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March 23, 2018 201595919

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  March 23, 2018

 

 

CLAIM NO. 201595919

 

 

CUSTOM PACKAGING COMPANY, INC.                 PETITIONER

 

 

 

VS.        APPEAL FROM HON. JANE RICE WILLIAMS,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

CAROLYN LUNDY

and HON. JANE RICE WILLIAMS,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

VACATING IN PART AND REMANDING

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

 

STIVERS, Member. Custom Packaging Company, Inc. (“Custom Packaging”) appeals from the April 24, 2017, Opinion, Award, and Order of Hon. Jane Rice Williams, Administrative Law Judge (“ALJ”). In the April 24, 2017, Opinion, Award, and Order, the ALJ awarded Carolyn Lundy (“Lundy”) permanent partial disability (“PPD”) benefits for 425 weeks “with benefits terminated at such time as Plaintiff qualifies for old age Social Security benefits or two years after Plaintiff’s injury, whichever occurs last, pursuant to KRS 342.730(4),” and medical benefits for bilateral carpal tunnel injury manifesting on October 1, 2014.

          On appeal, Custom Packaging asserts the PPD benefits awarded to Lundy should be subject to the 1994 version of KRS 342.730(4) since the 1996 amendment has been deemed unconstitutional. Custom Packaging asserts, in part, as follows:

In this case, Lundy was under the age of 65 on the date of her injury. Therefore, the provisions of KRS 342.730(4) apply in her case. This matter should be remanded to the ALJ with instructions [sic] enter an Opinion stating that benefits should be tiered down beginning when she reaches the age of 65 and continuing as is appropriate until her 425 week benefit period expires.

          The Form 101 alleges Lundy sustained bilateral carpal tunnel (manifested October 1, 2014) and right-hand trigger thumb (manifested September 22, 2015) due to thirty years of repetitive motion working on an assembly line while in the employ of Custom Packaging.[1] Lundy’s stated date of birth is December 3, 1952.

          In the April 24, 2017, Opinion, Award, and Order, the ALJ set forth the following findings of fact and conclusions of law:

A. Work-relatedness/Causation and Injury as defined by the Act – 2nd Injury.

     Pursuant to the Act, an injury is “any work-related traumatic event . . . arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings.” KRS 342.0011(1). The term “objective medical findings” means clinical findings, observations, and other standardized testing performed as part of a physical examination as well as sophisticated diagnostic tests. Gibbs v. Premier Scale Co. /Ind. Scale Co., 50 S.W.3d 754 (Ky. 2001). A diagnosis complies with the requirements of KRS 342.0011(1) and (33) if based upon symptoms of a harmful change confirmed by means of direct observation and/or testing applying objective or standardized methods. Id.

     Medical causation must be proved to a reasonable medical probability with expert medical testimony . . . [however], [i]t is the quality and substance of a physician’s testimony, not the use of particular “magic words,” that determines whether it rises to the level of reasonable medical probability, i.e., to the level necessary to prove a particular medical fact.” Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615, 621 (Ky. 2004). The claimant bears the burden of proving causation.

     In addressing the issue of causation an expert medical witness is not required to use any particular “magic words” including the words “reasonable medical probability.” The requirement of “reasonable probability” relates to the proponent’s burden of proof and an Administrative Law Judge must determine whether the evidence is of sufficient quality and substance to rise to the level necessary to prove causation. Turner v. Commonwealth, 5 SW 3d 119 (KY, 1999).

     After careful consideration of the medical evidence, it is found the trigger thumb is not work related. While in theory it seems it could be (i.e. she worked for 30 years and had other hand problem so the thumb should be related), the proof is simply not there. The ALJ is required to base her decision on credible evidence. Dr. Farner does not provide a clear opinion on causation for the right thumb and Dr. Gabriel finds the thumb is not related. He finds it is a CMC osteoarthritis/degenerative change which was not work related. His opinion is relied upon herein.

B. Benefits per KRS 342.730.

     To qualify for an award of permanent partial benefits under KRS 342.730, the claimant is required to prove not only the existence of a harmful change as a result of the work-related traumatic event, she is also required to prove the harmful change resulted in a permanent disability as measured by an AMA impairment. KRS 342.0011(11), (35), and (36). 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 the injury, the benefit for permanent partial disability shall be multiplied by three (3) times the amount otherwise determined. KRS 342.730 (1)(c)(1).

     Dr. Gabriel is also relied upon for a finding of 14% whole person impairment. The overwhelming evidence is that she returned to work without restrictions. In fact, there are no assigned restrictions in the record. Therefore, it is found Plaintiff retains the physical capacity to return to the type of work she performed at the time of her injury. She does not qualify for a 3x multiplier pursuant to KRS 342.730 (1)(c)(1). As the post injury wage records show Plaintiff did not return to work at a wage equal to or greater than the wage earned at the time of injury, she does not qualify for a 2x multiplier. KRS 342.730 (1)(c)(2).

     The problem with Plaintiff’s case is the lack of reliable evidence. There is no question or dispute that the bilateral CTS is work related. The remainder of the issues are not developed in the evidence any further than Plaintiff saying she was having trouble doing her job. The medical evidence does not support this allegation. When she quit, there is no evidence of her notifying her employer that she could no longer do her job and no medical evidence to support such an allegation.

Calculation:

$426.24 x .66667 = $284.16 x 14% x 1 = $39.78

C. Constitutionality of KRS 342.730(4).

     This issue is beyond the scope of what is to be considered by the ALJ but has been properly preserved for appeal.

          Custom Packaging failed to file a petition for reconsideration. Lundy filed a petition for reconsideration, asserting she is entitled to 425 weeks of PPD benefits as the Social Security cutoff provision was deemed unconstitutional. In the June 1, 2017, Order, the ALJ held as follows:

7. Plaintiff’s last point relates to the duration of the award which, as agreed by the parties, will be affected by the decision in Parker v. Webster County Coal, Co. Pursuant to the ruling of the Kentucky Supreme Court (not yet final) finding KRS 342.730(4) unconstitutional, the ALJ’s Opinion is amended such that the award is payable for 425 weeks consistent with current law.

          On appeal, Custom Packaging asserts Lundy’s benefits should be subject to the tier-down provision contained in the 1994 version of KRS 342.730(4). We vacate and remand for an amended award.

          We recently dealt with the issue on appeal in Pickett v. Ford Motor Co., Claim No. 2015-01910, rendered February 16, 2018, wherein we held as follows:

     The version of KRS 342.730(4) the Parker Court deemed unconstitutional, enacted in 1996, states in pertinent part:

All income benefits payable pursuant to this chapter shall terminate as of the date upon which the employee qualifies for normal old-age Social Security retirement benefits under the United States Social Security Act, 42 U.S.C. secs. 301 to 1397f, or two (2) years after the employee's injury or last exposure, whichever last occurs.

 

     In Parker, supra, the Kentucky Supreme Court concluded the manner in which income benefits were limited in the 1996 version of KRS 342.730(4) is unconstitutional. In so ruling, the Supreme Court stated, in part, as follows:

[T]he equal protection problem with KRS 342.730(4) is that it treats injured older workers who qualify for normal old-age Social Security retirement benefits differently than it treats injured older workers who do not qualify. As Justice Graves noted in his dissent in McDowell, “Kentucky teachers ... have a retirement program and do not participate in social security.” 84 S.W.3d at 79. Thus, a teacher who has not had any outside employment and who suffers a work-related injury will not be subject to the limitation in KRS 342.730(4) because that teacher will never qualify for Social Security retirement benefits. There is no rational basis for treating all other workers in the Commonwealth differently than teachers. Both sets of workers will qualify for retirement benefits and both have contributed, in part, to their “retirement plans.” However, while teachers will receive all of the workers' compensation income benefits to which they are entitled, nearly every other worker in the Commonwealth will not. This disparate treatment does not accomplish the goals posited as the rational bases for KRS 342.730(4). The statute does prevent duplication of benefits, but only for non-teachers because, while nearly every other worker is foreclosed from receiving “duplicate benefits,” teachers are not.

Id. at 768 (emphasis added).

     The Supreme Court determined the 1996 version of KRS 342.730(4) does not pass constitutional muster because it treats injured older workers in the Commonwealth who do not qualify for old-age Social Security benefits, such as teachers, differently from all other injured older workers in the Commonwealth who qualify for old-age Social Security benefits. That said, the Supreme Court’s pronouncement in Parker lacks guidance as to how income benefits should now be calculated for injured older workers. In other words, should income benefit calculations for injured older workers be devoid of any age-related restrictions or should income benefit calculations revert back to the previous version of KRS 342.730(4) immediately preceding the 1996 version? Having had another opportunity to offer guidance in Cruse v. Henderson, Not To Be Published, 2015-SC-00506-WC (December 14, 2017), the Supreme Court declined. Thus, this Board must turn to other sources in order to address this inquiry.

     The previous version of KRS 342.730(4) reads as follows:

If the injury or last exposure occurs prior to the employee’s sixty-fifth birthday, any income benefits awarded under KRS 342.750, 342.316, 342.732, or this section shall be reduced by ten percent (10%) beginning at age sixty-five (65) and by ten percent (10%) each year thereafter until and including age seventy (70). Income benefits shall not be reduced beyond the employee’s seventieth birthday.

     The above-cited language does not induce the same constitutional quandary identified by the Parker Court, as the tier-down directed in the previous version of KRS 342.730(4) does not differentiate between injured older workers eligible for old-age Social Security benefits and those who are not. All workers injured before the age of sixty-five are subject to the tier-down provisions regardless of their eligibility for Social Security benefits. The previous version of KRS 342.730(4) does, however, differentiate between injured younger workers and injured older workers, because those injured above the age of sixty-five are not subjected to the tier-down. The Parker Court has already addressed the rational basis of providing for such a distinction:

The rational bases for treating younger and older workers differently is: (1) it prevents duplication of benefits; and (2) it results in savings for the workers' compensation system. Undoubtedly, both of these are rational bases for treating those who, based on their age, have qualified for normal Social Security retirement benefits differently from those who, based on their age, have yet to do so.

Id. at 768.

     However, there must be a determination of whether the Supreme Court’s pronouncement in Parker revives the previous iteration of KRS 342.730(4).  

KRS 446.160 states as follows:

If any provision of the Kentucky Revised Statutes, derived from an act that amended or repealed a pre-existing statute, is held unconstitutional, the general repeal of all former statutes by the act enacting the Kentucky Revised Statutes shall not prevent the pre-existing statute from being law if that appears to have been the intent of the General Assembly.

(emphasis added).

     In making an educated assessment of the legislative intent at the time the current version of KRS 342.730(4) was enacted in 1996, we turn to a contemporaneous provision, contained in the 1996 legislation, in which the legislature addressed the dire need to preserve the long-term solvency of the Special Fund, now the Division of Workers’ Compensation Funds, which reads as follows:

Section 90. The General Assembly finds and declares that workers who incur injuries covered by KRS Chapter 342 are not assured that prescribed benefits will be promptly delivered, mechanisms designed to establish the long-term solvency of the special fund have failed to reduce its unfunded competitive disadvantage due to the cost of securing worker’s vitality of the Commonwealth’s economy and the jobs and well-being of its workforce. Whereas it is in the interest of all citizens that the provisions of this Act shall be implemented as soon as possible, an emergency is declared to exist, and this Act takes effect upon its passage and approval by the Governor or upon its otherwise becoming a law.                                      

     The language of Section 90 indicates the legislature, at the time the 1996 version of KRS 342.730(4) was enacted, intended to preserve the solvency of the Special Fund. Indeed, the language used in Section 90 speaks to this intent as being “an emergency.” This legislative intent cannot be ignored in the wake of the Supreme Court’s determination the 1996 version of KRS 342.730(4) is unconstitutional. This expressed concern certainly bolsters the conclusion the legislature contemplated a revival of the tier-down provisions in the previous version of KRS 342.730(4).

     Accordingly, we hold that income benefits are to be calculated pursuant to the tier-down formula as set forth in the pre-existing version of KRS 342.730(4) in place when the statute in question was enacted in 1996. As the record indicates Pickett was sixty at the time of the July 13, 2015, injury to his left shoulder, and the ALJ awarded PPD benefits commencing on July 13, 2015, we vacate the ALJ’s award of PPD benefits which are “subject to the limitations set forth in KRS 342.730(4)” and remand for a revised calculation of PPD benefits and an amended award consistent with the views set forth herein.

          In accordance with our holding in Pickett, supra, and since Lundy was not sixty-five years old at the time the cumulative trauma bilateral carpal tunnel injury manifested on October 1, 2014, the claim must be remanded for entry of an award of PPD benefits based on the tier-down provision contained in KRS 342.730(4) enacted in 1994. As this is purely question of law and not a question of fact, Custom Packaging was not required to file a petition for reconsideration. See KRS 342.285; See Bullock v. Goodwill Coal Co., 214 S.W.3d 890 (Ky. 2007).

          Finally, we note Lundy raises five distinct arguments in her brief to this Board, incorrectly and misleadingly styling her brief as “Brief for Appellant/Petitioner.” As Lundy did not file a cross-appeal, this Board is not required to address these arguments.

          Accordingly, the award of PPD benefits contained in the April 24, 2017, Opinion, Award, and Order and the subsequent modification in the June 1, 2017, Order are VACATED. This claim is REMANDED to the ALJ for entry of an award of PPD benefits in accordance with the views expressed herein.  

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON WARD BALLERSTEDT

1315 HERR LN STE 210

LOUISVILLE KY 40222

COUNSEL FOR RESPONDENT:

HON ALAN S RUBIN

231 S FIFTH ST STE 200

LOUISVILLE KY 40202

ADMINISTRATIVE LAW JUDGE:

HON JANE RICE WILLIAMS

657 CHAMBERLIN AVE

FRANKFORT KY 40601



[1] Lundy’s trigger thumb injury was deemed non-compensable by the ALJ.