Workers’
Compensation Board
OPINION
ENTERED: April 20, 2018
CLAIM NO. 201676290
EAST BERNSTADT COOPERAGE, INC. PETITIONER
VS. APPEAL FROM HON. JONATHAN
R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
LINDA DARLENE STIGALL and
HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART,
VACATING
IN PART & REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. East Bernstadt Cooperage, Inc. (“East
Bernstadt”) appeals from the October 30, 2017 Opinion and Award rendered by
Hon. Jonathan Weatherby, Administrative Law Judge (“ALJ”). The ALJ awarded Darlene Stigall (“Stigall”) temporary
total disability (“TTD”) benefits, permanent partial (“PPD”) benefits, enhanced
by the multipliers contained in KRS 342.730(1)(c)1, and medical benefits for a
work-related right wrist injury. East
Bernstadt also appeals from the December 20, 2017 order denying its petition
for reconsideration.
On appeal,
East Bernstadt argues the ALJ erred in failing to provide an adequate basis for
relying upon the 14% impairment rating assessed by Dr. Jared Madden ostensibly
pursuant to the 5th
Edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (“AMA Guides”).
East Bernstadt also argues the ALJ erred by failing to provide a factual
basis for his determination that Stigall lacks the physical capacity to return
to her pre-injury job duties. East
Bernstadt next argues the ALJ erred in the application of additional
multipliers to Stigall’s award pursuant to Fawbush v. Gwinn, 103 S.W.3d 5 (Ky.
2003). Finally, East Bernstadt argues
the ALJ erred in awarding PPD benefits at the rate of $167.13 per week for the
full 425-week compensable period. We
affirm the ALJ’s determination that Stigall is entitled to an award of PPD
benefits based upon the 14% impairment rating assessed by Dr. Madden. However, we vacate in part, and remand for
additional findings regarding whether Stigall retains the physical capacity to
return to the work performed at the time of her injury especially in light of
the fact she has returned to work for East Bernstadt; to perform the
appropriate analysis pursuant to Fawbush v. Gwinn, supra; and to amend the award of PPD
benefits pursuant to the tier-down provision contained in KRS 342.730(4) as it
existed prior to the 1996 changes to the Kentucky Workers’ Compensation Act.
Stigall filed a Form 101
on February 21, 2017 alleging injuries to multiple body parts occurring on July
11, 2016 while working for East Bernstadt.
Stigall completed the tenth grade, and has no specialized vocational
training.
Stigall testified by
deposition on May 19, 2017, and at the hearing held August 31, 2017. Stigall was born on November 26, 1957, and is
a resident of East Bernstadt, Kentucky.
She continues to work for East Bernstadt, where she began her employment
in 1997. She left for one year, in
approximately 2000, to work at a commercial bakery; however, she subsequently
returned to East Bernstadt, which manufactures whiskey barrels. On July 11, 2016, her glove became entangled
in a drill she was using in the barrel manufacturing process. A co-worker released the drill to free her
hand, and Stigall’s supervisor advised her to seek medical attention.
Stigall first saw Dr.
Jean Maurice Page. She was then referred
to St. Joseph Hospital-London where she underwent right wrist surgery
consisting of the installation of a plate and screws. Her right wrist was initially casted after the
surgery. The cast was replaced with a
brace a few days later.
Stigall received TTD
benefits while she was off work recovering from her injury. She stated her medical bills were paid, and
she currently takes only over-the-counter Tylenol or Ibuprofen. She returned to light duty work in November
2016. She was eventually released to
unrestricted full duty work. She
received a pay increase when she returned to work, but works less overtime than
before the accident. She continues to
work in the barrel manufacturing process.
Stigall testified that despite the removal of her restrictions, she
continues to have some difficulty with work.
She has less strength in the right hand, and continues to experience
pain in her right hand and two fingers.
She also experiences finger swelling, and needs assistance with
operating the saw. She does not believe
she can perform all of her previous job duties for a full eight-hour day.
Stigall supported her
claim with records from St. Joseph Hospital-London for treatment she received
from July 11, 2016 through July 13, 2016.
She was diagnosed with fractures of the right wrist for which she
underwent open reduction and internal fixation surgery performed by Dr. Page.
Stigall also filed the
Form 107-I report prepared by Dr. Madden who evaluated her on behalf of her
attorney on April 20, 2017. Dr. Madden
noted Stigall sustained a right wrist injury while working for East Bernstadt
when her glove became caught in a drill.
Dr. Madden incorrectly noted the date of the accident was July 7,
2016. He also noted Stigall returned to
work in November 2016, but stated she is unable to perform all of her previous
job duties. He diagnosed Stigall as
status post right displaced intra-articular distal radial fracture with open
reduction and internal fixation, status post ulnar styloid fracture, ulnar
deviation restriction, wrist flexion and extension restrictions, and chronic
pain syndrome due to trauma. Dr. Madden
opined the work accident caused her injuries.
He assessed a 14% impairment rating pursuant to the AMA Guides. Dr. Madden determined Stigall had reached
maximum medical improvement (“MMI”) as of the date of his evaluation. Dr. Madden opined Stigall does not have the
physical capacity to return to the type of work performed at the time of her
injury. He restricted Stigall from
lifting more than five to ten pounds with the right upper extremity. He also opined she should avoid pushing,
pulling, repetitive motion, overhead work, and should engage in only minimal
bending or twisting with the right upper extremity.
Stigall additionally
filed records reflecting Dr. Page’s treatment from July 21, 2016 through
October 25, 2016. Those records document
the surgery he performed and Stigall’s subsequent recovery.
East Bernstadt filed the
December 2016 discharge summary from Nikolus Blair, P.T., who described
Stigall’s progress with her physical therapy sessions. Mr. Blair noted after her eight sessions
Stigall was released to work with no restrictions.
East Bernstadt also filed
the November 29, 2016 responses of Dr. Page to a questionnaire from a nurse
case manager. Dr. Page diagnosed Stigall
as status post right wrist open reduction and internal fixation with a good
prognosis. He stated Stigall had reached
MMI and he released her to return to work on November 28, 2016 with no
restrictions. He stated Stigall could
follow up in the clinic as necessary.
East Bernstadt
additionally filed Dr. Margaret Napolitano’s report dated June 7, 2017. Dr. Napolitano is a hand surgeon. She noted the July 11, 2016 right wrist
injury and fractures Stigall sustained while assembling whiskey barrels. She opined Stigall had reached MMI as of June
5, 2017. Dr. Napolitano assessed a 7%
impairment rating pursuant to the AMA Guides. She stated Stigall had returned to gainful
employment in her original capacity with her employer. Dr. Napolitano stated Stigall might require
hardware removal in the future.
A Benefit Review
Conference was held on July 11, 2017. At
that time, the parties stipulated the issues to be decided were benefits per
KRS 342.730, unpaid or contested medical expenses, Fawbush application
of multipliers and attainment of MMI.
The parties also noted that whether Stigall retained the physical
capacity to return to the type of work performed at the time of injury was at
issue.
The ALJ rendered a
decision on October 30, 2017. Regarding
his reliance upon Dr. Madden’s impairment rating, the ALJ stated as follows:
10. The ALJ is compelled
to reference that the Plaintiff
was an exceptionally credible witness and that her testimony is given significant weight herein.
11. The ALJ finds that while there
is a consensus regarding the
work-relatedness of the Plaintiff’s condition, the findings of Dr. Madden are most
consistent with the
Plaintiff’s descriptions of
her symptoms and of her limitations and is therefore the most persuasive and convincing medical
opinion offered herein.
12. Dr. Madden assessed a
14% impairment pursuant to the AMA Guides and found that the Plaintiff was at
MMI as of April 24, 2017. Dr. Madden also concluded that the Plaintiff did not
retain the physical capacity to return to her prior employment. The Plaintiff
was restricted to light duty restrictions with no lifting of over 5-10 pounds
with right upper extremity; no pushing/pulling with right upper extremity; no
upper extremity repetitive motion on right; no overhead work; no minimal
bending/twisting/ reaching with right upper extremity. This opinion has
convinced the ALJ and the ALJ therefore finds that the Plaintiff has sustained
a 14% whole person impairment and that she does not retain the physical
capacity to return to the same job.
Regarding the application
of additional factors, and his analysis pertaining to Fawbush v. Gwinn, supra, the ALJ found as follows:
13. The Plaintiff has
testified that she has returned to a different job and that she now earns more
money than she did prior to the accident.
14. When KRS
342.730(1)(c)(1) and KRS 342.730(1)(c)(2) both may be applicable, Fawbush v.
Gwinn, 107 S.W.3d 5 (2003), and its progeny require an ALJ to make three
essential findings of fact, even if not specifically requested to do so by the
parties. First, the ALJ must determine whether a claimant can return to the
type of work performed at the time of injury. Second, the ALJ must also determine whether
the claimant has returned to work at an AWW equal to or greater
than her pre-injury wage. Third, the
ALJ must determine whether the claimant can continue to earn that level of
wages for the indefinite future.
15. The Plaintiff
explained that she continues to have problems with pain and strength in her
hand and wrist and that she has pain daily from her hand to the elbow. She also
said that her fingers are swollen from the injury and that she could return to
her prior job duties for an eight-hour day. She explained that she is currently
performing a different job within the same department but must take six or
eight aspirin to get through her work day.
16. The ALJ finds that based upon the facts available, that it is highly
unlikely that the
Plaintiff, in light of her continued pain and need to take numerous aspirin
in order to continue in her current position, will be able to continue indefinitely. The ALJ therefore
finds that the Plaintiff is entitled to the three multiplier as codified in KRS 342.730(1)(c)(1).
East
Bernstadt filed a petition for reconsideration requesting the ALJ provide
additional analysis regarding why he chose to rely upon the 14% impairment
rating assessed by Dr. Madden, rather than the impairment rating assessed by
Dr. Napolitano. It also requested
additional findings of fact regarding the credibility of the range of motion
measurements from Dr. Napolitano. It
also requested the ALJ to explain what evidence he relied upon to determine
whether Stigall retains the physical capacity to return to her pre-injury
employment. East Bernstadt additionally
argued the ALJ failed to adequately perform an analysis pursuant to Fawbush v. Gwinn, supra. Finally, East Bernstadt argued the ALJ should
have only awarded benefits until Stigall reaches normal retirement age.
In the
order denying East Bernstadt’s petition for reconsideration, the ALJ stated as
follows:
This matter is before the
ALJ upon the Petition for Reconsideration filed by the Defendant. The Defendant has alleged that it was patent
error to rely upon the findings of Dr. Madden and has asserted that other
medical opinions are more credible.
Accordingly, the ALJ reiterates the reliance upon the opinion of Dr.
Madden as it closely resembles the credible description by the Plaintiff of her
symptoms and restrictions. The ALJ, after reviewing the evidence again comes to the same conclusion and declines to
disturb the result herein.
We note the ALJ, as fact-finder, has the sole
authority to determine the weight, credibility and substance of the
evidence. Square
D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ
has the sole authority to judge all reasonable inferences to be drawn from the
evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329
(Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky.
1979). The ALJ may reject any
testimony and believe or disbelieve various parts of the evidence, regardless
of whether it comes from the same witness or the same adversary party’s total
proof. Magic Coal Co. v. Fox, 19
S.W.3d 88 (Ky. 2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). Mere evidence contrary to the ALJ’s decision
is not adequate to require reversal on appeal.
Id.
In order to reverse the decision of the ALJ, it must be shown there was
no substantial evidence of probative value to support his decision. Special Fund v. Francis, 708 S.W.2d
641 (Ky. 1986).
The Board, as an appellate tribunal, may not usurp the ALJ’s
role as fact-finder by superimposing its own appraisals as to the weight and
credibility to be afforded the evidence or by noting reasonable
inferences that otherwise could have been drawn from the
record. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky.
1999). So long as the ALJ’s ruling with
regard to an issue is supported by substantial evidence, it may not be
disturbed on appeal. Special
Fund v. Francis, supra.
In reaching his
determination, the ALJ must also provide findings sufficient to inform the
parties of the basis for his decision to allow for meaningful review. Kentland Elkhorn Coal Corp. v. Yates,
743 S.W.2d 47 (Ky. App. 1988); Shields v. Pittsburgh and Midway Coal Mining
Co., 634 S.W.2d 440 (Ky. App. 1982); Big Sandy Community Action Program
v. Chafins, 502 S.W.2d 526 (Ky. 1973).
Here, the ALJ relied
upon the impairment rating assessed by Dr. Madden. He determined this rating was the most
consistent with Stigall’s description of her complaints and restrictions. This explanation is sufficient to support the
ALJ’s reliance upon the 14% impairment rating, and we will not disturb this
determination.
East Bernstadt next
argues the ALJ erred in finding Stigall does not retain the physical capacity
to perform her pre-injury job duties.
East Bernstadt argues the ALJ provided no analysis regarding whether the
restrictions imposed by Dr. Madden preclude her from performing her pre-injury
job duties. Specifically, East Bernstadt
argues, “Without factual findings from the ALJ regarding which pre-injury job
duties the claimant is no longer able to perform, there is no opportunity for
meaningful review of the ALJ’s findings regarding physical capacity to return
to work.” We note Stigall testified she
is operating the same saw she operated in 1997, and continues to work in the
same department as before the injury.
In its brief, East
Bernstadt cited to the requirement set forth in Shields v. Pittsburgh and
Midway Coal Mining Co., supra, to make sufficient findings of fact
in order to apprise the parties of the basis of the decision. We note the
request for additional findings on this issue, requested by East Bernstadt in
its petition for reconsideration, was ignored by the ALJ in his December 20,
2017. Therefore, we vacate in part the
ALJ’s determination, and remand for additional findings regarding whether
Stigall retains the capacity to perform her pre-injury work, and to provide the
basis for his determination. We do not
direct any particular result, and the ALJ may make any determination based on
the evidence.
The next issue is
whether the ALJ performed the appropriate analysis in applying the three
multiplier contained in KRS 342.730(1)(c)1.
The ALJ determined the application of the three multiplier was
appropriate based on the fact Stigall had not returned to the exact job she was
performing at the time of the accident, she takes over-the-counter medication
daily, and he does not believe she will be able to continue performing her job
indefinitely. Because Stigall did in
fact return to work, at apparently the same or greater wages in the same
department, the ALJ was required to perform an analysis pursuant to Fawbush
v. Gwinn, supra.
Pursuant to Fawbush v. Gwinn, supra,
an ALJ must determine which multiplier contained in KRS 342.730(1)(c) is
"more appropriate on the facts" when awarding permanent partial
disability benefits. Id. at 12. 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.
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 satisfies 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 v. Gwinn,
supra. In other words, is the injured worker 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, the three multiplier pursuant
to KRS 342.730(1)(c)1 is applicable.
Fawbush
v. Gwinn, supra,
articulated several factors an ALJ can consider when determining whether an
injured employee is likely to be able to continue earning the same or greater
wage for the indefinite future. Those 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 performed outside of medical restrictions, and if the
post-injury work is possible only when the injured worker takes more narcotic
pain medication than prescribed. Id. at 12. As the Court in Adkins v. Pike County Bd.
of Educ., supra, stated, it is not enough to determine whether 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 30.
Clearly, Stigall returned
to work for East Bernstadt earning the same or higher pay. As noted above, the ALJ’s determination
regarding whether Stigall retains the capacity to return to the job she was
performing at the time of the injury is vacated. On remand, the ALJ must make that
determination prior to performing an analysis pursuant Fawbush v. Gwinn, supra. We therefore also vacate the ALJ’s
determination regarding the application of the additional multipliers pursuant
to KRS 342.730(1)(c)1. Once a determination
has been made regarding whether Stigall retains the capacity to return to the
job performed at the time of the injury, the ALJ must perform the appropriate
analysis as set forth above. The ALJ
must provide an adequate explanation and analysis for his decision regarding
the application of any multipliers.
Finally, East Bernstadt
argues the ALJ erred in finding Stigall is entitled to an award of PPD benefits
for 425 weeks. We agree with the ALJ,
Stigall is entitled to an award of PPD benefits for 425 weeks. However, since she was not yet sixty-five
years of age at the time of the injury, her award is subject to the tier-down
provision of KRS 342.730(4) as it existed prior to December 1996.
The
Kentucky Supreme Court in Parker v. Webster County Coal,
LLC (Dotiki
Mine), 529 S.W.3d 759 (Ky. 2017), held the age limitation in
KRS 342.730(4) violates the right to equal protection and is now final. Therefore, the Board must apply that
holding to all decisions which have been timely
appealed. As noted in the holding in Legislative
Research Com’n v. Fischer, 366 S.W.3d 905 (Ky. 2012), an unconstitutional
statute is null and void from the date of its enactment, and therefore it
practically never existed. The result is
that the unconstitutional statute’s pre-amendment version controls. Mosely v. Commonwealth Dept. of Highways,
489 S.W.2d 511 (Ky. 1972); Commonwealth v. Malco-Memphis Theatres, 169
S.W.2d 596 (Ky. 1943). In this instance,
the 1996 version of KRS 342.730(4), which was an amendment to an existing
provision, was found unconstitutional.
The Court in Parker v. Webster County Coal, LLC
(Dotiki Mine), supra, did not completely abolish KRS
342.730(4). Since this was an amendment
to an existing statute, the 1994 version is in effect. Therefore,
we must also remand this claim to the ALJ for an amended award of PPD benefits
implementing the tier-down provision.
Accordingly, we AFFIRM
IN PART the October 30, 2017 Opinion and Award,
and the December 20, 2017 Order on petition for reconsideration rendered by
Hon. Jonathan R. Weatherby, Administrative Law Judge. However, we VACATE IN PART and REMAND
for additional findings his determinations regarding whether Stigall retains
the capacity to return to work at the job she was performing at the time of her
injury, the appropriate analysis pursuant to Fawbush v. Gwinn, supra, and the application of KRS 342.730(4),
as enacted in 1994, in accordance with the views expressed herein.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON ROBERT FERRERI
614 WEST MAIN ST, STE 5500
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON MCKINNLEY MORGAN
921 SOUTH MAIN STREET
LONDON, KY 40741
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R WEATHERBY
657 CHAMBERLIN AVE
FRANKFORT, KY 40601