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200-CA-00(NP)

RENDERED:  MAY 5, 2017; 10:00 A.M.

NOT TO BE PUBLISHED

 

Commonwealth of Kentucky

Court of Appeals

 

NO. 2016-ca-001334-WC

 


 

Dr. Larry w. lynn                                                               APPELLANT

 

 

 

                           PETITION FOR REVIEW OF A DECISION

v.                   OF THE WORKERS’ COMPENSATION BOARD

                                        ACTION NO. WC-09-82990

 

 

 

DOTTIE RAMEY; HON. STEVEN G. BOLTON,

ADMINISTRATIVE LAW JUDGE; AND WORKERS’

COMPENSATION BOARD                                                         APPELLEES

 

 

 

OPINION

AFFIRMING

 

** ** ** ** **

 

BEFORE:  COMBS, MAZE AND STUMBO, JUDGES.

STUMBO, JUDGE:  Dr. Larry W. Lynn appeals from an Opinion of the Workers’ Compensation Board affirming the Administrative Law Judge’s award of the three multiplier and the denial of a Petition for Reconsideration.  Dr. Lynn argues that the Board erred in affirming Administrative Law Judge (“ALJ”) Bolton’s analysis under Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003).  For the reasons addressed below, we find no error and AFFIRM the Opinion on appeal.

                   The matter before us has an extensive procedural history, including five Opinions of various Administrative Law Judges, consideration by the Workers’ Compensation Board on three occasions, and one prior appeal to this Court.  In the interest of judicial economy, and as the parties are well aware of the route this matter has taken to this second appeal, we will confine our recitation of the facts and procedural history to those matters which are relevant to the disposition of the issues before us.[1]

                   On July 27, 2010, Dottie Ramey filed a Form 101 Application for Resolution of Injury Claim alleging that she was injured on January 13, 2009, during the course of her employment with Appellant, Dr. Larry W. Lynn, in Pike County, Kentucky.  Ramey claimed that while mopping a floor, she began to fall, tried to catch herself and in the process injured both shoulders, her back, left hip and both knees.  Ramey also alleged an emotional or psychological injury.

                   On March 25, 2011, ALJ Joseph Justice rendered an Opinion, Award and Order on Reconsideration imposing the Kentucky Revised Statute (KRS) 342.730(1)(c)1 three multiplier.  Lynn appealed to the Workers’ Compensation Board (“the Board”), which rendered an Opinion finding that the ALJ did not fully explicate the basis for his decision to award the three multiplier.  Ramey prosecuted an appeal to a panel of this Court.  That panel rendered an Opinion sustaining the Board’s Opinion but remanding the matter to ALJ Steven Bolton[2] for consideration of the three-multiplier issue.

                   After considering the matter, on February 20, 2014, ALJ Bolton rendered an Order on Remand finding that Ramey was entitled to the three multiplier.  A subsequent Petition for Reconsideration was overruled.

                   Lynn appealed to the Board, which again remanded the matter to ALJ Bolton with directions to consider the extent to which Ramey is capable of working in a sedentary capacity each week.  On November 9, 2015, ALJ Bolton rendered a Second Order on Remand finding that Ramey is entitled to the three multiplier pursuant to KRS 342.730(1)(c)1, and Lynn’s Motion for Reconsideration was denied.

                   On January 9, 2016, Lynn again appealed to the Board.  He argued that the ALJ erred in finding that Ramey “is not physically and mentally able to perform any services for another in return for remuneration on a regular and sustained basis[.]”  Lynn asserted that the ALJ’s analysis pursuant to Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003), was not supported by substantial evidence, and he sought a remand to the ALJ with instructions to enter an award based on the two multiplier.

                   On August 12, 2016, the Board rendered an Opinion affirming the ALJ’s November 9, 2015 Second Order on Remand.  The Board found that the ALJ satisfied its directive on remand to “determine whether Ramey can return to regular employment at the same or greater wages than she earned at the time of the injury.”[3]  It further concluded that this determination was supported by the record.  This appeal followed.

                   Lynn now argues that the Board erred in affirming ALJ Bolton’s Fawbush analysis on remand.  After directing our attention to the distinction between the two multiplier and three multiplier as set out in Fawbush, Lynn contends that the ALJ’s Fawbush analysis is not supported by the evidence and is erroneous as a matter of law.  Lynn goes on to accuse ALJ Bolton of duplicity by alleging that “out of one side of his mouth, Judge Bolton pays lip service to the fact that he cannot conclude that Ramey is permanently and totally disabled, while out of the other side of his mouth, he seeks to support his Fawbush analysis by concluding that Ramey is not able to perform sedentary work on a regular and sustained basis[.]”  The focus of his argument is that ALJ Bolton improperly concluded that Ramey is not physically or mentally capable of performing sedentary work and that such a conclusion is contrary to the record and the law.

                   The ALJ is vested with the sole discretion to determine the quality, character and substance of the evidence, and may accept one portion of a witness’s testimony while rejecting another portion.  Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985).  An appellate tribunal may reverse the determination below only when the ALJ has overlooked or misconstrued controlling law or so flagrantly erred in evaluating the evidence that it has caused a gross injustice.  Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).  As Ramey was the prevailing party below, Lynn must establish on appeal that the evidence was so overwhelming as to compel a ruling in his favor.  Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).                                    

                   In the Second Order on Remand, ALJ Bolton determined as follows:

“However, even taking into account defendant’s clever argument based upon a calculation of minimum level wages close to those previously earned by the plaintiff, I do conclude from the evidence that she would have great difficulty maintaining continuous, stable employment consistently over a period of time.”

                   In his Order Denying Petition for Reconsideration rendered on January 5, 2016, ALJ Bolton went on to state,

     My analysis at pages 10-12 is limited to whether she would qualify for a statutory “2” or “3” multiplier.  Based upon her inability to perform the work duties of her position at Dr. Lynn’s office without significant and ongoing accommodation of her restrictions, I did not believe, based upon the evidence, that she retained the physical capacity to return to the type of employment performed at the time of injury.  Recognizing that in this somewhat unique fact situation, the Plaintiff did return to work at a weekly wage equal to the average weekly wage at the time of injury, I also noted that she was not performing the same job functions, but rather was being induced by the employer to stay on for an indeterminate period of time in order to take advantage of her specialized knowledge of his office and its procedures.  As I clearly stated, I also believe from the evidence that the Plaintiff could not continue to earn a wage that equaled or exceeded her pre-injury wages.  (Emphasis added).

 

                   KRS 342.730(1)(c)1 states,

If, due to an injury, an 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 permanent partial disability shall be multiplied by three (3) times the amount otherwise determined under paragraph (b) of this subsection, but this provision shall not be construed so as to extend the duration of payments.

 

                   In concluding that Ramey did not possess the physical and emotional capacity to return to the type of employment performed at the time of injury, ALJ Bolton relied on several witnesses of record.  Drs. Johnson and Ruth diagnosed Ramey with psychological conditions that would actively impair her ability to function even in a sedentary setting.  Dr. Nadar diagnosed Ramey with work-related chronic back pain, and placed restrictions on her so comprehensive that ALJ Bolton determined that Ramey could not perform even sedentary duties on a permanent basis.  Additionally, Ramey’s own testimony regarding the nature of her injuries and inability to work was uncontroverted.  Based on the foregoing, ALJ Bolton concluded that Ramey did not retain the physical or psychological capacity to return to full time sedentary work.

                   In considering the ALJ’s Second Order on Remand and subsequent Order Denying Petition for Reconsideration, the Board determined that the ALJ “amply satisfied our request on remand” for findings in support of its conclusion.  Because the ALJ’s findings of fact and conclusions of law amply support the record from both the lay and expert medical testimony, and as Lynn has not established that the evidence was so overwhelming as to demand a ruling in his favor, we find no error.

                   For the foregoing reasons, we AFFIRM the August 12, 2016 Opinion of the Workers’ Compensation Board.

                   ALL CONCUR.

BRIEF FOR APPELLANT:

 

James G. Fogle

Louisville, Kentucky

BRIEF FOR APPELLEE DOTTIE RAMEY:

 

John Earl Hunt

Allen, Kentucky

 

 

 



[1] A comprehensive, thirty-page restatement of the procedural history is found in the Board’s August 12, 2016 Opinion, and from which Dr. Lynn now appeals.

[2] When the case was remanded, ALJ Justice was no longer serving as an ALJ and the claim was reassigned to ALJ Bolton.

[3] Board’s Opinion rendered January 9, 2015.