Plumley v. Kroger, Inc.
557 S.W.3d 905
Mo. Ct. App.2018Background
- Michael R. Plumley, long-time Kroger employee, suffered four distinct work-related low-back injuries (1998, 2006, 2009, 2011); he previously settled the 1998 claim for 10% WPI.
- Plumley claimed benefits for the 2006, 2009, and 2011 injuries; he received temporary total disability for periods of time after each.
- After fusion surgery, two physicians (Drs. Burke and Snider) evaluated Plumley and assigned total WPI ratings (Burke 34%, Snider 22%), apportioning those ratings across the three contested injuries.
- The ALJ adopted Dr. Snider’s report (22% total WPI apportioned as 3% for 2006, 6% for 2009, 13% for 2011) and applied the standard multiplier (1) for permanent partial disability on the 2006 and 2009 awards.
- The Board and Court of Appeals affirmed the ALJ; Plumley appealed asserting (1) improper reliance on Snider’s AMA Guides methodology and omission of “foot drop,” (2) that the three injuries should be treated as one injury for a single award, and (3) misuse of the multiplier under KRS 342.730.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility / reliability of Dr. Snider’s impairment rating under the AMA Guides | Snider failed to apply the Guides as required (should have used both ROM and DRE; ignored Guides text); ALJ erred in relying on his report | Snider’s ROM-based opinion generally conforms to the Guides; medical judgment governs method choice; plaintiff waived some objections | Court: Plaintiff preserved the objection; but Snider’s ROM-based evaluation reasonably conforms to the Guides and ALJ properly relied on it |
| Whether Snider improperly calculated WPI across multilevel involvement | Snider’s calculations depart from the Guides’ rules for combining multilevel ratings | Snider followed applicable Guides provisions (including subtracting prior DRE percent when appropriate) and explained methodology | Court: No reversible error; Snider’s calculations are supported by and conform to the Guides |
| Whether ALJ ignored "foot drop" / peripheral nerve impairment in assessing WPI | Foot drop (peripheral nerve deficit) was not accounted for and should have increased WPI | Snider and other physicians addressed peripheral nerve involvement; different terminology does not show omission | Court: No error — reports considered peripheral nerve involvement; ALJ permissibly relied on them |
| Whether three successive injuries to same spinal region must be combined into one award | Plumley: successive injuries to L3-L4 are a "series of traumatic events" constituting one injury, so WPI should be awarded once | Kroger: successive, distinct traumatic events produce separate PPD awards; aggregation would collapse distinction with cumulative trauma | Court: Held separate awards are proper for distinct successive injuries to the same body part; ALJ correctly apportioned and did not err |
| Multiplier applied to PPD awards (KRS 342.730) | Plumley: ALJ should have used the x3 multiplier because he could not return to his prior work | Kroger: After 2006 and 2009 injuries Plumley retained capacity to return to his prior work (existing 1998 restrictions remained), so x1 multiplier applies | Court: ALJ’s use of the x1 multiplier for 2006 and 2009 was reasonable and supported by record |
Key Cases Cited
- U.S. Bank Home Mortgage v. Schrecker, 455 S.W.3d 382 (Ky. 2014) (standard of review for ALJ factual findings and legal application)
- George Humfleet Mobile Homes v. Christman, 125 S.W.3d 288 (Ky. 2004) (patent misapplication of AMA Guides warrants sua sponte review)
- Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206 (Ky. 2003) (proper interpretation of AMA Guides is a medical question)
- Brasch-Barry Gen. Contractors v. Whittaker, 189 S.W.3d 149 (Ky. App. 2006) (physician’s opinion must be grounded in the AMA Guides to be useful to fact‑finder)
- Lewis v. Ford Motor Co., 363 S.W.3d 340 (Ky. 2012) (successive traumatic injuries to same body part should be awarded separately to avoid exceeding PPD caps)
- Hill v. Sextet Mining Corp., 65 S.W.3d 503 (Ky. 2001) (distinguishing gradual/cumulative injuries from discrete traumatic events)