Avi Food Systems v. Delorse Breeded

• Court: Court of Appeals of Kentucky
• Decided: August 13, 2020
• Docket: 2020 CA 000172
• Status: Unknown

Opinion

RENDERED: AUGUST 14, 2020; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-000172-WC

AVI FOOD SYSTEMS APPELLANT

PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-15-72461

DELORSE BREEDEN; HON. CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD OF KENTUCKY APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND K. THOMPSON, JUDGES.

CLAYTON, CHIEF JUDGE: AVI Food Systems (AVI) petitions for review of an

opinion of the Workers’ Compensation Board affirming an opinion and order of

the Administrative Law Judge (ALJ). The ALJ held that Delorse Breeden, a former employee of AVI, was entitled to receive permanent total disability benefits

for a work-related injury to her back. AVI argues that the ALJ ignored evidence

that Breeden’s disability was attributable in part to a non-work-related knee

replacement and that she was capable of working in a lighter-duty position.

Having reviewed the record and the applicable law, we affirm the opinion of the

Board.

Breeden was fifty-six years of age at the time of her final hearing in

July 2019. She had completed the eleventh grade of high school and taken some

GED courses but had not obtained a GED. Before beginning work at AVI, she was

employed as a fast food restaurant manager, a corrections worker, and a factory

worker. She was hired by AVI in September 2014 as a route driver, which

required her to report to a warehouse at 4:00 a.m., load a truck with drinks and

food, and drive to various locations to restock vending machines. She used a dolly

to load and unload the truck. Breeden estimated the job required her to lift

between thirty and thirty-five pounds.

In March 2015, the regular box truck Breeden drove broke down, and

she was assigned to a Ryder truck which was the largest truck she had ever driven.

According to Breeden, she now had to lift the cases of soda and food above her

head to place them in the back of the truck. She also had trouble with the back

door which she had to pull extremely hard to close.

-2- On May 12, 2015, Breeden began to experience lower back pain after

opening and closing the back of the Ryder truck several times. She was able to

complete her shift but the pain increased that evening and she called her supervisor

at 2:30 a.m. to report she would not be at work because of a back injury. She went

to the St. Elizabeth Hospital emergency room where she was diagnosed with likely

chronic minimal anterolisthesis of L4 relative to L3 and L5. X-rays indicated that

she had no acute dislocation or fracture. She was released with a diagnosis of

work-related lumbar strain. She was prescribed medication and referred to

physical therapy.

On October 20, 2016, Breeden underwent low back surgery for

lumbar region intervertebral disc replacement. The surgery was complicated by a

hematoma four days later that necessitated a second surgery. According to

Breeden, the surgery helped her but she continued to experience back pain.

Breeden returned to work at AVI in a “CSA” position following her

back surgery. The CSA position entailed stocking vending machines with soda

and food from an on-site storage closet. It required driving only a personal

vehicle, no loading or unloading of trucks, and lighter lifting. AVI’s branch

manager, Steve Crisp, testified in his deposition that soda cases weighing thirty-

two pounds still had to be moved but could be broken down instead of being lifted

all at once, and a cart was used to transfer the products from the storage closet to

-3- the vending machines. He explained that Breeden may have been slower than the

other CSA workers but he still considered her a good employee for the job.

Breeden also experienced ongoing left knee pain for which she sought

treatment in 2015. In December 2017, she underwent left knee meniscus surgery

and eventually had a total left knee replacement on April 11, 2018. She was not

pleased with the outcome of the surgery, noting that her knee pain was worse

following the replacement.

Breeden’s last day as a CSA was on April 10, 2018, the day before her

knee surgery, and she never returned to work at AVI. She subsequently filed an

application for resolution of a claim for the low back injury.

In support of her claim, Breeden filed notes from Dr. Brian

Braithwaite, her pain management physician, who noted that her low back

condition continued to worsen from the date of onset, May 12, 2015. He

prescribed opiate medication and a spinal cord stimulator trial. The spinal cord

stimulator proved not to be effective.

Breeden filed a report from Dr. Jeffrey Fadel, who diagnosed her with

failed back syndrome stemming from her work-related low back injury and

surgeries, lumbar facet arthritis aroused by the work injury, and radiculopathy of

the L5 nerve root into the left lower extremity. He assessed a 13% impairment

rating pursuant to the 5th Edition of the AMA Guides to the Evaluation of

-4- Permanent Impairment (AMA Guides). He opined that Breeden had reached

maximum medical improvement and should avoid lifting or carrying more than

twenty pounds and pushing or pulling more than forty pounds. He also advised her

to avoid repetitive twisting, bending, or rotating of her lumbar spine. He

concluded that these restrictions would not allow her to return to work as a route

driver.

A functional capacity evaluation (FCE) was performed by NovaCare

Rehabilitation which found that Breeden did not have the physical capacity to

work as a route salesperson but did have the capacity to perform light-duty work.

Light work was defined in the FCE according to the U.S. Department of Labor

guidelines as exerting up to twenty pounds of force occasionally, and/or up to ten

pounds frequently, and/or a negligible amount of force constantly.

AVI filed the office notes of Dr. Jonathan Spanyer, who performed

Breeden’s knee surgery. On August 16, 2018, about four months after the surgery,

Dr. Spanyer observed that she was functioning well but was complaining of

ongoing pain of unclear etiology. He described her range of motion as acceptable

with some stiffness, and allowed her to return to work with no knee restrictions.

When he saw her several months later, on December 4, 2018, she reported her left

knee pain was worse than before the surgery and she did not believe she could

-5- return to work. Dr. Spanyer recommended conservative treatment with no

additional surgery.

Dr. Benjamin Wilson of U.K. Healthcare also evaluated Breeden’s left

knee and similarly noted that she complained it was worse than before the surgery.

He likewise did not recommend additional knee surgery.

Dr. Ellen Ballard evaluated Breeden on behalf of AVI on October 10,

2017. She noted that Breeden had undergone two lumbar surgeries and diagnosed

Breeden with low back pain with left leg radicular symptoms. She found Breeden

had reached maximum medical improvement (MMI), assessed an 11% impairment

rating pursuant to the AMA Guides, and advised Breeden to avoid lifting over

twenty pounds and repetitive bending or stooping. On November 13, 2018, Dr.

Ballard performed another evaluation and noted that Breeden had undergone two

knee surgeries since the last evaluation. She restated her prior conclusion that

Breeden had reached MMI by October 10, 2017, and has an impairment rating of

11%.

Dr. Ralph Crystal performed a vocational evaluation of Breeden on

April 5, 2018. Breeden was not working or looking for work at that time. She told

him she did not believe she could perform any of her past work or concentrate

sufficiently to obtain a GED. His testing showed she functions at the fourth or

fifth grade level in reading, spelling, and mathematics. Dr. Crystal found there was

-6- no indication Breeden could not complete a normal workday or work week. He

opined there are numerous jobs she could perform with her restrictions, either

through direct entry or on-the-job training. He concluded that she was not disabled

from employment and did not necessarily have a loss of earning capacity.

Breeden testified that she did not feel well while employed in the

light-duty CSA position at AVI following her back surgeries. She explained that

when she got up in the morning, her pain level would be a two or a three but by the

end of the day it would have risen to a nine or a ten and she was unable to perform

any substantial physical activity when she got home. She further testified that she

believed her back condition had worsened since April 2018 when she left AVI and

there was no way her back would hold up if she returned to the CSA position.

Relying on the opinions of both Dr. Ballard and Dr. Fadel that

Breeden should not lift over twenty pounds, and Crisp’s testimony that a route

driver has to lift thirty-two pounds, the ALJ found that Breeden could not return to

her prior work as a route driver. The ALJ noted the limitations on bending,

stooping, standing, and twisting recommended by Dr. Fadel and Dr. Ballard, and

the FCE conclusion that she can work in a light-duty category but no higher, to

further conclude that she could not return to any of her prior employment as a fast

food worker, corrections officer, or factory worker. He discounted the opinions of

Dr. Crystal and relied in part on Breeden’s own testimony that she cannot return to

-7- any type of employment. He emphasized her limited education and lack of

transferable skills, and found little chance that at her age, educational level, and

restrictions that any job retraining would realistically result in any actual job

opportunities. The ALJ found insufficient evidence that her knee problems and

knee surgery caused any occupational disability. The ALJ found that Breeden was

permanently totally disabled as a result of her work injury, assigned a 13%

impairment rating based on the rating provided by Dr. Fadel, and awarded

permanent total disability (PTD) benefits and medical benefits.

AVI filed a petition for reconsideration. The ALJ denied the petition

except as to a minor issue regarding the compensability of some medications. The

Board subsequently affirmed the opinion and order of the ALJ, holding that the

ALJ had performed the correct analysis, and the award of PTD benefits was

supported by substantial evidence. This appeal by AVI followed.

As the claimant, Breeden 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). When, as in this case, the party with the burden of proof is successful

before the ALJ, “the issue on appeal is whether substantial evidence supported the

ALJ’s conclusion. Substantial evidence means evidence of substance and relevant

consequence having the fitness to induce conviction in the minds of reasonable

-8- men.” Miller v. Tema Isenmann, Inc., 542 S.W.3d 265, 270 (Ky. 2018) (internal

quotation marks and citations 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 cause gross

injustice.” Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).

First, AVI argues that the ALJ failed to consider the effect of

Breeden’s non-work-related knee surgery and consequently erred in attributing her

entire disability solely to her low back injury. It questions the ALJ’s reliance on

the opinion of Dr. Fadel, pointing out that Dr. Fadel’s recommendations regarding

work restrictions were made following Breeden’s knee replacement surgery and

did not specify which restrictions relate specifically to her lower back. Similarly,

the FCE was performed after the knee replacement surgery and does not specify

which of the recommended restrictions are for the knee and which are for the low

back.

We agree with Breeden that AVI is attempting to reargue the merits of

the case and alter the weight to be given to different parts of the evidence. She

points to other evidence in the record, much of it introduced by AVI itself, that

clearly distinguishes between the lumbar injury and the knee problems. For

example, the records of Dr. Spanyer, the knee surgeon, indicate he told Breeden

-9- she could return to work with no restrictions following the surgery. Dr. Spanyer

noted Breeden’s frustration with this recommendation, but opined it was

appropriate based on what appeared to be a normally functioning knee replacement

that a CT scan revealed was “essentially stable . . . without malrotation or evidence

of fracture or dislocation or other concerning features.” Dr. Crystal’s vocational

report stated that Breeden did not require physical work restrictions for her knee

and did not have a loss of employability or earning capacity attributable to her left

knee. The FCE recognized that Breeden had total knee replacement surgery which

continued to give her trouble and that she had applied for Social Security disability

benefits after the knee surgery, but found she “does not have a loss of

employability or earnings capacity based on her left knee.” Although Dr. Ballard’s

report stated that Breeden would require “other restrictions” relative to the knee,

Dr. Ballard did not elaborate on this statement.

AVI argues that the ALJ relied on the totality of the recommended

work restrictions, thereby impermissibly inferring they all related to the

compensable low back claim. But the ALJ’s opinion refutes this argument by

addressing the issue of the knee condition directly, stating as follows: “I recognize

the fact that the Plaintiff had a total knee replacement after the work injury. She

continued to complain about it to her doctors. She did not apply for social security

disability until after the knee surgery. However, she is under no doctor’s

-10- restrictions for her knee. There is no evidence, only implication, that the knee has

caused any real occupational disability. The implication may be sound and

reasonable, but it is not supported by the evidence. Given the weight of the

evidence for the low back, I will not carve out any portion of the total disability

award for the knee.”

In arriving at this conclusion, the ALJ was relying on substantial

evidence in the record and acting well within his “sole discretion to determine the

quality, character, and substance of the evidence[.]” Trevino, 569 S.W.3d at 403

(citation omitted). The ALJ was not required to speculate about whether part of

Breeden’s disability was attributable to the knee condition.

Second, AVI argues that the ALJ erred in finding that Breeden was

incapable of doing any of her prior work and that there was no realistic level of

retraining she could complete that would enable her to work again. AVI contends

that the ALJ failed to consider that Breeden could continue working as a CSA,

which was a bona fide position that met all the recommended work restrictions.

AVI points out that Breeden successfully worked as a CSA following her back

injury and that Crisp, Breeden’s supervisor, testified that the CSA job could be

performed within the twenty-pound lifting restriction and various positional

restrictions recommended by Dr. Fadel.

-11- An ALJ is required to make “an individualized determination of what

the worker is and is not able to do after recovering from the work injury.” Ira A.

Watson Dep’t Store v. Hamilton, 34 S.W.3d 48, 51 (Ky. 2000). “Although the ALJ

must necessarily consider the worker’s medical condition when determining the

extent of his occupational disability at a particular point in time, the ALJ is not

required to rely upon the vocational opinions of either the medical experts or the

vocational experts.” Id. at 52 (citations omitted). The ALJ is required to consider

“factors such as the worker’s post-injury physical, emotional, intellectual, and

vocational status and how those factors interact.” Id. at 51.

The Kentucky Supreme Court has also expressly specified that the

ALJ may rely on a worker’s own testimony in performing this analysis: “A

worker’s testimony is competent evidence of his physical condition and of his

ability to perform various activities both before and after being injured.” Id. at 52

(citation omitted). More recently the Supreme Court reiterated, as noted in the

Board’s opinion, that “a claimant can certainly know as a fact if he is in pain, as

well as he can know when it hurts to perform certain physical activities. He is

entitled to tell and our court will give credence and weight to such testimony.”

City of Ashland v. Stumbo, 461 S.W.3d 392, 397 (Ky. 2015) (Barber, J.,

concurring) (quoting Ruby Const. Co. v. Curling, 451 S.W.2d 610, 612 (Ky.

1970)).

-12- The ALJ found that Breeden is unable to perform the type of work she

did before her back injury, due to restrictions on lifting more than twenty pounds,

bending, stooping, twisting, sitting, and standing. These restrictions, coupled with

her lack of education or training and her own testimony that her pain level

increased throughout the day when she was working as a CSA, that her back

condition had worsened since she left AVI, and that she would be unable to return

to the CSA position, which the ALJ found credible, constitute substantial evidence

supporting the ALJ’s finding of permanent occupational disability. The ALJ’s

determination was made well within the fact-finding parameters established by the

Kentucky Supreme Court and will not be overturned on appeal.

For the foregoing reasons, the opinion of the Board affirming the

opinion and order of the ALJ is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE DELORSE BREEDEN: Allison A. Zoeller Louisville, Kentucky Scott C. Justice Louisville, Kentucky

-13-