Mary Wedding v. Collective Brand, Inc.

• Court: Kentucky Supreme Court
• Decided: March 15, 2016
• Docket: 2015 SC 000028
• Status: Unknown

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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 18, 2016 NOT TO BE PUBLISHED

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MARY WEDDING APPELLANT

ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2013-CA-000633-WC WORKERS' COMPENSATION NO. 08-75597 AND 10-99647

COLLECTIVE BRAND, INC.; STRIDE-RITE CORP.; HONORABLE EDWARD D. HAYS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Appellant, Mary Wedding, filed this appeal to contest the reversal of the

portion of her workers' compensation award based on an impairment rating

attributed to an injury to her left shoulder and aggravations to injuries to her

left and right wrists caused by a 2008 cumulative trauma injury. Wedding

contends that it was the responsibility of Appellees, Stride Rite and Collective

Brand, Inc., to file a petition for reconsideration to challenge the contested

benefits for certain injuries and that the Workers' Compensation Board

improperly shifted the burden to her. For the below stated reasons, we affirm. Wedding began her employment with Stride Rite in 1997. Her job

involved opening boxes, putting shoes in boxes, removing shoes from boxes,

moving and stacking boxes, and pushing boxes down a conveyor line. Her job

required repetitive lifting, tugging, pushing, and overhead work.

While still employed by Stride Rite, Wedding visited Dr. Richard DuBou

on February 8, 2005, complaining that she experienced six months of

tenderness and numbness in both of her wrists. Wedding was diagnosed with

carpal tunnel syndrome in both wrists and she underwent a right and left

carpel tunnel release. Dr. DuBou released Wedding to full duty work on

September 29, 2005. Afterwards ; Dr. DuBou assessed a 2% impairment rating

for Wedding's right carpel tunnel syndrome and 0% for the left.

Wedding filed for workers' compensation for the right wrist impairment.

She received temporary total disability ("TTD") and medical benefits. Stride

Rite paid Wedding $1,686.97 to settle her claim. However, no Form 110 was

ever filed with the Department of Workers' Claims and an Administrative Law

Judge ("AI,J") did not approve the settlement. Stride Rite was acquired by

another company sometime after Wedding's 2005 injuries and was renamed

Collective Brand.

In 2007, Wedding again experienced pain in her wrists, but also in her

hands, arms, and right shoulder. Wedding participated in physical therapy in

2008 to relieve her pain. She also sought treatment from her primary care

provider, Dr. Mark Winders, on February 26, 2008. Wedding told Dr. Winders

that the pain in her right elbow and right shoulder persisted for one year and

2 the pain in her right wrist started a week earlier. Per the ALT, Dr. Winders

diagnosed Wedding with a right-wrist sprain, right-shoulder-bicep groove

tendonitis, and right-elbow epicondylitis. He also found Wedding's right

shoulder to be diffusely tender. Dr. Winders referred Wedding to Dr. Phillip

Dripchak, an orthopedic surgeon.

Dr. Dripchak had Wedding undergo an MRI which revealed she had

degenerative right joint AC with mild tendinopathy, full thickness tear of the

infraspinatus/ supraspinatus, and a type 1 SLAP lesion. A week later, after

further review of the x-rays, Dr. Dripchak found Wedding had right-shoulder

AC arthrosis and right-shoulder subacromial impingement with accompanying

rotator cuff tendonitis in a sequential fashion. Dr. Dripchak gave Wedding

several injections, which relieved her pain and referred her to Dr. Cyna Khalily,

an orthopedic surgeon, for surgery.

Dr. Khalily performed a right-shoulder arthroscopy on August 20, 2008.

Following the surgery, Wedding developed a stiff shoulder and another right-

shoulder arthroscopy was performed on November 7, 2008. Dr. Khalily placed

Wedding off work from July 22, 2008 to December 5, 2008. Dr. Khalily opined

that work-related cumulative trauma was the reason that Wedding had to

undergo surgery.

Wedding returned to work in. January 2009. However, Wedding stated

that she missed approximately twenty days of work due to pain in her wrists

and shoulders. Wedding's employment with Collective Brand was ultimately

terminated.

3 Wedding subsequently filed a Form 101 seeking compensation for the

2005 and 2008 injuries. Wedding claimed work-related injuries to her left

wrist, right wrist, and left elbow for the 2005 incident. For the 2008 incident,

Wedding claimed work-related injuries to her right wrist, left wrist, right

shoulder, and left shoulder. The ALJ consolidated the claims.

Dr. Warren Bilkey conducted an independent medical examination

("IME") of Wedding on June 16, 2010. He stated that Wedding's pain was

caused by repetitive work activities. He diagnosed Wedding with a work-related

right shoulder strain occurring on February 13, 2008, and aggravated right

wrist pain from repetitive work activities. Dr. Bilkey believed that due to

Wedding's right-shoulder pain she had to compensate with her left shoulder

which resulted in ongoing left shoulder soreness. He believed that Wedding

reached maximum medical improvement ("MMI") and found she had a pre-

existing 3% whole person impairment rating for each wrist as a result of the

2005 incident. He assessed her with a 10% whole person impairment rating,

dissected as follows: 3% for the right shoulder, 4% for the right wrist, and 3%

for the left wrist. Dr. Bilkey did not restrict Wedding's ability to work, but

doubted that she would be able to tolerate a job like the one she performed at

Collective Brands. Later, Dr. Bilkey provided an addendum altering his

impairment rating to include a 1% whole person impairment rating attributable

to Wedding's left shoulder. Dr. Bilkey stated that combining the 2005 and

2008 impairments yields a 15% whole person impairment.

4 Dr. Ellen Barrett performed an IME on June 1, 2010. Dr. Barrett

believed that Wedding's June 2008 MRI suggested a right-shoulder SLAP tear

and mild degenerative changes of the AC joint. Dr. Ballard opined that

Wedding's right shoulder injury did not result from cumulative trauma and

was not work-related. Dr. Ballard made that conclusion because a SLAP tear

is not caused by cumulative trauma, but from an acute injury which Wedding

did not allege occurred. Dr. Ballard assigned Wedding an impairment rating of

0% for her right shoulder and did not believe she needed further treatment.

Dr. DuBou re-examined Wedding on December 6, 2011. He reviewed the

evaluations performed by Dr. Ballard and Dr. Bilkey. Dr. DuBou agreed with

Dr. Ballard that the 2008 injury was not caused by cumulative trauma, but

resulted from a SLAP tear. He disagreed with Dr. Bilkey's 6% whole person

impairment rating for the 2005 surgery. Dr. DuBou also found that the 2008

injury did not worsen the 2005 injury.

The ALJ made the following pertinent findings regarding Wedding's

injuries:

3. [Wedding] sustained work-related injuries on January 24, 2005; February 13, 2008; May 30, 2008; and June 17, 2008. April 23, 2008 has also been listed as an injury date. In reality, [Wedding] is claiming only two work-related injuries actually occurred, the first on January 24, 2005 and the second injury occurring in 2008 as a result of cumulative trauma. 4. The 2005 injury will be discussed first. [Wedding] claimed that cumulative trauma while she was employed at Stride Rite manifested on January 24, 2005 in left carpal tunnel syndrome and left cubital tunnel syndrome. Dr. [DuBou] performed three surgeries in 2005, one for left carpal tunnel on April 18, 2005; a second surgery for right carpal tunnel on June 1, 2005; and a third surgery to remove a foreign body on July 6, 2005.

5 5. It is undisputed that [Wedding] was paid temporary total disability benefits while she was off work in 2005 and her medical bills were also paid by [Stride Rite], and/or its workers' compensation insurance carrier. It is also undisputed that [Wedding] was issued a check on June 12, 2006 in the amount of $1,686.97. This check was intended as a settlement of the claim and this fact was acknowledged by [Wedding]. However, no Form 101 (Agreement as to Compensation) was ever executed or filed with the [Department]. Apparently the settlement was never approved by any [ALJ]. The treating physician, Dr. DuBou, opined that [Wedding] retained a 2% permanent impairment to the body as a whole as a result of the 2005 injuries. . . . 6. The ALT finds that [Wedding] did sustain a 2% permanent impairment as a result of the 2005 injury. The finding is based upon the opinion of the treating surgeon, Dr. DuBou. Dr. DuBou has rendered treatment to [Wedding] since 2005 and he preformed three surgical procedures upon [Wedding]. Whereas the AU has considered the impairment rating rendered by Dr. Bilkey (6% to the body as a whole), Dr. Ellen Ballard agrees with Dr. DuBou that the 2% impairment from the 2005 carpal tunnel injury is the accurate impairment rating. The AI,J . is persuaded by the opinions of Dr. DuBou and Dr. Ballard with respect to the permanent impairment rating for the 2005 injury. •• 9. After plaintiff had returned to work following the 2005 injury, she began having some problems with her right wrist in 2007 and underwent therapy with Kinetics. She also began to experience some pain and discomfort in her right shoulder in late 2007. Throughout her employment with Stride Rite, and later Collective Brand, [Wedding's] job required her to do repetitive lifting, tugging, pushing, and working above her head with cases of 6 to 24 pairs of shoes. KRS 342.0011 defines 'injury' as 'any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings.' 10. (a) The next question to be considered by the ALJ is whether or not [Wedding] sustained an 'injury' as defined by the Act, and more specifically, whether or not the cumulative trauma sustained during her work culminated in a harmful change in her human organism in 2008. (b) [Wedding] commenced treatment with Dr. Winders in early 2008. Dr. Winders noted on May 30, 2008 that [Wedding's] job involved repetitive lifting. Dr. Winders referred [Wedding] to Dr. Dripchak in July of 2008, who diagnosed her as having a subacromial impingement of her right shoulder. In a

6 questionnaire dated June 24, 2008, Dr. Dripchak confirmed that [Wedding's] repetitive work was the cause of her problems and he took [Wedding] off from work as of June 24, 2008. He referred [Wedding] to Dr. Khalily, who performed surgery on the right shoulder on August 20, 2008. A second surgery involving the manipulation of the right shoulder under anesthetic so as to combat a 'frozen shoulder' was done on November 7, 2008 by Dr. Khalily. Dr. Khalily released [Wedding] to return to work on December 5, 2008, but she did not actually return to work until January 2, 2009. The ALJ finds that [Wedding] was temporarily totally disabled from June 24, 2008 until December 5, 2008, based on the evidence from Dr. Khalily, who performed the surgeries on [Wedding's] right shoulder. Dr. Khalily opined in a questionnaire dated June 21, 2010 that the surgeries were caused and brought about by cumulative trauma at work. (c) Based on the evidence from the treating physicians, including Dr. Winders, Dr. Dripchak, and Dr. Khalily, the repetitive nature of the claimant's work for Collective Brand, Inc. was the cause of [Wedding's] injury to her right shoulder.

14. (a) The next issue to be determined is [Wedding's] entitlement to benefits under KRS 342.730, including multipliers. (b) Both Dr. DuBou and Dr. Ballard assess 0% permanent impairment as a result of the shoulder condition. They also deny that [Wedding's] work activities contributed to the problem. The evidence from Dr. DuBou and Dr. Ballard is countered by evidence from the treating physicians, including Dr. Winders, Dr. Dripchak, and Dr. Khalily. The ALJ is persuaded by the evidence from the treating physicians and does hereby find that [Wedding] did sustain a cumulative trauma injury to her right shoulder on or about February 13, 2008.

(d) [Dr. Bilkey] has examined the claimant, reviewed all the medical records, and has rendered multiple reports. Dr. Bilkey opines that [Wedding] has a 10% permanent impairment to the body as a whole due to the upper extremity conditions. More specifically, he attributes 3% of the impairment to the right shoulder, 1% of the impairment to the left shoulder caused by having to over-compensate for the right shoulder condition, and the remaining impairment based on pain. [Collective Brand] has attacked Dr. Bilkey's methodology in his calculation of impairment rating through reports from Dr. DuBou and Dr. Ballard. The ALJ has carefully considered the criticisms by these physicians, as well as Dr. Bilkey's response to such criticisms. The AI.0 is faced with deciding between 0% impairment and 10% impairment to the body as a whole. It cannot be ignored that [Wedding] has undergone

7 two surgical procedures to her right shoulder. [Wedding] complains to have continuing pain of such severity that she believes she is precluded from any of the former work which she has ever done. . . . When faced with the decision of awarding this claimant nothing versus the 10% impairment rating opined by Dr. Bilkey, the ALJ will follow the opinion of Dr. Bilkey and does hereby find [Wedding] to have a 10% permanent impairment under the AMA Guidelines, Fifth Edition as a result of the 2008 injury.

The ALJ also applied the three multiplier, KRS 342.730(1)(c)1, to Wedding's

award and granted her vocational rehabilitation benefits pursuant to KRS

342.710.

Both parties filed petitions for reconsideration. Wedding only requested

that the ALJ hold Collective Brand, as opposed to Stride Rite, responsible for

all future medical treatment of her wrists. She did not request any clarification

regarding the injuries the ALJ found she sustained. Collective Brand asked the

ALT to reconsider his reliance upon the 10% impairment rating assessed by Dr.

Bilkey as the basis for the award of PPD benefits for the 2008 right shoulder

injury. Collective Brand noted that Dr. Bilkey's assigned impairment rating

was compound in nature in that it attributed 3% to her right-shoulder injury

and the remaining impairment was for pain in her wrists and left shoulder. Yet

the ALJ only specifically stated in the opinion and order that Wedding

sustained a work-related injury to her right shoulder. Thus, Collective Brand

contended that the ALJ could only choose between the 0% impairment rating

assessed by Dr. DuBou and Dr. Ballard or the 3% assessed by Dr. Bilkey for

the right shoulder injury. The ALJ denied the petitions.

8 Wedding and Collective Brand both appealed to the Board. The Board

sided with Collective Brand and held in pertinent part:

Dr. Bilkey's 10% impairment rating, which includes an impairment rating for the left shoulder and both wrists, is not consistent with the ALJ's finding regarding the nature of Wedding's February 13, 2008, injury. Consequently, the ALJ should not have considered Dr. Bilkey's impairment ratings for the left shoulder and both wrists in determining the extent of the impairment of the right shoulder. Stated another way, based on the ALJ's determination Wedding sustained only a right shoulder injury, the ALJ could not rely on upon the entirety of Dr. Bilkey's impairment rating which included impairment ratings for each wrist and the left shoulder. Significantly, Collective Brand raised this issue in its petition for reconsideration. Since the ALJ refused to alter his finding that Wedding sustained only a cumulative trauma injury to her right shoulder and there was no finding of left shoulder and bilateral wrist injuries due to the 2008 event, the only impairment ratings relevant to the 2008 injury are those assessed for the right shoulder.. . On remand, as the ALJ found Wedding only sustained a cumulative trauma injury to her right shoulder as a result of the February 13, 2008, event, he must only consider the impairment ratings attributable to the right shoulder injury. If the ALJ chooses to again accept Dr. Bilkey's impairment rating for the right shoulder, his award of PPD benefits must be based on the 3% impairment rating.. . Similarly, on remand the decision concerning the applicability of KRS 342.730(1)(c)1 must be based on the effects of the 2008 right shoulder injury. Since the ALJ relied upon an impairment rating for injuries to both wrists and the left shoulder which is contrary to his finding regarding the nature of the injury, it is necessary for him to determine whether only the 2008 right shoulder injury resulted in Wedding being unable to perform the job she was performing at the time of the injury.

The Board further held that Wedding was entitled to future medical benefits for

her right wrist injury, but not entitled to medical benefits for any injury to her

left wrist or left elbow. Finally, the Board vacated Wedding's award of

9 vocational rehabilitation benefits and remanded the matter for the AW to make

further findings of fact.

Wedding appealed to the Court of Appeals who affirmed in part, reversed

in part, and remanded the matter. The Court of Appeals affirmed the Board's

opinion except for the portion which vacated the ALJ's award of future medical

benefits, if any, for Wedding's 2005 left-wrist injury. Wedding filed this appeal.

The Board's review in this matter was limited to determining whether the

evidence is sufficient to support the ALJ's findings, or if the evidence compels a

different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).

Further, the function of the Court of Appeals is to "correct the Board only

where the Court perceives the Board has overlooked or misconstrued

controlling statutes or precedent, or committed an error in assessing the

evidence so flagrant as to cause gross injustice." Id. at 687-88. Finally, review

by this Court "is to address new or novel questions of statutory construction,

or to reconsider precedent when such appears necessary, or to review a

question of constitutional magnitude." Id. The ALJ, as fact-finder, has the sole

discretion to judge the credibility of testimony and weight of evidence.

Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). For the below

stated reasons, we affirm the Court of Appeals.

Wedding first argues that the Board and Court of Appeals failed to follow

the long standing rule which places the burden upon the non-prevailing party

to request specific findings of fact to preserve an appeal. Eaton Axle Corp. v.

Nally, 688 S.W.2d 334 (Ky. 1985); CR 54.02. Eaton Axle held that patent

10 errors in an ALJ's opinion and award are unpreserved for appellate review if

they are not asserted in a petition for reconsideration. 688 S.W.2d at 338.

"The purpose of this rule is to require that all justiciable issues are disposed of

before the appellate process begins." Id. at 338. Thus, to preserve a question

of fact for appeal, the party unhappy with a certain factual finding must file a

petition for reconsideration identifying the factual error. Halls Hardwood Floor

Co. v. Stapleton, 16 S.W.3d 327, 330 (Ky. App. 2000).

Based on the above stated principles, Wedding argues that Collective

Brand had to request in its petition for reconsideration a finding that Wedding

did not sustain work-related left shoulder and wrist injuries due to cumulative

trauma in 2008. Wedding believes that the ALJ's opinion and order implies

that she did suffer such injuries due to his reliance on Dr. Bilkey's combined

10% whole person impairment rating. Since Collective Brand did not request

additional findings on the 2008 cumulative trauma injury in its petition for

reconsideration, Wedding argues that it could not later challenge those

findings. We disagree.

The ALJ's opinion and award does not indicate he found that Wedding

suffered left shoulder and wrist injuries. There is also no basis to assume that

the ALJ implied the existence of a left shoulder and wrist injury by using Dr.

Bilkey's impairment rating. Further, in its petition for reconsideration,

Collective Brand asked the ALJ to reconsider the impairment rating he applied

to Wedding because it was calculated by Dr. Bilkey based on injuries to her

right shoulder, left shoulder, and wrists. Collective Brand stated that it

11 believed the impairment rating was wrong because the ALJ only found that

Wedding suffered from a work-related right-shoulder injury in 2008. Instead of

clarifying his findings by stating that he believed Wedding suffered injuries to

her left shoulder and wrists, he instead stated that the "impairment rating of

10% to the body as a whole is amply supported by the evidence herein and that

it accurately represents the permanent impairment of [Wedding]." Collective

Brand sufficiently challenged the ALJ's findings to preserve their right to

appeal that issue to the Board.

We note that Wedding argues that the Board and Court of Appeals have

adopted a minority rule called the "Indiana Rule" which makes it the prevailing

party's responsibility to seek and obtain essential findings not made by the

AI.J. See 146 A.L.R. 123 (1943). However, as stated above, Collective Brand

was the prevailing party and sufficiently challenged the ALJ's ruling in its

petition for reconsideration. The Indiana Rule was not applied in this matter.

Wedding next argues that the Board erred by making sua sponte findings

without remanding the matter to the ALJ for further fact finding. She correctly

notes that the ALJ . is the fact finder in a workers' compensation proceeding.

Paramount Foods, Inc., 695 S.W.2d 418. Wedding does not specifically state on

which issue the Board made the objectionable sua sponte ruling but, we will

assume she is referring to the findings limiting the 2008 cumulative trauma

injury to her right shoulder. We do not believe the Board made improper

factual findings. The Board's opinion states that since the AL‘J only stated a

right shoulder injury occurred, his application of the entire impairment rating

12 assigned by Dr. Bilkey based upon all of the alleged injuries was incorrect.

This was merely a review of the record to ensure the ultimate conclusion was

supported by the record. W. Baptist Hosp., 827 S.W.2d 685. There is no error

here.

Wedding finally•argues that this Court should not apply the deference

which is normally given to the Board and Court of Appeals' decisions pursuant

to W. Baptist Hosp. Wedding believes that this Court should review the de novo legal issues which were raised and considered by the Board regardless of the

fact that review by this Court "is to address new or novel questions of statutory

construction, or to reconsider precedent when such appears necessary, or to

review a question of constitutional magnitude." Id. at 687-88. However, we

discern no reason to not follow precedent in this matter. There is nothing in

the Board or Court of Appeals opinions which requires reversal.

For the above stated reasons, we affirm the Court of Appeals.

All sitting. All concur.

13 COUNSEL FOR APPELLANT, MARY WEDDING:

Eric M. Lamb

COUNSEL FOR APPELLEE, COLLECTIVE BRAND, INC::

Erik Shane Branham

COUNSEL FOR APPELLEE, STRIDE-RITE CORP.:

Donald Cameron Walton, III Robert Johnson Powell James Edward Skaggs