Lsc Communications v. Artie Winchester

• Court: Kentucky Supreme Court
• Decided: October 24, 2024
• Docket: 2024-SC-0101
• Status: Unpublished

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: OCTOBER 24, 2024 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2024-SC-0101-WC

LSC COMMUNICATIONS APPELLANT

ON APPEAL FROM COURT OF APPEALS V. NO. 2023-CA-0929 WORKERS' COMPENSATION NO. WC-19-87447

ARTIE WINCHESTER; HONORABLE APPELLEES AMANDA MICHELLE PERKINS, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Artie Winchester was employed by LSC Communications when he

sustained a work-related injury to his right knee on April 2, 2019. After

several treatments and surgeries, Winchester initiated a workers’ compensation

claim. An Administrative Law Judge (ALJ) awarded Winchester temporary total

disability benefits from the date of injury through July 15, 2022, despite one

medical opinion that placed Winchester at maximum medical improvement on

November 30, 2020. LSC contested whether Winchester was entitled to

temporary total disability benefits during that entire period given its belief that

Winchester had already reached maximum medical improvement, but the

Workers’ Compensation Board affirmed the ALJ. LSC again appealed to the Court of Appeals which likewise affirmed the ALJ. LSC now appeals to this

Court and upon review, we affirm.

FACTS AND PROCEDURAL HISTORY

Artie Winchester was employed by LSC Communications, a printing

company, as a materials handler since 1987 and later worked as a bindery

operator for the company. On April 2, 2019, he kneeled to pick up paper that

had fallen to the floor. When he stood up, he felt a pop and immediate pain in

his right knee. Approximately two weeks later, Dr. Daniel Hackett, an

orthopedic surgeon, performed surgery to repair Winchester’s meniscus.

Winchester later re-injured his knee, and Dr. Hackett performed a second

surgery on October 1, 2019.

Despite physical therapy and injections, Winchester continued to

experience knee pain. In August 2020, inconclusive MRIs led Winchester to

seek treatment with Dr. Samuel Coy. Dr. Coy noted meniscal degeneration and

recommended aquatic therapy, injections, and possibly exploratory surgery.

Winchester saw Dr. Coy again on November 30, 2020, and reported some relief

from the injections and improvement in his pain and swelling. He still reported

pain when using stairs. In his report, Dr. Coy stated “[a]t this point his knee

does not bother him enough to consider any further intervention.” Dr. Coy

placed Winchester at maximum medical improvement (MMI) and imposed

permanent restrictions, such as no kneeling, squatting or prolonged sitting or

standing.

2 Prior to his first visit with Dr. Coy, LSC sent Winchester to Dr. Frank

Bonnarens for an examination. Dr. Bonnarens diagnosed a bucket-handle tear

of the meniscus with evidence of recurrent tear. Dr. Bonnarens recommended

another knee surgery and determined Winchester could not return to his prior

work for LSC. Dr. Bonnarens assessed a 1% impairment if Winchester did not

have another surgery.

On December 2, 2020, LSC sent Winchester a letter informing him that it

was terminating his temporary total disability (TTD) benefits based on Dr. Coy’s

report that placed Winchester at MMI as of November 30, 2020. Winchester

filed Form 101, initiating his workers’ compensation claim, on February 27,

2021, after he received the letter terminating his TTD benefits. LSC ultimately

terminated Winchester from employment for taking too much time off work.

Winchester saw Dr. Akbar Nawab on July 23, 2021, complaining of

increased pain with walking and feeling like his knee was “catching.” During

that appointment, Dr. Nawab noted that September 2020 MRI demonstrated a

possible meniscal tear. Dr. Nawab ordered an MRI which showed a right knee

meniscal tear, which lead Dr. Nawab to recommend surgery. The knee surgery

was postponed due to discovery of a heart condition which required a separate

surgery. Ultimately, Dr. Nawab performed a right partial medial meniscectomy

on April 26, 2022. During a follow-up appointment on July 26, 2022,

Winchester reported improvement in his right knee symptoms and no

limitations on activities of daily living except for some discomfort going

3 downstairs. Dr. Nawab placed Winchester at MMI, assessed a 1% impairment

rating, and did not impose any permanent restrictions.

Before the ALJ, Winchester argued he did not reach MMI until Nr. Nawab

released him on July 15, 2022. Conversely, LSC argued Winchester reached

MMI and his condition stabilized after Dr. Coy released him on November 30,

2020, and remained at MMI until his third surgery with Dr. Nawab on April 26,

2022. The ALJ determined that Winchester’s knee injury was not stabilized

when Dr. Coy released him from treatment, as evidenced by Dr. Nawab

scheduling Winchester for surgery approximately seven months after that

release. Further, a July 31, 2021 MRI showed a meniscal tear. According to

the ALJ, Winchester also provided credible testimony that his right knee pain

and symptoms continued after Dr. Coy released him, which the ALJ concluded

was consistent with other medical testimony. The ALJ also found persuasive

the fact that Winchester did not return to any employment until Dr. Nawab

released him on July 15, 2022. The ALJ opined that Winchester reached MMI

on July 15, 2022 and awarded TTD benefits from April 2, 2019 through July

15, 2022 at a rate of $587.11 per week. LSC filed a petition for reconsideration

which the ALJ denied.

On appeal to the Workers’ Compensation Board, LSC asserted that the

ALJ erred in concluding, pursuant to Dr. Nawab’s opinion, that Winchester did

not reach MMI until July 15, 2022. The Workers’ Compensation Board (Board)

affirmed the ALJ, reasoning that an ALJ has discretion to choose which

medical opinion to rely upon regarding the date a claimant reaches MMI. The

4 Board emphasized the evidence the ALJ relied upon, such as Dr. Nawab

scheduling a third surgery only seven months after Dr. Coy released

Winchester, the fact that Winchester’s September 2020 MRI was inconclusive,

and that Dr. Coy released Winchester but imposed several permanent

restrictions. The Board opined that the ALJ’s MMI determination was

supported by substantial evidence.

LSC appealed to the Court of Appeals and the appellate court agreed with

the Board that substantial evidence supported the ALJ’s decision regarding the

MMI date. The Court of Appeals reasoned that the ALJ was well within her

discretion to rely on the physicians’ opinions and draw reasonable inferences

regarding MMI from Winchester’s testimony and Dr. Nawab’s records. This

appeal followed.

ANALYSIS

The sole issue in this appeal is whether the ALJ erred in concluding that

Winchester did not achieve MMI until July 15, 2022. In a workers’

compensation case, the claimant has the burden of proving every element of

his claim. Gibbs v. Premier Scale Co./Ind. Scale Co., 50 S.W.3d 754, 763 (Ky.

2001). Where the party with the burden of proof was successful before the

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

conclusion. Whittaker v. Roland, 998 S.W.2d 479, 481 (Ky. 1999). Because

Winchester satisfied his burden of proving his injuries were work-related and

compensable, LSC must show that no substantial evidence supported the ALJ’s

findings, particularly with regard to the date Winchester reached MMI. Special

5 Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). Substantial evidence is

evidence of “substance and relevant consequence” having fitness to induce

conviction in the minds of reasonable people. Miller v. Tema Isenmann, Inc.,

542 S.W.3d 265, 270 (Ky. 2018) (quoting Smyzer v. B.F. Goodrich Chem. Co.,

474 S.W.2d 367, 369 (Ky. 1971)). Therefore, we are tasked with determining

whether substantial evidence supported the ALJ’s determination that

Winchester did not reach MMI until July 15, 2022.

KRS 342.0011(11)(a) defines TTD as “the condition of an employee who

has not reached maximum medical improvement from an injury and has not

reached a level of improvement that would permit a return to employment.”

“The purpose for awarding income benefits such as TTD is to compensate

workers for income that is lost due to an injury, thereby enabling them to

provide the necessities of life for themselves and their dependents.” Double L

Const., Inc. v. Mitchell, 182 S.W.3d 509, 514 (Ky. 2005). Here, the ALJ awarded

TTD benefits from April 2, 2019, the date of injury, through July 15, 2022, the

date the ALJ determined Winchester achieved MMI. “[A]n employee may

receive TTD benefits until they either (a) reach MMI, or (b) improve to the point

that they can ‘return to employment.’” Davis v. Blendex Co., 626 S.W.3d 523,

529 (Ky. 2021). So the ALJ awarded TTD benefits until the date she opined

Winchester reached MMI.

In this case, there are two competing MMI dates: November 30, 2020, as

assigned by Dr. Coy, and July 15, 2022, as assigned by Dr. Nawab. The

determination of when a claimant reaches MMI is a medical question to be

6 answered by medical experts. Arnold v. Toyota Mfg., 375 S.W.3d 56, 61 (Ky.

2012). LSC argues that Winchester failed to present any evidence that he was

not at MMI from November 30, 2020 through April 26, 2022 when Dr. Nawab

performed Winchester’s third surgery. But the burden to prove all elements of

a workers’ compensation claim should not be viewed in the negative. It was

Winchester’s burden to prove when he reached MMI, not all the periods in

which he was not at MMI.

The record contains substantial evidence to support the ALJ’s conclusion

that Winchester was not at MMI on November 30, 2020. On July 1, 2020, Dr.

Hackett, who performed two of Winchester’s surgeries, stated there may be

issues with Winchester’s knee causing his limitations. An August 18, 2020

MRI continued to show torn and displaced meniscal tissue with internal cyst

formation. In Dr. Bonnarens’ report dated August 21, 2020, he noted that the

latest MRI confirmed tears of the meniscus and cyst formation. He also opined

that Winchester did not have the physical capacity to return to the same type

of work he performed at the time of the incident and recommended additional

surgery.

Notably, when Dr. Coy released Winchester from treatment, he imposed

permanent and significant restrictions, such as no kneeling, squatting, or

crawling, and no prolonged periods of standing or sitting. Winchester testified

that his job routinely required him to be on his feet for approximately ten

hours of his twelve-hour shifts. Winchester also stated that he did not believe

he could return to his job at LSC because of the significant amount of time he

7 was required to kneel, crawl, stand on concrete, and walk. Dr. Bonnarens also

opined that Winchester did not have the capacity to return to the same type of

work he performed at the time of his injury.

The ALJ also explained her opinion that Winchester’s knee was not

stabilized when Dr. Coy released him from care because seven months later,

Dr. Nawab scheduled a surgery. The ALJ relied on the fact that initially, Dr.

Coy released Winchester from care with permanent restrictions. However, after

Winchester’s third surgery, he was released by Dr. Nawab without any

permanent restrictions. This supports the contention that Winchester had not

reached MMI as of November 30, 2020.

Winchester’s testimony also supports the ALJ’s conclusion that he had

not reached MMI as of November 30, 2020. Winchester clarified that when Dr.

Coy placed him at MMI on November 30, 2020, Dr. Coy’s treatment note

stated, “his knee does not bother him enough to consider any further

intervention.” In his deposition, Winchester testified that this was not

accurate, and that Winchester simply did not want to undergo any further

intervention with Dr. Coy’s office. Further, Winchester stated that his right

knee pain and symptoms continued after Dr. Coy released him. In addition,

Winchester did not return to any type of employment until after Dr. Nawab

released him following his third surgery, which the ALJ opined constituted

further evidence that Winchester was not at MMI on November 30, 2020.

ALJs are often presented with conflicting medical evidence in

adjudicating workers’ compensation claims. This Court has consistently

8 upheld decisions in which ALJs were required to weigh conflicting evidence to

reach conclusions. See Toikco (USA) Inc. v. Kelly, 281 S.W.3d 771 (Ky. 2009)

(affirming an ALJ’s determination that one expert’s assessed impairment rating

was more credible than a conflicting expert’s assessed impairment rating);

Staples v. Konvelski, 56 S.W.3d 412 (Ky. 2001) (affirming an ALJ’s

determination that the claimant suffered both physical and psychological work-

related injuries, despite contrary medical evidence). “[T]he sole authority to

decide which witness to believe resides with the ALJ.” Id. (citation omitted).

LSC further argues that when Dr. Coy placed Winchester at MMI on

November 30, 2020, there was no conflicting evidence regarding MMI—that Dr.

Coy’s opinion was the only medical opinion to date regarding MMI. But LSC’s

argument would require an ALJ and all other entities reviewing workers’

compensation claims to view claims in a vacuum, and to treat one medical

expert’s opinion as if it is the only opinion. LSC wants this Court to treat Dr.

Coy’s opinion that Winchester reached MMI on November 30, 2020, as if it

stopped the TTD clock since it was the only MMI opinion at the time. However,

such an approach would be nonsensical, entirely one-sided, and obviate the

very nature of adjudicating a workers’ compensation claim and allowing injured

employees and employers to present evidence in support of their positions.

That interpretation of our workers’ compensation system would completely

undercut a claimant and employer’s ability to consult medical experts, generate

evidence, and present it to the ALJ or a reviewing entity for consideration and

resolution of the issues upon filing a workers’ compensation claim. Our

9 workers’ compensation jurisprudence has certainly endorsed a process in

which an ALJ can “look back,” having considered medical testimony, claimant

testimony, and all evidence of record, and determine an MMI date based on

medical opinions. When a medical professional renders an opinion as to MMI,

it does not mean that the claim ends or that the sole opinion is determinative

of a benefit award period.

Despite Dr. Coy placing Winchester at MMI on November 30, 2020, the

ALJ appropriately found that other medical evidence of record supported the

alternative conclusion that Winchester did not reach MMI until July 15, 2022.

The ALJ, as factfinder, has the sole authority to determine the quality,

character and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d

308, 309 (Ky. 1993). An ALJ’s findings of fact are afforded considerable

deference on appellate review and “will not be set aside unless the evidence

compels a contrary finding.” Plumley v. Kroger, Inc., 557 S.W.3d 905, 909 (Ky.

2018) (citation omitted). We agree with the Court of Appeals that substantial

evidence supported the ALJ’s decision regarding the date Winchester achieved

MMI.

CONCLUSION

For the foregoing reasons, we affirm the Court of Appeals.

All sitting. All concur.

10 COUNSEL FOR APPELLANT:

Kelley D. Gray Pohl Aubrey Gray, PSC

COUNSEL FOR APPELLEE, ARTIE WINCHESTER:

Stephanie N. Wolfinbarger Cotton Wolfinbarger & Associates, PLLC

ADMINISTRATIVE LAW JUDGE:

Hon. Amanda Perkins

WORKERS’ COMPENSATION BOARD:

Hon. Michael Wayne Alvey Chairman