IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: DECEMBER 16, 2021 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2020-SC-0463-WC
JBS SWIFT APPELLANT
ON APPEAL FROM COURT OF APPEALS NO. 2019-CA-1782 WORKERS’ COMPENSATION BOARD NO. WC-16-98773 V.
ANA MABEL DUMOIS BUENO; APPELLEE HONORABLE STEPHANIE L. KINNEY, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This case is before the Court on administrative appeal as a matter of
right1 by JBS Swift (Swift), the Appellant, of a workers’ compensation award.
The opinion of the Court of Appeals affirmed in part and reversed in part the
opinion of the Workers’ Compensation Board.
The Court of Appeals affirmed the award of total temporary disability
(TTD) for the time periods of June 24, 2016 through July 11, 2016, and for
July 19, 2016 through July 27, 2017. The reversal pertained to the issue of the
1 Ky. Const. § 115. three-multiplier for permanent, partial disability payments but as neither party
has appealed that portion of the Court of Appeals’ opinion, we will not address
it further. Thus, Swift contends the only question before us is whether TTD
payments are barred when an employee has refused available comparable work
within medical restrictions. As the facts of the record before us do not present
this question, we decline to answer it and affirm the Court of Appeals.
I. Facts and Procedural Background
Swift’s argument hinges on the proposition that Ana Mabel Dumois
Bueno is a malingerer, exaggerating her symptoms, and was physically capable
of performing comparable work between July 19, 2016 through July 27, 2017.
These are all questions of fact. Rather than provide an exhaustive account of
the medical testimony below, we recite only that evidence necessary to
demonstrate that the ALJ did rely upon substantial evidence to reach her
conclusion.2
Bueno, the Appellee, worked for Swift in a meat processing plant. Her job
was to remove the heads of pigs from their bodies by holding the body with her
left hand and operating an electric knife with her right hand. On November 14,
2015, whilst walking by a coworker carrying a metal tool of some kind, she
struck her left index finger on the tool. Since that day she has not returned to
2 This is because the issue on appeal is not whether substantial evidence exists to support the ALJ’s decision. Indeed, it’s not even a matter of statutory interpretation. Rather, Swift presents a specific and purely legal question based upon public policy. To do so it relies upon an account of the case that contradicts the facts as the ALJ found them to be. Thus, there is a threshold albeit subtle issue of whether we can accept Swift’s account of the facts. 2 her normal job. Instead, she was placed on restrictions to not use her left
hand. For seven months she continued to work for Swift in various capacities
until she was placed on the additional restriction of not working in cold
conditions. Bueno testified approximately a week after this restriction was
placed upon her, Swift informed her it had no work available and sent her
home. She has not worked for Swift since then.
Dr. Amitava Gupta performed surgery on Bueno’s hand twice, in June of
2016 and May of 2017. He noted that there is no real improvement in Bueno’s
condition despite twice undergoing post-operative physical therapy. Dr. Gupta
placed Bueno on the additional restriction of not working in cold conditions. He
also placed a restriction of no lifting more than 10 lbs. and to use both hands if
repetitively lifting or carrying 10 lbs. objects. Finally, he assessed 11% whole
person impairment. The ALJ specifically cited to his opinion and notes for her
finding of physical disability.
Dr. Steven J. Simon performed an independent psychological evaluation
at Bueno’s request. He diagnosed Major Depressive Disorder, moderate, single
episode, Anxiety Disorder, and Post Traumatic Stress Disorder. This diagnosis
came in spite of testing which suggested feigning, excessive symptom
endorsement, and exaggeration of symptoms. He found she was not at
maximum medical improvement and assessed 20% permanent impairment.
The ALJ rejected the permanent impairment finding as premature.
Dr. Timothy S. Allen performed an independent psychiatric evaluation at
Swift’s request. He diagnosed Somatic Symptom Disorder and assessed 10%
3 permanent impairment, attributing half to a pre-existing Depressive Disorder.
The ALJ, however, found against this last diagnosis. She stated, “Dr. Allen did
not indicate Plaintiff suffered from a pre-existing, active condition. Moreover,
Defendant has not presented any convincing evidence that corroborates Dr.
Allen’s finding of a pre-existing psychological condition.” Instead, the ALJ relied
upon the medical records Bueno submitted for treatment regarding her
depression and anxiety at Seven Counties Services, Inc. These records showed
twenty-seven visits between November 1, 2016 and August 30, 2018. She also
relied upon the medical report from Our Lady of Peace where Bueno presented
herself for treatment reporting a suicide attempt and ideation. Dr. Afaq treated
Bueno at Our Lady of Peace but did not testify before the ALJ. He diagnosed
major depressive disorder, recurrent, moderate. The ALJ ultimately relied upon
Dr. Allen’s conclusion of 10% permanent impairment rating. Upon a Petition
for Reconsideration, the ALJ further concluded despite releases to return to
work (within the mentioned restrictions by Dr. Gupta) Bueno was not
psychologically capable of returning to even light-duty work.
Finally, Bueno testified although willing to work a job that could be
performed with one hand, she did not think she’s physically capable. She
further testified Swift sent her home with no work available. There is indication
in the record Swift sent Bueno a letter in the mail offering her a job, but Bueno
did not respond to it. On the other hand, Lisa Nikki Brown, Swift’s
occupational health manager, testified she was not aware if Bueno ever
received the job offer as the letter was returned unclaimed. Brown did not
4 communicate with Bueno on any other occasion via any other means. Brown
further testified fifteen jobs were available that did not require lifting more than
10 lbs. and could be performed adequately with one-hand. The ALJ made a
finding of fact that “Defendant ceased accommodating Plaintiff’s light duty
work restrictions and Plaintiff was sent home with no work available.” She did
not mention the availability of other jobs further. The ALJ awarded total
temporary disability for the time periods of June 24, 2016 through July 11,
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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: DECEMBER 16, 2021 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2020-SC-0463-WC
JBS SWIFT APPELLANT
ON APPEAL FROM COURT OF APPEALS NO. 2019-CA-1782 WORKERS’ COMPENSATION BOARD NO. WC-16-98773 V.
ANA MABEL DUMOIS BUENO; APPELLEE HONORABLE STEPHANIE L. KINNEY, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This case is before the Court on administrative appeal as a matter of
right1 by JBS Swift (Swift), the Appellant, of a workers’ compensation award.
The opinion of the Court of Appeals affirmed in part and reversed in part the
opinion of the Workers’ Compensation Board.
The Court of Appeals affirmed the award of total temporary disability
(TTD) for the time periods of June 24, 2016 through July 11, 2016, and for
July 19, 2016 through July 27, 2017. The reversal pertained to the issue of the
1 Ky. Const. § 115. three-multiplier for permanent, partial disability payments but as neither party
has appealed that portion of the Court of Appeals’ opinion, we will not address
it further. Thus, Swift contends the only question before us is whether TTD
payments are barred when an employee has refused available comparable work
within medical restrictions. As the facts of the record before us do not present
this question, we decline to answer it and affirm the Court of Appeals.
I. Facts and Procedural Background
Swift’s argument hinges on the proposition that Ana Mabel Dumois
Bueno is a malingerer, exaggerating her symptoms, and was physically capable
of performing comparable work between July 19, 2016 through July 27, 2017.
These are all questions of fact. Rather than provide an exhaustive account of
the medical testimony below, we recite only that evidence necessary to
demonstrate that the ALJ did rely upon substantial evidence to reach her
conclusion.2
Bueno, the Appellee, worked for Swift in a meat processing plant. Her job
was to remove the heads of pigs from their bodies by holding the body with her
left hand and operating an electric knife with her right hand. On November 14,
2015, whilst walking by a coworker carrying a metal tool of some kind, she
struck her left index finger on the tool. Since that day she has not returned to
2 This is because the issue on appeal is not whether substantial evidence exists to support the ALJ’s decision. Indeed, it’s not even a matter of statutory interpretation. Rather, Swift presents a specific and purely legal question based upon public policy. To do so it relies upon an account of the case that contradicts the facts as the ALJ found them to be. Thus, there is a threshold albeit subtle issue of whether we can accept Swift’s account of the facts. 2 her normal job. Instead, she was placed on restrictions to not use her left
hand. For seven months she continued to work for Swift in various capacities
until she was placed on the additional restriction of not working in cold
conditions. Bueno testified approximately a week after this restriction was
placed upon her, Swift informed her it had no work available and sent her
home. She has not worked for Swift since then.
Dr. Amitava Gupta performed surgery on Bueno’s hand twice, in June of
2016 and May of 2017. He noted that there is no real improvement in Bueno’s
condition despite twice undergoing post-operative physical therapy. Dr. Gupta
placed Bueno on the additional restriction of not working in cold conditions. He
also placed a restriction of no lifting more than 10 lbs. and to use both hands if
repetitively lifting or carrying 10 lbs. objects. Finally, he assessed 11% whole
person impairment. The ALJ specifically cited to his opinion and notes for her
finding of physical disability.
Dr. Steven J. Simon performed an independent psychological evaluation
at Bueno’s request. He diagnosed Major Depressive Disorder, moderate, single
episode, Anxiety Disorder, and Post Traumatic Stress Disorder. This diagnosis
came in spite of testing which suggested feigning, excessive symptom
endorsement, and exaggeration of symptoms. He found she was not at
maximum medical improvement and assessed 20% permanent impairment.
The ALJ rejected the permanent impairment finding as premature.
Dr. Timothy S. Allen performed an independent psychiatric evaluation at
Swift’s request. He diagnosed Somatic Symptom Disorder and assessed 10%
3 permanent impairment, attributing half to a pre-existing Depressive Disorder.
The ALJ, however, found against this last diagnosis. She stated, “Dr. Allen did
not indicate Plaintiff suffered from a pre-existing, active condition. Moreover,
Defendant has not presented any convincing evidence that corroborates Dr.
Allen’s finding of a pre-existing psychological condition.” Instead, the ALJ relied
upon the medical records Bueno submitted for treatment regarding her
depression and anxiety at Seven Counties Services, Inc. These records showed
twenty-seven visits between November 1, 2016 and August 30, 2018. She also
relied upon the medical report from Our Lady of Peace where Bueno presented
herself for treatment reporting a suicide attempt and ideation. Dr. Afaq treated
Bueno at Our Lady of Peace but did not testify before the ALJ. He diagnosed
major depressive disorder, recurrent, moderate. The ALJ ultimately relied upon
Dr. Allen’s conclusion of 10% permanent impairment rating. Upon a Petition
for Reconsideration, the ALJ further concluded despite releases to return to
work (within the mentioned restrictions by Dr. Gupta) Bueno was not
psychologically capable of returning to even light-duty work.
Finally, Bueno testified although willing to work a job that could be
performed with one hand, she did not think she’s physically capable. She
further testified Swift sent her home with no work available. There is indication
in the record Swift sent Bueno a letter in the mail offering her a job, but Bueno
did not respond to it. On the other hand, Lisa Nikki Brown, Swift’s
occupational health manager, testified she was not aware if Bueno ever
received the job offer as the letter was returned unclaimed. Brown did not
4 communicate with Bueno on any other occasion via any other means. Brown
further testified fifteen jobs were available that did not require lifting more than
10 lbs. and could be performed adequately with one-hand. The ALJ made a
finding of fact that “Defendant ceased accommodating Plaintiff’s light duty
work restrictions and Plaintiff was sent home with no work available.” She did
not mention the availability of other jobs further. The ALJ awarded total
temporary disability for the time periods of June 24, 2016 through July 11,
2016, and for July 19, 2016 through July 27, 2017, and applied the three-
multiplier for permanent, partial disability payments.
Swift appealed the above determinations. The Workers’ Compensation
Board, reviewing for legal error, affirmed. Regarding the TTD award, the Board
held “KRS 342.730(1)(c)1 does not direct the ALJ to consider whether positions
exist that the employee could perform. The plain language of the statute and
pertinent case law requires the ALJ to analyze the actual tasks the employee
performed prior to the injury.” In layman’s terms, the Board found the
existence of other jobs legally irrelevant.
The Court of Appeals affirmed this ruling. Noting Swift’s failure to “cite
any statutes, case law, or other legal authority . . . [,]” the Court demonstrated
the existence of other available jobs of comparable duties and within medical
restrictions was both statutorily and factually irrelevant. “As the Board
concluded that sufficient evidence supported the ALJ’s finding that Bueno was
unable to return to work during the second TTD period, whether jobs were
available or offered within restrictions was of little consequence.”
5 Swift now appeals the ruling regarding TTD benefits. Pertinent to our
analysis is how the argument has been presented. Swift does not argue there is
no substantial evidence in the record to support the ALJ’s findings of fact and
award. Neither does it argue that KRS 342.730(1)(c)(1) compels a consideration
of other available jobs within medical restrictions. Instead, Swift argues as a
matter of public policy that TTD payments should be barred if an employee is
capable of returning to work within medical restrictions but simply refuses to
do so.
II. Standard of Review
In our review of workers’ compensation awards, we have always
recognized that the ALJ “has the sole authority to judge the weight, credibility,
substance, and inferences to be drawn from the evidence.” Holcim v. Swinford,
581 S.W.3d 37, 39 (Ky. 2019) (internal quotation and citation omitted). “[A]n
ALJ, as fact-finder, may reject any testimony and believe or disbelieve various
parts of the evidence, regardless of whether it came from the same witness or
the same adversary party's total proof . . .” Whittaker v. Rowland, 998 SW.2d
479, 481 (Ky. 1999). “Although a party may note evidence which would have
supported a conclusion contrary to the ALJ's decision, such evidence is not an
adequate basis for reversal on appeal.” Id. at 482. This is because “it is not the
function of an appellate court to reweigh the evidence on a question of fact . . .”
Id.
Indeed, not even the Workers’ Compensation Board can undertake a
reweighing of the evidence. Western Baptist Hosp. v. Kelly, 827 S.W.2d 685,
6 687 (Ky. 1992). Instead, where an ALJ has ruled in favor of the party bearing
the burden of proof, the Board’s function is solely to determine “whether the
evidence is sufficient to support a particular finding made by the ALJ . . .” Id.
In short, the findings of fact by an ALJ are judgment calls and “no purpose is
served by second-guessing such judgment calls, let alone third-guessing them.”
III. Analysis
As mentioned, Swift’s argument is predicated upon the factual assertions
that Bueno is malingering, exaggerating her symptoms, and was physically and
psychologically capable of performing comparable work between July 19, 2016
through July 27, 2017. The ALJ has rejected these assertions. In her original
Opinion, Award and Order, the ALJ concluded the “Plaintiff lacks the physical
capacity to perform her pre-injury duties . . .” She also made a specific finding
of fact that “Defendant ceased accommodating Plaintiff’s light duty work
restrictions and Plaintiff was sent home with no work available.” Upon a
Petition for Reconsideration, the ALJ further concluded that Bueno did not
have the psychological capacity to perform light duty work, citing her diagnosis
and treatment for depression and anxiety.
Because we have no warrant to second- or third guess the factual
findings of the ALJ, we simply cannot accept the framing of the case as
presented by Swift. Swift doesn’t even argue these factual findings are clearly
erroneous thereby giving this Court leave to reject them. Wilkerson v. Kimball
Int’l, Inc., 585 S.W.3d 231, 236 (Ky. 2019). Consequently, the question of
7 whether TTD benefits are barred when an employee is capable of working a
comparable job within medical restrictions but refuses to do so is not
presented by this appeal.
To the extent it might be suggested these arguments are implied in
Swift’s briefing, we answer that argument by implication is not a practice we
are inclined to countenance. The Civil Rules require a party to state plainly in
their brief all “contentions with respect to each issue of law relied upon for a
reversal . . .” and to support those contentions “with ample supportive
references to the record and citations of authority pertinent to each issue of law
and . . . a statement with reference to the record showing whether the issue
was properly preserved for review and, if so, in what manner.” CR3 76.12.
Regarding the ALJ’s factual findings, Swift has failed to comply with this rule
so there is nothing to review. Grief v. Wood, 378 S.W.2d 611, 612 (Ky. 1964)
(“Other matters suggested in appellants’ brief [that] are unsupported by
argument or by citation of authority . . . present nothing for consideration.”)
IV. Conclusion
The ALJ found Bueno was both physically and psychologically incapable
of returning to work. Swift has not challenged these findings as clearly
erroneous, much less lacking substantial evidence. Therefore, the question of
whether TTD benefits are barred when an employee is capable of working a
comparable job within medical restrictions but refuses to do so, is purely
3 Kentucky Rules of Civil Procedure. 8 hypothetical; to opine upon it would be an advisory opinion only. We do not
entertain such questions. Pettingill v. Pettingill, 480 S.W.3d 920, 923 (Ky.
2015). The Court of Appeals is affirmed.
All sitting. Minton, C.J., and Nickell, Lambert, VanMeter, Keller, and
Conley, JJ., concur. Hughes, J., concurs in result only.
COUNSEL FOR APPELLANT:
Walter E. Harding Boehl, Stopher & Graves, LLP
COUNSEL FOR APPELLEE, Ana Mabel Dumois Bueno
Stephanie Nicole Wolfinbarger Cotton Wolfinbarger & Associates, PLLC
Administrative Law Judge: Hon. Stephanie L. Kinney
Workers’ Compensation Board: Michael Wayne Alvey Chairman