Ihg Hotels and Resorts v. Ana Alexander

• Court: Court of Appeals of Kentucky
• Decided: March 7, 2024
• Docket: 2022 CA 000920
• Status: Unknown

Opinion

RENDERED: MARCH 8, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-0920-WC

IHG HOTELS AND RESORTS APPELLANT

PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-19-81843

ANA ALEXANDER; HONORABLE TONYA M. CLEMONS, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES

OPINION AFFIRMING

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BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND MCNEILL, JUDGES.

ACREE, JUDGE: Appellant, IHG Hotels & Resorts, appeals the July 1, 2022

opinion of the Workers’ Compensation Board (the Board) affirming the Administrative Law Judge’s (ALJ) award of benefits to Appellee, Ana Alexander.

Having considered this appeal, we affirm.

Appellant employed Appellee as a housekeeper from April 23, 2019,

to May 5, 2019. On May 5, Appellee fell while working and injured her cervical

and lumbar spine, left wrist, and left knee. Appellee’s daughter took her to an

emergency room for her injuries, but the hospital released Appellee to return to

work the same day. The following day, Appellee arrived at work but shortly left

after experiencing pain from her injuries. Appellee sought treatment for her

injuries, which included physical therapy and pain medication. Appellee also

sought Workers’ Compensation benefits for her injuries, and several doctors

evaluated her and her condition for purposes of determining her compensation.

The doctors reached different conclusions.

On January 19, 2022, the ALJ conducted a hearing to determine the

compensation to which Appellee may be entitled. On the issue of what date in the

course of her treatment Appellee reached maximum medical improvement (MMI),1

the ALJ heard from several doctors. Dr. Grossfeld indicated Appellee reached

MMI for her work-related injuries on August 8, 2019. Dr. Kakel speculated

Appellee reached MMI at 8 weeks after her injuries (a little over two years before

1 MMI “refers to the time at which a worker’s condition stabilizes so that any impairment may reasonably be viewed as being permanent.” Tokico (USA), Inc. v. Kelly, 281 S.W.3d 771, 775-76 (Ky. 2009).

-2- he examined her). Finally, Dr. Fadel noted Appellee had reached MMI when he

evaluated her on June 17, 2021, “if no further treatment is anticipated.” The ALJ

heard substantially more evidence, none of which is relevant to this appeal.

After hearing this testimony, the ALJ made her findings of fact, which

included: (1) Appellee reached MMI on her cervical spine and left wrist injuries

on May 15, 2019, finding Dr. Grossfeld’s testimony on this matter persuasive, (2)

Appellee reached MMI on her lumbar spine injuries on August 8, 2019, again

finding Dr. Grossfeld’s testimony on this matter persuasive, and (3) Appellee

reached MMI on her left knee injury on June 17, 2021, finding Dr. Fadel’s

testimony on this matter persuasive. The ALJ then awarded Appellee temporary

total disability (TTD) benefits through June 17, 2021. Appellant appealed this

order to the Board, who affirmed the ALJ’s award. This appeal follows.

On appeal, “the role of [appellate courts] in reviewing decisions of the Board ‘is to

correct the Board only when we perceive that the Board has overlooked or

misconstrued controlling law or committed an error in assessing the evidence so

flagrant as to cause gross injustice.’” Twin Resources, LLC v. Workman, 394

S.W.3d 417, 422 (Ky. App. 2013) (quoting Daniel v. Armco Steel Co., L.P., 913

S.W.2d 797, 798 (Ky. App. 1995) ((quoting Western Baptist Hosp. v. Kelly, 827

S.W.2d 685, 687-88 (Ky. 1992))). Crucial to the analysis we undertake here: “The

-3- [B]oard shall not substitute its judgment for that of the [ALJ] as to the weight of

evidence on questions of fact.” KRS2 342.285(2).

Pursuant to KRS 342.285, the ALJ is the finder of fact in workers’

compensation actions. KRS 342.285(2). “[A]s the fact-finder, the ALJ, not this

Court and not the Board, has sole discretion to determine the quality, character,

and substance of the evidence.” Abbott Lab’ys v. Smith, 205 S.W.3d 249, 253 (Ky.

App. 2006) (citing Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999)). “Not

only does the ALJ weigh the evidence, but the ALJ may also choose to believe or

to disbelieve any part of the evidence, regardless of its source.” Id. (citing

Whitaker, 998 S.W.2d at 481). This is because the ALJ is in the best position to

make judgment calls as to the evidence presented. Accordingly, where an award

“is supported by substantial evidence, it may not be disturbed.” Beth-Elkhorn

Corp. v. Dotson, 428 S.W.2d 32, 34 (Ky. 1968); see also Emps.’ Liability

Assurance Corp. v. Gardner, 263 S.W. 743 (Ky. 1924) (“Unless there is an entire

absence of substantial and credible evidence to support the board’s finding of facts,

this court, in the absence of fraud, cannot disturb it.”).

At issue is whether the ALJ erred in concluding Appellee did not

achieve MMI until June 17, 2021. To support its claims of error, Appellant

advances three arguments, none of which persuades this Court.

2 Kentucky Revised Statutes.

-4- First, Appellant contends Dr. Fadel’s testimony is inherently

ambiguous because the date he said MMI was achieved was the same date he first

examined her. We see no ambiguity in a determination that, on the first day Dr.

Fadel could make such a determination with any degree of medical certainty, June

17, 2021, he concluded she reached MMI. Assessment that MMI occurred before

he saw her would have been speculation. Appellant cites no authority supporting a

contrary argument.3 Dr. Fadel’s testimony is substantial evidence supporting the

ALJ’s decision. Even assuming arguendo our agreement with Appellant’s

position, the ALJ’s reliance on Dr. Fadel’s testimony is not “so flagrant as to cause

gross injustice.” Twin Resources, 394 S.W.3d at 422 (citations omitted). This

argument does not persuade us that the ALJ’s findings of fact should be disturbed.

Similarly, Appellant’s belief the date chosen by Dr. Fadel was

arbitrary cannot be a basis for disturbing her findings of facts. Appellant contends

the date is arbitrary to the same extent Appellant’s office assistant could have

scheduled her visit, arbitrarily, at any time. We disagree. Dr. Fadel would have

had to determine whether Appellee had or had not reached MMI on whatever date

he saw her, regardless of the date his assistant chose to schedule her. Obviously,

the ALJ considered any proof of an earlier date to be unpersuasive. That

3 Appellant cites no caselaw in support of any of its arguments.

-5- determination of the persuasiveness of the evidence is within the exclusive purview

of the ALJ.

Finally, Appellant claims error in Dr. Fadel’s testimony as the date he

chose involved the consideration of injuries which were not work-related. Again,

the ALJ considered voluminous medical records and medical testimony concerning

Appellee’s injuries. Nothing in the ALJ’s order constitutes an arbitrary decision on

her part. The ALJ heard several conflicting facts in the testimony and medical

reports presented to her, and she determined which to believe and which to cast

aside. This is fully in line with her duty to sort through the evidence and give it

appropriate weight. It was well within her discretion to choose Dr. Fadel’s date of

MMI over others. In doing so, she considered and weighed any evidence that Dr.

Fadel’s date of MMI included injuries which were not work-related. Nothing in

the record indicates substantial evidence did not support this conclusion.

Accordingly, Appellant’s argument cannot prevail on this point.

Each of Appellant’s arguments challenges the ALJ’s discretion to find

facts – a role statutorily carved out exclusively for ALJs. The Board did not

substitute its judgment of this factfinding, and neither will this Court.

For the aforementioned reasons, we affirm.

ALL CONCUR.

-6- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Rodney J. Mayer Melissa Anderson Hofe Louisville, Kentucky Louisville, Kentucky

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