Blaker v. Kroger – Reaffirming the Independence of Kentucky Workers’ Compensation Adjudications from Social-Security Disability Findings

Introduction

In Robert Blaker, Jr. v. The Kroger Company, the Supreme Court of Kentucky affirmed the Court of Appeals, the Workers’ Compensation Board (WCB) and the Administrative Law Judge (ALJ) in concluding that Robert Blaker was entitled only to Permanent Partial Disability (PPD) – not Permanent Total Disability (PTD) – following a 2021 work-related back injury.

Although labelled “Not to be Published,” the opinion offers a detailed synthesis of Kentucky’s workers’ compensation jurisprudence, clarifying two practical rules:

The burden remains with the claimant to affirmatively prove total occupational disability, including evidence of job unavailability consistent with medical restrictions.
A Social Security Disability (SSD) award – even one based on the same physical condition – is not binding on, and does not compel, an ALJ’s assessment of PTD versus PPD under Kentucky law.

The dispute pits Blaker, a 63-year-old electrician, against his employer, Kroger, after surgical treatment and sizeable temporary benefits failed to resolve differing views of his residual capacity for work.

Summary of the Judgment

Issue: Did the ALJ clearly err in finding PPD rather than PTD?
Holding: No. Substantial evidence supported the ALJ’s decision; record evidence did not compel a finding of total disability.
Outcome: Judgment of the Court of Appeals affirmed; PPD award (with 3.6× multiplier for workers over 60) stands; PTD claim denied.

Analysis

1. Precedents Cited and Their Influence

City of Ashland v. Stumbo, 461 S.W.3d 392 (Ky. 2015) – Provides the five-step framework for determining PTD; ALJ expressly applied it.
Ira A. Watson Dep’t Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000) – Factors (age, education, skills, restrictions, job prospects) guiding occupational-disability analysis; central to ALJ’s evaluation.
Osborne v. Johnson, 432 S.W.2d 800 (Ky. 1968) – Requires consideration of post-injury physical, emotional, intellectual and vocational status.
Gunderson v. City of Ashland, 701 S.W.2d 135 (Ky. 1985) – Cited by Blaker for proposition that lack of actual work opportunity may compel PTD; Court distinguished Gunderson’s extreme facts (C-7 quadriplegia, extraordinary accommodations).
Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986); Whitaker v. Rowland, 998 S.W.2d 479 (Ky. 1999); Wilkerson v. Kimball Int’l, 585 S.W.3d 231 (Ky. 2019) – Define “compelling evidence” and scope of appellate review; emphasise deference to ALJ fact-finding.
Blaine v. Downtown Redevelopment Auth., 537 S.W.3d 811 (Ky. 2013) – Clarifies that partial disability does not require the ability to perform all pre-injury tasks.
Adams v. NHC Healthcare, 199 S.W.3d 163 (Ky. 2006) – Confirms SSD determinations are not binding in workers’ compensation proceedings; pivotal in rejecting Blaker’s SSD argument.

2. Legal Reasoning

The Court proceeded through a layered standard-of-review analysis:

Fact-Finding Deference: Under KRS 342.285, ALJ is sole fact-finder; reviewing courts overturn only if decision is clearly erroneous.
Burden of Proof Allocation: When the party with the burden (Blaker) loses, he must show evidence compels the opposite result, not merely supports it (Mandujano).
Evaluation of Evidence:
- Medical: Only Dr. Vaughan provided an impairment rating (30% whole person; 10% work-related) and post-surgical restrictions (15-lb lift limit, avoid repetitive bending). Dr. Glassman’s records indicated improvement and encouraged activity. No physician opined PTD.
- Lay: Blaker’s testimony of pain and inability conflicted with his admission he might teach electrical work and had renewed his Master Electrician licence.
Job Availability: Court reiterated that claimant must prove unavailability of work within restrictions; ALJ was entitled to infer availability absent contrary proof.
Effect of SSD Award: Following Adams, SSA findings are not binding; different statutory schemes and evidentiary standards apply.

3. Impact of the Decision

While unpublished and non-precedential under RAP 40(D), the opinion reinforces several recurring themes in Kentucky workers’ compensation practice:

ALJ Autonomy: Circuit and appellate courts will rarely disturb an ALJ’s occupational-disability finding when supported by any substantial evidence.
SSD Awards: Claimants cannot rely on an SSA determination as a shortcut; corroborating medical/vocational evidence tailored to Kentucky’s statutory definitions is still required.
Proof of Job Unavailability: Post-injury job searches, vocational expert testimony, or labor-market surveys remain critical if a claimant seeks PTD based on inability to obtain employment.
Strategic Litigation Point: Employers may successfully defend PTD claims by procuring a detailed Independent Medical Examination (IME) and highlighting gaps in claimant’s vocational proof.

Complex Concepts Simplified

PPD vs. PTD (KRS 342.0011):
- PPD – Worker has a permanent impairment but can still earn wages in some capacity.
- PTD – Worker’s impairment prevents any regular, sustained work for pay.
“Substantial Evidence” – Not a preponderance; merely evidence of sufficient probative value that a reasonable mind could accept as adequate to support the conclusion.
“Evidence that Compels the Opposite Result” – Evidence so overwhelming that no reasonable person could reach the ALJ’s conclusion.
Multipliers (KRS 342.730):
- 3× multiplier when worker cannot return to pre-injury job.
- +0.6 addition for workers aged 60 or older.
Independent Medical Examination (IME): An evaluation by a physician chosen (often by employer) to provide an impartial opinion on impairment and work capacity.
SSA vs. Workers’ Comp Standards: SSA focuses on national inability to engage in “substantial gainful activity”; Kentucky workers’ comp looks at ability to perform “any work” in a competitive economy within the state framework, considering statutory multipliers and vocational factors.

Conclusion

The Supreme Court’s affirmance in Blaker v. Kroger underscores a consistent doctrinal message: Kentucky ALJs wield wide discretion in weighing medical and lay evidence, and their determinations of PPD versus PTD will be upheld absent truly compelling contrary proof. Importantly, an SSD award – even when obtained for the same physical injury – neither binds nor presumptively directs Kentucky workers’ compensation outcomes.

Practitioners representing injured workers must therefore marshal specific Kentucky-centric medical, vocational, and labor-market evidence to establish total occupational disability. Conversely, employers can effectively defend by highlighting residual work capacity, commissioning detailed IMEs, and stressing the claimant’s evidentiary burden regarding job unavailability.

Although “not to be published,” the Court’s reasoning will inevitably guide ALJs, the WCB, and litigants: SSD determinations are a piece of the puzzle, not the solution, and the statutory definition of “work” in KRS 342.0011(34) remains the lodestar for evaluating post-injury employability in the Commonwealth.