LAFARGE HOLCIM v. JAMES SWINFORD, HON. W. GREG HARVEY, ADMINISTRATIVE LAW JUDGE, AND WORKERS’ COMPENSATION BOARD
2018-SC-000627-WC
Supreme Court of Kentucky
AUGUST 29, 2019
TO BE PUBLISHED
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2018-CA-000414-WC
WORKERS’ COMPENSATION BOARD NO. 16-WC-90245
OPINION OF THE COURT BY JUSTICE WRIGHT
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
James Swinford worked as a bulldozer operator for Lafarge Holcim when he was injured on the job on March 10, 2016. That day, the ground where he was moving dirt caved in causing him to crash the dozer down an embankment. He remained in the equipment for seven hours after the crash until he was rescued by boat and removed from the pit. Swinford was seventy-five years old on the day of the accident and had worked for Lafarge or its predecessor for more than four decades.
After the accident, Swinford had what he described as a “crick” in his neck. This pain in his neck worsened and was accompanied by pain and weakness radiating into his right arm. He has not worked since the date of his work-related injury.
II. ANALYSIS
A. Pre-existing Condition
Lafarge argues Swinford did not meet his burden of proving the extent of the injury attributable to his work injury. He asserts that Dr. Strenge (Swinford‘s treating physician) acknowledged Swinford had a prior cervical surgery in the 1990s which resulted in chronic numbness and pain in his right hand and neck pain. Dr. Strenge indicated the work injury caused some worsening of both the neck pain and the right-arm numbness and thought Swinford was entitled to a permanent impairment rating of 15%. Lafarge argues Dr. Strenge did not specifically state whether the entire impairment was caused by the 2016 injury and that he did not address any impairment rating related to Swinford‘s cervical fusion. Further, Lafarge asserts Dr. Strenge‘s opinion fell short of establishing a permanent impairment resulting from his 2016 accident at work.
The ALJ awarded Swinford permanent partial disability (PPD) benefits based on his treating doctor‘s impairment rating. On appeal, both the Board and Court of Appeals affirmed on this issue. Lafarge asks us to reverse and hold that Swinford is not entitled to benefits, as he failed to sustain his burden of proof.
In reviewing questions of fact, we are mindful that “[t]he ALJ as fact finder has the sole authority to judge the weight, credibility, substance, and inferences to be drawn from the evidence.” LKLP CAC Inc. v. Fleming, 520 S.W.3d 382, 386 (Ky. 2017) (citing Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985)). We have held:
KRS 342.285 gives the ALJ the sole discretion to determine the quality, character, and substance of evidence. As fact-finder, an ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same party‘s total proof.KRS 342.285(2) andKRS 342.290 limit administrative and judicial review of an ALJ‘s decision to determining whether the ALJ “acted without or in excess of his powers;” whether the decision “was procured by fraud;” or whether the decision was erroneous as a matter of law. Legal errors would include whether the ALJ misapplied Chapter 342 to the facts; made a clearly erroneous finding of fact; rendered an arbitrary or capricious decision; or committed an abuse of discretion.
Abel Verdon Const. v. Rivera, 348 S.W.3d 749, 753-54 (Ky. 2011) (footnotes omitted). Furthermore, “[w]here the party with the burden of proof was successful before the ALJ, the issue on appeal is whether substantial evidence supported the ALJ‘s conclusion.” Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999). “Substantial evidence means evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.” Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).
Here, Swinford had the burden of proof, as Lafarge asserts. Because Swinford, the party with the burden of proof, received a favorable determination from the ALJ, our review is to determine whether the ALJ‘s conclusion was based on substantial evidence. Whittaker, 998 S.W.2d at 481.
The ALJ also summarized the medical evidence presented by the parties. Dr. Strenge, an orthopedic surgeon, was Swinford‘s treating physician. Dr. Strenge noted that Swinford had a prior cervical surgery, but was able to work without restrictions following surgery until the time of his accident. According to Dr. Strenge, an MRI performed two months after the work injury showed that Swinford has a T1-T2 disk herniation and mind central and foraminal stenosis. He diagnosed Swinford with disk herniation as a result of the bulldozer accident, which had exacerbated his neck pain and caused worsening of his right arm numbness and new onset of right tricep weakness. He assigned a 15% whole body impairment stating that Swinford has a disk herniation “with significant radiculopathy and focal weakness in his right triceps . . . .”
The ALJ also summarized the medical evidence contained in Dr. Ruxer‘s report. Swinford saw Dr. Ruxer for a consultation in the course of his treatment. He noted Swinford‘s prior neck surgery and the fact that he had worked without restrictions until the 2016 work accident. He also noted a worsening of Swinford‘s neck and right arm pain and recommended continued treatment.
The ALJ also discussed the office records from Baptist Occupational Medicine. The records from the date of Swinford‘s injury noted “no pain, but neck is sore.” He was referred to physical therapy and prescribed Ibuprofen. Two follow-up visits were also included in the records. During these visits, Swinford complained of increasing neck and right arm pain, and a “catch” when extending his neck. An MRI was ordered along with a follow-up appointment, but the record for the follow-up was not submitted into evidence.
Finally, the ALJ discussed Dr. Weiss‘s independent medical evaluation, which Lafarge had submitted into evidence. In Dr. Weiss‘s opinion, the MRI showed no evidence of neural impingement or disk herniation—only generalized cervical spondylosis that would be typical for a seventy-five-year-old man. Dr. Weiss opined that Swinford showed no evidence of a structural abnormality and gave no impairment rating. He did, however, note that Swinford‘s symptoms were related to his work injury.
The ALJ acknowledged that the medical evidence was varied. He indicated that Drs. Strenge and Ruxer “have opined that Swinford suffers from an exacerbation of a dormant condition in his spine caused” by the work accident. He also noted that Dr. Weiss found no evidence of a structural abnormality in Swinford‘s spine.
As discussed, the ALJ “has the sole authority to judge the weight, credibility, substance, and inferences to be drawn from the evidence.” Fleming, 520 S.W.3d at 386. Here, the ALJ found Swinford to
The ALJ also addressed Lafarge‘s argument that Swinford‘s condition was pre-existing and active. We look to the analysis contained in Finley v. DBM Techs., 217 S.W.3d 261 (Ky. App. 2007) “when a ‘work-related injury’ arouses a pre-existing dormant condition.” Bolster and Jeffries Health Care Group, LLC v. Mayhew, 2018-SC-000202-WC, 2019 WL 1168018, at *4 (Ky. Feb. 14, 2019). In Finley, the Court of Appeals held: “[t]o be characterized as active, an underlying pre-existing condition must be symptomatic and impairment ratable pursuant to the AMA Guidelines immediately prior to the occurrence of the work-related injury. Moreover, the burden of proving the existence of a pre-existing condition falls upon the employer.” Finley, 217 S.W.3d at 265.
In addressing the Finley factors, the ALJ considered the fact that Swinford had been working full time without any restriction as a heavy equipment operator for more than two decades after his cervical fusion surgery. The ALJ relied on Dr. Strenge‘s opinion that Swinford suffered a disk herniation in the work accident and that he experienced weakness in his triceps that was not present before the accident. The ALJ stated that he relied
upon the opinions of Dr. Ruxer and Dr. Strenge in finding that Swinford had both an exacerbation of a dormant condition that was brought into disabling reality with respect to his right arm numbness and a new injury as documented by Dr. Strenge with regard to the disk herniation at T1-T2 and the triceps weakness.
The ALJ thoroughly documented the evidence in the case and discussed which pieces he found credible and relied upon in reaching his conclusions. The ALJ relied upon substantial evidence in finding Swinford‘s work injury to be the combination of the exacerbation of a dormant pre-exiting condition and a new injury. He also relied upon substantial evidence (Dr. Strenge‘s rating) in determining that Swinford has a 15% whole body impairment resulting from his work-related injury. Therefore, we affirm the Court of Appeals on this issue.
B. Retroactivity of KRS 342.730(4)
Lafarge also asserts that the Court of Appeals erred in addressing the retroactivity of
The ALJ acknowledged this Court‘s opinion in Parker v. Webster County Coal, LLC (Dotiki Mine), 529 S.W.3d 759 (Ky. 2017), in which we found the then-current version of
The Board held that Swinford was entitled to the full 425-week period and Swinford did not pursue further appeal. Lafarge appealed to the Court of Appeals on this issue (along with the previously-discussed issue concerning Swinford‘s pre-existing condition). Lafarge pointed out that proposed legislation pending before the Kentucky General Assembly may further amend
All income benefits payable pursuant to this chapter shall terminate as of the date upon which the employee reaches the age of seventy (70), or four (4) years after the employee‘s injury or last exposure, whichever last occurs. In like manner all income benefits payable pursuant to this chapter to spouses and dependents shall terminate as of the date upon which the employee would have reached age seventy (70) or four (4) years after the employee‘s date of injury or date of last exposure, whichever last occurs.
In determining which version of the statute to apply, the Court of Appeals discussed whether the statute was retroactive, and held that it was not. Therefore, it applied the statute in force at the time of Swinford‘s injury after severing the portion this Court had held unconstitutional. Based on that statute, it held that Swinford was entitled to receive benefits for 425 weeks.
On appeal to this Court, Lafarge argues that the Court of Appeals overstepped its bounds by addressing whether the newly-amended version of
Lafarge asserts that even if the statute‘s retroactivity was properly before the Court of Appeals, that court erred in holding that
After the legislature has passed an act and it is signed into law, then the official version of the Kentucky Revised Statutes shall be maintained by the Legislative Research Commission.
The maintenance of the Kentucky Revised Statutes is vital for research and understanding the laws under which we must live, function and plan future actions. Anyone who is seeking to know the law researches the Kentucky Revised Statutes. It would be impractical and extremely difficult if people had to search all the acts of every legislative session in order to advise clients or know what law to follow. It is essential that the official version of the Kentucky Revised Statutes be accurate and up to date.
The reviser of statutes “shall be appointed by the [Legislative Research] Commission upon recommendation of the director.”
The dilemma facing the Court in this case is that portions of the Act passed by the General Assembly were completely omitted from the official version of the Kentucky Revised Statutes. A Legislative Research Commission note appears below the official version of
This statute was amended in Section 13 of 2018 Ky. Acts ch. 40. . . . . Subsection (3) of Section 20 of that Act reads, “Subsection (4) of Section 13 of this Act shall apply prospectively and retroactively to all claims: (a) For which the date of injury or date of last exposure occurred on or after December 12, 1996; and (b) That have not been fully and finally adjudicated, or are in the appellate process, or for which time to file an appeal has not lapsed, as of the effective date of this Act.”
However, it failed to include it in the official version of
Lafarge points out that “not all legislation passed by our Legislature becomes codified.” Lafarge‘s argument is based on the example of the budget of the Commonwealth of Kentucky which has the force of law but is not embodied in any statute.
While the Act in the present case is not an appropriations bill, those are not the only laws exempt from codification.
Lafarge cites Baker v. Fletcher, 204 S.W.3d 589 (Ky. 2006), a case concerning a budget act. Therein, we stated, “[t]hough it is clear that the General Assembly must expressly manifest its desire that a statute apply retroactively, magic words are not required.” Id. at 597. In that case, we looked to language contained in the Act in question in order to determine that the legislature intended that it apply retroactively. As noted, budgets are exempt from codification requirements—as are temporary laws. Therefore, in both that case and the case at bar this Court may go to the language of the Act to determine retroactivity.
This Court has great respect for the language the General Assembly included in the official Kentucky Revised Statutes. The General Assembly made a clear pronouncement regarding retroactivity in
Since the newly-enacted amendment applies retroactively, it must be used to determine the duration of Swinford‘s benefits. We remand this matter to the ALJ to apply the time limits set out in the 2018 amendment to
While Swinford attempted to belatedly challenge the constitutionality of the amendments to
III. CONCLUSION
For the foregoing reasons, we affirm the Court of Appeals in part, reverse in part,
All sitting. All concur.
COUNSEL FOR APPELLANT:
Douglas Anthony U‘Sellis
U‘Sellis Mayer & Associates
COUNSEL FOR APPELLEE JAMES SWINFORD:
Charles Tveite
Edwards & Kautz PLLC
COUNSEL FOR APPELLEE W. GREG HARVEY:
Walter Greg Harvey
Administrative Law Judge
COUNSEL FOR APPELLEE WORKERS’ COMPENSATION BOARD:
Michael W. Alvey
Worker‘s Compensation Board
COUNSEL FOR AMICI CURIAE, DAVID W. OSBORNE, SPEAKER OF THE KENTUCKY HOUSE OF REPRESENTATIVES, AND ROBERT STIVERS, PRESIDENT OF THE KENTUCKY SENATE:
David E. Fleenor
Office of the Senate President
R. Vaughn Murphy
Office of the Senate President
David Eric Lycan
Office of the Speaker of the House of Representatives
Tyler Peavler
Office of the Speaker of the House of Representatives
COUNSEL FOR AMICI CURIAE, KENTUCKY CHAMBER OF COMMERCE, NORTHERN KENTUCKY CHAMBER OF COMMERCE, GREATER LOUISVILLE, INC., COMMERCE LEXINGTON, INC., KENTUCKY LEAGUE OF CITIES, AND KENTUCKY COAL ASSOCIATION:
Brent Robert Baughman
Bingham Greenebaum Doll, LLP
Richard Clayton Larkin
Dinsmore & Shohl, LLP
Kyle William Miller
Bingham Greenebaum Doll, LLP
COUNSEL FOR AMICUS CURIAE, KENTUCKY WORKERS ASSOCIATION:
Peter J. Naake
Priddy, Cutler, Naake & Meade, PLLC
COUNSEL FOR AMICUS CURIAE, KENTUCKY CHAPTER OF AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS:
Udell Barry Levy
Jennings Law Office