Holcim v. Swinford

• Decision Date: 29 August 2019
• Docket Number: 2018-SC-000627-WC
• Citation: 581 S.W.3d 37
• Parties: Lafarge HOLCIM, Appellant v. James SWINFORD, Hon. W. Greg Harvey, Administrative Law Judge, and Workers' Compensation Board, Appellees
• Court: United States State Supreme Court — District of Kentucky

581 S.W.3d 37

Lafarge HOLCIM, Appellant

v.James SWINFORD, Hon. W. Greg Harvey, Administrative Law Judge, and Workers' Compensation Board, Appellees

2018-SC-000627-WC

Supreme Court of Kentucky.

AUGUST 29, 2019

COUNSEL FOR APPELLANT: Douglas Anthony U'Sellis, Louisville, U'Sellis Mayer & Associates.

COUNSEL FOR APPELLEE JAMES SWINFORD: Charles Tveite, Paducah, Edwards & Kautz PLLC.

COUNSEL FOR APPELLEE W. GREG HARVEY: Walter Greg Harvey, Bowling Green, 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 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, Louisville, Bingham Greenebaum Doll, LLP, Richard Clayton Larkin, Dinsmore & Shohl, LLP, Kyle William Miller, Canadian, Bingham Greenebaum Doll, LLP.

COUNSEL FOR AMICUS CURIAE, KENTUCKY WORKERS ASSOCIATION: Peter J. Naake, Louisville, Priddy, Cutler, Naake & Meade, PLLC.

COUNSEL FOR AMICUS CURIAE, KENTUCKY CHAPTER OF AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS: Udell Barry Levy, Louisville, Jennings Law Office.

OPINION OF THE COURT BY JUSTICE WRIGHT

I. BACKGROUND

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.

The Administrative Law Judge (ALJ) awarded Swinford permanent partial disability (PPD) benefits based on his treating doctor’s impairment rating of 15%. That award and the duration of Swinford’s benefits were appealed to the Workers' Compensation Board and then the Court of Appeals. They are also the subject of this present appeal.

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) and KRS 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.

In his opinion, the ALJ summarized Swinford’s testimony. The ALJ noted that Swinford had neck surgery twenty years ago following nerve damage in his hands. Swinford testified he had taken medication for the nerve damage for the past ten to fifteen years, but also pointed out that after the surgery, he had worked full duty without any restrictions for more than two decades until the present injury. The ALJ quoted Swinford’s comparison of his condition before and after the work injury. In that testimony, Swinford said that he worked 12-hour shifts at least five days a week before the work-related injury. Following the injury, the only work he could do was to mow the yard or comparable tasks. According to Swinford, his neck bothers him more and gets tired easily. At the hearing, Swinford said that he had been willing to attempt returning to his old job, but he did not think he could actually do the work.

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 be a credible witness. He noted Swinford was working full time and did not aggrandize his symptoms. The ALJ believed Swinford’s testimony that his condition changed and worsened following the incident. The ALJ chose to rely on the medical opinion testimony of Drs. Strenge and Ruxer in his finding that Swinford’s worsening symptoms were a result of his work injury sustained on March 10, 2016.

The ALJ also addressed Lafarge’s argument that Swinford’s condition was pre-existing and active. We look to the analysis...