August 23, 2010 08-00117

OPINION ENTERED: AUGUST 23, 2010

CLAIM NO. 02-81612 & 08-00117

JANET CAPSHAW PETITIONER

VS. APPEAL FROM HON. R. SCOTT BORDERS,

ADMINISTRATIVE LAW JUDGE

TOYOTA MOTOR MANUFACTURING KY, INC.

and HON. R. SCOTT BORDERS,

ACTING CHIEF ADMINISTRATIVE LAW JUDGE RESPONDENTS

OPINION

AFFIRMING IN PART,

VACATING IN PART AND REMANDING

* * * * * *

BEFORE: ALVEY, Chairman, COWDEN and STIVERS, Members.

STIVERS, Member. Janet Capshaw (“Capshaw”) appeals from the opinion and order rendered January 19, 2010, of Hon. R. Scott Borders, Acting Chief Administrative Law Judge (“CALJ”) overruling her motion to reopen seeking increased benefits and dismissing the claim she filed against Toyota Motor Manufacturing KY, Inc. (“Toyota”) for an alleged work-related injury occurring on June 2, 2006. Capshaw also appeals from the order denying her petition for reconsideration.

On appeal, Capshaw does not seek review of the CALJ’s determination she did not sustain a work-related injury or her impairment has not increased. Capshaw posits there are two unresolved issues: 1) her entitlement to enhancement of her benefits by the two multiplier contained in KRS 342.730(1)(c)2 and; 2) whether enhancement of her benefits by the three multiplier is available on reopening. Capshaw asserts KRS 342.730(1)(c)1 permits, upon reopening, enhancement of permanent partial disability (“PPD”) benefits by the three multiplier if the claimant cannot return to the type of work she was doing at the time of the injury. She asserts the medical evidence in this case unanimously establishes she cannot perform the work she was performing at the time of the injury because she was restricted from using vibratory tools subsequent to the injury. Citing Phillips Tree Experts, Inc. v. Travis, 2006-CA-000095-WC, Capshaw asserts, contrary to the CALJ’s decision, there is authority for reopening an award, pursuant to KRS 342.125, to seek an enhancement of benefits via the three multiplier.

Capshaw maintains even if she is not entitled to the three multiplier, it is possible she is entitled to application of the two multiplier because she returned to work and subsequently lost her job “over an issue concerning her restrictions.” Therefore, pursuant to Chrysalis House v. Tackett, 283 S.W. 3d 671 ( Ky. 2009), she has proven she lost her job “due to a matter related to her disability.” Capshaw concludes by asserting the CALJ erred in not making “the proper findings both as to her restrictions and as to why she lost her job.” Capshaw asserts before it can be determined whether the CALJ’s findings are an abuse of discretion, the CALJ needs to explain how he reached these conclusions in the face of “unanimous evidence.”

The record reflects Capshaw was initially injured while working for Toyota on October 1, 2001. The parties filed a Form 110-1, Agreement as to Compensation and Order Approving Settlement, which characterized the injury as follows: “TM states over 4 job rotation-process equip tool; numb fingers and thumb.” The affected body parts are “bilateral hands.” The Form 110 also reflects bilateral carpal tunnel compression surgery was performed. The settlement was based upon a 4% impairment rating assessed by Dr. Tsai on November 6, 2003. Capshaw settled for a lump sum of $9,541.26 with entitlement to medicals to remain open. The settlement was approved by ALJ Shelia Lowther on March 17, 2004.

On January 14, 2008, Capshaw filed a motion to reopen asserting there was a change in her condition, and she had been terminated from her employment with Toyota. Capshaw asserted she had surgeries in 2002 and 2003 that provided relief from her symptoms until March 2006, when her symptoms returned. Due to the worsening of her condition and her employment being terminated, Capshaw asserted her claim should be reopened. In addition, Capshaw filed a Form 101 alleging an injury occurring on March 2, 2006, while an employee of Toyota. She alleged injuries to both hands and wrists because of the repetitive use of vibrating tools.

On February 7, 2008, CALJ Shelia Lowther granted Capshaw’s motion to reopen and indicated a scheduling order would be issued by the Office of Workers’ Claims.

Capshaw filed two reports of Dr. Terry L. Troutt dated March 25, 2008, and August 6, 2009. Capshaw also filed medical records generated by Dr. Tsu-Min Tsai covering the period from June 5, 2008, through April 23, 2009.

Toyota filed electrodiagnostic studies/reports generated by Dr. Vasudeva Iyer dated January 14, 2002, Dr. Patrick Leung dated June 15, 2006, Dr. Robert F. Taylor dated October 26, 2007, and Dr. Hal Corwin dated November 17, 2007. Toyota also filed a report generated by Dr. Thomas M. Gabriel dated March 2, 2009. Toyota deposed Dr. Gabriel on May 27, 2008, and October 20, 2009. Toyota introduced Capshaw’s March 28, 2008, deposition. Capshaw testified at the hearing held on November 18, 2009.

Capshaw’s deposition and hearing testimony reveal she stopped working for Toyota in October 2006. In June 2007, she worked 39 or 40 hours for one week at Prime Finish performing an inspection job. Approximately one week later, she worked at Leggett & Platt where she made industrial size shipping boxes for hospital beds. She worked 60 hours for Leggett & Platt. She was not able to continue working at either of those jobs because of her carpal tunnel syndrome.

The job Capshaw was performing at Toyota prior to her termination involved “paint finish, inspection and sanding and buffing defects, installing moon roofs.” She performed that job for approximately one year. Before that Capshaw’s job was “PVC and sealer” which involved the following:

Sealing the doors with a sealer gun. Specially finishing the sealer with a spatula on the end panels. Brushing wheel wells. Brushing the seams and the underbody as the body comes over your head.

Capshaw performed that job for almost ten years. She acknowledged she initially began having problems with her hands in October 2001. She explained the symptoms in her right hand included the hand continuously going to sleep, numbness and tingling, occasional sharp shooting pain, and loss of grip strength. Capshaw was initially treated at “Toyota IHS.” She was referred to Drs. Kleinert & Kutz who determined she needed surgery. Her first surgery was in May 2002 on her right wrist. As a result of the surgery, she did well except for a lack of strength. Capshaw had surgery on the left side in June 2003. On that date, surgery was performed on her left wrist and elbow. After the surgery, her symptoms improved. Even though Capshaw had ongoing symptoms and had to wear a splint, she was able to return to her regular work. Capshaw explained in March 2006, she began to feel numbness and tingling while using a buffer which is a vibrating tool she had used since October 2005. She would change hands during the course of using the buffer. Upon reporting her symptoms she was sent to Early Symptom Investigation and then to IHS who sent her to Dr. Leung. Dr. Leung discussed putting her on “a definite restriction from vibrating tools.” Regarding her discussion with Dr. Leung, Capshaw explained as follows:

Q. So what happened then?

A. The vibrating tools are classified as light, medium and heavy. The buffer was heavy. The gun on moon roof was light. Those were the only two vibrating tools that I had. There was another one on another team called a sander, and so instead of being restricted from all vibrating tools, I asked to trial the other vibrating tool to see if I could go to that team.

Capshaw was told she could use the light vibrating tool which she continued to do but she could not use heavy vibrating tools. The light vibrating tools were used on the moon roof, but her team used the buffer which was a heavy vibrating tool. She explained there was another team that used a sander which was classified as a light or medium vibrating tool. Capshaw requested a trial move to that team “in order to not be indefinitely restricted from all vibrating tools.” She testified there was no attempt by Toyota to place her where she did not have to use vibratory tools. Instead, Toyota terminated her. Capshaw testified prior to her termination she continued working on moon roofs with the light tool but “because of manpower” she did not get a trial on any other tool.

Capshaw testified the basis of her termination was that she “did not return to [her] full rotation and use the buffer.” She went on to explain that she was terminated because her restrictions had been lifted and she did not return to the buffer process that was on her team. Capshaw explained she asked for the restrictions to be temporarily lifted to use the sander on a trial basis. She discussed lifting the restrictions with Chilly Wilkerson and Vonda Alexander, her group leaders, and was told if she would have her restrictions lifted, they would “trial” her with another tool and possibly move her to a different team. Capshaw’s restrictions were lifted by an IHS doctor on August 8th so she could use the sander on a trial basis. This would also allow IHS to determine her indefinite restrictions. Capshaw explained, after the restrictions were lifted because “manpower was lean,” she was assigned a special job for which she had training and which many other employees could not perform. This prevented her from using the sander on a trial basis. At the beginning of September, Capshaw was placed on the buffer and she requested to know why. Capshaw testified she explained to her supervisors that her restrictions had been lifted so she could use the sander on a trial basis, not the buffer. Capshaw testified she had been permanently or indefinitely restricted from using the buffer and asked why she had been assigned to a job using the buffer. Capshaw indicated they had established she was not going to be able to use the heavy vibrating tool. Capshaw testified her group leader, Chilly Wilkerson, explained that because her restrictions had been lifted, she had to use the buffer. As a result, Capshaw’s symptoms worsened. She requested to go back to IHS to remedy the misunderstanding, but her request was denied. Thereafter, she was terminated for not returning to her buffer job.

Capshaw explained she did not tell her supervisor she was not going to return to the buffer job. In fact, she used the buffer. Capshaw testified, literally, she was terminated for not performing a job that she was actually performing. Toyota personnel told her she did not perform the buffer job between August 8 and September 11. Capshaw testified during that period, she performed a job which she characterized as:

The special tape on the Avalon doors that I had been trained to do, because the rest of the group - - it was a unique job, that there were only six of us that did it. After almost a year, they wanted the rest of the team group to be trained. We were in the process of training them, manpower was bad, and they put me back on the tape job, and the rest of my job is in my team, except for the buffing job.

Capshaw acknowledged from August 8 to September 11, she was not doing the buffer job, but she indicated she was not supposed to be using the buffer during that time. When she was terminated, Patty Floyd, an HR representative, and Rick Rogers, an assistant manager, told her to take responsibility for her actions. Capshaw testified she was told she had intentionally deceived them by not going back to her buffer job and, therefore, she was terminated. Capshaw indicated she was not sure how she had deceived them. She stated she never refused work nor did she tell her supervisors she could not perform a certain job during that time. Capshaw testified she was never really sure of the basis for her termination.

Capshaw acknowledged her condition worsened in June 2007, from overuse when she was working at Prime Finish and Leggett & Platt. Surgery had been recommended to alleviate those symptoms. In August 2008, Capshaw underwent left carpal tunnel release surgery along with a left pronator teres release. In November 2008, she had the same surgical procedures on the right. She testified, given her present symptoms, she could return to her previous work at Toyota except she would have to be restricted from using heavy vibrating tools.

The CALJ determined Capshaw did not suffer a separate work-related injury of right cubital tunnel syndrome on June 2, 2006, thereby rendering moot all other related issues. Relying upon the opinion of Dr. Tsai, expressed in 2003, the CALJ determined Capshaw had a 4% functional impairment as a result of the initial injury. The CALJ also determined as follows:

Therefore, the question becomes as to whether the Plaintiff has met her burden of showing an increase in either her functional impairment rating of her occupational disability. See W.E. Caldwell vs. Borders, 301 KY 843, 193 SW2d 453 (KY 1946).

The Plaintiff argues in the re-opening she is entitled to application of either the two timer [sic] three-time [sic] statutory multipliers pursuant to KRS 342.730. She argues this is so based on the fact the Defendant Employer terminated her for not going to work in violation of her restrictions to avoid the use of vibratory tools which she was required to do her job with the Defendant Employer. She therefore is seeking an order enhancing her permanent partial disability benefits pursuant to KRS 342.730(1)(c)(1) or (2). The Defendant Employer argues that the Plaintiff has not shown an increase in impairment that would entitle her to enhance permanent partial disability benefits and this [sic] was terminated for deception, and not for any reason due to her injury, and therefore the two factor is not applicable. See Chrysalis House vs. Tackett 283 SW 3d 671, (KY 2009).

In this specific instance, there is simply no credible evidence to substantiate the Plaintiff’s argument that she has an increase in functional impairment as a result of worsening of her bilateral upper extremity conditions resulting from the October 1, 2001, incident at work.

In addition, there is simply no proof like [sic] the Plaintiff is now permanently and totally occupationally disabled. Therefore, the Administrative Law Judge finds the Plaintiff has not met her burden of proving she is entitled to an increase in permanent partial disability benefits by enhancement of the functional impairment rating or that she is permanently and totally occupationally disabled.

The Plaintiff had made argument that since the settlement of her case, where it was agreed she did retain functional capacity to return [sic] the type of work she was performing at the time of her injury, that she now no longer retains that physical capacity. She points to the fact that the Defendant Employer terminated her for failure to work in violation of her restrictions of avoidance of vibratory tools. The Defendant Employer argues the Plaintiff was terminated after she was released to return to work without restrictions and yet did not perform the required activities of her job which deceived her co-workers and the Defendant Employer.

In this specific instance, the Administrative Law Judge finds that the Plaintiff continues to retain the physical capacity to perform the type of work as she was performing at the time of her October 1, 2001, work-related bilateral upper extremity injuries. Therefore, she is not entitled to application of the two-time statutory multipliers for the remainder of her permanent partial disability benefit period.

Accordingly, the CALJ dismissed Capshaw’s claim against Toyota for income and medical benefits for an alleged work-related injury on June 2, 2006, and overruled her motion to reopen seeking an increase in income benefits. Capshaw then filed a petition for reconsideration asserting the CALJ made a conclusory finding that she continued to retain the physical capacity to perform the type of work she was performing at the time of her October 1, 2001, work-related bilateral upper extremity injury. Capshaw noted the “testifying physicians” restricted her from using vibratory tools which “would preclude a return to her duties in 2001.” She asked the CALJ for additional findings of facts sufficient to allow a review of this matter. Capshaw asked the CALJ to state the opinions he relied upon to support his conclusion she “can do all of her 2001 functions at Toyota.” Capshaw asserted without these findings, appellate review is not possible. That motion was summarily overruled by the CALJ. Capshaw did not make a specific request for additional findings regarding her entitlement to enhancement of her PPD benefits by the two multiplier.

With regard to whether the three multiplier is available upon reopening, we note that KRS 342.125(1) reads as follows:

Upon motion by any party or upon an administrative law judge’s own motion, an administrative law judge may reopen and review any award or order on any of the following grounds:

(a) Fraud;

(b) Newly-discovered evidence which could not have been discovered with the exercise of due diligence;

(c) Mistake; and

(d) Change of disability as shown by objective medical evidence of worsening or improvement of impairment due to a condition caused by the injury since the date of the award or order.

In addition, KRS 342.730(1)(c)4 reads as follows:

Notwithstanding the provisions of KRS 342.125, a claim may be reopened at any time during the period of permanent partial disability in order to conform the award payments with the requirements of subparagraph 2. of this paragraph.

Capshaw’s grounds for reopening were encompassed within KRS 342.125(1)(d), and with respect to the two multiplier, KRS 342.730(1)(c)4. Since the CALJ did not find an increase in impairment as required by KRS 342.125(1)(d), the CALJ certainly could not enhance the benefits by the three multiplier. Said another way, there is no provision allowing a reopening solely to determine if the three multiplier is now applicable. Even though Capshaw cites Phillips Tree Experts, Inc. v. Travis, supra, for that proposition we note the court in Phillips stated as follows:

Subsection 4 plainly states that a claim may be reopened to conform award payments with the requirements of subparagraph 2 without relying on KRS 342.125. There is no mention of subparagraph 1, which was the basis of the parties’ settlement. As such, PTE was not entitled to reopen Travis’ claim pursuant to KRS 342.730(1)(c)4.

The Court of Appeals went on to state:

PTE asserts that a bar to reopening on the issue on the use of the “3” multiplier in KRS 342.730(1)(c)1 would forever end settlements between employees and employers. PTE’s assertion is flawed. Both parties in a workers’ compensation claim settlement can reopen the claim if they adhere to the statutory requirements discussed in the preceding paragraphs.

Since the CALJ did not find, upon reopening, Capshaw had an increase in her impairment, KRS 342.125(1)(d) mandates enhancement of the award by the three multiplier was not available for consideration by the CALJ. To hold otherwise would allow a claimant to seek to have his or her benefits tripled even though the impairment rating on reopening had not increased. Further, we note Capshaw, in her motion to reopen, never raised her entitlement to enhancement of her PPD benefits via the three multiplier. Thus, the CALJ’s decision relative to this issue must be affirmed.

That said, as to Capshaw’s argument she was entitled to additional findings regarding the applicability of the two multiplier contained in KRS 342.730(1)(c)2, we note, of all the doctors who provided restrictions, only Dr. Tsai did not provide restrictions relative to vibratory tools. During the period from August 28, 2008, through April 23, 2009, Dr. Tsai imposed lifting restrictions and told her to avoid constant and repetitive use of her hands which included pushing, pulling, pinching, and gripping. He did not indicate she should avoid the use of vibratory tools. However, in his March 25, 2008, and August 6, 2008, reports, Dr. Troutt opined Capshaw should avoid “vibratory exposure to the hand.” Additionally, Dr. Gabriel, in his depositions and reports, agreed Capshaw should refrain from using vibratory tools. Capshaw’s testimony and the opinions of Drs. Troutt and Gabriel establish the cessation of Capshaw’s employment at weekly wages equal to or greater than her average weekly wage at the time of the injury was due to her disabling injury. See Chrysalis House v. Tackett, supra. We note the September 28, 2009, BRC order reflects the parties stipulated Capshaw’s average weekly wage (“AWW”) as of 2001 was $868.80 and her AWW in 2006 was $1,041.00. Clearly, Capshaw had returned to work at a weekly wage equal to or greater than her AWW at the time of the injury. There appears to be no dispute that after her 2001 injury, Capshaw continued to work at Toyota until she was terminated in 2006, at weekly wages equal to or greater than her AWW at the time of the injury. Further, Toyota offered no testimony refuting Capshaw’s testimony regarding the reasons for the cessation of her employment at Toyota.

Although the ALJ determined because Capshaw continued to retain the physical capacity to perform the type of work she was performing at the time of her October 1, 2001, injury, she was not entitled to the application of the two multiplier for the remainder of her entitlement to PPD benefits. That is not the standard for determining if a claimant is entitled to enhancement of PPD benefits pursuant to KRS 342.730(1)(c)2. The CALJ’s finding is actually related to whether Capshaw was entitled to an enhancement of PPD benefits pursuant to KRS 342.730(1)(c)1, not her entitlement to benefits pursuant to KRS 342.730(1)(c)2.

KRS 342.125(1) and KRS 342.730(1)(c)4 permit Capshaw to reopen the claim at any time during the period of the award to seek enhancement of her benefits by the two multiplier pursuant to KRS 342.730(1)(c)2. What Capshaw must show is that she has returned to work making equal to or greater wages and her employment at the same or greater wage ceased for any reason, with or without cause, provided, however, that the reason relates to the disabling injury. Chrysalis House v. Tackett, supra at 674. Capshaw made such a showing.

We agree with Capshaw that the CALJ did not make any findings as to the reason Capshaw’s employment terminated. Rather, in refusing to enhance Capshaw’s benefits by the two multiplier, the CALJ determined Capshaw continued to retain the physical capacity to perform the type of work she was performing at the time of her October 1, 2001, injury. The CALJ did not provide any reason for refusing to enhance her PPD benefits via the two multiplier. The CALJ must supply sufficient findings of fact on this issue so as to apprise the parties of the basis for his finding Capshaw was not entitled to enhancement of her PPD benefits by the two multiplier. Kentland Elkhorn Coal Company v. Yates, 743 S.W.2d 47 (Ky.App. 1988); Shields v. Pittsburgh & Midway Coal Mining Co., 634 S.W.2d 440 (Ky.App. 1982).

We point out Capshaw’s testimony regarding the reason for her termination is unrefuted. She denied she was terminated for reasons other than those that relate to her disabling injury. Toyota did not refute Capshaw’s testimony. The reports and testimony of Dr. Gabriel indicate Capshaw retained symptoms of bilateral carpal tunnel syndrome. Dr. Gabriel noted in his March 2, 2009, report and deposition testimony of October 20, 2009, the use of the vibratory tools exacerbated Capshaw’s symptoms prior to termination. He also noted in his October 20, 2009, deposition, Capshaw demonstrated an inability to tolerate vibratory tools. The unrefuted testimony establishes Capshaw’s employment working at Toyota ceased because she was required to use vibratory tools which as Dr. Gabriel stated exacerbated her bilateral carpal tunnel syndrome symptoms. Therefore, since the CALJ’s January 19, 2010, opinion and order did not provide any findings of fact supporting his determination Capshaw was not entitled to enhancement of her PPD benefits via the two multiplier nor provide any such findings of facts in his order overruling her petition for reconsideration, the CALJ’s decision regarding the two multiplier must be vacated and remanded to the CALJ for specific findings. Although Capshaw did not specifically request findings of fact relating to enhancement of the award pursuant to KRS 342.730(1)(c)2, we do believe she sufficiently raised the issue by requesting additional findings of fact relative to the CALJ’s determination she was not entitled to the two multiplier. On remand, the CALJ shall review the evidence and determine, in conformity with the statute and the principles enunciated in Chrysalis House v. Tackett, supra, whether Capshaw’s employment at the same or greater wage ceased for any reason, with or without cause, for reasons relating to the disabling injury.

Accordingly, the CALJ’s decision regarding the inapplicability of the three multiplier contained in KRS 342.730(1)(c)1 is AFFIRMED. That portion of the CALJ’s decision refusing to enhance Capshaw’s benefits by the two multiplier is VACATED and this matter is REMANDED to the CALJ for additional findings regarding Capshaw’s entitlement to enhancement of her PPD benefits by the two multiplier pursuant to KRS 342.730(1)(c)2 in conformity with the views expressed herein.

ALL CONCUR.

COUNSEL FOR PETITIONER:

HON DAVID R MARSHALL

120 NORTH UPPER STREET

LEXINGTON KY 40507

COUNSEL FOR RESPONDENT:

HON KENNETH J DIETZ

P O BOX 0095

FLORENCE KY 41022

ADMINISTRATIVE LAW JUDGE:

HON R SCOTT BORDERS

8120 DREAM STREET

FLORENCE KY 41042