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LKLP CAC Inc. v. Fleming

Supreme Court of Kentucky

June 15, 2017

LKLP CAC INC. APPELLANT
v.
BRANDON FLEMING; HON. R. ROLAND CASE, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

         ON APPEAL FROM COURT OF APPEALS CASE NO. 2016-CA-000163-WC WORKERS' COMPENSATION BOARD NO. 09-WC-97826

         AFFIRMING.

          COUNSEL FOR APPELLANT: Hugh Brettelle Stonecipher Ryan Thompson Fogle Keller Purdy, PLLC.

          COUNSEL FOR APPELLEE, BRANDON FLEMING: John Earl Hunt.

          OPINION OF THE COURT BY JUSTICE KELLER

         In 2010, an Administrative Law Judge (ALJ) awarded Brandon Fleming permanent partial disability benefits based on a finding that Fleming had a physical impairment rating of 13% and a psychological impairment rating of 5% for a combined permanent impairment rating of 17%. Fleming filed a motion to reopen his claim in 2014 alleging that his condition had worsened. A different ALJ found that Fleming had a physical impairment rating of 23% and a psychological impairment rating of 12% for a combined permanent impairment rating of 32%.[1] LKLP CAC Inc. (LKLP) appealed, and a divided Workers' Compensation Board (the Board) affirmed. LKLP then sought review before the Court of Appeals, which also affirmed. Before us, as it did before the Board and the Court of Appeals, LKLP argues that the ALJ's opinion is not supported by evidence of substance because the ALJ relied on a physician who stated that Fleming's permanent impairment rating had not changed following the 2010 opinion and award. As did the majority of the Board and the Court of Appeals, we disagree that the ALJ's findings are not properly supported by the evidence and affirm.

         I. BACKGROUND.

         Fleming worked as a youth director for LKLP, a community action agency. On October 22, 2007, Fleming suffered a work-related back injury when the van he was driving was struck from behind. In September 2008, Fleming underwent lumbar spine fusion surgery, which initially alleviated some of his leg symptoms, and he returned to work. However, Fleming continued to suffer from low back pain that was aggravated by standing or sitting for long periods and he stopped working in August 2010. We note that, in addition to his physical complaints, Fleming complained of irritability and depression. However, the only issues before us are related to Fleming's physical. complaints; therefore, we do not further address Fleming's psychological condition.

         LKLP disputed the work-relatedness of Fleming's injury, and Fleming filed a claim for benefits. During the litigation of that claim, the parties introduced the following pertinent medical evidence. Dr. David Herr diagnosed Fleming with a herniated disc at L5-S1 that had been surgically repaired. He assigned Fleming a 13% permanent physical impairment rating and stated that Fleming should avoid heavy lifting and repetitive bending and should change positions frequently.

         Based on that evidence, the ALJ found that Fleming had a 13% permanent physical impairment rating and that Fleming was capable of performing the type of work he performed at the time of his injury. Therefore, the ALJ did not award Fleming the three multiplier under Kentucky Revised Statute (KRS) 342:730(1)(c)l?

         On March 26, 2014, Fleming filed a motion to reopen, alleging that his condition had worsened. During the reopening litigation, the parties filed the following pertinent evidence.

         Fleming testified that, after the 2010 opinion and award, his back and leg pain increased, and he was no longer able to: work, mow his lawn, perform most non-sedentary household chores, or drive long distances. In an attempt to alleviate his pain, Fleming had undergone implantation of a spinal cord stimulator in 2011. That device proved to be helpful in partially alleviating Fleming's leg symptoms; however, his physician had to remove it within a year because of a malfunction.

         In addition to his testimony, Fleming filed voluminous medical records as well as reports from Drs. Brackett and Guberman. Dr. Brackett stated that Fleming has a 47% permanent impairment rating, 15% attributable to his ' cervical spine, 6% attributable to his thoracic spine, and 28% attributable to . his lumbar spine. Furthermore, Dr. Brackett stated that Fleming could not return to the type of work he performed at the time of his injury, and that Fleming should avoid: prolonged walking, standing, stooping, squatting, hip bending, climbing, and excessive flexion, extension, and rotation of his back. Dr. Guberman stated that Fleming has a 28% permanent impairment rating, which reflects a 15% increase from the permanent impairment rating initially assessed by the ALJ. Dr. Guberman also stated that Fleming should avoid prolonged sitting, traveling, carrying, lifting, pushing, and pulling. Finally, Fleming filed a functional capacity assessment indicating that he could perform light and sedentary work as long as he could frequently change positions.

         LKLP filed a medical report from Dr. Vaughan and the transcript of Dr. Vaughan's deposition. Dr. Vaughan, who did not evaluate Fleming during the initial litigation, stated that Fleming has a 23% permanent impairment rating, should avoid lifting more than 25 pounds and repetitive bending and twisting, and should alternate between sitting and standing. Dr. Vaughan stated that he would have assigned the same permanent impairment rating and imposed the same restrictions if he had seen Fleming following his surgery. LKLP also filed a functional capacity assessment that indicated Fleming could perform a wide range of sedentary to medium level work.

         The ALJ undertook a thorough review of the evidence and concluded that Fleming is not totally disabled. However, the ALJ found that Fleming's permanent physical impairment rating had increased from 13% to 23%. The ALJ also found that Fleming is incapable of returning to his pre-injury work activity, and he awarded permanent partial disability benefits ...


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