RENDERED: FEBRUARY 9, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0929-WC
LSC COMMUNICATIONS APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-19-87447
ARTIE WINCHESTER; HONORABLE AMANDA M. PERKINS, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, KAREM, AND LAMBERT, JUDGES.
KAREM, JUDGE: On April 2, 2019, while employed by LSC Communications
(the “Employer”), Artie Winchester sustained a work-related injury to his right
knee. He initiated a claim for benefits under Kentucky Revised Statutes (“KRS”)
Chapter 342, the Workers’ Compensation chapter. After reviewing the evidence,
an Administrative Law Judge (“ALJ”) awarded Winchester temporary total disability (“TTD”) benefits, permanent partial disability benefits, and medical
benefits.
As relevant to this appeal, the ALJ awarded Winchester TTD benefits
from April 2, 2019, through July 15, 2022. The Employer appealed the TTD
award to the Workers’ Compensation Board (the “Board”), disputing the date upon
which Winchester reached maximum medical improvement (“MMI”). The Board
affirmed the ALJ, and the Employer now appeals to this Court as a matter of right.
For the following reasons, we affirm the Board’s opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Winchester began working for the Employer – a printing company –
in 1987. On April 2, 2019, Winchester cleared an obstruction in a machine and
kneeled to pick up some paper that had fallen to the floor. When he stood, he felt a
pop and immediate pain in his right knee.
On April 18, 2019, Dr. Daniel Hackett, an orthopedic surgeon,
performed surgery on Winchester’s knee to repair his meniscus. However, during
physical therapy, Winchester re-injured his knee, and Dr. Hackett performed a
second surgery on October 1, 2019.
After the surgery, Winchester continued with physical therapy and
injections but continued to have pain. In August 2020, when a subsequent MRI’s
results proved inconclusive, Winchester was referred to Dr. Samuel Coy. Dr. Coy
-2- ordered an additional diagnostic test in September 2020, which revealed a cyst.
Dr. Coy 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 when
walking. He still reported pain when using stairs. At this time, Dr. Coy stated in a
report that “[a]t this point his knee does not bother him enough to consider any
further intervention.” He placed Winchester at MMI and imposed the following
permanent restrictions: no kneeling, squatting, crawling, and occasional standing,
and walking.
In December 2020, the Employer’s worker’s compensation
administrator sent Winchester a letter informing him that they were terminating his
TTD benefits based on Dr. Coy’s report placing Winchester at MMI and that his
final TTD check would pay him through December 6, 2020. Winchester filed a
Form 101 Application for Benefits in February 2021. The Employer ultimately
terminated Winchester for taking too much time off work.
On July 23, 2021, Winchester saw Dr. Akbar Nawab. At that
appointment, Dr. Nawab noted, “[t]he patient’s old MRI demonstrates a possible
tear, but that was back in September 2020.” An updated MRI revealed a meniscal
tear in the right knee, and Dr. Nawab recommended a third surgery. The
-3- Employer’s workers’ compensation carrier approved the surgery, which Dr. Nawab
was scheduled to perform in September 2021. However, while preparing for
surgery, Winchester’s pre-operative cardiac clearance revealed a heart condition
that required surgery and stents, which delayed his knee surgery. Winchester
underwent heart catheter surgery in October 2021.
At a follow-up with his cardiologist in January 2022, he was not
cleared for surgery as he was required to remain on blood thinners until April
2022. The Employer’s workers’ compensation carrier had initially reinstated TTD
benefits when Dr. Nawab recommended surgery in August 2021. However, they
again terminated Winchester’s TTD benefits in October 2021 when Winchester
could not obtain cardiac clearance to proceed with the recommended surgery.
After his cardiologist cleared Winchester for surgery, Dr. Nawab
performed Winchester’s third knee surgery on April 26, 2022. His TTD benefits
were reinstated at that time as well. Following the third surgery, Winchester
reported improvement in his right knee with occasional popping after he sat down
for an extended period. He also described no limitations with activities of daily
living except for some discomfort going down steps. Dr. Nawab placed
Winchester at MMI on July 15, 2022, with no permanent restrictions.
On March 6, 2023, the ALJ issued an Opinion, Award, and Order
determining from the medical evidence that Winchester had reached MMI on July
-4- 15, 2022. As such, the ALJ awarded Winchester TTD benefits from the date of
injury – April 2, 2019 – through July 15, 2022, when Dr. Nawab placed
Winchester at MMI. Additionally, the ALJ issued an order denying the
Employer’s Petition for Reconsideration on March 28, 2023.
On July 19, 2023, the Board issued an opinion affirming the ALJ’s
decision. This appeal followed.
We will discuss further facts as they become relevant.
ANALYSIS
a. Standard of Review
As stated by the Kentucky Supreme Court, “[t]he claimant bears the
burden of proof and risk of non[-]persuasion before the fact-finder with regard to
every element of a workers’ compensation claim.” Gibbs v. Premier Scale
Company/Indiana Scale Co., 50 S.W.3d 754, 763 (Ky. 2001) (citations omitted).
Moreover, “where 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)
(citation omitted). Kentucky courts define “substantial evidence” as “evidence of
substance and relevant 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, 369 (Ky. 1971) (citation omitted).
-5- Additionally, “KRS 342.285 designated the ALJ as a finder of fact”
which “has been construed to mean that the factfinder has the sole discretion to
determine the quality, character, weight, credibility, and substance of the evidence,
and to draw reasonable inferences from the evidence.” Bowerman v. Black
Equipment Co., 297 S.W.3d 858, 866 (Ky. App. 2009) (citations omitted).
Similarly, “an ALJ has sole discretion to decide whom and what to believe, and
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 adversary
party’s total proof.” Id. (citation omitted). Indeed, “[a]lthough a party may note
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RENDERED: FEBRUARY 9, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0929-WC
LSC COMMUNICATIONS APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-19-87447
ARTIE WINCHESTER; HONORABLE AMANDA M. PERKINS, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, KAREM, AND LAMBERT, JUDGES.
KAREM, JUDGE: On April 2, 2019, while employed by LSC Communications
(the “Employer”), Artie Winchester sustained a work-related injury to his right
knee. He initiated a claim for benefits under Kentucky Revised Statutes (“KRS”)
Chapter 342, the Workers’ Compensation chapter. After reviewing the evidence,
an Administrative Law Judge (“ALJ”) awarded Winchester temporary total disability (“TTD”) benefits, permanent partial disability benefits, and medical
benefits.
As relevant to this appeal, the ALJ awarded Winchester TTD benefits
from April 2, 2019, through July 15, 2022. The Employer appealed the TTD
award to the Workers’ Compensation Board (the “Board”), disputing the date upon
which Winchester reached maximum medical improvement (“MMI”). The Board
affirmed the ALJ, and the Employer now appeals to this Court as a matter of right.
For the following reasons, we affirm the Board’s opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Winchester began working for the Employer – a printing company –
in 1987. On April 2, 2019, Winchester cleared an obstruction in a machine and
kneeled to pick up some paper that had fallen to the floor. When he stood, he felt a
pop and immediate pain in his right knee.
On April 18, 2019, Dr. Daniel Hackett, an orthopedic surgeon,
performed surgery on Winchester’s knee to repair his meniscus. However, during
physical therapy, Winchester re-injured his knee, and Dr. Hackett performed a
second surgery on October 1, 2019.
After the surgery, Winchester continued with physical therapy and
injections but continued to have pain. In August 2020, when a subsequent MRI’s
results proved inconclusive, Winchester was referred to Dr. Samuel Coy. Dr. Coy
-2- ordered an additional diagnostic test in September 2020, which revealed a cyst.
Dr. Coy 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 when
walking. He still reported pain when using stairs. At this time, Dr. Coy stated in a
report that “[a]t this point his knee does not bother him enough to consider any
further intervention.” He placed Winchester at MMI and imposed the following
permanent restrictions: no kneeling, squatting, crawling, and occasional standing,
and walking.
In December 2020, the Employer’s worker’s compensation
administrator sent Winchester a letter informing him that they were terminating his
TTD benefits based on Dr. Coy’s report placing Winchester at MMI and that his
final TTD check would pay him through December 6, 2020. Winchester filed a
Form 101 Application for Benefits in February 2021. The Employer ultimately
terminated Winchester for taking too much time off work.
On July 23, 2021, Winchester saw Dr. Akbar Nawab. At that
appointment, Dr. Nawab noted, “[t]he patient’s old MRI demonstrates a possible
tear, but that was back in September 2020.” An updated MRI revealed a meniscal
tear in the right knee, and Dr. Nawab recommended a third surgery. The
-3- Employer’s workers’ compensation carrier approved the surgery, which Dr. Nawab
was scheduled to perform in September 2021. However, while preparing for
surgery, Winchester’s pre-operative cardiac clearance revealed a heart condition
that required surgery and stents, which delayed his knee surgery. Winchester
underwent heart catheter surgery in October 2021.
At a follow-up with his cardiologist in January 2022, he was not
cleared for surgery as he was required to remain on blood thinners until April
2022. The Employer’s workers’ compensation carrier had initially reinstated TTD
benefits when Dr. Nawab recommended surgery in August 2021. However, they
again terminated Winchester’s TTD benefits in October 2021 when Winchester
could not obtain cardiac clearance to proceed with the recommended surgery.
After his cardiologist cleared Winchester for surgery, Dr. Nawab
performed Winchester’s third knee surgery on April 26, 2022. His TTD benefits
were reinstated at that time as well. Following the third surgery, Winchester
reported improvement in his right knee with occasional popping after he sat down
for an extended period. He also described no limitations with activities of daily
living except for some discomfort going down steps. Dr. Nawab placed
Winchester at MMI on July 15, 2022, with no permanent restrictions.
On March 6, 2023, the ALJ issued an Opinion, Award, and Order
determining from the medical evidence that Winchester had reached MMI on July
-4- 15, 2022. As such, the ALJ awarded Winchester TTD benefits from the date of
injury – April 2, 2019 – through July 15, 2022, when Dr. Nawab placed
Winchester at MMI. Additionally, the ALJ issued an order denying the
Employer’s Petition for Reconsideration on March 28, 2023.
On July 19, 2023, the Board issued an opinion affirming the ALJ’s
decision. This appeal followed.
We will discuss further facts as they become relevant.
ANALYSIS
a. Standard of Review
As stated by the Kentucky Supreme Court, “[t]he claimant bears the
burden of proof and risk of non[-]persuasion before the fact-finder with regard to
every element of a workers’ compensation claim.” Gibbs v. Premier Scale
Company/Indiana Scale Co., 50 S.W.3d 754, 763 (Ky. 2001) (citations omitted).
Moreover, “where 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)
(citation omitted). Kentucky courts define “substantial evidence” as “evidence of
substance and relevant 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, 369 (Ky. 1971) (citation omitted).
-5- Additionally, “KRS 342.285 designated the ALJ as a finder of fact”
which “has been construed to mean that the factfinder has the sole discretion to
determine the quality, character, weight, credibility, and substance of the evidence,
and to draw reasonable inferences from the evidence.” Bowerman v. Black
Equipment Co., 297 S.W.3d 858, 866 (Ky. App. 2009) (citations omitted).
Similarly, “an ALJ has sole discretion to decide whom and what to believe, and
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 adversary
party’s total proof.” Id. (citation omitted). Indeed, “[a]lthough a party may note
evidence that would have supported a different outcome than reached by an ALJ,
such proof is an inadequate basis for reversal on appeal.” Miller v. Go Hire
Employment Development, Inc., 473 S.W.3d 621, 629 (Ky. App. 2015) (citation
omitted). Instead, “it must be shown there was no evidence of substantial
probative value to support the decision.” Id. (citation omitted).
b. Discussion
On appeal, the Employer argues that the Board erred in affirming the
ALJ’s award of TTD benefits. Specifically, it claims the ALJ erred in relying on
Dr. Nawab’s opinion in concluding Winchester did not achieve MMI until July 15,
2022. The Employer argues the ALJ should have relied on the opinion of Dr. Coy,
who opined Winchester reached MMI on November 30, 2020.
-6- KRS 342.0011(11)(a) defines TTD as “the condition of an employee
who has not reached [MMI] from an injury and has not reached a level of
improvement that would permit a return to employment[.]” In Magellan
Behavioral Health v. Helms, 140 S.W.3d 579, 581 (Ky. App. 2004), a panel of this
Court construed the language “return to employment” to “mean a return to the type
of work which is customary for the injured employee or that which the employee
had been performing prior to being injured.”
MMI is defined as an impairment that is “well stabilized and unlikely
to change substantially in the next year with or without medical treatment.”
Colwell v. Dresser Instrument Div., 217 S.W.3d 213, 217 (Ky. 2006) (citation
omitted).
In this case, we agree with the Board that substantial evidence
supported the ALJ’s decision regarding the date Winchester achieved MMI. First,
Dr. Coy’s opinion on Winchester’s MMI imposed permanent restrictions, such as
no kneeling, squatting, or crawling. Thus, although Dr. Coy placed Winchester at
MMI, he could not “return to the type of work which is customary for the injured
employee or that which the employee had been performing prior to being injured.”
Helms, 140 S.W.3d at 581. Alternatively, Dr. Nawab released Winchester on July
15, 2022, with no permanent restrictions.
-7- Additionally, as the ALJ noted, the record reflects that Winchester’s
knee condition was not well-stabilized, as Dr. Nawab scheduled Winchester for a
third surgery within the one year following Coy’s MMI assessment. Additionally,
Winchester’s third MRI in July 2021 revealed a meniscal tear that was not clearly
shown in his second MRI in September 2020. Dr. Nawab’s July 23, 2021, medical
records indicate that Winchester’s “old MRI demonstrates a possible tear, but this
was back in September 2020.”
The ALJ was within her discretion to rely on the physicians’ opinions
and to draw reasonable inferences regarding MMI from Winchester’s testimony
and Dr. Nawab’s records confirming Winchester’s improvement following the
third surgery. While there may have been conflicting evidence between Dr. Coy
and Dr. Nawab concerning MMI, the ALJ was free to rely on Dr. Nawab’s opinion
as substantial evidence of when Winchester reached MMI. The ALJ correctly
found that Winchester meets the criteria for entitlement to TTD benefits for the
period awarded.
CONCLUSION
We AFFIRM the Board’s opinion affirming the ALJ’s determination
of MMI and award of TTD benefits as outlined in the March 6, 2023, and March
28, 2023, orders.
-8- ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Kelley D. Gray Stephanie N. Wolfinbarger Louisville, Kentucky Louisville, Kentucky
-9-