AVI Food Sys. v. Breeden

AVI FOOD SYSTEMS APPELLANT v. DELORSE BREEDEN; HON. CHRIS DAVIS,ADMINISTRATIVE LAW JUDGE;AND WORKERS' COMPENSATION BOARD OF KENTUCKY APPELLEES

NO. 2020-CA-000172-WC

Commonwealth of Kentucky Court of Appeals

AUGUST 14, 2020

NOT TO BE PUBLISHED

PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD

ACTION NO. WC-15-72461

OPINION

AFFIRMING

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BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND K. THOMPSON, JUDGES.

CLAYTON, CHIEF JUDGE:

AVI Food Systems (AVI) petitions for review of an opinion of the Workers' Compensation Board affirming an opinion and order of the Administrative Law Judge (ALJ). The ALJ held that Delorse Breeden, a former employee of AVI, was entitled to receive permanent total disability benefits for a work-related injury to her back. AVI argues that the ALJ ignored evidence that Breeden's disability was attributable in part to a non-work-related knee replacement and that she was capable of working in a lighter-duty position. Having reviewed the record and the applicable law, we affirm the opinion of the Board.

Breeden was fifty-six years of age at the time of her final hearing in July 2019. She had completed the eleventh grade of high school and taken some GED courses but had not obtained a GED. Before beginning work at AVI, she was employed as a fast food restaurant manager, a corrections worker, and a factory worker. She was hired by AVI in September 2014 as a route driver, which required her to report to a warehouse at 4:00 a.m., load a truck with drinks and food, and drive to various locations to restock vending machines. She used a dolly to load and unload the truck. Breeden estimated the job required her to lift between thirty and thirty-five pounds.

In March 2015, the regular box truck Breeden drove broke down, and she was assigned to a Ryder truck which was the largest truck she had ever driven. According to Breeden, she now had to lift the cases of soda and food above her head to place them in the back of the truck. She also had trouble with the back door which she had to pull extremely hard to close.

On May 12, 2015, Breeden began to experience lower back pain after opening and closing the back of the Ryder truck several times. She was able to complete her shift but the pain increased that evening and she called her supervisor at 2:30 a.m. to report she would not be at work because of a back injury. She went to the St. Elizabeth Hospital emergency room where she was diagnosed with likely chronic minimal anterolisthesis of L4 relative to L3 and L5. X-rays indicated that she had no acute dislocation or fracture. She was released with a diagnosis of work-related lumbar strain. She was prescribed medication and referred to physical therapy.

On October 20, 2016, Breeden underwent low back surgery for lumbar region intervertebral disc replacement. The surgery was complicated by a hematoma four days later that necessitated a second surgery. According to Breeden, the surgery helped her but she continued to experience back pain.

Breeden returned to work at AVI in a "CSA" position following her back surgery. The CSA position entailed stocking vending machines with soda and food from an on-site storage closet. It required driving only a personal vehicle, no loading or unloading of trucks, and lighter lifting. AVI's branch manager, Steve Crisp, testified in his deposition that soda cases weighing thirty-two pounds still had to be moved but could be broken down instead of being lifted all at once, and a cart was used to transfer the products from the storage closet tothe vending machines. He explained that Breeden may have been slower than the other CSA workers but he still considered her a good employee for the job.

Breeden also experienced ongoing left knee pain for which she sought treatment in 2015. In December 2017, she underwent left knee meniscus surgery and eventually had a total left knee replacement on April 11, 2018. She was not pleased with the outcome of the surgery, noting that her knee pain was worse following the replacement.

Breeden's last day as a CSA was on April 10, 2018, the day before her knee surgery, and she never returned to work at AVI. She subsequently filed an application for resolution of a claim for the low back injury.

In support of her claim, Breeden filed notes from Dr. Brian Braithwaite, her pain management physician, who noted that her low back condition continued to worsen from the date of onset, May 12, 2015. He prescribed opiate medication and a spinal cord stimulator trial. The spinal cord stimulator proved not to be effective.

Breeden filed a report from Dr. Jeffrey Fadel, who diagnosed her with failed back syndrome stemming from her work-related low back injury and surgeries, lumbar facet arthritis aroused by the work injury, and radiculopathy of the L5 nerve root into the left lower extremity. He assessed a 13% impairment rating pursuant to the 5th Edition of the AMA Guides to the Evaluation ofPermanent Impairment (AMA Guides). He opined that Breeden had reached maximum medical improvement and should avoid lifting or carrying more than twenty pounds and pushing or pulling more than forty pounds. He also advised her to avoid repetitive twisting, bending, or rotating of her lumbar spine. He concluded that these restrictions would not allow her to return to work as a route driver.

A functional capacity evaluation (FCE) was performed by NovaCare Rehabilitation which found that Breeden did not have the physical capacity to work as a route salesperson but did have the capacity to perform light-duty work. Light work was defined in the FCE according to the U.S. Department of Labor guidelines as exerting up to twenty pounds of force occasionally, and/or up to ten pounds frequently, and/or a negligible amount of force constantly.

AVI filed the office notes of Dr. Jonathan Spanyer, who performed Breeden's knee surgery. On August 16, 2018, about four months after the surgery, Dr. Spanyer observed that she was functioning well but was complaining of ongoing pain of unclear etiology. He described her range of motion as acceptable with some stiffness, and allowed her to return to work with no knee restrictions. When he saw her several months later, on December 4, 2018, she reported her left knee pain was worse than before the surgery and she did not believe she couldreturn to work. Dr. Spanyer recommended conservative treatment with no additional surgery.

Dr. Benjamin Wilson of U.K. Healthcare also evaluated Breeden's left knee and similarly noted that she complained it was worse than before the surgery. He likewise did not recommend additional knee surgery.

Dr. Ellen Ballard evaluated Breeden on behalf of AVI on October 10, 2017. She noted that Breeden had undergone two lumbar surgeries and diagnosed Breeden with low back pain with left leg radicular symptoms. She found Breeden had reached maximum medical improvement (MMI), assessed an 11% impairment rating pursuant to the AMA Guides, and advised Breeden to avoid lifting over twenty pounds and repetitive bending or stooping. On November 13, 2018, Dr. Ballard performed another evaluation and noted that Breeden had undergone two knee surgeries since the last evaluation. She restated her prior conclusion that Breeden had reached MMI by October 10, 2017, and has an impairment rating of 11%.

Dr. Ralph Crystal performed a vocational evaluation of Breeden on April 5, 2018. Breeden was not working or looking for work at that time. She told him she did not believe she could perform any of her past work or concentrate sufficiently to obtain a GED. His testing showed she functions at the fourth or fifth grade level in reading, spelling, and mathematics. Dr. Crystal found there wasno indication Breeden could not complete a normal workday or work week. He opined there are numerous jobs she could perform with her restrictions, either through direct entry or on-the-job training. He concluded that she was not disabled from employment and did not necessarily have a loss of earning capacity.

Breeden testified that she did not feel well while employed in the light-duty CSA position at AVI following her back surgeries. She explained that when she got up in the morning, her pain level would be a two or a three but by the end of the day it would have risen to a nine or a ten and she was unable to perform any substantial physical activity when she got home. She further testified that she believed her back condition had worsened since April 2018 when she left AVI and there was no way her back would hold up if she returned to the CSA position.

Relying on the opinions of both Dr. Ballard and Dr. Fadel that Breeden should not lift over twenty pounds, and Crisp's testimony that a route driver has to lift thirty-two pounds, the ALJ found that Breeden could not return to her prior work as a route driver. The ALJ noted the limitations on...