Dornacher v. Covington Pub. Schs.

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BRENDA DORNACHER APPELLANT v. COVINGTON PUBLIC SCHOOLS; HONORABLE STEPHANIE KINNEY, ADMINISTRATIVE LAW JUDGE; KENTUCKY WORKERS' COMPENSATION BOARD; AND DANIEL CAMERON, KENTUCKY ATTORNEY GENERAL APPELLEES

No. 2021-CA-0308-WC

Court of Appeals of Kentucky

December 3, 2021

NOT TO BE PUBLISHED

PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-2017-90399

BRIEF FOR APPELLANT: Gregory N. Schabell Covington, Kentucky

BRIEF FOR APPELLEE COVINGTON PUBLIC SCHOOLS: Scott M. Guenther Covington, Kentucky

BEFORE: CLAYTON, CHIEF JUDGE; TAYLOR AND L. THOMPSON, JUDGES.

OPINION

CLAYTON, CHIEF JUDGE

Brenda Dornacher appeals from an opinion of the Workers' Compensation Board which affirmed the Administrative Law Judge's (ALJ) opinion, award, and order. Dornacher, who was injured while working as a school bus driver, argues that the ALJ erred in finding that she is not permanently totally disabled and that her cervical spine injury is not work-related. She further argues that Kentucky Revised Statutes (KRS) 342.730(4), which applies retroactively to limit her income benefits on the basis of her age, is unconstitutional. Upon review, we affirm the opinion of the Board.

Dornacher began working as a bus driver for Covington Public Schools on December 1, 2016. She was injured on March 9, 2017, while on her way to pick up a group of students. When she pulled over to allow an emergency vehicle to pass, another vehicle struck the bus. Dornacher got out to inspect the damage, tripped on some broken pavement, and fell, hitting her head and right shoulder, and tearing her rotator cuff. She was 73 years of age on the date of the injury. She underwent right shoulder surgery on April 17, 2017, and again on September 19, 2017. Dornacher continues to experience right shoulder pain and limited strength as well as arm numbness and a decrease in range of motion. She also suffers from pain in her neck and back. Dornacher alleged that as a result of the fall, she sustained a right shoulder injury, a cervical injury, and aggravation of pre-existing cervical degenerative changes.

Dornacher, who was 73 years of age at the time of the injury, has not been employed since then. Her prior employment history includes working as an EMT from the late 1960s to the early 1970s, as a photographer assisting her husband, as a mail processor at an investment firm, and as a medical records clerk at a hospital. She began working as a bus driver in 1997. There were also lengthy periods when she was not employed, from 2003 through 2010, and from April 2011 through November 2015.

The ALJ found that Dornacher had sustained a work-related injury to her right shoulder as a result of the March 9, 2017 accident, but had not sustained a cervical injury or an aggravation of pre-existing cervical degenerative changes as a result of the accident. The ALJ awarded her temporary total disability (TTD) benefits from April 17, 2017 through February 15, 2019. She awarded permanent partial disability (PPD) benefits based upon a 25 percent impairment rating for the right shoulder injury. The benefits were limited based upon her age, pursuant to KRS 342.730(4).

The ALJ further found that Dornacher was not permanently totally disabled. In her analysis, the ALJ described Dornacher's age as "perhaps the strongest factor" in favor of an award of permanent total disability, but noted that she has a twelfth-grade education and a plethora of experience performing sedentary jobs. The ALJ balanced Dornacher's vocational skills against her work restrictions, and noted that Dr. John Wolf of Case Consultants of Ohio, who evaluated Dornacher at her request, did not opine that she was precluded from performing any type of work and that Dr. Thomas Bender, who evaluated Dornacher at Covington's request, recommended restrictions limited to her upper right extremity. The ALJ concluded that Dornacher was not permanently totally disabled because she is capable of obtaining and performing light duty or sedentary work.

The Board affirmed the opinion, award, and order of the ALJ and this petition for review by Dornacher followed.

Dornacher's first argument concerns the constitutionality of KRS 342.730(4), which provides in pertinent part: "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." The provision became effective on July 14, 2018, and applies prospectively and retroactively. Dornacher argues that the retroactive effect of the provision in reducing her benefits on the basis of her age is unconstitutional. The Board refused to address the constitutional issues because they exceeded the bounds of its jurisdiction as an administrative body. See Blue Diamond Coal Co. v. Cornett, 300 Ky. 647, 649, 189 S.W.2d 963, 964 (1945).

Shortly after the briefing was completed in this appeal, the Kentucky Supreme Court rendered an opinion finding the provision at issue to be constitutional, holding that "the current version of KRS 342.730(4) is not violative of the Equal Protection Clause because the age classification is rationally related to a legitimate state purpose." Cates v. Kroger, 627 S.W.3d 864, 871 (Ky. 2021). It further found "no arbitrary exercise of legislative authority in the retroactive application of the amendment." Id. Consequently, the statutory limitation of Dornacher's benefits on the basis of her age and its retroactive application were not unconstitutional.

Next, Dornacher contests the ALJ's determination that she was not totally permanently disabled.

As the claimant, Dornacher bore the burden of proving the elements of her claim. Trevino v. Transit Authority of River City, 569 S.W.3d 400, 403 (Ky. 2019). "If the board finds against a claimant who had the burden of proof and the risk of persuasion, the court upon review is confined to determining whether or not the total evidence was so strong as to compel a finding in claimant's favor." Snawder v. Stice, 576 S.W.2d 276, 280 (Ky. App. 1979). "The 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) (citation omitted). Upon review, we "correct the Board only where the . . . Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).

KRS 342.0011(11)(c) defines permanent total disability as "the condition of an employee who, due to an injury, has a permanent disability rating and has a complete and permanent inability to perform any type of work as a result of an injury[.]"...