*/
Workers’
Compensation Board
OPINION
ENTERED: March 3, 2017
CLAIM NO. 201564134
LAUREL CREEK HEALTH CARE CENTER PETITIONER
VS. APPEAL FROM HON. STEPHANIE KINNEY,
ADMINISTRATIVE LAW JUDGE
AILENE FRYMAN
and HON. STEPHANIE KINNEY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Laurel Creek Health Care Center (“Laurel Creek”) seeks review of the August 31,
2016, Opinion, Award, and Order of Hon. Stephanie Kinney, Administrative Law
Judge (“ALJ”) finding Ailene Fryman (“Fryman”) sustained a work-related low
back injury and awarding temporary total disability (“TTD”) benefits, permanent
partial disability (“PPD”) benefits enhanced by the multipliers contained in
KRS 342.730(1)(c)1, and medical benefits.
Laurel Creek also appeals from the December 1, 2016, Order ruling on its
petition for reconsideration.
In her Form 101, Fryman alleged an October 19, 2015, injury
occurred when she was “lifting a patient up in a bed and felt her back pull,
causing her injury.” She alleged low
back and bladder injuries.
The parties introduced records from Manchester Memorial
Hospital regarding Fryman’s treatment on the date of the injury, the medical
records of Willowcreek Women’s Center (“Willowcreek”) concerning Fryman’s
treatment prior to and after the injury, and the records from London Women’s Care
regarding Fryman’s past treatment.
Fryman introduced the March 29, 2016, Form 107 prepared by
Dr. Arthur Hughes. Dr. Hughes assessed a
10% impairment rating for pelvic organ prolapse and urinary incontinence and a
3% impairment rating for low back pain resulting in a combined 13% permanent
impairment pursuant to the 5th Edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”).
Laurel Creek introduced the May 3, 2016, report of Dr.
Ellen Ballard who assessed a 5% impairment pursuant to the AMA Guides
for the lumbar strain sustained on October 19, 2015. It also introduced Dr. Ballard’s July 20,
2016, report in which she expressed the opinion there was no causal
relationship between the October 19, 2015, work incident and Fryman’s
gynecological condition, including the hysterectomy she underwent in November
2015.
The July 14, 2016, Benefit Review Conference Order and Memorandum reflects the parties
stipulated Fryman sustained a work-related lumbar injury on October 19,
2015. Laurel Creek disputed all other
injuries. The parties also stipulated
TTD benefits were paid during the period from October 20, 2015, through November
20, 2015. The contested issues were as
follows: “benefits per KRS 342.730 (multipliers, PTD, PPD);
work-relatedness/causation; unpaid or contested medical expenses; injury as
defined by the ACT; exclusion for pre-existing disability/impairment; and
TTD.”
Fryman testified at a May 9, 2016, deposition and at the
July 26, 2016, hearing.
In the August 31, 2016, Opinion, Award, and Order, relying
on Dr. Ballard’s opinions, the ALJ determined the uterine prolapse and
hysterectomy were not the result of the work injury. Relying on Dr. Ballard’s opinions, the ALJ
found Fryman sustained a 5% impairment rating for her low back condition
resulting from the work injury. The ALJ provided the following findings of fact
and conclusions of law:
The ALJ must now determine the appropriate
impairment rating for Plaintiff’s low back.
Two physicians have weighed in on this issue and each assessed a
permanent impairment rating in a different manner. Dr. Hughes assessed a 3% impairment rating
using Chapter 18 of the AMA Guides, 5th
Ed. Essentially, Dr. Hughes chose to
assess an impairment rating using the pain model, rather than using the DRE
model for the lumbar spine. Conversely,
Dr. Ballard assessed an impairment rating utilizing the DRE Lumbar Category
II. This ALJ believes Plaintiff’s
impairment rating is best encapsulated within the confines of DRE Lumbar
Category II. As such, this ALJ concludes
and finds Plaintiff retains a 5% whole person impairment rating for her low
back, relying on Dr. Ballard.
The ALJ enhanced Fryman’s PPD benefits by the three
multiplier providing the following findings of fact and conclusions of law:
Next, the ALJ must determine whether
Plaintiff retains the physical capacity to perform her pre-injury job duties,
based solely upon her lumbar injury. Plaintiff does not feel capable of
returning to her pre-injury job duties based upon her bladder and uterine
prolapse issues and low back symptoms.
Dr. Ballard noted Plaintiff should lift no more than 30 pounds following
the hysterectomy. Dr. Ballard also pointed out restrictions for Plaintiff’s low
back would be limited if she underwent an FCE.
This seems to indicate Dr. Ballard was not of the opinion that Plaintiff
was restriction-free with regards to her low back. Dr. Hughes recommended Plaintiff avoid
repetitive bending and twisting of the low back, imposed a significant lifting
restriction and opined Plaintiff would need to rotate between sitting and
standing. Plaintiff has not returned to her work as a CNA since the work
injury. Based upon Plaintiff’s testimony and the medical opinions of Drs.
Ballard and Hughes, this ALJ finds Plaintiff does not retain the physical
capacity to perform her pre-injury work. Plaintiff’s permanent partial
disability benefits are calculated as follows:
$454.87 x 66&2/3 x 5% x
.65 (grid factor) x 3.2 (multiplier) = $33.52/week
The ALJ awarded TTD benefits spanning the
period from October 20, 2015, through March 3, 2016, providing, in relevant
part, the following findings of fact and conclusions of law:
The parties have stipulated to an injury to Plaintiff’s lumbar
spine. This ALJ must now address whether
Plaintiff is entitled to any temporary total disability benefits for her lumbar
injury. This ALJ notes the Defendant
paid temporary total disability benefits from October 20, 2015 through November
20, 2015 at the rate of $300.01/week.
KRS 342.0011(11)(a) defines “temporary total disability” to mean
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.
. . .
When a claimant has not reached MMI, TTD benefits are payable
until such time as the claimant’s level of improvement permits a return to the
type of work he was customarily performing at the time of the traumatic event. This
test was reinforced in the recent holding by the Kentucky Supreme Court in Livingood
v. Transfreight, LLC, 467 S.W.3d 249 (Ky. 2015). The holding in Livingood,
supra, was further explained in Trane Commercial Systems v. Tipton,
481 S.W.3d 800
(Ky. 2016), where the Court stated:
[i]t
is also not reasonable, and it does not further the purpose for paying income
benefits, to pay TTD benefits to an injured employee who has returned to
employment simply because the work differs from what she performed at the time
of injury. Therefore, absent
extraordinary circumstances, an award of TTD benefits is inappropriate if an
injured employee has been released to return to customary employment, i.e. work within her physical
restrictions and for which she has the experience, training, and education; and
the employee has actually returned to employment. Id.
(Emphasis Added.)
This ALJ finds Plaintiff reached maximum medical improvement on
May 3, 2016, relying on the opinion of Dr. Ballard. The ALJ recognizes and notes Dr. Hughes’
opinion that Plaintiff had not reached maximum medical improvement, but
ultimately I do not find it to be persuasive. Dr. Hughes noted Plaintiff has
not received any treatment for her ongoing low back pain and this was the
premise on which he placed his opinion pertaining to maximum medical
improvement. However, Plaintiff had received treatment for her low back injury.
She presented to the emergency room on the date of the work injury. Lumbar
x-rays were obtained and Plaintiff was advised to follow up with her primary
care physician. However, her low back treatment fell by the wayside as
Plaintiff continued to have problems associated with the uterine prolapse,
eventually having surgery and undergoing a total hysterectomy less than a month
later. However, Plaintiff had further treatment for her low back when she
underwent a lumbar MRI on March 21, 2016. Considering Plaintiff’s past
treatment for her low back, this ALJ finds Plaintiff reached maximum medical
improvement on May 3, 2016, relying on Dr. Ballard.
The second prong the ALJ must address while determining whether
an injured workers is entitled to temporary total disability benefits is
whether or not she retained the physical capacity to return to customary work.
The ALJ notes Plaintiff did not return to work with the Defendant following the
October 19, 2015, work injury. However, the ALJ must review Plaintiff’s
capacity to perform her customary work based solely upon her low back condition
given that the uterine prolapse has not been found to be work-related by the
undersigned.
It is obvious Plaintiff had severe low back pain immediately
following the work accident which prompted treatment at the emergency room. She
was diagnosed by the treating physician to have acute low back pain, chronic
osteoarthritis and stress urinary incontinence.
Plaintiff did not undergo a lumbar MRI until approximately 5 months later,
all the while she remained off work and did not feel capable of returning to
her job as she could not perform the lifting requirements. Based on Plaintiff’s
inability to perform heavy lifting, pertaining only to her low back, this ALJ
finds Plaintiff was unable to perform her customary work prior to reaching
maximum medical improvement on May 3, 2016. Plaintiff will therefore be awarded
temporary total disability benefits for the October 19, 2015, low back injury
from October 20, 2015 through May 3, 2016 at the rate of $303.25/week.
Laurel Creek filed a petition for
reconsideration referencing a typographical error, taking issue with the ALJ’s
enhancement of Fryman’s benefits by the three multiplier, and the award of TTD
benefits. Significantly, Laurel Creek
did not request additional findings of fact as to either issue but requested
the ALJ reconsider her findings and deny TTD benefits and enhanced PPD
benefits.
In the December 1, 2016, Order, the ALJ
amended the award in order to correct the typographical error but denied the
remainder of the petition for reconsideration as a re-argument of the
merits.
On appeal, Laurel Creek asserts there is
no medical evidence establishing Fryman was temporarily totally disabled due to
her back condition. Laurel Creek
contends the records of Manchester Memorial Hospital do not support an award of
TTD benefits as Fryman’s ability to work was not addressed and she was not
given work restrictions when she was seen on the date of the injury. It maintains the records of Willowbrook, with
the exception of the October 22, 2015, office note, only address Fryman’s
gynecological condition which the ALJ determined not to be work-related. Willowbrook contends there are no treatment
records of a physician assessing work restrictions for Fryman’s back problems
beyond the four days following the work injury.
Further, there are no records that Fryman sought medical treatment for
her back following the emergency room visit aside from the one visit to her gynecologist
at Willowcreek. Laurel Creek contends
the reports of Drs. Hughes and Ballard are independent medical evaluation
reports and not for treatment; thus, they do not support an award of TTD
benefits.
Although the ALJ cited Ballard’s report in awarding TTD benefits, Laurel
Creek contends a close reading of that report reveals Dr. Ballard did not
express the opinion Fryman reached maximum medical improvement (“MMI”) on the
date she saw her. Rather, Dr. Ballard
responded “yes” to the question whether Fryman had reached MMI for all conditions
related to the October 19, 2015, work injury.
It contends a response of yes does not mean Fryman reached MMI on the
date Dr. Ballard examined her; rather, the meaning is Fryman attained MMI at
some point prior to that date.
Laurel Creek also maintains Dr. Hughes’ report does not support an award
of TTD benefits as the ALJ rejected his opinion Fryman’s back condition had not
reached MMI. Since Fryman’s testimony is
not sufficient to support the award of TTD benefits, the award of TTD benefits
is not supported by substantial evidence and should be reversed.
Next, Laurel Creek argues Fryman is not
entitled to PPD benefits enhanced by the multipliers since there is no
physiological reason she cannot return to the job she performed at the time of
the work injury. It posits Fryman’s
impairment rating is minor and the treating physicians did not place her on
restrictions due to her back condition.
Laurel Creek insists Dr. Ballard did not assess work restrictions as a
result of the lumbar strain. Thus, it
argues the only evidence supporting a finding is Fryman’s testimony and Dr.
Hughes’ statement that she should avoid repetitive bending and twisting of the
low back. Since there is no testimony
Fryman’s job required repetitive bending and twisting, it argues Dr. Hughes’
restrictions pertaining to repetitive bending and twisting have no impact on
this issue.
Laurel Creek argues Fryman’s testimony
should be disregarded as it is grounded in self-serving financial reasons. Therefore, the ALJ’s finding Fryman does not
possess the physical capacity to return to the type of work she was performing
at the time of the injury is not supported by substantial evidence and should
also be reversed. We disagree and
affirm.
Fryman, as the claimant in a workers’
compensation proceeding, had the burden of proving each of the essential
elements of her cause of action. See
KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (
In rendering a decision, KRS 342.285
grants an ALJ as fact-finder the sole discretion to determine the quality,
character, and substance of evidence. Square D Co. v.
Tipton, 862 S.W.2d 308 (
The function of the Board in
reviewing an ALJ’s decision is limited to a determination of whether the
findings made are so unreasonable under the evidence that they must be reversed
as a matter of law. Ira A. Watson
Department Store v.
Concerning Laurel Creek’s first
argument, KRS 342.0011(11)(a) defines temporary total disability as follows:
‘Temporary total disability’
means 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.
The
above definition has been determined by our courts of justice to be a
codification of the principles originally espoused in W.L. Harper Const.
Co., Inc. v. Baker, 858 S.W.2d 202, 205 (Ky. App. 1993), wherein the Court
of Appeals stated generally:
TTD is payable until the medical evidence
establishes the recovery process, including any treatment reasonably rendered
in an effort to improve the claimant's condition, is over, or the underlying
condition has stabilized such that the claimant is capable of returning to his
job, or some other employment, of which he is capable, which is available in
the local labor market. Moreover, . . . the question presented is one of fact
no matter how TTD is defined.
In
Central Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky. 2000), the Supreme
Court further explained that “[i]t would not be reasonable to terminate the
benefits of an employee when he is released to perform minimal work but not the
type that is customary or that he was performing at the time of his injury.”
In Magellan Behavioral Health v. Helms, 140 S.W.3d 579 (Ky. App.
2004), the Court of Appeals instructed that until MMI is achieved, an employee
is entitled to a continuation of TTD benefits so long as he or she remains
disabled from his or her customary work or the work she was performing at the
time of the injury. The court in Helms,
supra, stated:
In order to be entitled to temporary total
disability benefits, the claimant must not have reached maximum medical
improvement and not have improved enough to return to work.
. . .
The second prong of KRS 342.0011(11)(a) operates to deny
eligibility to TTD to individuals who, though not at maximum medical
improvement, have improved enough following an injury that they can return to
work despite not yet being fully recovered.
In Central Kentucky Steel v. Wise, [footnote
omitted] the statutory phrase ‘return to employment’ was interpreted to mean a
return to the type of work which is customary for the injured employee or that
which the employee had been performing prior to being injured.
In
Double L Const., Inc. v. Mitchell, 182 S.W.3d 509, 513-514 (Ky.
2005), the Supreme Court further elaborated with regard to the standard for
awarding TTD as follows:
As defined by KRS
342.0011(11)(a), there are two requirements for TTD: 1.) that the worker must
not have reached MMI; and 2.) that the worker must not have reached a level of
improvement that would permit a return to employ-ment. See Magellan Behavioral Health v. Helms, 140 S.W.3d 579, 581
(Ky. App. 2004). In the present case, the employer has made an ‘all or nothing’
argument that is based entirely on the second requirement. Yet, implicit in the
Central Kentucky Steel v. Wise, supra,
decision is that, unlike the definition of permanent total disability, the
definition of TTD does not require a temporary inability to perform ‘any type
of work.’ See KRS 342.0011(11)(c).
Central
Kentucky Steel v. Wise, supra, stands for the principle
that if a worker has not reached MMI, a release to perform minimal work rather
than ‘the type that is customary or that he was performing at the time of his
injury’ does not constitute ‘a level of improvement that would permit a return
to employment’ for the purposes of KRS 342.0011(11)(a). 19 S.W.3d at 659.
In Trane Commercial Systems v.
Tipton, 481 S.W.3d 800 (Ky. 2016), the Kentucky Supreme Court provided the
following clarification regarding the standard to be applied in determining
when an employee has not reached a level of improvement that would permit “a
return to employment”:
We take this opportunity to further
delineate our holding in Livingood, and to clarify what standards the
ALJs should apply to determine if an employee "has not reached a level of
improvement that would permit a return to employment." KRS
342.0011(11)(a). Initially, we reiterate that "[t]he purpose for awarding
income benefits such as TTD is to compensate workers for income that is lost
due to an injury, thereby enabling them to provide the necessities of life for
themselves and their dependents." Double L Const., Inc., 182 S.W.3d
at 514. Next, we note that, once an injured employee reaches MMI that employee
is no longer entitled to TTD benefits. Therefore, the following only applies to
those employees who have not reached MMI but who have reached a level of
improvement sufficient to permit a return to employment.
As we have previously held, "[i]t
would not be reasonable to terminate the benefits of an employee when he is
released to perform minimal work but not the type [of work] that is customary
or that he was performing at the time of his injury." Central Kentucky
Steel v. Wise, 19 S.W.3d at 659. However, it is also not reasonable, and it
does not further the purpose for paying income benefits, to pay TTD benefits to
an injured employee who has returned to employment simply because the work
differs from what she performed at the time of injury. Therefore, absent
extraordinary circumstances, an award of TTD benefits is inappropriate if an
injured employee has been released to return to customary employment, i.e. work
within her physical restrictions and for which she has the experience,
training, and education; and the employee has actually returned to employment.
We do not attempt to foresee what extraordinary circumstances might justify an
award of TTD benefits to an employee who has returned to employment under those
circumstances; however, in making any such award, an ALA must take into
consideration the purpose for paying income benefits and set forth specific
evidence-based reasons why an award of TTD benefits in addition to the
employee's wages would forward that purpose.
Id. at 807.
The
October 19, 2015, Manchester Memorial Hospital records reveal Fryman’s
complaints included lumbar back pain.
The diagnosis included acute low back pain and Fryman was given Flexril
for muscle spasms. X-rays of the lumbar
spine were also obtained.
Fryman was subsequently treated by Willowbrook. Its note of October 22, 2015, indicates
Fryman had experienced back pain three days ago. Fryman was supposed to work the next four nights
but was unsure whether she was able to do so.
Also noted was Fryman’s trouble getting in and out of bed due to
pain. The notes of November 16, 2015,
and December 2, 2015, do not reference any low back complaints and appear to
pertain to the treatment of Fryman’s gynecological problems including the
hysterectomy performed on November 17, 2015.
However, the December 30, 2015, note of Willowbrook reveals Fryman was
“doing well other than her low back.”
We agree with Laurel Creek that the
reports of Dr. Ballard do not reference any restrictions, temporary or
permanent, due to Fryman’s lumbar spine condition. However, the March 29, 2016, Form 107 of Dr.
Hughes reflects on that date Fryman continued to have low back pain which was
worse with movement and prolonged sitting.
Fryman was able to sit for fifteen minutes and could stand briefly and
sat frequently when at Wal-Mart. Fryman
experienced pain when she attempted to lift or bend over at the waist. She has difficulty getting up from chairs due
to pain. Her daughter performed much of
the housework. Dr. Hughes noted Fryman
has ongoing back pain which limits her ability to do the tasks of ordinary life
including taking care of her house and relies upon her daughter to do much of
the housework. Dr. Hughes imposed the
following restrictions:
1. The plaintiff
described the physical requirements of the type of work performed at the time
of injury as follows:
The plaintiff described the physical requirements of
the type of work performed at the time of injury as including prolonged
sitting, standing, walking, climbing, lifting, reaching, pushing, pulling,
bending, stooping and crouching.
2. Does the
plaintiff retain the physical capacity to return to the type of work performed
at the time of injury? No
Ms. Fryman has been placed on a lifting restriction
which precludes her ability to perform the work of a CNA.
3. Which
restrictions, if any, should be placed upon plaintiff’s work activities as the
result of the injury?
Ms. Fryman reports that she is on a 2 pound lifting
restriction. I suspect, which appropriate physical therapy, that the lifting
restriction can be improved or possibly eliminated but, at this time, it
prevents her from doing the work of a CNA. She should avoid repetitive bending
and twisting of the lower back. She can do jobs which will allow her to stand
and sit as needed.
Fryman testified at her deposition and at the hearing that she continues
to experience low back pain. She testified that after undergoing the
hysterectomy she still had back pain.
Fryman also testified she is unable to return to work and continues to
take Tramadol which helps somewhat. Her daughter continues to do all the
housekeeping. She stated she lifted 180 pounds or more on a daily basis at her
job. Most of the time she lifted and moved
patients by herself. She estimated she
lifted approximately half of the eighteen patients in her hall daily.
The records of Willowbrook, Fryman’s
testimony, the restrictions of Dr. Hughes, and Dr. Ballard’s assessment of MMI
at the time of her May 3, 2016, report constitute substantial evidence
supporting the award of TTD benefits.
Laurel Creek’s argument to the contrary, the ALJ was permitted to
conclude Fryman reached MMI as of May 3, 2016, when Dr. Ballard examined
her. Notably, Dr. Ballard did not
express an opinion MMI occurred prior to the date of her report. Thus, the ALJ was free to conclude Dr.
Ballard believed Fryman attained MMI as of the date she saw her. That being the case, Fryman satisfied the
first of the two prongs necessary to receive TTD benefits.
Regarding the second prong, Willowbrook’s records establish Fryman
continued to experience low back problems through December 30, 2015, when Dr.
Sink released her from treatment of her gynecological problems. Dr. Hughes’ report demonstrates Fryman
experienced substantial low back problems when he examined her on March 29,
2016. At that time, Dr. Hughes noted
Fryman had ongoing back problems which limited her abilities to do the tasks of
ordinary life including taking care of her house. She relied upon her daughter to accomplish
that chore. Dr. Hughes also noted Fryman
had problems with low back pain which was worse with movement and prolonged
sitting. He elaborated on the low back
problems Fryman was currently experiencing.
He imposed permanent physical restrictions which he opined prevented her
from performing “the work of a CNA.” Dr.
Hughes’ restrictions and opinions demonstrate Fryman’s low back condition would
not permit a return to employment as defined by the relevant case law.
Even
though the ALJ did not expressly allude to Dr. Hughes’ restrictions, she did
conclude, based on Fryman’s inability to perform heavy lifting due to her lower
back condition, she was unable to perform her customary work prior to the time
she reached MMI. Significantly, we note
the ALJ relied upon Dr. Hughes’ restrictions in concluding Fryman did not
retain the capacity to perform her job as a CNA. We believe the ALJ extended TTD benefits
beyond the date Dr. Hughes saw Fryman in reliance upon Fryman’s testimony and
the permanent restrictions of Dr. Hughes.
Thus, the second prong of KRS 342.0011(11)(a) was met by Fryman. This
finding by the ALJ is not unreasonable in light of Fryman’s testimony and the
work restrictions Dr. Hughes imposed.
Even though Laurel Creek filed a petition
for reconsideration, it did not seek additional findings of fact regarding the
award of TTD benefits. Rather, its
petition for reconsideration was a re-argument of the evidence. That being the case, we look to whether the
ALJ’s findings of fact are supported by substantial evidence. In finding Fryman was unable to perform her
customary work prior to reaching MMI, the ALJ cited her inability to perform
heavy lifting. Dr. Hughes’ restrictions
firmly support that finding.
Additionally, Laurel Creek does not contend the ALJ’s decision contains
insufficient findings of fact. Instead,
it contends Dr. Hughes’ restrictions do not constitute substantial
evidence. As previously noted, we
disagree. Dr. Hughes’ restrictions
clearly support the ALJ’s finding Fryman is no longer able to perform heavy
lifting. As noted, Fryman’s undisputed
testimony was that she lifted and moved patients weighing up to 180 pounds on a
daily basis. Since substantial evidence
supports the award of TTD benefits in conformity with the statute and
applicable case law, the award will not be disturbed.
Similarly, we find no merit in Laurel Creek’s second argument asserting
the ALJ erred in enhancing Fryman’s benefits by the three multiplier contained
in KRS 342.730(1)(c)1. In Trane Commercial Systems v. Tipton, supra, the
Kentucky Supreme Court stated as follows: “To determine if an injured employee
is capable of returning to the type of work performed at the time of the
injury, an ALJ must consider whether the employee is capable of performing “the
actual jobs that the individual performed.” 481 S.W.3d 800, 804 (Ky. 2016) quoting Ford Motor Co. v. Forman,
142 S.W.3d 141, 145 (Ky. 2004). In Forman,
the issue was whether the ALJ erred in equating a claimant’s collectively
bargained for job classification with the “type of work” as used in KRS
342.730(1)(c)1. The Court concluded “the
type of work that the employee performed at the time of the injury” as used in
the statute means “the actual jobs that the individual performed.” Id.
at 145. The required analysis must determine “what job(s) the claimant
performed at the time of injury and to determine from the lay and medical
evidence whether she retains the physical capacity to return to those jobs.” Id.
Fryman’s testimony establishes she regularly lifted and moved patients
weighing 180 pounds or more on a daily basis.
She was required to lift and bath patients and assist them in getting
out of bed. She also testified she performed these tasks at least nine times
each day. Fryman testified she did not
retain the ability to return to work because of the difficulty she experiences
in lifting.
When the issue is the claimant’s ability
to labor and the application of the three multiplier, it is within the province
of the ALJ to rely on the claimant’s self-assessment of her ability to perform
her prior work. See Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48
(Ky. 2000); Carte v. Loretto Motherhouse Infirmary, 19 S.W.3d 122 (Ky.
App. 2000). We have consistently held
that it remains the ALJ’s province to rely on a claimant’s self-assessment of
her ability to labor based on her physical condition. Hush v. Abrams,
584 S.W.2d 48 (Ky. 1979).
Fryman’s testimony alone constitutes
substantial evidence supporting the ALJ’s determination to enhance her benefits
by the three multiplier. In addition,
the restrictions imposed by Dr. Hughes and his opinion Fryman does not have the
ability to perform the work of a CNA constitute substantial evidence supporting
enhancement of Fryman’s benefits by the three multiplier. The ALJ’s decision to apply the three
multiplier pursuant to KRS 342.730(1)(c)1 is supported by substantial evidence
in the record; therefore, it may be not set aside on appeal. Special Fund v.
Francis, supra.
Accordingly, the August 31, 2016,
Opinion, Award, and Order and the December 1, 2016, Order of the Administrative
Law Judge are AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON RODNEY J MAYER
600 E MAIN ST STE 100
LOUISVILLE KY 40202
COUNSEL
FOR RESPONDENT:
HON MCKINNLEY MORGAN
921 S MAIN ST
LONDON KY 40741
ADMINISTRATIVE
LAW JUDGE:
HON STEPHANIE KINNEY
657 CHAMBERLIN AVE
FRANKFORT KY 40601
