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April 20, 2018 201676290

Commonwealth of Kentucky 

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

 

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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