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July 14, 2017 201171798

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED: July 14, 2017

 

 

CLAIM NO. 201171798

 

 

U.S. SMOKELESS TOBACCO CO./

ALTRIA INC.                                    PETITIONER

 

 

 

VS.          APPEAL FROM HON. GRANT S. ROARK,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

HERALD CLINE

and HON. GRANT S. ROARK,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

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

 

STIVERS, Member. U.S. Smokeless Tobacco Co/ Altria Inc. (“U.S. Smokeless”) appeals from the February 16, 2017, Opinion on Remand of Hon. Grant S. Roark, Administrative Law Judge (“ALJ”) enhancing Herald Cline’s (“Cline”) income benefits by the three multiplier after performing the required analysis pursuant to Fawbush v. Gwinn, 107 S.W.3d 5 (Ky. 2003) as directed by this Board and the Kentucky Court of Appeals.  U.S. Smokeless also appeals from the April 10, 2017, Order overruling its petition for reconsideration.

          The Form 101 asserts that on October 21, 2011, Cline sustained a work-related injury to his right hand.  In the April 28, 2014, Opinion, Award, and Order, the ALJ described the October 12, 2015, event, the resulting injury, and the effects of the injury as follows:

     On October 21, 2011, a fourteen-inch vertical pneumatic pipe on which plaintiff was working fell on his right wrist, cutting diagonally down into his palm and very nearly completely detaching his hand. Plaintiff underwent emergency medical treatment during which his hand was reattached. He returned to work in February 2012 after his first surgery. Plaintiff underwent a second surgery in in April 2012 and then returned to work a second time. Plaintiff returned to the same job he performed at the time of the incident but in a modified form.

     Under plaintiff’s current restrictions, he was unable to climb ladders or handle sharp objects. Plaintiff therefore no longer replaced blades in several of the machines. Plaintiff testified with regard to his ability to perform his other job duties. ‘Well, everything else I have to do, I just have to figure out a new way of doing it, so I’m a little slower than I once was.’ 

          Cline relied upon the opinions of Dr. Wesley Thayer who performed surgery to stabilize the wrist and repair tendons, ligaments, and nerves.  Dr. Thayer assessed a 41% impairment rating due to the right hand injury.  He concluded Cline was unable to return to the type of work performed at the time of the injury and restricted him from lifting more than two pounds and performing fine manipulations with his right hand. 

          U.S. Smokeless relied upon the 37% impairment rating of Dr. Ronald Burgess who diagnosed a “grade 2 sensory loss of the median nerve.”

          In the April 28, 2014, decision, the ALJ accepted Dr. Thayer’s impairment rating as being most accurate.  The ALJ concluded KRS 342.730(1)(c)1 was applicable as Cline did not retain the physical capacity to return to the work he was performing at the time of the injury.  Since Cline returned to work for U.S. Smokeless at an average weekly wage (“AWW”) greater than his pre-injury AWW, KRS 342.730(1)(c)2 was also applicable.  The ALJ then concluded enhancement by the three multiplier was more appropriate as Cline could not continue earning the same or greater wages for the indefinite future.  However, in reaching that conclusion the ALJ only analyzed whether Cline could continue to work for U.S. Smokeless at the same or greater AWW that he was earning at the time of the injury. U.S. Smokeless appealed asserting the ALJ’s award was erroneous in light of the evidence in the record. 

          In a November 7, 2014, Opinion, we vacated in part and remanded.  On the issue of Cline’s return to modified duty, our Opinion set forth the following testimony:

     Cline testified that he was earning approximately $20.00 an hour at the time of his injury. At the time of his deposition, he was earning approximately $21.00 an hour.

     Cline returned to a modified job which is different than the job he performed at the time of his injury. He testified as follows:

Q: Okay. How is this job modified?

A: Well, I- under my doctor's restrictions I can't climb ladders or handle anything sharp. Which we have a couple of machines that you replace blades in, and I just don't do that any more.

 

Q: Is that the only way your job duties have changed since prior to the accident?

A: Well, everything else I have to do I just have to figure out a new way of doing it, so I'm a little slower than I once was.

 

     Cline does not take prescription medication in order to perform his job. Other than for reasons related to the economy, Cline does not believe his job is in jeopardy, and believes he will be able to perform his job for the indefinite future.

     Cline described the current condition of his wrist as follows:

Q: Okay. Are you still having pain in your right hand and wrist?

 

A: Just my wrist. My hand, I don't have much feeling at all.

 

Q: Okay. Can you describe the pain you are having for me in your wrist?

 

A: It's not very often, but it's just achy, you know, where I can- I don't know what causes it. I mean it is so rare, I'm doing something that causes it I'm sure, but.

 

Q: Okay. So you are just occasionally having some achy pain?

 

A: Yeah.

 

Q: When does it bother you most?

 

A: Oh, seems like in the evening.

 

Q: Okay. Does it go down to any other body parts?

A: No.

 

Q: Can you describe for the Judge that's going to be reading this transcript the physical condition your wrist is in?

 

A: Well, my wrist has a real limited range of motion.

 

Q: Okay.

 

A: And my fingers are the same. I can close it about enough to hold a broom handle maybe. And I can't fully extend my fingers flat either.

 

Q: Okay.

 

A: You know, the whole hand, everything about it is limited in its mobility.

 

Q: Do you think, say, over the past year your range of motion has been getting any better, or has it been pretty static?

 

A: Uh, it might have got [sic] a little better, but not a terrible bunch.

 

Q: Okay. I mean, is it a noticeable difference or?

 

A: Um, not really. I mean, my fingers and wrist, they're all still- they might- now, not really any.

 

Q: Okay. How about the feeling in your hand? How is that now?

A: It's just tingling all the time. You know, it's just- I can tell something is there sometimes, but I- there's no definition to the feeling, you know.

 

Q: Okay. How about the feeling in each finger? Let's start with the pinkie, how is that feeling?

 

A: It doesn't have a lot at all. The ring finger has got a little more. The index is the only one- it's- I can really tell something is there, but I can't- like I say, it's no definition in it.

         

     Cline occasionally wears a brace on his wrist at work. He believes the most he can lift with his right hand is approximately thirty to forty pounds.

     Cline testified at the February 25, 2014, hearing that he is right-hand dominant. He confirmed his work history prior to working for U.S. Smokeless Tobacco includes maintenance and labor jobs. At the time of his injury, Cline was working as a level five mechanic, was earning approximately $21.00 or $22.00 per hour, and worked around forty-five hours per week. He is currently earning wages greater than his pre-injury wages.

    Cline testified regarding the type of work he was performing at the type of the injury and the type of work he is currently performing at U.S. Smokeless Tobacco:

Q: Our contention with the judge is that you're unable to return to the type of work performed at the time of the injury, which is a quote from the statutes. So what I'd like you to do is tell the judge what you used to do before this injury, what your job duties were, and then how they're different at this point. So you want to start with what you were doing before the injury.

 

A: Well it's kind of all inclusive what I done [sic] before, you know. Lifting, climbing, I operated boilers, mechanic on the machines that went down during the process, and PMs on the machines, which it's vast the different things I done [sic]. And now I can't climb ladders, I'm not supposed to, but whatever the doctor said.

          In vacating enhancement of Cline’s income benefits via the three multiplier, we held as follows:

     Because the ALJ did not fully address the third prong of the analysis required by Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003), we vacate the ALJ's award of PPD benefits enhanced by the three multiplier and remand for additional findings.

     Pursuant to Fawbush v. Gwinn, supra, an ALJ must determine which multiplier under KRS 342.730(1)(c) is "more appropriate on the facts" when awarding PPD benefits. KRS 342.730(1)(c)1 states, in relevant part, as follows:

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. . .; or

 

KRS 342.730(1)(c)2 further provides:

If an employee returns to work at a weekly wage equal to or greater than the average weekly wage at the time of injury, the weekly benefit for permanent partial disability shall be determined under paragraph (b) of this subsection for each week during which that employment is sustained.  During any period of cessation of that employment, temporary or permanent, for any reason, with or without cause, payment of weekly benefits for permanent partial disability during the period of cessation shall be two (2) times the amount otherwise payable under paragraph (b) of this subsection. 

 

      When a claimant meets the criteria of both (c)1 and (c)2, "the ALJ is authorized to determine which provision is more appropriate on the facts and to calculate the benefit under that provision." Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206, 211 (Ky. 2003).  As a part of this analysis, the ALJ must determine whether "a worker is unlikely to be able to continue earning a wage that equals or exceeds the wage at the time of injury for the indefinite future."  Fawbush at 12.  In other words, the ALJ must decide if the injured worker is faced with a "permanent alteration in the … ability to earn money due to his injury."  Id.  "That determination is required by the Fawbush case."  Adkins v. Pike County Bd. of Educ., 141 S.W.3d 387, 390 (Ky. App. 2004).  If the ALJ determines the worker is unlikely to continue earning a wage that equals or exceeds his or her wage at the time of the injury for the indefinite future, the three multiplier under KRS 342.730(1)(c)1 applies.

     In Fawbush, the Supreme Court articulated several factors an ALJ should consider when determining whether an injured employee is likely to be able to continue earning the same or greater wage for the indefinite future.  These factors include the claimant's lack of physical capacity to return to the type of work that he or she performed, whether the post-injury work is done out of necessity, whether the post-injury work is done outside of medical restrictions, and if the post-injury work is possible only when the injured worker takes more narcotic pain medication than prescribed.  Fawbush at 12.  As articulated by the Court in Adkins, supra, it is not enough for the ALJ to determine if an injured employee is able to continue in his or her current job.  The Court stated: 

     Thus, in determining whether a claimant can continue to earn an equal or greater wage, the ALJ must consider a broad range of factors, only one of which is the ability to perform the current job.     

             

Id. at 390.

     In the case sub judice, the ALJ determined both the two and three multipliers are potentially applicable. The ALJ determined Cline has returned to employment at U.S. Smokeless Tobacco at greater wages, thus triggering the potential applicability of the two multiplier. See KRS 342.730(1)(c)2. The ALJ also determined the three multiplier was potentially applicable by finding Cline "does not retain be [sic] physical ability to return to the kind of work he was performing at the time of his injury." See KRS 342.730(1)(c)1. It is important to note that U.S. Smokeless Tobacco did not request additional findings on the potential applicability of the two and three multipliers in its petition for reconsideration. Further, on appeal it does not contest the applicability of KRS 342.730(1)(c)1 and (1)(c)2.

     As the ALJ determined both the two and three multipliers are potentially applicable, he was required to apply the third prong of the Fawbush, supra, analysis and determine if Cline is "unlikely to be able to continue earning a wage that equals or exceeds the wage at the time of injury for the indefinite future."  Fawbush at 12. In performing this analysis, it is clear from the language in the April 28, 2014, Order that the ALJ only considered Cline's ability to continue in his current job, finding Cline is working one-handed and "dependent upon his employer's understanding and accommodations to continue in his job." However, as articulated by the Court of Appeals in Adkins v. Pike County Bd. of Educ., supra, it is not enough for the ALJ to determine whether an injured employee is able to continue in his or her current job.   There, the Court of Appeals explained:

     If every claimant's current job was certain to continue until retirement and to remain at the same or greater wage, then determining that a claimant could continue to perform that current job would be the same as determining that he could continue to earn a wage that equals or exceeds his pre-injury wages. However, jobs in Kentucky, an employment-at-will state, can and do discontinue at times for various reasons, and wages may or may not remain the same upon the acquisition of a new job. Thus, in determining whether a claimant can continue to earn an equal or greater wage, the ALJ must consider a broad range of factors, only one of which is the ability to perform the current job. Therefore, we remand this case to the ALJ for a finding of fact as to Adkins' ability to earn a wage that equals or exceeds his wage at the time of the injury for the indefinite future.

 

Id. at 390.


     In its petition for reconsideration, U.S. Smokeless Tobacco requested additional findings concerning this issue, seeking "a specific finding of fact regarding the evidence upon which the ALJ relied in finding that the plaintiff will not continue to earn the same or greater wages for the foreseeable future." U.S. Smokeless Tobacco is entitled to additional findings along with the requisite analysis regarding the appropriate multiplier as discussed herein. 

(emphasis added).

          Cline appealed, and in Cline v. U.S. Smokeless Tobacco Co./Altria, Inc., 2014-CA-001965-WC, rendered December 2, 2016, Designated Not To Be Published, the Court of Appeals affirmed this Board’s decision holding as follows:

     The sole issue before us is whether the Board correctly concluded further findings were necessary under Fawbush. We believe they were.

     In Fawbush, our Supreme Court held an ALJ must determine which multiplier under KRS 342.730(1)(c) is factually most appropriate. When a claimant meets the criteria for both the 2-multiplier and the 3-multiplier, the ALJ is authorized to choose between them as it sees fit under the facts of that particular case. Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206, 211 (Ky. 2003). In its analysis, the ALJ must decide if the injured worker has a “permanent alteration in the claimant’s ability to earn money due to his injury.” Fawbush, 103 S.W.2d at 12. Only if it is determined a worker is unlikely to continue earning a wage exceeding his wages at the time of the injury for the indefinite future is an award enhanced by the 3-multiplier proper. Fawbush articulated several factors to be considered in the analysis, including the lack of physical capacity to return to the type of work the claimant previously performed, whether the post-injury work is done out of necessity, whether the post-injury work requirements are outside medical restrictions, and if completing the post-injury work is only possible when the claimant takes more narcotic pain medication than prescribed. Id. In Adkins v. Pike County Board of Education, 141 S.W.3d 387, 390 (Ky. 2004), the Supreme Court clarified

[i]f every claimant’s current job was certain to continue until retirement and to remain at the same or greater wage, then determining that a claimant could continue to perform that current job would be the same as determining that he could continue to earn a wage that equals or exceeds his pre-injury wages. However, jobs in Kentucky, an employment-at-will state, can and do discontinue at times for various reasons, and wages may or may not remain the same upon the acquisition of a new job. Thus, in determining whether a claimant can continue to earn an equal or greater wage, the ALJ must consider a broad range of factors, only one of which is the ability to perform the current job. Therefore, we remand this case to the ALJ for a finding of fact as to Adkins’ ability to earn a wage that equals or exceeds his wage at the time of the injury for the indefinite future. If it is unlikely that Adkins is able to earn such a wage indefinitely, then application of Section c(1) is appropriate.

     In the instant case, as noted by the Board, the ALJ found both the 2- and 3-multipliers were potentially applicable, thus triggering the third prong of the Fawbush analysis. While the ALJ ostensibly conducted this portion of the analysis, the Board concluded the examination was incomplete, and we agree.

     A plain reading of the ALJ’s order reveals its consideration was limited solely to Cline’s ability to continue in his current job, to the exclusion of any other potential factors impacting Cline’s ability to continue earning an equal or higher weekly wage. The entirety of the ALJ’s discussion on the issue was contained in a single paragraph which stated:

. . .

 

     Although the ALJ may have reached the correct result in applying the 3-multiplier, more detailed findings relative to its determination of Cline’s future earning capability are required by Fawbush. Thus, as in Adkins, remand for further findings on the issue is necessary and was properly ordered by the Board. On remand, as directed by the Board, the ALJ should analyze the broad array of factors influencing Cline’s ability to earn the same or greater wages for the foreseeable future and subsequently make specific findings as to the evidence supporting its decision of whether application of the 2-multiplier or 3-multiplier is appropriate.

     Although the ALJ may have reached the correct result in applying the 3-multiplier, more detailed findings relative to its determination of Cline’s future earning capability are required by Fawbush. Thus, as in Adkins, remand for further findings on the issue is necessary and was properly ordered by the Board. On remand, as directed by the Board, the ALJ should analyze the broad array of factors influencing Cline’s ability to earn the same or greater wages for the foreseeable future and subsequently make specific findings as to the evidence supporting its decision of whether application of the 2-multiplier or 3-multiplier is appropriate.

Slip Op. at 4-7.

          In the February 16, 2017, Opinion on Remand, the ALJ determined enhancement by the three multiplier was more appropriate, reasoning as follows:

     In its opinion remanding, the Board did not take issue with this Administrative Law Judge's determination that it was unlikely plaintiff would continue to work in his current job, where he earns the same or greater wages, for the indefinite future. Instead, the Board indicated additional findings are required as to whether plaintiff retains the ability to earn the same or greater wages in any employment, i.e. whether plaintiff has the same wage earning capacity. Accordingly, further findings are needed as to whether plaintiff is likely to be able to earn the same or greater wages at his current or any job.

     On this issue, it should first be noted that plaintiff's average weekly wage at the time of his injury was $1102.67. It is further noted that, based on a 40 hour work week, such an average weekly wage would be based on an hourly rate of approximately $27.57 per hour. Therefore, the question is whether, due to the effects of his work injury, plaintiff is capable of continuing to earn at least such a wage for the indefinite future. To address this issue, it is necessary to look at plaintiff's education and work history to determine what kinds of other employment plaintiff could return to if he is unable to maintain his current job with the defendant employer. A review of plaintiff's work history demonstrates plaintiff's work experience is limited to that of general laborer, maintenance, and a production machinist. Because of plaintiff's significant limitations with the use of his right hand, the Administrative Law Judge believes it would be difficult for plaintiff to obtain another job in keeping with his previous work history because of the lifting one would expect and the final manipulation of machines and tools that would also be required. Plaintiff testified, and there is no real dispute, that he has difficulty handling fine objects and operating many hand tools. He also has limits on his ability to lift with his injured hand. Accordingly, the Administrative Law Judge finds it is unlikely that plaintiff could attain and retain a job compatible with his entire work history. More importantly, given that plaintiff would have difficulty obtaining a similar manufacturing or maintenance position, it is also determined plaintiff would have difficulty finding a job that paid approximately $27 per hour. Again, plaintiff's work history and specialized skills are more compatible with a maintenance or manufacturing position in these are jobs which could possibly pay the kind of weekly wage plaintiff was earning at the time of his work injury. Because it has been determined plaintiff would have difficulty getting such a position in a competitive economy, the question then becomes whether plaintiff could return to some other area of appointment and earn the same or greater wages.

     Given that plaintiff has a high school diploma and his vocational skills are primarily directed toward maintenance/manufacturing jobs, and given the lack of evidence of similar paying positions in a more sedentary field which would also be compatible with plaintiff's restrictions, the Administrative Law Judge is persuaded that it is unlikely plaintiff could return to other employment and earn the same or greater wages if he leaves his position with the defendant employer. For these reasons, the Administrative Law Judge remains persuaded plaintiff is entitled to application of the 3x multiplier in KRS 342.730(1)(c)(1) under the Fawbush analysis.

          U.S. Smokeless filed a petition for reconsideration arguing the testimony of Cline and his supervisor establish enhancement by the three multiplier is not appropriate as Cline is performing his job well and it intends to employ him for the foreseeable future.  U.S. Smokeless cited to Cline’s post-injury wages which were introduced into evidence.  It asserted there was no evidence to support the ALJ’s finding Cline cannot continue to earn the same or greater wages for the indefinite future. 

          Convinced U.S. Smokeless had not cited patent errors justifying an alteration of his decision, the ALJ overruled the petition for reconsideration.

          On appeal, U.S. Smokeless concedes the ALJ addressed the first two prongs of the Fawbush analysis.  However, it contends the ALJ did not adequately address the final prong as to whether Cline can continue working at the same or greater wages for the indefinite future.  It asserts Cline continues to perform the same job responsibilities he performed prior to his injury but with slight modification.  U.S. Smokeless notes its supervisor testified Cline is performing his maintenance position satisfactorily, and his industrial knowledge cannot be replaced.  It also notes Cline testified he can continue working in his current position for the indefinite future and he has continued in his position for more than five years since the work injury. Although Cline can no longer perform certain aspects of his job such as climbing ladders and handling sharp objects or equipment, U.S. Smokeless stresses he maintains the same job classification, and is line for a higher grade mechanical position.    

          U.S. Smokeless asserts one of the factors to be considered is whether Cline is receiving additional medical treatment, and he is not.  Further, Cline is not required to work outside his medical restrictions in performing his job responsibilities and, therefore, is not performing work activities out of necessity in violation of his medical restrictions or treatment.      

          U.S. Smokeless contends the ALJ incorrectly stated Cline’s education was limited to a high school diploma as the record reveals he obtained sixty-three hours of college credit “within the general occupational technical study with specialization in maintenance.”  It posits this additional education further enhances his industry knowledge and employment value. 

          Finally, U.S. Smokeless contends public policy prevents enhancement by the three multiplier when the employee continues to work earning the same or greater wages.  It contends it is being penalized even though it has provided appropriate and gainful employment to Cline. Further, such an award discourages employers to accommodate their injured workers and provide them with lasting and financially comparable employment.  We disagree and affirm.

          The ALJ complied with the directive of this Board and the Court of Appeals. On remand, he discussed Cline’s post-injury AWW and the hourly rate he would have to earn with another employer in order to continue earning at least the wages he was earning for U.S. Smokeless.  The ALJ noted Cline’s work experience was limited to work as a general laborer, in maintenance, and as a production machinist.  In light of the limited use of his right hand, the ALJ concluded Cline would have difficulty obtaining another job in keeping with his previous work history because he would be expected to lift and engage in fine manipulations of machines and tools.  Based upon the significant restrictions in the use of his right hand, the ALJ concluded Cline could not obtain a job at similar manufacturing or maintenance positions elsewhere and, more importantly, one that would pay him the hourly rate necessary for him to continue earning for the indefinite future the wages he was currently earning.   

          Since Cline possessed a high school diploma and his vocational skills “are primarily directed toward maintenance/manufacturing jobs,” and because of the lack of evidence of similar paying positions which would be compatible with his restrictions, the ALJ concluded Cline could not return to other employment earning the same or greater wages upon leaving his current position.  The fact the ALJ only referenced Cline’s high school diploma does not establish he did not realize and/or consider he had sixty-three hours of college credits.  Significant to the ALJ were the facts Cline only possessed a high school diploma and his vocational skills were limited. The ALJ’s findings are sufficient and are supported by substantial evidence. 

          We also note that in his April 28, 2014, decision, the ALJ observed Cline’s supervisor was careful to testify that “from his point of view,” Cline had no reason to worry about his job.  Thus, given the fact Cline was working one-handed and dependent upon his employer’s understanding and accommodations to continue with his job, the ALJ was persuaded Cline was not likely to be able to continue such employment. 

          As directed by this Board and the Court of Appeals, the ALJ considered additional factors other than whether Cline could continue performing his current job at U.S. Smokeless. He sufficiently addressed whether Cline could secure equal paying employment elsewhere as well as his earning capacity beyond the job he performs at U.S. Smokeless.  Without question, Cline sustained a severe right hand injury which markedly limited the use of the right hand.  In light of the injury, the ALJ was not required to accept U.S. Smokeless’ assertion that it would continue to employ Cline regardless of his limitations even after the litigation ended.  The ALJ’s findings on remand are in compliance with the analysis required by Fawbush, supra, and will not be disturbed.

          Accordingly, the February 16, 2017, Opinion on Remand and the April 10, 2017, Order overruling the petition for reconsideration are AFFIRMED. 

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON JEREMY MCGRAW

HON RONALD POHL

303 N HURSTBOURNE PKWY STE 110

LOUISVILLE KY 40222

COUNSEL FOR RESPONDENT:

HON JAMES L KERR

5004 POPULAR LEVEL RD

LOUISVILLE KY 40219

ADMINISTRATIVE LAW JUDGE:

HON GRANT S ROARK

657 CHAMBERLIN AVE

FRANKFORT KY 40601