ICHAEL R. PLUMLEY APPELLANT
KROGER, INC., THE WORKERS' COMPENSATION BOARD, AND HONORABLE JONATHAN R. WEATHERBY, ADMINISTRATIVE LAW JUDGE APPELLEES
APPEAL FROM COURT OF APPEALS CASE NO. 2016-CA-001031-WC
WORKERS' COMPENSATION BOARD NO. 12-WC-00260
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
MINTON, CHIEF JUSTICE
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
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.
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
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.
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.
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.
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
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.
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.
Standard of Review.
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 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
No error occurred in the ALJ's reliance on Dr.
first issue that Plumley raises involves Dr. Snider's
assessment, which Plumley attacks in three different ways.
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.
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.
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
response, Plumley cites to this Court's decision in
George Humfleet Mobile Homes v.
Chrisiman 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. 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.
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,
" and that the failure to do so waives the
right to appeal such an issue.
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 a party...." In other words, such a dispute does not
"involve a patent misapplication of the law to the
facts" warranting review sua sponte; rather, it is
a dispute about interpretation of the Guides.
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.
The ALJ did not err when relying on the Medical Report of Dr.
Snider, who evaluated Plumley under the ROM Method.
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.
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.
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 ...