Skidmore v. TKC Holdings/Keefe Grp.
| Decision Date | 24 June 2022 |
| Docket Number | 2020-CA-0340-WC |
| Parties | MICHAEL SKIDMORE APPELLANT v. TKC HOLDINGS/KEEFE GROUP; HONORABLE RICHARD E. NEAL, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-18-90163
BRIEFS FOR APPELLANT: Christopher P. Evensen Louisville, Kentucky
BRIEFS FOR APPELLEE TKC HOLDINGS/KEEFE GROUP: Carl M. Brashear Lexington, Kentucky
RESPONSE BRIEF OF ATTORNEY GENERAL DANIEL CAMERON: S. Chad Meredith Solicitor General Matthew F. Kuhn Deputy Solicitor General Frankfort, Kentucky
BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.
The Appellant, Michael Skidmore, has petitioned this Court for review of the February 14, 2020 opinion rendered by the Kentucky Workers' Compensation Board ("the Board"). Therein, the Board affirmed the opinion, order, and award rendered by the Administrative Law Judge ("ALJ") on July 11, 2019. On appeal, Skidmore asserts that the Board erred in: (1) affirming the ALJ's conclusion that he was not permanently totally disabled; and (2) in applying Kentucky Revised Statutes ("KRS") 342.730(4), which terminates benefits "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."[1] Having reviewed the record and being otherwise sufficiently advised, we affirm.
Skidmore was born in April 1952; at the time of events giving rise to the instant workers' compensation claim, he was just shy of his sixty-seventh birthday. Skidmore has a long and varied work history. After graduating from high school, he attended community college studying auto technology for a year and a half but did not complete the program. He then attended and graduated from the police academy and spent the next ten years working as a police officer.
Afterwards, he worked in retail and sales management at a number of different establishments including Dollar General and Meijer. He also worked as a mechanic at a lawn and garden store.
Skidmore began working for the Appellee, TKC Holdings/Keefe Group ("TKC"), a company which provides staffing and other services for prison commissaries, in September 2012. TKC assigned Skidmore to the commissary at North Point Training Center, a medium-security prison located in Boyle County. Skidmore's job duties in the commissary at North Point included stocking product, picking orders, and selling commissary items to prisoners. Skidmore's work in the commissary occasionally required him to lift items weighing upwards of fifty pounds, but generally the items he handled did not weigh over thirty pounds. He was required to do some bending, crouching, and kneeling.
On March 8, 2018, while in the commissary, Skidmore tripped on a piece of cardboard and fell forward catching his right arm on some shelving in the process. He landed on his knees and left hand with his right arm still caught in the shelving. Skidmore felt immediate pain and gave notice to his supervisor. After his fall, Skidmore experienced a gradual tightening in his shoulder, arm, neck and back; he sought medical treatment the following day from Concentra Medical Center where he was treated by Kimberly Jones, a certified physician's assistant ("PA-C"). PA-C Jones diagnosed Skidmore with an acute neck muscle strain, a lumbosacral strain, and sciatica of his left side associated with disorder of lumbosacral spine. She prescribed a muscle relaxer, referred Skidmore to physical therapy, and recommended light duty restrictions. Skidmore continued to treat with Concentra for the next several weeks. He made minimal progress with physical therapy and continued to complain of low back pain prompting a referral to Dr. Travis Hunt, an orthopedist.
Skidmore first saw Dr. Hunt on or about April 30, 2018. In conjunction with his examination, Dr. Hunt reviewed Skidmore's recent MRI and medical records. Dr. Hunt diagnosed a L3 vertical body fracture. Dr. Hunt did not believe surgery was indicated and was optimistic the fracture would heal over time. He took Skidmore off work effective May 1, 2018. Skidmore continued to treat with Dr. Hunt for the next several months. Dr. Hunt prescribed additional physical therapy in July 2018 after Skidmore indicated that his low back pain had not abated with rest.[2] He directed Skidmore to remain off work.
Skidmore next saw Dr. Hunt on August 27, 2018, at which time Skidmore indicated that he was still experiencing low back pain. Dr. Hunt opined that Skidmore had reached maximum medical improvement ("MMI") as of that date and that other than steroid injections, which Skidmore was against, there was little more that he could do for him medically. An examination showed involuntary muscle guarding, and pursuant to the American Medical Association's Guides to the Evaluation of Permanent Impairment, 5th Edition ("AMA Guides"), Dr. Hunt placed Skidmore in Lumbar Category II and assigned an 8% whole person impairment. Dr. Hunt recommended that Skidmore retire from TKC to allow his back to rest.
Skidmore elected not to retire. However, TKC terminated Skidmore effective October 1, 2018, because it did not have any permanent positions within Skidmore's work restrictions. Skidmore then applied for and received unemployment benefits. He began looking for other employment within his restrictions. He was still unemployed when he testified before the ALJ at the final hearing on May 14, 2019.
On December 5, 2018, Skidmore filed a Form 101 Application for Resolution of Injury Claim with the Kentucky Department of Workers' Claims alleging injuries to his lower back and neck as a result of his fall on March 8, 2018. Skidmore's claim was assigned to an ALJ. Following discovery, the ALJ conducted a benefit review conference on April 10, 2019, followed by a final evidentiary hearing on May 14, 2019, at which Skidmore was the only witness.
Medical records filed during discovery revealed that Skidmore had suffered numerous injuries prior to his March 2018 fall at North Point. Of relevance, Skidmore suffered a low back injury in 2015 when he slipped and fell. He had physical therapy following this injury. He fell and injured his back and knee in 2016. These injuries also required physical therapy. Skidmore injured his neck and lower back in a motor vehicle accident in 2016. An x-ray taken at that time showed multi-level disc disease of the lumbar spine.
In support of his claim, Skidmore filed an Independent Medical Examination report ("IME") from Dr. James Owen. Skidmore presented to Dr. Owen for examination on November 14, 2018. Dr. Owen diagnosed persistent lumbar pain associated with a markedly positive multi-level MRI which showed a significant moderate to severe foraminal narrowing at L3, and an effacement of the L5 nerve root at L5-S1 with multiple other levels involved. While Dr. Owen acknowledged that Skidmore had pre-existing spinal degeneration, he did not believe that it was actively symptomatic prior to the fall. Dr. Owen concluded that the fall brought this pre-existing condition into a disabling reality.
Based on range of motion, Dr. Owen opined that Skidmore suffered a 16% whole person impairment due to the back injury he sustained in the 2018 fall. He did not assign any impairment for Skidmore's neck injury. Dr. Owen did not believe Skidmore could return to his prior job duties and recommended restrictions of no lifting over twenty pounds and that Skidmore avoid recurrent bending, squatting, stooping, walking more than fifteen minutes, standing more than fifteen minutes, or sitting more than an hour without being able to move.
Skidmore testified by deposition and as part of the final evidentiary hearing. While Skidmore admitted prior injuries to his back, he disclaimed that he was experiencing any back problems immediately prior to his March 2018 fall. He stated that prior to his fall he was not under any work restrictions and was able to perform all his job duties. Despite receiving medical treatment after his fall, Skidmore continues to struggle with low back pain. He testified that the pain radiates from his low back down into his left leg. Using a ten-point scale with ten being the most pain, Skidmore described his general pain level to be a three or a four. However, he indicated that sometimes his level is a ten. He can only sit for about an hour before experiencing pain and discomfort, and his pain and discomfort cause him frequent insomnia. He spends most of his time at home sitting in a recliner. Even though Skidmore was still looking for work at the time of the final hearing, he did not believe that his prospects were good due to his age, restrictions, pain and discomfort levels, and prior work history.
Among the issues in dispute, the ALJ was tasked with determining whether Skidmore was entitled to permanent benefits under KRS 342.730, and, if so, whether he qualified as totally disabled. The ALJ first determined that Skidmore suffered a permanent injury as a result of his March 2018 fall entitling him to benefits based on the 16% whole person impairment rating assessed by Dr. Owen. Once again relying on Dr. Owen, the ALJ found that Skidmore was entitled to have his benefits enhanced by the 3.6 multiplier because he lacked the physical capacity to return to his prior job duties and was earning a lesser wage. However, the ALJ rejected Skidmore's claim that he was totally and permanently disabled, reasoning as follows:
The ALJ finds that [Skidmore] has the capacity to perform work on a regular and sustained basis in a competitive economy, and is not totally disabled from work. [Skidmore] presented himself as an articulate...
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