RENDERED: JANUARY 28, 2022; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 2021

- CA

- 0934

- WC

TRACTOR SUPPLY COMPANY

. APPELLANT

PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC

- 19

- 89274

SHIRLEY JOHNSON; HONORABLE JONATHAN WEATHERBY, A DMINISTRATIVE LAW JUDGE ; AND WORKERS’ COMPENSATION BOARD APPELLEES

OPINION AFFIRMING
**   **  **
BEFORE: CLAYTON, CHIEF JUDGE ; CETRULO AND M c NEILL , JUDGES.
C ETRULO , JUDGE: An Administrative Law Judge ( “ ALJ ” ) awarded Shirley Johnson (“Johnson”) temporary total disability (“TTD”) benefits , permanent partial disability (“PPD”) benefits, and medical benefits for an injury she sustained while- 2

-

working in the course of her employment with Tractor Supply Company (“TSC”)

. TSC filed a petition for r econsider ation , which the ALJ overruled. TSC then appealed to the W orkers’ Compensation Board (“Board”), which affirmed the ALJ’s decision . Upon review, we agree with the ALJ and Board

.

FACTUAL AND PROCEDURAL HISTORY Johnson worked for TSC for three and a half years. There, her work consisted of moderate

- to

- heavy manual labor as an a ssistant m anager and receiver. In those roles, Johnson helped customers load their vehicles, unloaded pallets of dog food ( each pallet containing 40

- 50 bags) , readied inventory for shipment, and
scanned items and returned them to shelves. On February 25, 2019, while unloading bags of dog food, Johnson sustained a lower

- back injury. In July 2019 , Johnson returned to “light duty” work at TSC. In that new capacity, she worked the cash register while sitting on a stool and assis ted with rearranging seasonal shelves. At some point thereafter, TSC instructed Johnson to finish using her Family and Medical Leave Act (“ FMLA ”) leave until she was cleared to return to
full

- duty work . Then in January 2020, TSC terminated Johnson ’s employm ent

.

At the time of the hearing, Johnson was looking for a new job that did not require any lifting. Johnson testified that she was no longer able to perform the

same duties she did before her injury because she still ha d back pain that radiate d- 3

-

down her hip and legs. She also testified that she was able to pick up her 15

- pound grandson but c ould only do so for a few minutes at a time.

Through the course of her treatment, Johnson saw three doctors who later offered testimony on her condition: Dr. Rice, Dr. Primm, and Dr. Madden. Initially, Johnson sought treatment from her primary care physicia n, who then
referred her to Dr. Rice , an orthopedic surgeon . According to Dr. Rice’s treatment notes, he diagnosed Johnson with a lumbar strain, recomm ended physical therapy, and restricted her to light duty. Dr. Rice also ordered a lumbar MRI, which he interpreted as showing a small central dis c bulge at L5

- SI without any significant central foraminal stenosis. After Johnson continued to complain of l ow - back pain radiating into both buttocks, Dr. Rice recommended medial branch blocks, which

were performed in September of 2019 and in February of 2020. He also prescribed pain medication and recommended radiofrequency ablations, which were performed in J uly and October of 2020. Most recently, Dr. Rice diagnosed Johnson with a lumbar strain and spondylosis in October 2020. Dr. Rice stated that Johnson complained of radicular pain without objective evidence of radiculopathy. He further explained that a p hysician can ascertain radiculopathy by manipulating the spine.

Next, Dr. Primm , another orthopedic surgeon , examined Johnson and report ed that h e agreed with many of Dr. Rice’s findings and recommendations for- 4

-

treatment. He then noted that he believed J ohnson fell under a diagnosis related estimate ( “ DRE ” ) Lumbar Category I, 0% impairment rating pursuant to the 5 th
Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”).

Finally, Dr. Madden , an osteopathic physician, examined Johnson and report ed that he reviewed Dr. Rice’s MRI report, which showed “L4

- 5, L5

- S1 HNP with left and central protrusions.” He also performed a physical exam and diagnosed Johnson with low

- back pain, lumbosacral disc her niations at L4

- S1, lumbar degenerative disc disease, and lumbosacral radiculopathy. He then assessed a 13% impairment rating, citing to DRE Lumbar Category III pursuant to the AMA Guides. He further noted that Johnson reached maximum medical improvement (“MMI”) on December 13, 2019 and restricted her from lifting over 10 pounds; lower extremity repetitive motion; and bending, twisting, climbing , crouching, stooping, kneeling, and prolonged sitting and standing. Due to these restrictions, he explained, Jo hnson did not retain the physical capacity to return to the job she was performing at the time of the injury.

In January 2021, the ALJ held a b enefit r eview c onference followed by a f ormal h earing a couple of weeks later . After hearing the evidence, the ALJ found the most recent physician’s

– Dr. Madden’s

– testimony was most credible and adopted his determinations that Johnson’s impairment rating was 13% and that- 5

-

Johnson reached MMI on December 13, 20 19

. Using these findings, the ALJ determined Johnson was entitled to the three

- multiplier income benefit
enhancement , pursuant to Kentucky Revised Statute (KRS) 342.730(1)(c)1. 1 The
ALJ awarded Johnson TTD, PPD, and medical benefits for her injury in the March
2021 o rder

. TSC then filed a p etition for r econsideration requesting further findings of fact. The ALJ overruled that petition and TSC appealed to the Board. The Board affirmed the ALJ’s decisio n because it found the ALJ based his findings on substantial evidence

.

TSC claims the ALJ

– and the Bo ard , by affirming the ALJ

– erred when it (1) accepted the physician’s determination that Johnson’s impairment rating was 13% and (2) enhanced Johnson’s in come benefits by the three

m ultiplier specified in KRS 342.730(1)(c)1. STANDARD OF REVIEW
The ALJ is the finder of fact in workers’ compensation matters. Ira A. Watson Dep ’ t Store v. Hamilton , 34 S.W.3d 48, 52 (Ky. 2000). In that regard,

KRS 342.285(2) provides that the Board shall not reweigh the evidence and substitute its judgment for that of the AL J with regard to a question of fact. The standard of review with regard to a judicial appeal of an administrative decision is limited to determining whether the decision was erroneous as a matter of law

. American Beauty Homes v. Louisville & Jefferson County Planning & Zoning Commission, Ky., 379

1 KRS 342.730(1)(c)1 . is discussed in detail below.- 6

- S.W.2d 450, 457 (1964). Where the ALJ determines that a worker has satisfied his burden of proof with regard to a question of fact, the issue on appeal is whether substantial evidence supported the determinati on
. Special Fund v. Francis , Ky., 708 S.W.2d 641, 643 (1986). Substantial evidence has been defined as some evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable people. Smyzer v. B.F. Goodric h Chemical Co. , Ky., 474 S.W.2d 367 (1971). Although a party may note evidence which would have supported a conclusion contrary to the ALJ ’ s decision, such evidence is not an adequate basis for reversal on appeal. McCloud v. Beth

Elkhorn Corp. , Ky., 514 S.W.2d 46 (1974). The crux of the inquiry on appeal is whether the finding which was made is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law. Special Fund v. Francis , supra , at 643.
Id

. (emphasis added). ANALYSI S
I. Impairment Rating TSC first argues that Dr. Madden’s report did not conform to the AMA Guides’ standards when assessing Johnson’s impairment rating. Specifically, TSC claims that Dr. Madden’s examination of Johnson

– which
consisted of the palpa tion of her spine, review of her MRI, and analysis of her deep tendon reflexes

– did not meet the burden to establish “radiculopathy” under the
AMA Guides and therefore did not justify the 13% impairment rating . TSC further claims that Dr. Madden’s finding s were inaccurate and did not adhere to the AMA Guides because , it claims, they contradicted Dr. Rice’s and Dr. Primm’s findings.- 7

- However, Kentucky caselaw provides clear guidance on how a physician must use the AMA Guides:

Under our law, the AMA Guides are an integral tool for assessing a claimant ’ s disability rating and monetary award. So to be useful for the fact

- finder, a physician ’ s opinion must be grounded in the AMA Guides.

. . . To be grounded in the Guides is not to require a strict adherence to the Guides , but rather a general conformity with them. We also note that the Court of Appeals in [ Jones v. ] Brasch

- Barry [ General Contractors , 189 S.W.3d 149, 153 (Ky. App. 2006)] seemingly also did not require strict adherence to the Guides : An ALJ cannot choose to give credence to an opinion of a physician assigning an impairment rating that is not based upon the AMA Guides

. An opinion that is based upon the Guides is different from one that strictly adheres to the Guides. Plumley v. Kroger, Inc. , 557 S.W.3d 905, 912

- 13 (Ky. 2018) (internal quotation
mark s and citations omitted).

We agree with the Board that the ALJ considered substantial evidence when adopting Dr. Madden’s impairment rating and determining it was based on
the AMA Guides :

The ALJ found Johnson’s testimony regarding her symptoms and pa in credible and consistent with Dr

. Madden’s opinions

. The ALJ noted Dr

. Madden diagnosed low back pain, lumbosacral disc herniations at L4

- SI, lumbar degenerative disc disease, and lumbosacral radicu lopathy, and assessed a 13% impairment rating

. The ALJ found Dr

. Madden’s assessment of impairment most credible, noting it was made pursuant to the AMA- 8

- Guides

. He was persuaded by Dr

. Madden’s testimony that his opinion was based upon the objective medi cal evidence available and Johnson’s demonstrated symptoms

. Therefore, the ALJ found , “the findings of Dr

. Madden were credibly rendered in accordance w ith the AMA Guides and c o nstitute objective medical findings upon which a finding of work

- related injur y may be properly based

. ” Board o pinion, p . 7

.

This Court has stated that “ if the physicians in a case genuinely express medically sound, but differing, opinions as to the severity of a claimant ’ s injury, the ALJ has the discretion to choose which physician ’ s opinion to believe ” so long as the opinion is based on the AMA Guides. Brasch

- B a rry , 189 S.W.3d at 153. Here, the ALJ analyzed Dr. Primm’s and Dr. Madden’s examination reports and opinions concerning Johnson’s impairment rating. 2 The ALJ, us ing his discretion, determined Dr. Madden’s opinion was more credible. He outlined his reasons for so concluding, one of which was that only Dr. Madden provided sworn deposition testimony. Further, Dr

. Madden’s deposition testimony showed his methodology for determining Johnson’s impairment rating complied with the AMA Guides. Moreover, there is no opinion from any other medical expert that Dr. Madden’s impairment rating was not in compliance with the AMA Guides. Therefore , there is substantial evidence Dr

. Madden’s ap plication of the AMA

2 Dr. Rice did not submit an opinion concerning Johnson’s impairment rating.- 9

-

Guides was based on medical evidence and properly supports the impairment rating.
II. Multiplier

Next, TSC argues the ALJ erred when it adopted the three

- multiplier,
p ursuant to KRS 342.730(1)(c) 1. Under KRS 342.730(1)(c) 1

. :

If, due to an injury, an employee does not retain the physical capacity to return to the type of work that the employee performed at the time of injury , the benefit for permanent partial disability shall be multiplied by three (3) times t he amount otherwise determined under paragraph (b) of this subsection

. . . . (Emphasis added.)

The statute makes clear that the ALJ must consider the type of work th e employee performed at the time of injury. TSC argues, however, that “the spirit by w hich the statute was enacted” calls for “more sophisticated definition of ‘type of work.’” We disagree.

TSC claims that we should look to Johnson’s broader job title of “manager” to determine whether she could return to the type of work she performed. TSC further suggests we look to the work she conducted prior to her job with TSC , more than three years before the injury . The statute and relevant caselaw , however, require us to l ook to the “type of work that the employee performed at the time of injury [

. ] ” KRS 342.730(1)(c)1. See also Plumley , 557 S.W.3d at 917 (this Court looked to whether the employee “retain [ed] the physical- 10

-

capacity to return to the type of work that [he] pe rformed at the time of injury

. . .

. ”).
This Court has clarified the same issue: “To determine if an injured employee is capable of returning to the type of work performed at the time of injury, an ALJ must consider whether the employee is capable of performing ‘the actual jobs that the individual performed. ’ ” Trane Com

. Sys

. v. Tipton , 481 S.W.3d 800, 804 (Ky. 2016) ( quoting Ford Motor Co. v. Forman , 142 S.W.3d 141, 145 (Ky. 2004) ).

In Forman , the claimant worked as an assembler pre

- injury. After she recovered, she returned to work as an assembler, but was not able to perform all the tasks in that classification. Unlike here, t he ALJ did not apply the three

multiplier to the claimant ’ s award because she returned to the same job
classification that she had pre

- injury. However, the B oard reversed, finding that the ALJ erred by using the claimant ’ s job classification as the standard for refusing to enhance the award. The Court of Appeals affirmed the B oard and found that the ALJ must analyze all the evidence to determine what jobs the claimant performed at the time of her injury and then find whether she retains the physical capacity to return to those jobs. Id. If she did not retain the physical capacity to return to those jobs, even if she re turned to the same job classification, she would be entitled to the three

- multiplier

. Id.- 11

- Pre

- injury and before Johnson’s move to “light duty” work, she regularly lifted moderate

- to

- heavy inventory and unloaded pallets. After the injury, Johnson was no l onger able to perform those tasks and instead sat at the cash register, occasionally rearranging seasonal shelves before being terminated

. Even while on “light duty , ” TSC provided assistance to Johnson to complete her
tasks

. Under Dr. Madden’s direction, Johnson could not (and did not) return to the same type of work she was performing prior to the injury.

This Court confirmed that KRS 342.730(1)(c)1

. refers to the specific acts an employee performed prior to an injury, not a broad reference to a job ti tle they once held. Forman , 142 S.W.3d 141

. T he ALJ’s finding that Johnson was
entitled to the three

- multiplier was not erroneous and is supported by substantial evidence. CONCLUSION

For these reasons, we AFFIRM the Board.

ALL CONCUR

.

BRIEF FOR APPELLANT: Walter E. Harding Louisville, Kentucky BRIEF FOR APPELLEE SHIRLEY JOHNSON : Dan Scott Lexington, Kentucky