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Plumley v. Kroger, Inc.

Supreme Court of Kentucky

April 26, 2018



          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



         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 ALJ 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 injury 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 injury 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 surgery for the purpose of his claim, assigning total WPI ratings of 34% and 22% respectively, apportioning them over the different injuries accordingly.[1]

         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[2]." 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.[3] Plumley next appealed to the Court of Appeals, which also affirmed on all relevant issues. Plumley finally appealed to this Court.

         II. 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."[4] "On appellate review, the ALJ's findings of fact are entitled to considerable deference and will not be set aside unless the evidence compels a contrary finding."[5] "However, we review the ALJ's application of the law de novo."[6] "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.'"[7]

         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 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.[8] 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."[9]

         In response, Plumley cites to this Court's decision in George Humfleet Mobile Homes v. Chrisiman[10] for the proposition that he had no duty to object 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 Guides.[11] 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(1)(b), such error was subject to appellate review sua sponte and without the need for a specific objection.[12]

         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, "[13] 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.[14] 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 a party...."[15] In other words, such a dispute does not "involve[] a patent misapplication of the law to the facts" warranting review sua sponte;[16] 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."[17] 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 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 ...

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