RENDERED: AUGUST 29, 2019 TO BE PUBLISHED
LAFARGE HOI
ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2018-CA-000414-WC WORKERS’COMPENSATION BOARD NO. 16-WC-90245
JAMES SWINFORD, APPELLEES HON. W. GREG HARVEY, ADMINISTRATIVE LAW JUDGE, AND WORKERS’ COMPENSATION BOARD
OPINION OF THE COURT BY JUSTICE WRIGHT
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
I. BACKGROUND
James Swinford worked as a bulldozer operator for Lafarge Holcim when
he was injured on the job on March 10, 2016. That day, the ground where he
was moving dirt caved in causing him to crash the dozer down an
embankment. He remained in the equipment for seven hours after the crash
until he was rescued by boat and removed from the pit. Swinford was seventy-
five years old on the day of the accident and had worked for Lafarge or its
predecessor for more than four decades. After the accident, Swinford had what he described as a “crick” in his
neck. This pain in his neck worsened and was accompanied by pain and
weakness radiating into his right arm. He has not worked since the date of his
work-related injuiy.
The Administrative Law Judge (ALJ) awarded Swinford permanent partial
disability (PPD) benefits based on his treating doctor’s impairment rating of
15%. That award and the duration of Swinford’s benefits were appealed to the
Workers’ Compensation Board and then the Court of Appeals. They are also
the subject of this present appeal.
II. ANALYSIS
A. Pre-existing Condition Lafarge argues Swinford did not meet his burden of proving the extent of
the injuiy attributable to his work injury. He asserts that Dr. Strenge
(Swinford’s treating physician) acknowledged Swinford had a prior cervical
surgery in the 1990s which resulted in chronic numbness and pain in his right
hand and neck pain. Dr. Strenge indicated the work injury caused some
worsening of both the neck pain and the right-arm numbness and thought
Swinford was entitled to a permanent impairment rating of 15%. Lafarge
argues Dr. Strenge did not specifically state whether the entire impairment was
caused by the 2016 injury and that he did not address any impairment rating
related to Swinford’s cervical fusion. Further, Lafarge asserts Dr. Strenge’s
opinion fell short of establishing a permanent impairment resulting from his
2016 accident at work.
2 The ALJ awarded Swinford permanent partial disability (PPD) benefits
based on his treating doctor’s impairment rating. On appeal, both the Board
and Court of Appeals affirmed on this issue. Lafarge asks us to reverse and
hold that Swinford is not entitled to benefits, as he failed to sustain his burden
of proof.
In reviewing questions of fact, we are mindful that “[t]he 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) (citing Paramount Foods, Inc. v. Burkhardt, 695
S.W.2d 418, 419 (Ky. 1985)). We have held:
KRS 342.285 gives the ALJ the sole discretion to determine the quality, character, and substance of evidence. As fact-finder, an ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same party’s total proof. KRS 342.285(2) and KRS 342.290 limit administrative and judicial review of an ALJ’s decision to determining whether the ALJ “acted without or in excess of his powers;” whether the decision “was procured by fraud;” or whether the decision was erroneous as a matter of law. Legal errors would include whether the ALJ misapplied Chapter 342 to the facts; made a clearly erroneous finding of fact; rendered an arbitrary or capricious decision; or committed an abuse of discretion.
Abel Verdon Const, v. Rivera, 348 S.W.3d 749, 753-54 (Ky. 2011) (footnotes
omitted). Furthermore, “(w]here the party with the burden of proof was
successful before the ALJ, the issue on appeal is whether substantial evidence
supported the ALJ’s conclusion.” Whittaker v. Rowland, 998 S.W.2d 479, 481
(Ky. 1999). “Substantial evidence means evidence of substance and relevant
3 consequence having the fitness to induce conviction in the minds of reasonable
men.” Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).
Here, Swinford had the burden of proof, as Lafarge asserts. Because
Swinford, the party with the burden of proof, received a favorable
determination from the ALJ, our review is to determine whether the ALJ’s
conclusion was based on substantial evidence. Whittaker, 998 S.W.2d at 481.
In his opinion, the ALJ summarized Swinford’s testimony. The ALJ
noted that Swinford had neck surgery twenty years ago following nerve damage
in his hands. Swinford testified he had taken medication for the nerve damage
for the past ten to fifteen years, but also pointed out that after the surgery, he
had worked full duty without any restrictions for more than two decades until
the present injury. The ALJ quoted Swinford’s comparison of his condition
before and after the work injury. In that testimony, Swinford said that he
worked 12-hour shifts at least five days a week before the work-related injury.
Following the injury, the only work he could do was to mow the yard or
comparable tasks. According to Swinford, his neck bothers him more and gets
tired easily. At the hearing, Swinford said that he had been willing to attempt
returning to his old job, but he did not think he could actually do the work.
The ALJ also summarized the medical evidence presented by the parties.
Dr. Strenge, an orthopedic surgeon, was Swinford’s treating physician. Dr.
Strenge noted that Swinford had a prior cervical surgery, but was able to work
without restrictions following surgery until the time of his accident. According
to Dr. Strenge, an MRI performed two months after the work injuiy showed
4 that Swinford has a T1-T2 disk herniation and mind central and foraminal
stenosis. He diagnosed Swinford with disk herniation as a result of the
bulldozer accident, which had exacerbated his neck pain and caused
worsening of his right arm numbness and new onset of right tricep weakness.
He assigned a 15% whole body impairment stating that Swinford has a disk
herniation “with significant radiculopathy and focal weakness in his right
triceps . . . .”
The ALJ also summarized the medical evidence contained in Dr. Ruxer’s
report. Swinford saw Dr. Ruxer for a consultation in the course of his
treatment. He noted Swinford’s prior neck surgery and the fact that he had
worked without restrictions until the 2016 work accident. He also noted a
worsening of Swinford’s neck and right arm pain and recommended continued
treatment.
The ALJ also discussed the office records from Baptist Occupational
Medicine. The records from the date of Swinford’s injury noted “no pain, but
neck is sore.” He was referred to physical therapy and prescribed Ibuprofen.
Two follow-up visits were also included in the records. During these visits,
Swinford complained of increasing neck and right arm pain, and a “catch”
when extending his neck. An MRI was ordered along with a follow-up
appointment, but the record for the follow-up was not submitted into evidence
Finally, the ALJ discussed Dr. Weiss’s independent medical evaluation,
which Lafarge had submitted into evidence. In Dr. Weiss’s opinion, the MRI
showed no evidence of neural impingement or disk herniation—only
5 generalized cervical spondylosis that would be typical for a seventy-five-year-
old man. Dr. Weiss opined that Swinford showed no evidence of a structural
abnormality and gave no impairment rating. He did, however, note that
Swinford’s symptoms were related to his work injury.
The ALJ acknowledged that the medical evidence was varied. He
indicated that Drs. Strenge and Ruxer “have opined that Swinford suffers from
an exacerbation of a dormant condition in his spine caused” by the work
accident. He also noted that Dr. Weiss found no evidence of a structural
abnormality in Swinford’s spine.
As discussed, the ALJ “has the sole authority to judge the weight,
credibility, substance, and inferences to be drawn from the
evidence.” Fleming, 520 S.W.3d at 386. Here, the ALJ found Swinford to be a
credible witness. He noted Swinford was working full time and did not
aggrandize his symptoms. The ALJ believed Swinford’s testimony that his
condition changed and worsened following the incident. The ALJ chose to rely
on the medical opinion testimony of Drs. Strenge and Ruxer in his finding that
Swinford’s worsening symptoms were a result of his work injuiy sustained on
March 10, 2016.
The ALJ also addressed Lafarge’s argument that Swinford’s condition
was pre-existing and active. We look to the analysis contained in Finley v. DBM
Techs., 217 S.W.3d 261 (Ky. App. 2007) “when a ‘work-related injury’ arouses a
pre-existing dormant condition.” Bolster and Jeffries Health Care Group, LLC v.
Mayhew, 2018-SC-000202-WC, 2019 WL 1168018, at *4 (Ky. Feb. 14, 2019).
6 In Finley, the Court of Appeals held: “[t]o be characterized as active, an
underlying pre-existing condition must be symptomatic and impairment
ratable pursuant to the AMA Guidelines immediately prior to the occurrence of
the work-related injury. Moreover, the burden of proving the existence of a pre
existing condition falls upon the employer.” Finley, 217 S.W.3d at 265.
In addressing the Finley factors, the ALJ considered the fact that
Swinford had been working full time without any restriction as a heavy
equipment operator for more than two decades after his cervical fusion surgery.
The ALJ relied on Dr. Strenge’s opinion that Swinford suffered a disk
herniation in the work accident and that he experienced weakness in his
triceps that was not present before the accident. The ALJ stated that he relied
upon the opinions of Dr. Ruxer and Dr. Strenge in finding that Swinford had both an exacerbation of a dormant condition that was brought into disabling reality with respect to his right arm numbness and a new injuiy as documented by Dr. Strenge with regard to the disk herniation at T1-T2 and the triceps weakness.
The ALJ thoroughly documented the evidence in the case and discussed
which pieces he found credible and relied upon in reaching his conclusions.
The ALJ relied upon substantial evidence in finding Swinford’s work injuiy to
be the combination of the exacerbation of a dormant pre-exiting condition and
a new injury. He also relied upon substantial evidence (Dr. Strenge’s rating) in
determining that Swinford has a 15% whole body impairment resulting from
his work-related injury. Therefore, we affirm the Court of Appeals on this
issue.
7 B. Retroactivity of KRS 342.730(4) Lafarge also asserts that the Court of Appeals erred in addressing the
retroactivity of KRS 342.730(4) at all—and, in the alternative, in holding that
the statute is not retroactive. For the following reasons, while we hold the
Court of Appeals was correct in addressing the issue, we reverse its holding
that the statute is not retroactive.
The ALJ acknowledged this Court’s opinion in Parker v. Webster County
Coal, LLC (Dotiki Mine), 529 S.W.3d 759 (Ky. 2017), in which we found the
then-current version of KRS 342.730(4) unconstitutional on equal protection
grounds. Since a portion of the statute had been ruled unconstitutional, the
ALJ applied an earlier version of the statute which included a tier system. On
appeal to the Workers’ Compensation Board, Swinford argued he should
receive the full 425-week award without the tier system from the previous
version of the statute utilized by the ALJ. Lafarge argued the award should
state that benefits should be payable to Swinford “for so long as he is eligible to
receive them in accordance with KRS 342.730(4).” Lafarge noted that there
were legislative efforts underway to re-examine the duration of benefits payable
to older claimants under the Workers’ Compensation Act.
The Board held that Swinford was entitled to the full 425-week period
and Swinford did not pursue further appeal. Lafarge appealed to the Court of
Appeals on this issue (along with the previously-discussed issue concerning
Swinford’s pre-existing condition). Lafarge pointed out that proposed
legislation pending before the Kentucky General Assembly may further amend
8 KRS 342.730. While the appeal was pending before the Court of Appeals, the
amendment became effective. The amended version of KRS 342.730(4) reads:
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. In like manner all income benefits payable pursuant to this chapter to spouses and dependents shall terminate as of the date upon which the employee would have reached age seventy (70) or four (4) years after the employee’s date of injury or date of last exposure, whichever last occurs.
In determining which version of the statute to apply, the Court of
Appeals discussed whether the statute was retroactive, and held that it was
not. Therefore, it applied the statute in force at the time of Swinford’s injury
after severing the portion this Court had held unconstitutional. Based on that
statute, it held that Swinford was entitled to receive benefits for 425 weeks.
On appeal to this Court, Lafarge argues that the Court of Appeals
overstepped its bounds by addressing whether the newly-amended version of
KRS 342.730(4) was retroactive. It argues that “the award in place in favor of
Swinford indicated that permanent partial disability benefits would be payable
for a period of 425 weeks, without limitation. The only issue regarding that
award was whether the 425[-]week duration was correct.” However, we fail to
see how the Court of Appeals could have analyzed the duration of benefits
without first ascertaining which version of the statute applied. Lafarge made
the duration of benefits an issue. It cannot now complain that the Court of
Appeals resolved this issue by determining whether a newly-amended statute
impacting the duration of those benefits was applicable.
9 Lafarge asserts that even if the statute’s retroactivity was properly before
the Court of Appeals, that court erred in holding that KRS 342.730(4) was not
retroactive. This difficult issue was created by the failure to codify subsection
(3) of Section 20 of 2018 Ky. Acts ch. 40 as part of the Kentucky Revised
Statutes (KRS). Codification means “[t]he process of compiling, arranging, and
systematizing the laws of a given jurisdiction . . . .” CODIFICATION, Black’s
Law Dictionary (11th ed. 2019). “The Legislative Research Commission shall
formulate, supervise, and execute plans and methods for . . . codification[] and
arrangement of the official version of the Kentucky Revised Statutes.” KRS
7.120(1). Subsection (2) of KRS 7.120 requires that “[t]he Commission shall
prepare and submit to the General Assembly such consolidation, revision, and
other matters relating to the statutes as can be completed from time to time.”
After the legislature has passed an act and it is signed into law, then the
official version of the Kentucky Revised Statutes shall be maintained by the
Legislative Research Commission. KRS 7.131(1) (“[t]he Legislative Research
Commission shall maintain the official version of the Kentucky Revised
Statutes ....”). Furthermore, “[t]he official version of the Kentucky Revised
Statutes shall contain all permanent laws of a general nature that are in force
in the Commonwealth of Kentucky.” KRS 7.131(2). The General Assembly has
mandated that courts shall rely on that official version. KRS 7.138(2)(a) states,
“[i]n any judicial or administrative proceeding, the text of any codified Kentucky
statute which is submitted or cited by a party or upon which the court. . . relies
10 shall be that text contained in the official version of the Kentucky Revised
Statutes . . . ” (Emphasis added.)
The maintenance of the Kentucky Revised Statutes is vital for research
and understanding the laws under which we must live, function and plan
future actions. Anyone who is seeking to know the law researches the
Kentucky Revised Statutes. It would be impractical and extremely difficult if
people had to search all the acts of every legislative session in order to advise
clients or know what law to follow. It is essential that the official version of the
Kentucky Revised Statutes be accurate and up to date.
The reviser of statutes “shall be appointed by the [Legislative Research]
Commission upon recommendation of the director.” KRS 7.140(1). The reviser
of statutes has the duty to execute the functions set forth in KRS 7.120, 7.131,
7.132, 7.134, 7.136, 7.138, and 7.140 for the Legislative Research
Commission. KRS 7.140(1). This includes the duty to “formulate, supervise,
and execute plans and methods for . . . codification[] and arrangement of the
official version of the Kentucky Revised Statutes.” KRS 7.120(1). The reviser of
statutes has the duty to prepare and submit to the General Assembly such
revisions of the statutes as can be completed from time to time. KRS 7.120(2).
The reviser of statutes also has the duty to execute the Legislative Research
Commission’s function of maintaining the official version of the Kentucky
Revised Statutes. KRS 7.131.
The dilemma facing the Court in this case is that portions of the Act
passed by the General Assembly were completely omitted from the official
11 version of the Kentucky Revised Statutes. A Legislative Research Commission
note appears below the official version of KRS 342.730(4) stating:
This statute was amended in Section 13 of 2018 Ky. Acts ch. 40. . . . . Subsection (3) of Section 20 of that Act reads, “Subsection (4) of Section 13 of this Act shall apply prospectively and retroactively to all claims: (a) For which the date of injury or date of last exposure occurred on or after December 12, 1996; and (b) That have not been fully and finally adjudicated, or are in the appellate process, or for which time to file an appeal has not lapsed, as of the effective date of this Act.”
However, it failed to include it in the official version of KRS 342.730. KRS
7.134(l)(c) requires that certified versions of the Kentucky Revised Statutes
shall contain “[t]he text of laws contained in the applicable version of the
Kentucky Revised Statutes . . . .” Subsection (l)(f) provides that the Legislative
Research Commission and the reviser of statutes may include “[a]ny
annotations, historical notes, and other information that the Commission
deems appropriate to include.” These two subsections make it clear that the
text of laws in the official version of the Kentucky Revised Statutes and the
Legislative Research Commission notes are separate and distinct.
Lafarge points out that “not all legislation passed by our Legislature
becomes codified.” Lafarge’s argument is based on the example of the budget
of the Commonwealth of Kentucky which has the force of law but is not
embodied in any statute. KRS 7.131(2) requires that “[t]he official version of
the Kentucky Revised Statutes shall contain all permanent laws of a general
nature that are in force in the Commonwealth of Kentucky.” Subsection (3) of
that statute specifically provides that “the Commission may omit all laws of a
private, local, or temporary nature, including laws for the appropriation of 12 money . . . .” The statute requires that all permanent laws of a general nature
shall be included in the official version of the Kentucky Revised Statutes, but
the Commission may omit laws for the appropriation of money (i.e., the
budget).
While the Act in the present case is not an appropriations bill, those are
not the only laws exempt from codification. KRS 7.131(3) states that the
Legislative Research Commission “may omit all laws of a private, local, or
temporary nature.” Here, the language in the Act regarding retroactivity is
temporary. It applies to those cases which “have not been fully and finally
adjudicated, or are in the appellate process, or for which time to file an appeal
as not lapsed, as of the effective date of this Act.” For any new injuries and
claims, the retroactivity of the Act will not be an issue. Therefore, the language
is only relevant to a particular time frame and once cases arising during that
time frame are fully adjudicated, it will be unnecessary. Therefore, due to the
temporary nature of the language regarding retroactivity in the Act, codification
was not required.
Lafarge cites Baker v. Fletcher, 204 S.W.3d 589 (Ky. 2006), a case
concerning a budget act. Therein, we stated, “[t]hough it is clear that the
General Assembly must expressly manifest its desire that a statute apply
retroactively, magic words are not required.” Id. at 597. In that case, we
looked to language contained in the Act in question in order to determine that
the legislature intended that it apply retroactively. As noted, budgets are
exempt from codification requirements—as are temporary laws. Therefore, in
13 both that case and the case at bar this Court may go to the language of the Act
to determine retroactivity.
This Court has great respect for the language the General Assembly
included in the official Kentucky Revised Statutes. The General Assembly
made a clear pronouncement regarding retroactivity in KRS 446.080(3): “(n]o
statute shall be construed to be retroactive, unless expressly so declared.”
With no mention of retroactivity or any language from which retroactivity may
be inferred, the express language of KRS 342.730(4) does not make the statute
retroactive. However, the Legislative Research Commission note following the
statute references the Act from which the statute was enacted and, as
discussed, is exempt from the codification requirements, as it is temporary in
nature. Thus, the legislature has made a declaration concerning retroactivity
in this case.
Since the newly-enacted amendment applies retroactively, it must be
used to determine the duration of Swinford’s benefits. We remand this matter
to the ALJ to apply the time limits set out in the 2018 amendment to KRS
342.730(4).
While Swinford attempted to belatedly challenge the constitutionality of
the amendments to KRS 342.730(4), it did so only after the Court of Appeals
had rendered its opinion. The Court of Appeals denied that issue as moot.
Swinford did not file a cross-appeal to this Court to address that issue.
Therefore, the constitutionality of the statute is not at issue before us in this
14 case. Furthermore, the Attorney General was not timely notified of a
constitutional challenge pursuant to KRS 418.075.
III. CONCLUSION For the foregoing reasons, we affirm the Court of Appeals in part, reverse
in part, and remand this matter to the ALJ for further proceedings consistent
with this opinion.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Douglas Anthony U’Sellis U’Sellis Mayer & Associates
COUNSEL FOR APPELLEE JAMES SWINFORD:
Charles Tveite Edwards & Kautz PLLC
COUNSEL FOR APPELLEE W. GREG HARVEY:
Walter Greg Harvey Administrative Law Judge
COUNSEL FOR APPELLEE WORKERS’ COMPENSATION BOARD:
Michael W. Alvey Worker’s Compensation Board
COUNSEL FOR AMICI CURIAE, DAVID W. OSBORNE, SPEAKER OF THE KENTUCKY HOUSE OF REPRESENTATIVES, AND ROBERT STIVERS, PRESIDENT OF THE KENTUCKY SENATE:
David E. Fleenor Office of the Senate President
15 ♦
R. Vaughn Murphy Office of Senate President
David Eric Lycan Office of the Speaker of the House of Representatives
Tyler Peavler Office of the Speaker of the House of Representatives
COUNSEL FOR AMICI CURIAE, KENTUCKY CHAMBER OF COMMERCE, NORTHERN KENTUCKY CHAMBER OF COMMERCE, GREATER LOUISVILLE, INC., COMMERCE LEXINGTON, INC., KENTUCKY LEAGUE OF CITIES, AND KENTUCKY COAL ASSOCIATION:
Brent Robert Baughman Bingham Greenebaum Doll, LLP
Richard Clayton Larkin Dinsmore & Shohl, LLP
Kyle William Miller Bingham Greenebaum Doll, LLP
COUNSEL FOR AMICUS CURIAE, KENTUCKY WORKERS ASSOCIATION:
Peter J. Naake Priddy, Cutler, Naake & Meade, PLLC
COUNSEL FOR AMICUS CURIAE, KENTUCKY CHAPTER OF AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS:
Udell Barry Levy Jennings Law Office