Michael R. Plumely v. Kroger, Inc.

• Court: Kentucky Supreme Court
• Decided: April 26, 2018
• Docket: 2017-SC-0083
• Status: Unpublished

Opinion

CORRECTED: MAY 8, 2018 RENDERED: APRIL 26, 2018 TO BE PUBLISHED

u 2017-SC-000083-WC

MICHAEL R. PLUMLEY APPELLANT

ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2016-CA-001031-WC WORKERS’ COMPENSATION BOARD NO. 12-WC-00260

KROGER, INC., APPELLEES THE WORKERS’ COMPENSATION BOARD, AND HONORABLE JONATHAN R. WEATHERBY, ADMINISTRATIVE LAW JUDGE

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

AFFIRMING

Over the span of several years working for Kroger, Michael R. Plumley

suffered four work-related low-back injuries, and this is Plumley’s appeal from

the workers’ compensation claim he filed for disability benefits attributable to

the three most recent injuries. He argues that the Administrative Law Judge

erred in awarding permanent partial disability benefits by relying upon

allegedly flawed medical evidence that, among other failings, applied

improperly the AMA Guides for assessing functional impairment; by finding he

had three distinct work-related injuries, for each of which the AU made three

tandem benefit awards rather than a single-injury with a single-benefit award;

and by adopting the wrong multiplier for permanent partial disability. The Workers’ Compensation Board upheld the ALJ’s decision, and the Court of

Appeals affirmed the Board. We affirm the opinion of the Court of Appeals.

I. BACKGROUND

Plumley has worked for Kroger since 1993 in a variety of positions from

Stocker to department manager. This case involves four separate work-related

injuries Plumley sustained over the course of this employment.

The first injury occurred in 1998. While lifting items from a conveyer belt

while unloading a truck, Plumley injured his lower back. This injury resulted in

a discectomy at the L4-L5 level that same year. Plumley returned to work later

in 1998 with a permanent restriction on bending, stooping, and lifting over 25

pounds. He filed a claim for workers’ compensation benefits for this injury,

eventually settling it for permanently partial disability with a 10% Whole

Person Impairment (“WPI”).

The second injury occurred in 2006, when Plumley injured his lower

back while unloading a truck. He was diagnosed with a central disc protrusion

at the L3-L4 level and an associated annular tear. He missed about five months

of work undergoing treatment, and the treating physician noted the

development of a “severe foot drop,” indicating a peripheral nerve impairment.

The parties stipulated to the fact that Plumley received temporary total

disability (TTD) benefits during the five-month period he did not work. And

Plumley returned to work with no new work restrictions, the 1998 restrictions

remaining in effect. The third injuiy occurred in 2009, while Plumley was assembling a floor

display. Plumley experienced a popping sensation in his back followed by

extreme pain radiating down his left leg. This time, Plumley had suffered a

herniated disc, requiring a second discectomy and laminotomy at L3-L4. The

parties stipulated to the fact that Plumley received TTD benefits for the eight-

month period he did not work. Plumley returned to work with an initial 15-

pound lifting restriction that was removed a couple of months later, but the

1998 restrictions remained in effect.

The fourth injuiy occurred in 2011, when Plumley felt a pop in his back

while helping a co-worker break down a truckload of merchandise. Plumley

continued working but soon sought treatment at an urgent-care facility. This

time, he was diagnosed with a recurrent hernia at L3-L4. Plumley eventually

underwent surgery to repair the damage. The parties stipulated to the fact that

Plumley received TTD benefits for the six-month period he did not work. He

returned to work at Kroger in 2011 with the 1998 restrictions still in effect.

Plumley filed a claim for the 2006, 2009, and 2011 injuries. While the

claim was pending, he underwent a surgical fusion at L3-L4. Two doctors. Dr.

Frank Burke and Dr, Greg Snider, evaluated Plumley after the surgeiy for the

purpose of his claim, assigning total WPl ratings of 34% and 22% respectively,

apportioning them over the different injuries accordingly.’

* Multiple doctors evaluated Plumley over the course of this case, but both parties emphasize the reports of Drs. Burke and Snider because theirs are the only medical reports evaluating Plumley after the lumbar fusion. The ALJ issued an Opinion and Award granting benefits to Plumley. The

ALJ discussed the evidence presented and found Dr. Snider’s report to be more

credible, “the most consistent, coherent, and logical,” noting Dr. Snider’s

“convincing support via the AMA Guides^,” The ALJ adopted Dr. Snider’s

conclusions and assigned a 3% WPI rating to the 2006 injury, 6% WPI to the

2009 injury, and 13% WPI to the 2011 injury for a total of 22% WPI.

Plumley then moved for reconsideration of the award, which the ALJ

denied. Plumley then appealed to the Workers’ Compensation Board (“Board”),

which affirmed the ALJ on all relevant issues.^ Plumley next appealed to the

Court of Appeals, which also affirmed on all relevant issues. Plumley finally

appealed to this Court.

n. ANALYSIS

A. Standard of Review.

“When reviewing an ALJ’s decision, this Court will reverse only if the ALJ

overlooked or misconstrued controlling law or so flagrantly erred in evaluating

the evidence that it has caused gross injustice.”'’ “On appellate review, the

ALJ’s findings of fact are entitled to considerable deference and will not be set

2 American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th ed.) (“Guides”). 3 The Board did reverse the ALJ’s findings regarding whether Plumley was permanently disabled and whether Plumley was entitled to vocation^ rehabilitation, but neither of these issues is before this Court today and shall remain viable on remand to the ALJ. U.S. Bank Home Mortgage v. Schrecker, 455 S.W.3d 382, 384 (Ky. 2014) (citing W. Baptist Hasp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992)). aside unless the evidence compels a contrary finding.”® “However, we review

the ALJ’s application of the law de novo.”^ “On appeal, our standard of review

of a decision of the Workers’ Compensation Board ‘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.’”'^

B. No error occurred in the ALJ’s reliance on Dr. Snider’s Report.

The first issue that Plumley raises involves Dr. Snider’s assessment,

which Plumley attacks in three different ways.

As a preliminary matter, Kroger argues, for the first time in this case,

that Plumley did not properly preserve this attack on the ALJ’s use of Dr.

Snider’s medical opinion because Plumley failed to object to the ALJ’s use of it,

specifically, that Plumley failed to argue before the ALJ Dr. Snider’s alleged

failure to follow the Guides.

Plumley responds by arguing that he was under no duty to object to the

admissibility of Dr. Snider’s opinion to preserve this issue. Plumley further

argues that he clearly included, as a “Contested Issue” in Section II of the

preprinted Benefits Review Conference Order, “benefits per KRS 342.730,” and

that this broad and general language encompasses this issue sufficiently for

5 Schrecker, 455 S.W.3d at 384 (citing Bullock v. Peabody Coal Co., 882 S.W.2d 676 (Ky. 1994)). 6 Schrecker, 455 S.W.3d at 384 (citing Finley v. DBM Techs., 217 S.W.3d 261, 264 (Ky. App. 2007)). 7 Pike County Bd. ofEduc. v. Mills, 260 S.W.3d 366, 368 (Ky. 2008) (quoting Western Baptist Hasp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992)). preservation. Lastly, Plumley argues that after the ALJ rendered his opinion, it

became apparent that the ALJ relied on Dr. Snider’s alleged erroneous opinion,

to which Plumley filed extensive Petitions for Reconsideration and Requests for

Additional Fact Finding that were summarily dismissed by the ALJ without

comment.

Acknowledging that this is the first time it disputes preservation in this

case, Kroger justifies its delayed argument on the fact that no precedent

existed regarding this preservation issue until after the Court of Appeals

rendered its opinion in this case. Kroger accurately asserts that while this case

was pending on appeal, the Court of Appeals rendered an unpublished opinion,

Howard v. Cumberland River Coal Corp., stating that a plaintiff “[is] required to

raise an objection if he believed that [a doctor’s] impairment rating was not

compliant with the AMA Guides” or that issue is deemed waived.® The Court of

Appeals justified its conclusion by pointing to three sources of law: 1) “803 KAR

25:010 § 13(13) requires that all contested issues be raised before the ALJ;” 2)

“per 803 KAR 25:010 § 13(14), only the issues listed as ‘contested’ may proceed

beyond the benefit review conference;” and 3) “failure to raise an issue before

an administrative body precludes that issue from judicial review.”^

In response, Plumley cites to this Court’s decision in George Humfleet

Mobile Homes v. Christman^^ for the proposition that he had no duty to object

8 2015-CA-001704-WC, 2016 WL 4490579, *2 (Ky. App. Aug. 26, 2016). 9 Id. at *2 (citing Urella u. Ky. Bd. of Med. Licensure, 939 S.W.2d 869, 873 (Ky. 1997)). >0 125 S.W.3d 288 (Ky. 2004). to the admissibility of Dr. Snider’s opinion to preserve this issue for appellate

review. But in Christman, the doctor allegedly rendered an opinion under a

different, non-applicable edition of the GuidesA^ This Court found this specific

factual circumstance to render the doctor’s opinion noncompliant with Chapter

342. Because it was not a proper basis for calculating income benefits under

KRS 342.730(l){b), such error was subject to appellate review sua sponte and

without the need for a specific objection.’2

We agree with the Court of Appeals’ holding in Howard that a plaintiff

“{is] required to raise an objection if he believed that [a doctor’s] impairment

rating was not compliant with the AMA Guides,”‘3 and that the failure to do so

waives the right to appeal such an issue.

The factual circumstances of this case and Howard are materially

different from that of Christman. In Christman, the dispute involved a doctor

relying on an outdated version of the Guides in forming his opinion, which was

subsequently relied upon by the ALJ, an error the Christman court found to be

a “patent” misapplication of the law warranting sua sponte review, Here and

in Howard, the parties simply dispute the conformity of a doctor’s opinion to

the Guides, an issue that does not warrant sua sponte review because it does

not implicate “whether an award conformed to Chapter 342 {which is] a

question of law that a court should review, regardless of whether contested by

” Id. at 294. 12 Id.

‘3 2015-CA-001704-WC, 2016 WL 4490579, *2 (Ky. App. Aug. 26, 2016). 14 Id. (citing Whittaker v. Reeder, 30 S.W.3d 138 (Ky. 2000)). a party.,..”15 in other words, such a dispute does not “involved a patent

misapplication of the law to the facts” warranting review sua sponte;'^ rather, it

is a dispute about interpretation of the Guides.

Even under the adopted Court of Appeals’ rule, however, Plumley

sufficiently preserved his claim for review. By specifically listing in his Requests

for Additional Fact Finding to the ALJ that the ALJ erred by relying on Dr.

Snider’s opinion that allegedly does not conform with the Guides, Plumley

preserved this claim for appellate review, and we shall address its merits.

1. The ALJ did not err when relying on the Medical Report of Dr. Snider, who evaluated Plumley under the ROM Method.

Plumley argues that Dr. Snider’s assessment did not conform to the

standards set out by the Guides when assessing Plumley’s impairment rating.

He argues that under the Court of Appeals’ opinion in Jones v. Brasch-Barry

Gen. Contractors, “any assessment that disregards the express terms of the

AMA Guides cannot constitute substantial evidence to support an award of

workers’ compensation benefits.”!^ So Plumley argues that the ALJ’s adoption

of Dr. Snider’s assessment and 22% WPI rating constitutes reversible error.

Specifically, Plumley cites to Section 15.2 of the Guides, entitled

“Determining the Appropriate Method for Assessment,” which states, “In the

small number of instances in which the ROM (range-of-motion) and the DRE

(diagnosis-related-estimate) methods can be used, evaluate the individual with

•5 Sidney Coal Co., Inc. v. Kirk, 364 S.W.3d 168, 171 (Ky. 2012). >6 Id. 17 189 S.W.3d 149, 154 (Ky. App. 2006).

8 both methods and award the higher rating.” Plumley argues that both the ROM

and DRE methods could be used in this case to evaluate the extent of

impairment, and as such, that the Guides mandate that Dr. Snider evaluate

Plumley under both methods. Plumley argues that because Dr. Snider

evaluated him using only the ROM and not the DRE method, Dr. Snider did not

conform to the Guides, and the ALJ’s adoption of Dr. Snider’s assessment in its

findings and conclusions constitutes reversible error.

Plumley’s argument highlights a greater issue in Kentucky case law—

whether the failure to adhere strictly to the Guides constitutes reversible error.

The Court of Appeals’ statement in Brasch-Berry suggests that any failure on

the part of a physician to adhere strictly to the text of the Guides constitutes

reversible error, which constitutes the bulk of Plumley’s argument. Against this

argument, Kroger responds that a physicians’ conclusions must simply be

supported by and in conformity with the Guides, only requiring professional

medical judgment to ground itself in, but not so strictly adhere itself to, the

Guides.

These opposing arguments are highlighted by this Court’s 4-3

unpublished decision in Ross v; Threave Main Stud.^^ The Ross majority first

noted this Court’s explanation from Kentucky River Enterprises, Inc. v. Elkins^"^

that “the proper interpretation of the Guides and the proper assessment of an

'8 No. 2006-SC-000190-WC, 2007 WL 188990 (Ky. Jan. 25, 2007). 19 170 S.W.Sd 206 (Ky. 2003). impairment rating are medical questions.”^® The Ross majority then noted that

the doctor upon whom the ALJ relied in making a decision “explained that

certain things must be inferred from what is stated in the Guides and [the

doctor] gave a medically sound reason” for assigning a different impairment

rating than what the Guides prescribed.21 Finally, the Poss majority concluded,

“Because the evidence revealed no more than a difference of medical opinion

regarding the proper interpretation of the Guides and the most accurate

impairment under the Guides, the ALJ was free to choose the expert upon

whom to rely.”22 The dissent, on the other hand, in a one-sentence opinion,

stated, “I would vacate and remand to consider [the] disability in light of

[Brasch-Barry]. The doctor is ignoring the AMA Guidelines.”23

This Court, and presumably the Court of Appeals, views the statement by

the Court of Appeals in Brasch-Barry in two completely contrasting ways—

strict adherence versus general conformity to the Guides. Notably, the factual

circumstances of Brasch-Barry shed light on why the Court of Appeals stated

its rule the way that it did. The physician in Brasch-Barry completely ignored

the Guides, expressing “personal antagonism” toward them.^^ Furthermore,

Plumley overlooks other statements by the Court of Appeals in Brasch-Barry in

the paragraph before the statement in controversy, “Under our law, the AMA

20 Ross, 2007 WL 188990 at *3 (quoting Elkins, 107 S.W.3d at 210). 21 Ross, 2007 WL 188990 at *3. 22 Id. 23 Id.

2“' Brasch-Barry, 189 S.W.3d at 154.

10 Guides are an integral tool for assessing a claimant’s disability rating and

monetary award. So to be useful for the fact-finder, a physician’s opinion must

be grounded in the AMA Guides....”25

To be grounded in the Guides is not to require a strict adherence to the

Guides, but rather a general conformity with them. We also note that the Court

of Appeals in Brasch-Barry seemingly also did not require strict adherence to

the Guides: “An ALJ cannot choose to give credence to an opinion of a

physician assigning an impairment rating that is not based upon the AMA

Guides.”25 An opinion that is based upon the Guides is different from one that

strictly adheres to the Guides.

Turning now to the language of the Guides, the sections that Plumley

highlights from the Guides use seemingly discretionary language, including the

statement in the Guides at issue today: “In the small number of instances in

which the ROM and DRE methods can both be used....” This language requires

medical professionals to determine whether the patient and his or her medical

circumstances afford both a ROM and DRE method calculation. In other words,

the Guides only require both methods be used if the physician deems it

possible. “[TJhe proper interpretation of the Guides and the proper assessment

of an impairment rating are medical questions.”27

25 7d. 25 Id. at 153 (emphasis added). 27 Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206 (Ky. 2003).

11 Simply put. Dr. Snider’s evaluation is based upon and in conformity with

the Guides. Section 15.2 of the Guides affords the physician medical discretion

in determining whether the case with which he or she is presented falls within

the small ambit of cases where both the ROM and DRE methods can be used to

evaluate patients. Although Plumley attempts to persuade us that his case

constitutes a situation where both methods of evaluation should be used, this

is an evaluation that must be conducted by a medical professional, not this

Court. This Court’s only prerogative is to evaluate the ALJ’s decision to ensure

that it is not contrary to the evidence.

Although Dr. Snider never explicitly explained why he did not evaluate

Plumley under the DRE method, this fact alone does not diminish the

substantial evidence supporting the ALJ’s decision to rely on Dr. Snider’s

report. It is undisputed that the ROM method was an appropriate method used

by the physicians in evaluating Plumley—both Dr. Snider and Dr. Burke

expressly stated this. Cited by Plumley himself, Section 15.2 of the Guides

explains that the “ROM method is used in several situations: 2. When there is

multilevel involvement in the same spinal region...4. Where there is recurrent

radiculopathy caused by a new (recurrent) disk herniation or a recurrent injury

in the same spinal region.” Both Dr, Snider and Dr. Burke evaluated the facts

and circumstances of this case and both determined that, on this basis, the

ROM method should be used to evaluate Plumley.

Additionally, the only mention of the use of the DRE method from Dr.

Burke, whose report Plumley argues the ALJ should have relied upon, is “If

12 DRE method was selected...” in his written evaluation. In fact, Dr. Burke later

states, “Multiple re-injuries and operations required the ROM method used,”

followed by an attempted evaluation of Plumley under the ROM method. The

medical witness that Plumley himself relies upon discussed the DRE method in

one sentence in his entire report.

Having reviewed the entirety of the record in this case, nothing indicates

error on the part of the ALJ for having relied on Dr. Snider’s report.

2. The ALJ did not err when relying on Dr. Snider’s WPJ calculations.

Now that we have clarified the law in this regard, we can summarily

dispense with Plumley’s second argument. Plumley’s second issue with the

ALJ’s reliance on Dr. Snider’s report again grounds itself in Dr. Snider’s alleged

departure from the text of the Guides.

Essentially, Plumley argues that the Guides state that when there is

“multilevel involvement within the same region of the spine, the [ROM] method

should be used to combine these ratings.” Plumley argues that because the L3-

4 and L4-5 disks are in the “same region of the spine,” the ALJ erred when

relying on Dr. Snider’s calculations, which purportedly do not conform to this

provision in the Guides, to evaluate Plumley’s injuiy. Kroger responds to this

argument by also pointing to language in the Guides supporting Dr. Snider’s

calculations. Kroger points to Section 15.2a, which states in part, “If the

previous evaluation was based on the DRE method and the individual is now

evaluated with the ROM method, and prior ROM measurements do not exist to

calculate a ROM impairment rating, the previous DRE percent can be

13 subtracted from the ROM ratings.” This is exactly what Dr. Snider did in

making his calculations in his report.

Per our repeated standard of review articulated in these types of cases,

unless the evidence compels a contrary finding, the ALJ’s reliance on certain

medical reports and opinions over others is entitled to considerable

deference.28 The ALJ reasonably relied upon and adopted the findings of Dr.

Snider, as his methodology and conclusions are grounded in the Guides,

shown by the various sections of the Guides, including Section 15.2a, that

Kroger cites in support of Dr. Snider’s findings. Dr. Snider’s calculations

conform to Section 15.2a of the Guides and his report explains his rationale for

doing so. Reviewing the record in its entirety yields no reason otherwise to call

into question the ALJ’s reliance on Dr. Snider’s report. So no reversible error

on this issue occurred.

3. The ALJ did not err when relying on Dr. Snider’s report, which does not include the term *foot drop” for the purpose of calculating benefits.

Plumley again challenges the propriety of the ALJ’s adoption of Dr.

Snider’s findings. Plumley claims both that Dr. Snider failed to consider his

foot drop in assessing the spinal-nerve-deficit component of his ROM rating,

and as such, the ALJ erred by relying on Dr. Snider’s report and by also failing

to consider this factor. Kroger responds to this argument by noting that while

Dr. Snider did not expressly use the term “foot drop” in his evaluation, a plain

reading of Dr. Snider’s medical evaluation clearly shows that Dr. Snider did

28 Schrecker, 455 S.W.Sd at 384 (citing Kelly, 827 S.W.2d at 687-88).

14 consider this factor. Kroger argues that the term “peripheral nerve

involvement,” the term used by both Doctors Snider and Burke, encompasses

the term “foot drop.” As such, the ALJ’s adoption of Dr. Snider’s evaluation in

this way was not error. We agree with Kroger.

Dr. Snider’s medical evaluation evidences an evaluation of all “peripheral

nerve involvement” affecting Plumley, which includes a detailed report of Dr.

Snider’s findings. And Dr. Burke also characterized this damage as “peripheral

nerve involvement,” never using the term “foot drop” in his actual WPI

percentage calculations. Simply stated, this Court does not find reversible error

in an ALJ’s relying upon a physician’s report that uses terminology different

from that which the claimant would use to describe essentially the same

condition. Therefore, no reversible error results from this issue.

C. The ALJ did not err by awarding Plumley three separate awards for the three injuries he suffered.

Plumley’s second argument purports to be an issue of first impression for

this Court. Plumley acknowledges that when a claimant has suffered different

traumatic work injuries, each resulting in separate impairment ratings, the

awards for each injury are calculated separately. But Plumley argues that his

claim represents a material departure from the existing case law establishing

this rule because his claim involves successive injuries to the same body part

and a ROM rating, whereas existing case law involves separate injuries to

different body parts and a DRE rating. Plumley argues that his three

successive work injuries to his L3-4 disc-space fits the current definition of

15 “injuiy,” as set out in KRS 342.0011(1), and therefore can be considered as one

injury with one award.

KRS 342.0011(1) defines injury as “any work-related traumatic event or

senes 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.”29

Plumley argues that the three injuries he suffered to his L3-L4 vertebrae

constitute a series of traumatic events, falling under the definition of injury

found in KRS 342.0011(1). And, and as such, Plumley argues, the ALJ erred by

apportioning Dr. Snider’s overall 22% WPI-the sum of 3% + 6% +13%-over the

three separate awards, as opposed to awarding Dr. Snider’s 22% WPI rating as

a single award.

In Plumley’s case, the Board noted that “(ejxisting case law supports the

notion that if the injuries are successive, the award of PPD benefits must be

separated.” Both the Board and Court of Appeals pointed to this Court’s

decision in Lewis v. Ford Motor Co.^^ for guidance on this issue. Somewhat

factually analogous to Plumley’s case, the claimant in Lewis suffered injuries to

the same body part, the lumbar spine, which “produced various periods of

temporary total disability.”^! This Court affirmed the Court of Appeals’

determination that partial disability awards rendered for specific injuries to the

2’ (emphasis added). 30 363 S.W.3d 340 (Ky. 2012). 31 Id. at 341.

16 same body part occurring at different times should not be aggregated to allow

the claimant to receive payments that exceed the maximum for permanent total

disability.32

We also note with approval the Board’s discussion of this issue in this

case:

In Garrett v. Miller Pipeline. Claim No. 200401458, rendered February 9, 2007, this Board instructed as follows on this same issue:

Where various injuries producing different wholebody impairment ratings occur as a result of successive and distinct work-related traumatic events, the disability ratings pursuant to KRS 342.730(1)(b) for those injuries must be calculated separately. See Moore v. Pontiki Coal Corp.. 2001-SC-0089-WC (rendered October 25, 2001 and designated not to be published).... we are convinced that the ALJ may not combine impairments from harmful changes that are due to successive traumatic events.33

As a matter of pure statutory interpretation, we think that a series of

traumatic events for purposes of defining injury cannot be interpreted to

consider separate and successive injuries to the same body part as one, total

injury for the purpose of calculating an award, as Plumley would have us hold.

We want to stress that this interpretation shall have no bearing on the

interpretation of cumulative trauma in Kentucky precedent.

If this Court were to adopt Plumley’s suggested rule, that successive

injuries to the same body part should be considered one total injury, the line

between differing injuries and cumulative trauma would not only be blurred

32 Id. at 343. 33 (emphasis in original).

17 but would not exist. “Implicit in the finding of a gradual injury [is] a finding

that no one instance of workplace trauma, {...] caused an injury of appreciable

proportion.”3'* As the Court of Appeals stated in this case, “the record contains

ample evidence of specific instances of workplace trauma causing injuries of

appreciable proportion. Although these injuries all converged to create the

partially disabled condition in which Plumley now finds himself, to rule that

these singular—but repeated—^injury events created a gradual injury defies

existing case law.” Lastly, Plumley can point to no legal support for his

position, hanging his argument simply on attempted logical and policy

considerations.

Because Plumley suffered three separate and distinct injuries, even

though to the same body part, we find no error in the ALJ’s decision to

apportion Dr. Snider’s WPI rating over the three injuries as opposed to treating

the injury as one total injury.35 Such a rule harmonizes with workers’

compensation law’s rules regarding cumulative trauma and distinct and

separate injuries.

34 HUI V. Sextet Mining Corp., 65 S.W.Sd 503, 507 (Ky. 2001). 35 In the alternative, Plumley argues that this Court should reform the ALJ’s calculations purportedly to compensate Plumley better for his injuries. But Plumley’s advocated calculations fail to consider his previous awards and compensation for his pre-existing conditions, in addition to awarding Plumley more money than he is entitled to under the facts and applicable law. So we decline to adopt Plumley’s requested calculations.

18 D. The AU did not err in his use of modifier multipliers.

Plumley finally argues that the AU adopted the wrong multiplier, per

KRS 342.730(l)(c)(l) for his claim. Specifically, Plumley argues that the ALJ

should have applied the “3” multiplier rather than the “1.”

Under KRS 342.730(l)(c)(l): “If, due to injury, an employee does not

retain the physical capacity to return to the type of work that the employee

performed at the time of injury, the benefit for permanent partial disability

shall be multiplied by three times the amount otherwise determined under

[(b)]....36 Subsection (b) of KRS 342.730 provides for the use of the “1”

multiplier.

Plumley argues that the ALJ erred when using the “1” multiplier for

Plumley’s 2006 and 2009 awards. However, it is undisputed that after the 2006

injury, no doctor that evaluated Plumley imposed any greater work restrictions,

consistently adhering to only the restrictions imposed after the 1998 injury. A

minor work restriction was imposed but lifted after a couple of months after the

2009 injury. In essence, Plumley was able to return to the type of work

performed at the time of the injury, immediately after the 2006 injury and

shortly after the 2009 injuiy.

This is the primary basis that the AU relied upon when making his

decision to use only the “1” multiplier for the 2006 and 2009 awards. The AU

applied the “1” modifier for the express rationale that Plumley received no

greater restrictions beyond the 1998 restrictions imposed by his evaluating

36 (emphasis added).

19 physicians. Plumley kept the same job responsibilities throughout the time he

suffered his various injuries, with only a minor interruption after 2009. As

such, we cannot say that the ALJ’s application of the “1” modifier was

unreasonable because Plumley did “retain the physical capacity to return to

the type of work that [he] performed at the time of injury....”37

As the Board stated, the ALJ could have outlined in greater detail his

rationale for the modifier used. But the evidence in this case not only does not

compel an alternative finding on the part of the ALJ, it substantially supports

the ALJ’s conclusion. So we find no error on the part of the ALJ in the modifier

he used to calculate Plumley’s awards.

in. CONCLUSION

Having found no error on the part of the ALJ in this case, we affirm the

Court of Appeals’ opinion.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Diana Beard Cowden

COUNSEL FOR APPELLEE: KROGER, INC.

Brandon L. Rosen Pohl & Aubrey, PSC.

COUNSEL FOR WORKERS’ COMPENSATION BOARD:

Dwight Taylor Lovan

Honorable Jonathan R. Weatherby, Administrative Law Judge

37 KRS 342.730(l)(c)(l),

20 ^ujxrrutr fionrt of 2017-SC-000083-WC

ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2016-CA-001031-WC WORKERS’ COMPENSATION BOARD NO. 12-WC-00260

KROGER, INC., APPELLEES THE WORKERS’ COMPENSATION BOARD, AND HONORABLE JONATHAN R. WEATHERBY, ADMINISTRATIVE LAW JUDGE

ORDER CORRECTING

The Opinion of the Court rendered April 26, 2018 is corrected on its face

by substitution of the attached Opinion in lieu of the original Opinion.

Said correction does not affect the holding of the original Opinion of the

Court.

ENTERED; May 8, 2018