Murray Energy v. Dalton Renfrow

• Court: Court of Appeals of Kentucky
• Decided: March 2, 2023
• Docket: 2022 CA 000416
• Status: Unknown

Opinion

RENDERED: MARCH 3, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-0416-WC

MURRAY ENERGY APPELLANT

PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-20-01685

DALTON RENFROW; HONORABLE R. ROLAND CASE, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.

ACREE, JUDGE: Appellant, Murray Energy, appeals the Workers’ Compensation

Board’s (Board) March 18, 2022, opinion affirming the Administrative Law

Judge’s (ALJ) award to Appellee Dalton Renfrow. Appellant challenges the ALJ’s

determination that (1) Renfrow sustained compensable cumulative trauma to his left shoulder and left knee arising from his former employment with Appellant, and

(2) Renfrow is entitled to triple benefits for his inability to perform the kind of

work he performed at the time of his injury. Finding no error, we affirm.

BACKGROUND

Renfrow was born May 29, 1956; at the time this appeal was filed,

Renfrow was 65 years old. Renfrow spent his working years performing manual

labor, including factory work and water line installation. He worked for Appellant

for nearly a decade, where he performed manual labor in an underground coal

mine. His tasks included installing and changing belt lines, working with steel and

concrete, and hauling batteries. The low ceilings of the mine often required him to

bend over, and he would occasionally hit his head on the ceiling. He frequently

had to lift items weighing as much as fifty pounds. Renfrow asserts that, on

February 26, 2020, he experienced an acute injury to his right shoulder after lifting

a battery lid while working in the mine. Renfrow worked for Appellant until he

was laid off on February 27, 2020 – one day after his alleged acute injury.

On November 30, 2020, Renfrow filed a claim for cumulative work-

related injuries to his neck, shoulders, and right knee, a claim for acute injury to his

right shoulder, and a claim for hearing loss. The ALJ consolidated the three

claims. Renfrow filed a motion to amend on May 14, 2021 to add a claim for

-2- injury to his left knee resulting from cumulative work-related trauma. The ALJ

granted the motion on May 17, 2021.

The ALJ considered a variety of evidence when evaluating Renfrow’s

claims. Several doctors and other medical professionals evaluated Renfrow. A

doctor and a specialist in hearing instruments both noted some hearing loss, but the

doctor ultimately determined Renfrow was not impaired by his hearing loss and

recommended a hearing aid. As to Renfrow’s acute injury to his right shoulder,

medical records from Ohio County Family Care contained x-ray images; the

images indicated prior rotator cuff surgery, prior dislocation, and mild

degenerative changes to his shoulder.

As to his cumulative trauma, the ALJ considered evidence from six

doctors. In notes dated July 24, 2014, Dr. William Martin noted Renfrow was

doing well after a rotator cuff surgery and opined that the injury which resulted in

his rotator cuff did not arise during the course of his employment. In records dated

March 2, 2021, Dr. Steven Mills diagnosed left knee pain and hypertension, and

noted swelling in the left knee; Dr. Mills noted Renfrow’s left knee pain had gotten

so bad that he needed to walk with crutches. Dr. Mills gave him an injection in his

knee and instructed him to perform exercises. Dr. Craig Lundquist examined x-

rays of Renfrow’s lumbar spine taken in 2008, and opined that the x-rays indicated

early signs of degeneration. In a report dated May 7, 2020, Dr. James Rushing

-3- stated his opinion that Renfrow’s problems with his shoulders, neck, and right knee

were at least partially caused by working in the coal industry, and that continuing

to work in the field would exacerbate these problems. Dr. Rushing diagnosed

Renfrow with cervical osteoarthritis and degenerative joint disease, degenerative

joint disease in his right knee, osteoarthritis in his right shoulder, and degenerative

joint disease and osteoarthritis in his left shoulder.

In an April 15, 2021 report, Dr. James Farrage diagnosed Renfrow

with increased pain, restricted range of motion, decreased strength, and impaired

functional capacity in Renfrow’s right shoulder. He also noted cumulative trauma

to Renfrow’s cervical spine, left shoulder, and both knees. Dr. Farrage believed

these diagnoses have resulted in accelerated degeneration of Renfrow’s spine,

shoulders, and knees, as well as accompanying chronic pain, restricted range of

motion, reduced endurance and impaired functional capacity. Dr. Farrage

recommended Renfrow avoid bending, stooping, or extreme cervical rotation, that

he avoid activity above shoulder level, and that he avoid ladders and working from

unprotected heights. Dr. Farrage assessed a sixteen percent whole person

impairment resulting from cumulative trauma; he believed Renfrow experienced

six percent impairment for his left shoulder, five percent for his neck, two percent

for his right knee, and three percent for his left knee. He also assessed three

percent impairment due to acute injury to Renfrow’s right shoulder. Importantly,

-4- Dr. Farrage included in his report his opinion that “[i]t is within a reasonable

degree of medical probability that the aggregate work activities were the major

(greater than 50%) contributor to the current burden of the physical impairment for

the identified diagnoses in the individual.”

However, Dr. Thomas O’Brien, an orthopedic specialist, stated in his

February 26, 2021 report that he did not believe Renfrow experienced an acute

injury to his right shoulder on February 26, 2020 at all. Rather, he believed

Renfrow’s shoulder pain was a result of a combination of age-related degenerative

arthritis, degenerative shoulder impingement, and past shoulder surgery. He

believed Renfrow did not experience cumulative trauma to the neck, shoulders,

back, or knee from his employment, opining rather that these conditions are

normal, age-related pains unrelated to any workplace injuries. He noted that

Renfrow was able to go turkey hunting in May of 2020 and was able to perform his

job until the day he was terminated, despite Renfrow reporting he was in severe

pain. He noted no sign of cervical radiculopathy. He believed Renfrow did not

need surgery for his neck and that Renfrow does not require physical therapy or

prescription medication. Dr. O’Brien assessed zero percent impairment in

Renfrow’s cervical spine, six percent impairment in his right shoulder which was

preexisting and not work related, and two percent impairment in his right knee

-5- which was preexisting and not work related. Dr. O’Brien believed Renfrow was

able to work without restrictions.

The ALJ also considered testimony from Renfrow himself, both from

a deposition and from the hearing on Renfrow’s claims. He testified as to the

physical difficulty of his work. He often had to turn his head to avoid hitting it on

the ceiling of the mine, and occasionally struck his head on the ceiling. He stated

he did not have pain in his neck or receive medical treatment for his neck at the

time of his testimony, though he did have some stiffness. He had a prescription for

muscle relaxers for his shoulders and knees, and received cortisone injections in

both of his knees. He had serious difficulty lifting his left arm due to left shoulder

and left knee pain. Renfrow stated his belief that he would not be able to perform

the job he had at the time Appellant terminated him.

The ALJ entered his Award and Order on October 28, 2021. Relying

on Dr. O’Brien’s conclusions, the ALJ dismissed Renfrow’s claims as to his

cervical spine, right shoulder, and right knee. The ALJ also dismissed Renfrow’s

claim for income benefits for his hearing loss, determining Renfrow’s hearing loss

fell below the KRS1 342.7305(2) eight percent threshold; however, the ALJ did

determine Renfrow was entitled to “reasonable and necessary medical expenses”

arising from his occupational hearing loss. The ALJ also determined Renfrow was

1 Kentucky Revised Statutes.

-6- not entitled to temporary total disability under KRS 342.001(11)(a) because

nothing indicated Renfrow would not have been able to continue working had he

not been laid off. He determined Renfrow was not totally disabled under KRS

342.730, and, persuaded by Dr. O’Brien’s findings, dismissed Renfrow’s claim for

an acute injury.

However, the ALJ determined Renfrow was permanently and partially

disabled due to cumulative trauma to his left knee and left shoulder, finding Dr.

Farrage’s opinion to be persuasive. The ALJ determined Renfrow suffered from

nine percent impairment – three percent for his left knee and six percent for his left

shoulder – which he reduced to 7.65 percent upon application of KRS

342.730(1)(b).

Because Renfrow did not return to work and because he lacked the

physical capacity to return to the sort of work he performed at the time of injury,

the ALJ determined he was entitled to three times the amount of disability benefits

in accordance with KRS 342.730(1)(c)1. The ALJ increased the multiplier by an

additional six-tenths because Renfrow was sixty years old or older in accordance

with KRS 342.730(1)(c)3. And, because KRS 342.020 requires defendant-

employers to pay “for the cure and relief from the effects of an injury or

occupational disease[,]” KRS 342.020(1), the ALJ determined Renfrow was

-7- entitled to medical benefits for his occupational hearing loss, left knee injury, and

left shoulder injury.

In an opinion entered March 18, 2022, the Board affirmed the ALJ’s

award to Renfrow, concluding the ALJ did not abuse his discretion. Appellant

now appeals, challenging the ALJ’s determinations that (1) Renfrow suffered

compensable cumulative trauma to his left knee and left shoulder, and (2) Renfrow

is unable to perform the kind of work he performed at the time of his injuries and

therefore was entitled to tripling of his benefits.

ANALYSIS

KRS 342.285 designates the ALJ as the finder of fact in workers’

compensation actions. KRS 342.285(2). “[A]s the fact-finder, the ALJ, not this

Court and not the Board, has sole discretion to determine the quality, character,

and substance of the evidence.” Abbott Labs. v. Smith, 205 S.W.3d 249, 253 (Ky.

App. 2006) (citing Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999)). “Not

only does the ALJ weigh the evidence, but the ALJ may also choose to believe or

to disbelieve any part of the evidence, regardless of its source.” Id. (citing

Whitaker, 998 S.W.2d at 481).

“The [B]oard shall not substitute its judgment for that of the [ALJ] as

to the weight of evidence on questions of fact.” KRS 342.285(2). Because the

ALJ may disregard some evidence while believing other evidence, the Board may

-8- not disturb the ALJ’s decisions if conflicting evidence underlies the ALJ’s

findings; when the Board reviews ALJs’ decisions, it is tasked with deciding

“whether the evidence is sufficient to support a particular finding made by the

ALJ, or whether such evidence as there was before the ALJ should be viewed as

uncontradicted and compelling a different result.” Western Baptist Hosp. v. Kelly,

827 S.W.2d 685, 687 (Ky. 1992). The Board’s review is limited to determining

whether the ALJ acted within his or her powers, whether the result was procured

by fraud, whether the result conforms with KRS Chapter 342, whether the result

“is clearly erroneous on the basis of the reliable, probative, and material evidence

contained in the whole record[,]” and whether the result “is arbitrary or capricious

or characterized by abuse of discretion or clearly unwarranted exercise of

discretion.” KRS 342.285(2)(a)-(e).

“The scope of review by the Court of Appeals shall include all matters

subject to review by the [B]oard and also errors of law arising before the [B]oard

and made reviewable by the rules of the Supreme Court for review of decisions of

an administrative agency.” KRS 342.290. “When reviewing one of the Board’s

decisions, [the appellate] Court will only reverse the Board’s decision when it has

overlooked or misconstrued controlling law or so flagrantly erred in evaluating the

evidence that it has caused gross injustice.” Abbott Labs., 205 S.W.3d at 253

(citing Western Baptist, 827 S.W.2d at 687-88). And, where an award “is

-9- supported by substantial evidence, it may not be disturbed.” Beth-Elkhorn Corp. v.

Dotson, 428 S.W.2d 32, 34 (Ky. 1968); see also Emps.’ Liability Assurance Corp.

v. Gardner, 204 Ky. 216, 263 S.W. 743, 744 (1924) (“Unless there is an entire

absence of substantial and credible evidence to support the board’s finding of facts,

this court, in the absence of fraud, cannot disturb it.”).

Not only may an ALJ find items of evidence persuasive and disregard

conflicting evidence, he may draw inferences from the evidence before him.

Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329, 331 (Ky. 1997).

In Miller, a workers’ compensation claimant hurt his back while at work; the injury

herniated a disc in his back, which contributed to a degenerative lumbar disc

disease. Id. at 330. The ALJ determined the claimant had a 28 percent permanent

partial occupational disability, which the Board and this Court affirmed. Id.

Though the claimant asserted that “overwhelming evidence” showed he was

disabled to a greater extent than the ALJ had determined, the Kentucky Supreme

Court noted the ALJ “has the sole authority to judge the weight, credibility and

inferences to be drawn from the record.” Id. at 331 (citing Paramount Foods, Inc.

v. Burkhardt, 695 S.W.2d 418 (Ky. 1985)). The Kentucky Supreme Court

affirmed, determining the ALJ had properly exercised his discretion in reviewing

the evidence and that substantial evidence underpinned the ALJ’s decision. Id.

-10- It is true that conflicting evidence was before the ALJ in the present

case. Dr. O’Brien, an orthopedist, did not believe Renfrow’s employment caused

him cumulative trauma to his knees or shoulders, and that any cumulative injury

was not work related. In fact, the ALJ relied upon Dr. O’Brien to determine

Renfrow suffered no work-related acute injury or cumulative trauma to any areas

other than the left knee and left shoulder.

By contrast, Dr. Farrage detected cumulative trauma in several parts

of Renfrow’s body, including his left knee and left shoulder. Dr. Farrage

determined Renfrow’s work was the main cause of his physical impairment for

each diagnosis. While the ALJ did not determine Renfrow suffered cumulative

trauma to any of the areas Dr. Farrage identified other than the left knee and left

shoulder, other items of evidence were presented to the ALJ pertaining to the left

knee and shoulder. Dr. Mills diagnosed Renfrow with left knee pain and noted it

had advanced to the point Renfrow needed crutches to walk. X-ray records from

Ohio County Family Care showed shoulder degeneration. Dr. Rushing diagnosed

Renfrow with degenerative joint disease and osteoarthritis in his left shoulder,

among other diagnoses; he opined that Renfrow’s work in the coal industry was at

least the partial cause of his injuries. The ALJ specifically noted his belief that

Renfrow was a credible witness, and that he testified he has problems in his left

knee and left shoulder which require pain medication and regular visits to Dr.

-11- Mills. Even if the ALJ only relied on the findings of Dr. Farrage, the ALJ, as

factfinder, is tasked with weighing evidence; he may be persuaded by some

evidence while being unpersuaded by other evidence. Thus, it was not error for the

ALJ to determine Renfrow suffered from work related cumulative trauma to his

left knee and left shoulder, as substantial evidence of record supports this

conclusion.

Appellant also challenges the tripling of Renfrow’s benefits because,

due to his injury, he lacked the physical capacity to perform the type of work he

performed at the time of his injury pursuant to KRS 342.730(1)(c)1. Again,

though conflicting evidence exists on this point, substantial evidence supports the

ALJ’s application of the multiplier. On one hand, Dr. O’Brien opined that,

because Renfrow was able to turkey hunt and because he was able to work until he

was laid off, Renfrow was not injured to the point he did not retain the physical

capacity to perform the kind of work he used to perform. On the other hand, Dr.

Farrage recommended that Renfrow not repetitively bend, stoop, or bend his neck

excessively. Dr. Mills noted Renfrow’s left knee deteriorated to the point he

needed crutches to walk. Renfrow requires injections in his knees. On the basis of

Renfrow’s testimony and the findings of Dr. Mills and Dr. Farrage, the ALJ

determined Renfrow lacked the capacity to return to the kind of work he used to

perform. Again, because the ALJ is charged with weighing evidence and because

-12- we do not reweigh evidence on appeal, we find no error in the ALJ’s application of

the statutory multiplier.

CONCLUSION

For the foregoing reasons, we affirm the ALJ’s October 28, 2021,

Award and Order.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE DALTON RENFROW: Donald J. Niehaus Caleb T. Taylor McKinnley Morgan Lexington, Kentucky Gerald Vanover London, Kentucky

-13-