aug. 29, 2013); Adkins v. Pike Cnty. Bd. of Educ., 141 S.W.3d 387 (Ky. App. 2004). 18 557 S.W.3d 905, 914-16 (Ky. 2018).

9 In Plumley, an employee experienced four work-related injuries, in 1998,

2006, 2009, and 2011, respectively. After each injury, the employee received

treatment and returned to work in generally the same capacity. When the

employee eventually brought a claim for benefits for the 2006, 2009, and 2011

injuries, the ALJ assigned each an impairment rating and applied a one-

multiplier to the 2006 and 2009 injuries and the three-multiplier to the 2011

injury, finding that only after the 2011 injury did the employee lose the

capacity to return to the same type of work performed at the time of the

injuries. On appeal, this Court affirmed the ALJ, finding that the employee

received no restrictions after the 2006 and 2009 injuries that were not already

in place because of his 1998 injury, so after the 2006 and 2009 injuries, he

was able to return to the type of work he performed at the time of the injury,

precluding application of the three-multiplier.

Apple Valley contends that, considering Plumley, this Court is required to

reverse the ALJ’s application of the three-multiplier to both Stambaugh’s

benefits awards. But we find Plumley distinguishable from the case at hand.

Unlike the employee in Plumley, Stambaugh returned to work for only 12 weeks

after his April 17 injury, and for six of those weeks he was restricted to light

duty. We do not find that Stambaugh’s continuation of work between his April

17 and July 11 injuries constitutes a “return to work” that reflects the capacity

to continue the type of work performed at the time of the injury for the

indefinite future.

10 Additionally, we find that the ALJ fulfilled his duty in this case by

providing separate analyses and making separate findings regarding the

successive injuries, even stating, “[T]he Plaintiff lacks the physical capacity to

return to his job due to both the April 17, 2017, acute injury to the right knee,

and the July 11, 2017, cumulative trauma injury, individually and

independently.”

The ALJ’s determination that Stambaugh cannot return to his pre-injury

job because of his April 17 right-knee injury is supported by substantial

evidence. Stambaugh suffers from chronic post-traumatic strain and

aggravation of dormant degenerative changes of the right knee, as noted by Dr.

Guberman, which would reasonably prevent him from sitting or standing for

long periods, kneeling, squatting, and crawling. The record clearly states that

the performance of Stambaugh’s pre-injury job duties involves continuous

walking and climbing in and out of the garbage truck. Ultimately, Dr.

Guberman found that Stambaugh could not perform his pre-injury work tasks

as a result of his April 17 injury. So the ALJ’s finding that Stambaugh’s benefit

award for his April 17 injury is eligible for application of the three-multiplier is

supported by substantial evidence.

We also find that the ALJ’s determination that Stambaugh cannot return

to his pre-injury job because of his July 11 cumulative-trauma injury is

supported by substantial evidence. Stambaugh suffers from degenerative disc

disease and degenerative joint disease of the lumbar spine, as well as

degenerative changes to the left knee, as noted by Dr. Guberman and Dr.

11 Potter, which would reasonably prevent him from using his arms and legs

repetitively and from carrying or pushing objects over 25 pounds (or 5-10

pounds frequently). The record includes evidence that Stambaugh’s pre-injury

job involves lifting bags of garbage ranging from 10 to 100 pounds each and

repetitively climbing in and out of the garbage truck. Dr. Guberman found that

Stambaugh could not perform his pre-injury tasks because of his July 11

injury. Thus, the ALJ’s finding that Stambaugh’s benefit award for his July 11

injury is eligible for application of the three-multiplier is supported by

substantial evidence.

IV. CONCLUSION

We find that the ALJ’s award in this case was supported by substantial

evidence, so we affirm the Court of Appeals.

All sitting. All concur.

12 COUNSEL FOR APPELLANT:

W. Barry Lewis Lewis and Lewis Law Offices

COUNSEL FOR APPELLEE:

John Earl Hunt

ADMINISTRATIVE LAW JUDGE:

Hon. Richard Neal

WORKERS’ COMPENSATION BOARD:

Michael W. Alvey Chairman