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
*
* * * * *
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