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RENDERED: FEBRUARY 24, 2017; 10:00 A.M.
NOT TO BE
PUBLISHED
Court of Appeals
FORD MOTOR COMPANY (LAP) APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-14-01486
GROVER JONES,
HONORABLE DOUGLAS W. GOTT,
ADMINISTRATIVE LAW JUDGE,
AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
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BEFORE: CLAYTON, COMBS, AND TAYLOR, JUDGES.
CLAYTON, JUDGE: Ford Motor Company (“Ford”) petitions this Court for review of a Worker’s Compensation Board opinion affirming in part and reversing and remanding in part an Administrative Law Judge’s (“ALJ”) order granting Grover Jones benefits for an alleged occupational injury. Ford argues: (1) Jones was not entitled to temporary total disability (“TTD”) benefits; and (2) Jones was not entitled to the “three multiplier” for his permanent partial disability (“PPD”) pursuant to Kentucky Revised Statutes (“KRS”) 342.730(1)(c)1. Following a recitation of the relevant background information, we address Ford’s issues in turn.
BACKGROUND
Jones began working for Ford in July, 2012. As a moon roof assembler, Jones would carry a 20-pound stool and a screw gun, climb into a vehicle, and shoot four screws into the roof panel. He would then exit the vehicle and remove all of the equipment he took into the vehicle. Finally, he would go to the rear of the vehicle and place a wire on the tailgate. During a typical shift, Jones would climb in and out of vehicles approximately 75 times an hour.
On or about April of 2013, Jones claimed he began experiencing right foot pain. Prior to this time Jones had neither sought medical treatment for, nor had any previous injuries to, either foot. Jones went to Ford Medical for treatment. Because Jones is relatively short, he believed his foot had been injured while working because he had to step onto a metal rail before reaching the floor when he exited each vehicle. Ford Medical referred Jones to Commonwealth Foot and Ankle. There, Jones received a walking boot. He wore the boot until October of 2013 and was able to continue to work in the boot. He was later diagnosed with a stress fracture, and surgery was performed on his right foot on May 20, 2014.
Jones was off work for approximately six weeks after the procedure. He did not receive TTD payments from Ford during the six-week period. He did, however, receive 60 percent of his normal earnings through Unicare.
When he returned to work on July 7, 2014, Jones had restricted work duties until September of 2014. As Jones was in a walking boot and was unable to perform his previous job, he was made a “floater” by Ford and would perform different jobs as needed around the factory.
Jones continued to have troubles with his right foot and began developing problems with his left foot. He had to stop seeing his treating physician as Ford had denied that Jones’s injury was compensable under worker’s compensation, and Jones did not have the money to pay his outstanding medical bills at his treating physician’s office. Jones obtained the services of another physician, Dr. John Sanders, who recommended surgery on his left foot. Jones had surgery on his left foot on December 24, 2014.
Jones attempted to return to work in February of 2015. He was given “no work available” status due to his restrictions. He was able to work a couple of weeks in March of 2015, but was again placed on “no work available” status on April 5, 2015. Jones then had another surgery on his right foot on April 15, 2015, which placed him out of work until June of 2015.
Jones continued to work brief periods of time between being placed on “no work available” status for the following months until his third surgery on his right foot on September 13, 2015. Jones returned to work again on November 20, 2015. Jones remains a floater and has since this time requested that his doctor forego assigning work restrictions as he knows he will be given “no work available” status if he has restrictions. Jones’s current hourly wage is greater than his previous hourly wage.
Jones testified at a hearing in March of 2016, where he noted constant pain and periodic swelling in his right foot. His foot condition prevents him from running around with his sons. He has to undergo monthly procedures where his doctor applies acid to his foot and shaves it with a razor. Jones wears custom-made orthotics, but they do not address the pain. Jones can stand for approximately two hours before he must sit due to the pain and swelling. Jones frequently has to stop work to get hot compresses on his foot. Jones stated he did not believe he could continue working at Ford due to his foot problems.
Each party also submitted evidence and reports from independent medical experts. The ALJ then issued an order finding Jones suffered work-related injuries to his feet. The ALJ awarded medical benefits, TTD benefits, and found a 4% PPD of the right foot. Ford petitioned for reconsideration, which was denied. Ford then filed a brief before the Workers’ Compensation Board, raising the same issues it raises before us. The Board issued an opinion affirming the ALJ’s order except for part of one TTD time period. It reversed and remanded that issue for further factual findings. Ford then filed a petition for review in this Court.
STANDARD OF REVIEW
The burden of proof in a workers’ compensation case lies on the claimant; he or she must prove to the ALJ every element of the claim. Martin County Coal Co. v. Goble, 449 S.W.3d 362, 366 (Ky. 2014) (citing Gibbs v. Premier Scale Co./Indiana Scale Co., 50 S.W.3d 754, 763 (Ky. 2001), as modified on denial of reh’g (Aug. 23, 2001)). Pursuant to KRS 342.285, the ALJ as fact-finder has the sole discretion to determine the quality, character, and substance of the evidence. Hornback v. Hardin Memorial Hosp., 411 S.W.3d 220, 224 (Ky. 2013). While performing its fact-finding role, the ALJ “may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same party’s total proof.” James T. English Trucking v. Beeler, 375 S.W.3d 67, 70 (Ky. 2012) (citing Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977)).
“When a claimant successfully carries [his or her] burden, the question on appeal is whether substantial evidence of record supports the ALJ’s decision.” Miller v. Go Hire Employment Development, Inc., 473 S.W3d 621, 628-29 (Ky. App. 2015) (citing Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984)). “Substantial evidence is defined as ‘evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.’” Hornback, 411 S.W.3d at 224 (quoting Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971)). When the party appealing the ALJ’s decision was not the party who carried the burden of proof below, to prevail on appeal the appealing party must “show that no substantial evidence supported the finding, i.e., that it was unreasonable under the evidence.” Kroger v. Ligon, 338 S.W.3d 269, 273 (Ky. 2011) (footnote and citations omitted). On the other hand, the party who failed to meet his or her burden before the ALJ “must show on appeal that the unfavorable finding was clearly erroneous because overwhelming evidence compelled a favorable finding, i.e., that no reasonable person could have failed to be persuaded by the favorable evidence.” Id. Under either circumstance, if the evidence simply would have supported but not compelled a different decision, we cannot reverse the decision on appeal. Id.
ANALYSIS
Ford, the party that did not carry the burden of proof below, raises two issues, each of which concern what it claims is a lack of substantial evidence. First, Ford claims some of the TTD time periods are not supported by substantial evidence. Second, Ford claims the lower adjudicative bodies erred by awarding Jones the three multiplier pursuant to KRS 342.730(1)(c)1. To prevail on these two claims, Ford must show that no substantial evidence supported the factual findings – that the ALJ’s findings were unreasonable under the evidence. Kroger, supra. We address Ford’s claims in turn.
I. TTD
time periods.
Ford first claims there is no substantial evidence in the record to support TTD benefits for three periods of time. TTD is defined as “the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment[.]” KRS 342.0011(11)(a). Thus, two requirements must be proven to receive TTD benefits: (1) the worker must not have reached maximum medical improvement (“MMI”); and (2) the worker must not have reached a level of improvement that permits him or her to return to work. Double L Const., Inc. v. Mitchell, 182 S.W.3d 509, 513 (Ky. 2005).
We note that Ford voluntarily paid for TTD benefits between December 8, 2014 and April 2, 2015, which coincided with Jones’s surgery on his left foot, and for July 12 and 13 of 2015, which coincided in part with Jones’s second surgery on his right foot. Ford contests TTD benefits between three time periods, each corresponding to the three surgeries Jones had on his right foot: May 20, 2014, through July 6, 2014 (first surgery on right foot); April 15, 2015, through June 15, 2015 (second surgery on right foot); and September 13, 2015, through December 16, 2015 (third surgery on right foot). As analysis of each period is fact-specific, we will examine each in turn.
A. May
20, 2014 – July 6, 2014.
Regarding this period, the ALJ found:
Jones’ first surgery was May 20, 2014. His testimony that he was released to return to work on July 7, 2014, is supported by Dr. Pederson’s note of July 26, 2014. (See Dr. Fadel summary, page 5). Jones is therefore entitled to TTD from May 20, 2014 through July 6, 2014.
Order, p. 14.
The Board affirmed this finding:
Dr. Pederson performed Jones’ first right foot surgery on May 20, 2014. Jones testified he was off work for six weeks, and released to return to restricted duty on July 7, 2014. Ford’s wage records indicate Jones did not earn any wages between May 20, 2014 and July 6, 2014, and it offered no proof to suggest Jones was off work for an unrelated condition. Jones’ testimony was also corroborated by Dr. Pederson’s note which, though not admitted into evidence itself, was summarized by Dr. Fadel in his November 13, 2014 report. At that time, Dr. Fadel did not believe Jones had reached MMI following his right foot surgery, and recommended further care.
This proof constitutes the requisite substantial evidence to support the ALJ’s conclusion Jones had surgery on May 20, 2014 and was off work until July 6, 2014, thereby entitling him to TTD benefits during this period. Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971). The fact that Dr. Pederson’s note was not admitted into evidence does not alter this conclusion. Ford admitted Dr. Fadel’s reports, and the ALJ was entitled to rely upon the opinions contained therein. Dr. Fadel reviewed Dr. Pederson’s note as part of a medical records review, and offered no reason the return to work note was invalid or suspect.
Opinion, pp. 8-9.
Ford claims there was no substantial evidence to support a TTD finding during this time period because the only evidence was Jones’s testimony and a summary of a medical note. We disagree. The ALJ is the fact-finder pursuant to KRS 342.285(1). Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). As fact-finder, the ALJ must consider medical expert and vocational expert opinion evidence when determining the extent of a worker’s medical condition and occupational disability. Id. (citing Eaton Axle Corp v. Nally, 688 S.W.2d 334 (Ky. 1985); Seventh Street Road Tobacco Warehouse v. Stillwell, 550 S.W.2d 469 (Ky. 1976)). However, the ALJ may also find the worker’s testimony credible and rely on it. “A worker’s testimony is competent evidence of his physical condition and of his ability to perform various activities both before and after being injured.” Ira A. Watson, 34 S.W.3d at 52 (citing Hush v. Abrams, 584 S.W.2d 48 (Ky. 1979)).
In the instant case, the finding of TTD was supported both by Jones’s testimony and Dr. Ronald Fadel’s report. Dr. Fadel was Ford’s independent medical examiner who evaluated Jones three times between November, 2014, and December, 2015. The summary of his first independent medical exam (“IME”) details Dr. Pederson’s notes regarding Jones’s surgery and subsequent treatment beginning May 22, 2014. The IME summary specifically states that on June 26, 2014, Dr. Pederson noted that, “One to two more weeks off work is recommended.”
Jones’s testimony and the IME summary are both evidence of substance that a reasonable person could rely upon to find that Jones was entitled to TTD benefits between May 20, 2014, and July 6, 2014. At the very least, Ford has not demonstrated that there is no evidence of substance and that it would have been unreasonable for the ALJ to make the TTD factual finding. Kroger v. Ligon, 338 S.W.3d 269, 273 (Ky. 2011). Accordingly, we affirm this factual finding.
B. April
15, 2015 – June 15, 2015.
Regarding this period, the ALJ found:
Jones’ third surgery was April 15, 2015. Ford later paid TTD for two days, July 12 and 13, 2015. Jones’ [sic] testified he returned to work in late June 2015 and worked briefly until a plant shutdown with the inference that this was a vacation period for all workers. He then worked an unspecified week before being placed on “no work available status” on July 17, 2015. He returned to work on August 5, 2015. Again, there is no medical evidence of temporary total disability for the period of time following the third surgery, although it is clear the surgery caused him to be off work for about two months. Jones’ testimony, even if it could be relied upon to establish TTD liability, is too non-specific in this instance to support TTD liability beyond the initial return to work date and the two days for which it was paid thereafter. Since the surgery was for a work related condition, the initial time off would qualify for temporary total disability. The best evidence on Jones return to work is his testimony that it was late June 2015. With no more specificity than that, the ALJ awards TTD through June 15, 2015.
Order, pp. 14-15.
The Board’s Opinion affirmed this finding:
The third surgery, on Jones’ left foot, was performed on April 15, 2015. Jones testified he returned to work following this surgery in late June 2015, and worked briefly until a plant shutdown. Dr. Sanders’ report confirms the procedure was performed April 15, 2015. In his May 26, 2015 report, Dr. Fadel anticipated Jones would reach MMI for his left foot “3-4 months after surgery.” In his December 29, 2015 report, Dr. Fadel stated Jones was not yet at MMI from the April 2015 procedure on his left foot. A Claims Evaluator report prepared by Dr. Kenneth Cornell on October 5, 2015 noted Jones received a return to work note on September 11, 2015.
Regarding this period, the ALJ found, “there is no medical evidence of temporary total disability for the period of time following the third surgery, although it is clear the surgery caused him to be off work for about two months.” The ALJ stated he awarded TTD benefits for only “the initial time off period” following the third surgery, and ended the award on June 15, 2015. The above cited evidence supports the ALJ’s conclusion that Jones remained off work due to the third surgery until at least June 15, 2015. It is noted that Ford did not file any wage records to dispute the dates of Jones’ off-work period following the April, 2015 surgery, or to suggest he was off work for an unrelated reason.
Opinion, pp. 9-10.
Ford again claims the ALJ acted unreasonably by making this factual finding. Ford argues the ALJ’s factual finding is merely speculative and that the Board’s opinion “sounds a lot like burden shifting.” We disagree. There is evidence of substance in the record to reasonably support this factual finding. Notably, Ford does not contest that Jones suffered from a compensable injury; indeed, Ford voluntarily paid TTD benefits for two days in the months following Jones’s surgery. Regarding this surgery, Ford’s independent medical examiner stated that “[a]bsent any complications I would anticipate MMI on the left 3-4 months after surgery[,]” which would put MMI around September or October of 2015. Nonetheless, it is undisputed that Jones returned to work in less time, sometime in late June, 2015. Thus, Jones had neither reached MMI nor been released to work until sometime in late June, the two elements necessary for TTD.
Rather than speculate what date “late June” constituted, the ALJ decided to cease the TTD period on June 15, 2015. By doing so, the ALJ was not speculating or burden shifting. Quite the opposite; picking the middle of June was an implicit finding that Jones did not prove his case with sufficient specificity to be entitled to TTD benefits up and until whatever date “late June” was.
Accordingly, as there was evidence of substance that the ALJ could reasonably rely upon to make this factual finding, Ford has failed its burden on appeal to have this factual finding overturned. We affirm on this issue.
C. September
13, 2015 – December 16, 2015.
Regarding this time period, the ALJ found:
Jones’ fourth surgery was September 13, 2015. The ALJ relies on the assignment of MMI by Jones’ evaluator, Dr. Barefoot, to find he is entitled to TTD from the date of surgery through December 16, 2015. (The alternative finding would be an interlocutory award of TTD given that the Defendant’s evaluator, Dr. Fadel, said Jones was not at MMI when evaluated on December 29, 2015.)
Order, p. 15.
The Board affirmed in part and reversed and remanded in part on this finding:
Jones’ fourth surgery, on his right foot, was performed on September 13, 2015. He testified he returned to work with restrictions on November 20, 2015, as a floater. He explained that he specifically asked Dr. Sanders to release him without restrictions, so that he would not be placed on a “no work available” status, which had occurred following his earlier surgeries. Jones visited Urgent Care on December 12, 2015 to receive a shot, and the attending physician recommended he remain off work for two days to allow the swelling to go down. According to Jones, Ford did not accept this off-work prescription and suspended him for thirty days, beginning on December 13, 2015. Dr. Barefoot opined Jones reached MMI following this surgery on December 16, 2015. In his December 29, 2015 report, Dr. Fadel stated Jones was not yet at MMI from or [sic] the September 2015 procedure on his right foot.
The ALJ awarded TTD benefits from the date of the September 13, 2015, surgery through December 16, 2015, noting this was the date Dr. Barefoot placed Jones at MMI. However, Jones had returned to work on November 20, 2015 as a floater. Therefore, we must vacate the award of TTD benefits from November 20, 2015 through December 16, 2015, and remand this claim to the ALJ to determine whether Jones is entitled to TTD benefits during this period when he had not reached MMI but had returned to full-time duty at Ford. This decision is a question of fact, which this Board is not authorized to resolve. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). On remand, the correct inquiry is whether Jones’ work as a floater constitutes “work within [his] physical restrictions and for which [he] has the experience, training, and education.” Trane Commercial Systems v. Tipton, 481 S.W.3d 800 (Ky. 2016).
Opinion, pp. 10-11.
On this last TTD period, Ford argues that the ALJ only made the factual finding regarding MMI and failed to make the factual finding regarding whether Jones was restricted from working during this period. Notably, the Board affirmed the ALJ’s order in part and reversed and remanded in part because Jones had returned to work on November 20, 2015 as a floater. On appeal, Jones maintains that he is entitled to TTD but does not dispute that reversal and remand is appropriate for the November 20 through December 16 dates. Ford, on the other hand, maintains that Jones provided no evidence of substance that he was restricted from work during any of the dates, and thus that Jones was not entitled to any compensation for TTD. Jones responds that he did not put into evidence the off-work notes from the doctors because he had already provided them directly to Ford. He notes that he testified regarding his off-work dates at the two hearings held below, and Ford never objected to any of this testimony.
Unlike the previous TTD periods, which each had some record evidence other than Jones’s own testimony of a doctor placing Jones on work restrictions, it does not appear that any such evidence exists for the instant time period. There is, however, evidence of substance to support the fact that Jones had surgery on September 13, 2015, and that Jones returned to work on November 20, 2015. Jones’s own uncontested testimony regarding this period was thus:
Q. Okay. Then did you go off work again in September of 2015?
A. Yes. I did
Q. And, how long were you off for that time?
A. I was off up until November.
Q. All right. Do you remember when in November?
A. I was supposed to go back November the 27th, after Thanksgiving in 2015, but I was – what I had told the doctor, I couldn’t get paid until – my lights and things were getting cut off. So, November 20th, I went back to the doctor and told him – I asked him, could he take me off restrictions so I could – so I could get back to work.
Q. Okay. And that’s when you went back to work?
A. Yes. It was.
(Hearing, March 25, 2016, pp. 14-15).
This testimony is unrefuted and comprises the requisite substantial evidence. “Although causation and the date of MMI are medical questions, a worker’s testimony may provide adequate support for a finding concerning his inability to work at a particular point in time.” Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 61 (Ky. 2012) (citing Hush v. Abrams, 584 S.W.2d 48 (Ky. 1979); Carte v. Loretto Motherhouse Infirmary, 19 S.W.3d 122 (Ky. App. 2000)). Here, causation is not contested on appeal, and there is medical proof of MMI. Thus, “the bodily condition has been established, [and] lay testimony may be competent on the question of the extent of the disability that has resulted from the bodily condition.” Walker v. Porter Product finishers, Division of Porter Paint Co., 505 S.W.2d 178, 180 (Ky. 1974) (citing Baier v. B.G. Schnell, 323 S.W.2d 587, 590 (Ky. 1959)). Accordingly, Jones’s unrefuted testimony that he was unable to work following the surgery is evidence of substance about which the ALJ could reasonably rely. Thus, the ALJ did not err by awarding TTD benefits during this period.
However, because Jones agrees with the Board’s opinion that the ALJ’s order should be reversed and remanded for further proceedings regarding the November 20, 2015-through-December 16, 2015 time period, we will affirm the Board’s opinion in toto on the three contested TTD periods and affirm the Board’s decision to reverse and remand the ALJ’s order for further factual findings on the November 20-through-December 16 period.
II. Three multiplier.
Ford next argues that the ALJ’s decision to apply the three multiplier of KRS 342.730(1)(c)1 is not based on substantial evidence. Pursuant to the statutory scheme, once a PPD is identified and its income benefit calculated pursuant to KRS 342.730(1)(b), an ALJ must determine if the benefit should be multiplied under KRS 342.730(1)(c). The multiplier the ALJ applied in the instant case is from KRS 342.730(1)(c)1. That section provides that if, due to the injury, the “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 [PPD] shall be multiplied by three (3) times . . . .” Whether to grant the three multiplier is driven by three essential factual findings: (1) can the claimant return to the type of work performed when injured; (2) will the claimant’s average weekly salary when he or she returns to work be equal to or greater than his or her pre-injury wage; and (3) can the claimant continue to earn those wages for the indefinite future. Toyota Motor Manufacturing, Kentucky, Inc. v. Tudor, 491 S.W.3d 496, 504 (Ky. 2016); Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003). If factual findings one and two are “no” and “yes” answers respectively, then whether to grant the three multiplier turns on the third question. Id.
In the instant case, the ALJ made the three necessary factual findings to award the three multiplier: (1) Jones cannot return to the same work he performed pre-injury; (2) Jones’s average weekly salary is equal to or greater than his pre-injury wage; and (3) Jones cannot continue to earn those wages for the indefinite future because he is only currently working as a floater due to financial necessity, he is only able to continue working if he receives hot compresses for his foot throughout the work day, he is only receiving work because he asked his doctor to take him off of restrictions so Ford would employ him, and he does not believe he can continue working at Ford for the indefinite future and is looking for employment elsewhere due to the foot pain.
Ford claims the ALJ’s finding that Jones cannot continue earning the same or greater wages in the indefinite future is speculative and not supported by the evidence. Ford notes that it “has more than displayed [its] willingness to work with Appellee over this extended period, and application of the three multiplier under these circumstances simply eviscerates the whole purpose behind the multiplier – to encourage employers to keep employees employed at a same or greater wage.” Aplt’s Brf. at 19. Ford argues that Jones failed to establish any “concrete evidence” regarding his future wages. Having thoroughly reviewed the record in light of the established standard of review, we disagree, as Jones’s evidence is both concrete and non-speculative; in other words, it satisfies the substantial evidence standard.
“‘[S]ubstantial evidence’ means evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.” Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998) (citations omitted). See also Cepero v. Fabricated Metals Corp, 132 S.W.3d 839, 842 (Ky. 2004). This standard require us to affirm the ALJ’s decision if the factual finding was reasonable under the evidence presented. James T. English Trucking, 375 S.W.3d at 70 (citations omitted).
Here, Jones proffered sufficient evidence that his condition would affect his future wages. Though Jones was making as much or more in average weekly wages as he did prior to his injury, Jones testified that he was only receiving work because his doctor had removed his work restrictions. Removal of the restrictions, though, did not change the fact that Jones was struggling to make it through his work days. Jones was still receiving hot compresses during his employment hours. He also must work a different job than he did prior to the injury. Jones credibly testified that he was only working out of financial necessity and that he would be unable to continue to work at Ford in the future.
Medical expert reports provided further evidence that Jones’s tenure as a Ford assembly worker is not likely to be a long-standing endeavor. Even Ford’s independent medical examiner opined that Jones’s condition would be potentially exacerbated by his work activity and that weight-bearing activity may result in symptoms.
To that end, Jones’s case is similar to Fawbush. There, the claimant was unable to return to his previous job and had taken another job where he made the same or greater wages than his pre-injury job. Nonetheless, the claimant was entitled to the three multiplier because his “post-injury work was done out of necessity, was outside his medical restrictions, and was possible only when he took more narcotic pain medication than prescribed. It is apparent, therefore, that he was not likely to be able to maintain the employment indefinitely.” 103 S.W.3d at 12.
Here, Jones testified that he is working out of necessity, that he had to have his medical restrictions removed in order to receive work, and that the only way he can work his shift is to receive hot compresses on his feet. He credibly testified that based on the pain and the type of work, he will have to quit his employment at Ford at some point in the near future.
We are mindful that Ford has displayed its willingness to work with Jones, to accommodate him, and to permit Jones to continue to make the same or greater wages. We are also mindful that Jones has continued to attempt to earn a living in spite of his foot injuries. Nothing about this opinion should serve to dissuade either Ford or Jones, or other similarly-situated parties, from acting precisely as these parties have acted. These facts permit an ALJ to find both against and in favor of the three multiplier. Ford, in following the spirit and letter of the worker’s compensation law by keeping Jones employed at or above his pre-injury wage, has put itself into the best position possible to avoid the three multiplier. And Jones, by continuing to try to work and earn wages, lent credibility to his assessment of his injuries and the future toll they will take on his ability to remain employed.
Each side makes convincing arguments and presents evidence of substance to support granting or denying the three multiplier. Given that our review on this issue is simply for whether substantial evidence exists to support the ALJ’s factual finding, and given that evidence exists to reasonably support both positions, we necessarily find no error with the ALJ’s decision. Accordingly, we affirm the Board’s opinion and the ALJ’s order on this issue.
CONCLUSION
Jones suffered a foot-related injury while employed at Ford. Ford has raised two issues before us; we affirm the Board’s opinion on both issues. First, we affirm the Board’s opinion on the ALJ’s award of TTD benefits, including the partial reversal and remand for further factual findings regarding the November 20, 2015-through-December 16, 2015 time period. Second, we affirm the Board’s opinion affirming the ALJ’s order on the three multiplier.
ALL CONCUR
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BRIEF FOR APPELLANT: George T. T. Kitchen, III Louisville, Kentucky |
BRIEF FOR APPELLEES: Nicholas Murphy Louisville, Kentucky |
