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April 27, 2018 201694963

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  April 27, 2018

 

 

CLAIM NO. 201694963

 

 

FORD MOTOR COMPANY                             PETITIONER

 

 

 

VS.           APPEAL FROM HON. CHRIS DAVIS,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

RYAN BANKS and

HON. CHRIS DAVIS,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

VACATING IN PART & REMANDING

 

                       * * * * * *

 

 

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

 

ALVEY, Chairman.   Ford Motor Company (LAP) (“Ford”) appeals from the Opinion and Order rendered October 17, 2017 by Hon. Chris Davis, Administrative Law Judge (“ALJ”).  The ALJ awarded Ryan Banks (“Banks”) temporary total disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits and medical benefits for a right shoulder injury he sustained on January 13, 2016 while working for Ford.  Ford also appeals from the November 13, 2017 and the December 20, 2017 orders on petitions for reconsideration.

     On appeal, Ford argues the ALJ erred and abused his discretion in striking a portion of its brief from the record.  Ford also argues the ALJ erred in relying upon the holding in Desa Int’l v. Barlow, 59 S.W.3d 872 (Ky. 2001), rather than the direction set forth in Ball v. Big Elk Creek Coal Co., Inc., 25 S.W.3d 115 (Ky. 2000) in calculating Banks’ post-injury average weekly wage (“AWW”), and the enhancement of his award of PPD benefits pursuant to KRS 342.730(1)(c)2.  We determine the ALJ abused his discretion in striking the spreadsheet Ford attached to its brief.  We also determine the ALJ improperly calculated Banks’ post-injury AWW.  Therefore, we vacate the ALJ’s order striking the spreadsheet from Ford’s brief.  We also vacate the ALJ’s calculation of the post-injury AWW, and application of the two-multiplier pursuant to KRS 342.730(1)(c)2, including the effective date of the enhancement as January 13, 2016.  We remand this claim to the ALJ for a proper calculation of Banks’ post-injury AWW, and to determine whether an enhancement of the award of PPD benefits is applicable pursuant to KRS 342.730(1)(c)2, and if so, the appropriate time period for its application.

Banks filed a Form 101 on March 14, 2017 alleging he injured his right shoulder on January 13, 2016 as he lifted a vehicle hood while working at Ford.  The occurrence of the accident, ensuing injury, and treatment, including surgeries, is undisputed by Ford.  In the Form 104 filed in support of the claim, Banks noted he began working for Ford in Michigan in 1994, and transferred to the Louisville, Kentucky facility in 2012.  

Banks testified by deposition on June 29, 2017, and at the Hearing held August 22, 2017.  Banks, a resident of Louisville, Kentucky, was born on May 28, 1972.  On January 13, 2016, he was manually lifting hoods for Lincoln vehicles because the robot, or hoist, which ordinarily lifted them, was inoperable due to a mechanical issue.  As he was lifting a hood, he experienced a popping and tearing sensation in his right shoulder.  He dropped the hood on his foot, and he attempted to continue his job, but was unable to do so.  He reported the incident to a supervisor who sent him to the Ford medical department.  Banks continued to work light duty through February 16, 2016, the day before his first surgery.

Ford medical initially referred Banks to Dr. Frank Bonnarens.  He was subsequently referred to Dr. Geoff Smith.  Dr. Smith performed surgery to repair a torn pectoral tendon on February 17, 2016.  After the surgery, Banks underwent physical therapy, injections, pain medication, and used an anti-inflammatory cream.  He returned to light duty in May 2016 with restrictions including no overhead repetitive work, and no lifting greater than ten pounds. 

A subsequent MRI revealed a right rotator cuff tear, which Dr. Smith surgically repaired on July 13, 2016.  Banks was again restricted from working until he was released in November 2016 with similar light duty restrictions as those imposed in May 2016.  Dr. Smith eventually released Banks to work with no restrictions in December 2016.  Banks testified that after he returned to work he continued to experience symptoms, and needed assistance. Banks worked from December 2016 to May 1, 2017 without restrictions, but continued to receive injections.  Significantly, Banks’ post-injury wage records were introduced into evidence at the hearing held August 22, 2017.  On May 1, 2017, Banks sustained an unrelated torn aortic artery, and he underwent heart surgery.  He has not returned to work since the cardiac event.

Since Banks’ condition, medical treatment, impairment, and duration of disability are not at issue, the medical evidence will not be discussed.

A benefit review conference was held on August 10, 2017.  The issues preserved for determination included benefits per KRS 342.730, unpaid or contested medical expenses, and TTD benefits.  The parties stipulated Banks retained the physical capacity to return to the type of work performed at the time of the injury.

The parties submitted briefs to the ALJ in support of their positions.  Ford attached a spreadsheet setting forth its calculation of Banks’ post-injury AWW, based upon the wage records it introduced at the hearing. The ALJ rendered a decision on October 17, 2017.  He found as follows:

As for multipliers the Defendant’s argument that the Plaintiff is not entitled to any multipliers is misplaced. The Plaintiff returned to work, at equal or greater wages, from May 11, 2016 through July 13, 2016 and from December, 2016 until he was forced to go off work in 2017.

 

While it is not work-related that he now earns no wages it is likewise not his fault and certainly not due to any malfeasance on his part. The law is clear he is entitled to the multiplier under KRS 342.730(1)(c)2.

 

The Plaintiff, in his brief, has not asked for the multiplier under KRS 342.730(1)(c)1. For clarity’s sake, despite the restrictions from Dr. Barefoot and the Plaintiff’s testimony I would not award this multiplier. The Plaintiff in fact did return to work without restrictions and stopped for an entirely unrelated reason.

 

Award

 

The Plaintiff’s permanent partial disability benefit for his eye injury is 1248.26 (AWW) x 2/3 (workers’ compensation rate subject to statutory maximum) x .13 (impairment rating) x 1.00 (grid factor) x 2 (KRS 342.730(1)(c)2) = $155.73 a week, for 425 weeks, from January 23, 2016.

 

Both parties filed petitions for reconsideration.  Banks argued the ALJ erred in not awarding TTD benefits during the periods of time he worked light duty prior to reaching maximum medical improvement.  This was inclusive of three periods prior to December 23, 2016.  He argued the light duty assignments did not constitute a return to his customary employment. 

Ford argued the ALJ erred in referencing an eye injury and a psychological condition.  It also argued the parties did not stipulate Banks had returned to work at equal or greater wages, as noted by the ALJ.  Ford argued the ALJ provided no analysis or explanation as to how he reached this conclusion.  Ford noted it had specifically addressed this issue, along with a reference to post-injury wage records.  It requested additional findings of fact on this issue.  Ford argued the ALJ erred in enhancing Banks’ benefits by the two multiplier contained in KRS 342.730(1)(c)2 since he had not, in fact, returned to earning equal or greater than his pre-injury wages.  It cited to the holding in Ball v. Big Elk Creek Coal Co., Inc., supra, regarding the proper method for calculating Banks’ post-injury AWW.

The ALJ issued an order regarding the petitions for reconsideration on November 13, 2017.  The ALJ denied Banks’ petition regarding entitlement to additional TTD benefits.  The ALJ amended his decision to state PPD benefits and interest accrue from January 13, 2016, not January 23, 2016.  The ALJ also amended his decision to reflect Banks did not sustain an eye injury or psychological condition due to the work accident.  The ALJ acknowledged Ford filed post-injury wage records into evidence.  He stated when it did so there was no mention of a spreadsheet.  He stated the spreadsheet constitutes additional evidence, and he struck it from the record.  The ALJ also acknowledged the holding in Ball v. Big Elk Creek Coal Co., Inc., supra, provides some guidance, but stated the holding in Desa Int’l v. Barlow, supra, is also instructive.  He specifically noted, “[a] plaintiff should not be penalized because he failed to work 13 consecutive weeks post injury.”  The ALJ provided calculations which he determined were sufficient to trigger the two multiplier contained in KRS 342.730(1)(c)2. 

Ford filed a second petition for reconsideration on November 27, 2017.  It argued no party objected to the calculations in the spreadsheet attached to its brief.  It noted the calculations could have been included in the body of the brief, “but providing the spreadsheet seemed to be a more efficient method.”  Ford also argued the ALJ erred in stating Banks should not be penalized for working less than thirteen consecutive weeks post-injury.  It argued that in fact Banks worked twenty-four consecutive weeks leading up to May 1, 2017 when he sustained the unrelated health issue.  Ford also noted the ALJ apparently used overtime premiums and bonus pay in his calculations, which should have been excluded when calculating the post-injury AWW, because they were not included in the pre-injury AWW calculations.  The ALJ denied the second petition for reconsideration, and stated he disagreed with Ford’s calculations.

          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 inadequate for 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 afforded the evidence or by noting reasonable inferences that otherwise could have been drawn from the record.  Whittaker v. Rowland, supra.  As long as substantial evidence supports the ALJ’s ruling with regard to an issue, it may not be disturbed on appeal.  Special Fund v. Francis, supra.

          However, such discretion is not unfettered.  KRS 342.285 (2)(d) & (e) state as follows:

(2) No new or additional evidence may be introduced before the board except as to the fraud or misconduct of some person engaged in the administration of this chapter and affecting the order, ruling, or award, but the board shall otherwise hear the appeal upon the record as certified by the administrative law judge and shall dispose of the appeal in summary manner. The board shall not substitute its judgment for that of the administrative law judge as to the weight of evidence on questions of fact, its review being limited to determining whether or not:

 

(d) The order, decision, or award is clearly erroneous on the basis of the reliable, probative, and material evidence contained in the whole record;

 

Or

 

(e) The order, decision, or award is arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

 

          Abuse of discretion, in relation to the exercise of judicial power, is that which “implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision.”  Kentucky Nat. Park Commission, ex rel. Comm., v. Russell, 301 Ky. 187, 191 S.W.2d 214 (Ky. 1945).  Bullock v. Goodwill Coal Co., 214 S.W.3d 890, 893 (Ky. 2007).  We agree with Ford that the ALJ erred in excluding the spreadsheet attached to its brief.  The spreadsheet was not evidence.  It was merely a calculation based upon the evidence of record.  We agree that whether the information was attached as a spreadsheet or whether it was set forth as a summary in the brief, it did not constitute evidence.  Therefore, we vacate the ALJ’s order on petition for reconsideration striking the spreadsheet from Ford’s brief.  The ALJ may, but is not required to, consider the spreadsheet in reaching his determination regarding the calculation of Banks’ post-injury AWW.  We direct no particular result, and the ALJ may reach any determination regarding Banks’ post-injury AWW, which is supported by the evidence.

          We also generally agree with sentiment contained in the holding in Desa Int’l v. Barlow, supra, to the extent that an employee should not suffer from an improper estimation of his earnings.  However, that case involved the calculation of wages for a seasonal employee, not a long-term hourly employee who had been employed by the same company for more than two decades.  Here, Banks actually returned to work with no restrictions in December 2016, and continued to work for greater than thirteen weeks until he suffered from an unrelated health condition.  While Ball v. Big Elk Creek Coal Co., Inc., supra, involved a previous version of KRS 342.730, the principle remains that the post-injury wages should be calculated in the same manner as the pre-injury wages.  Because Banks returned to work without restrictions for greater than thirteen weeks, an appropriate calculation can be determined for his post-injury wages.  Any such calculation must be based upon the evidence, and follow the guidelines set forth in KRS 342.140(1)(d).  If Banks’ post-injury AWW equals or exceeds his pre-injury AWW, then he is entitled to the application of the two-multiplier pursuant to KRS 342.730(1)(c)2 for any period of cessation of such earnings.  That statute states as follows:

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. This provision shall not be construed so as to extend the duration of payments.

 

          In determining Banks’ post-injury wages, the ALJ’s calculation must be based on the same criteria utilized in calculating Banks’ pre-injury AWW, including exclusion of overtime premiums or bonuses.  If Banks did not return to such earnings, that statute has no application, and will have no application until he returns to the same or higher AWW.  In arriving at this decision, we are not engaging in fact-finding.  The ALJ is permitted to make any appropriate award based upon the evidence.  We note the ALJ’s determination that the three-multiplier contained in KRS 342.730(1)(c)1 is not applicable in this instance has not been disturbed.

          We next note this Board is permitted to sua sponte reach issues even if unpreserved but not raised on appeal. KRS 342.285(2)(c); KRS 342.285(3); George Humfleet Mobile Homes v. Christman, 125 S.W.3d 288 (Ky. 2004).  Here the ALJ incorrectly determined the two-multiplier contained in KRS 342.730(1)(c)2 is applicable from and after the date of Banks’ injury.  This determination disregards the fact that Banks actually returned to work, and indeed worked without restrictions until the May 1, 2017 unrelated event.  On remand, if the ALJ concludes the two-multiplier is applicable, it can only be applied after May 1, 2017.

          Therefore, for the foregoing reasons, the award of PPD benefits by Hon. Chris Davis, Administrative Law Judge, in the Opinion and Award rendered October 17, 2017, along with the orders on reconsideration issued November 13, 2017 and December 20, 2017, are hereby VACATED IN PART.  This claim is REMANDED to the ALJ for entry of an amended decision in conformity with the views expressed herein.

          RECHTER, MEMBER, CONCURS IN RESULT ONLY.

 

          STIVERS, MEMBER, CONCURS AND FILES A SEPARATE OPINION.

STIVERS, Member.  I agree the ALJ erred in striking the spreadsheet as it was a summary of the evidence, not additional evidence. However, this action constituted harmless error. The additional errors identified in the opinion direct that we vacate portions of the ALJ’s decision and remand the claim for further findings and entry of an amended decision.

 

 

 

COUNSEL FOR PETITIONER:

 

HON JOHANNA F ELLISON

300 WEST VINE ST, STE 600

LEXINGTON, KY 40507

 

COUNSEL FOR RESPONDENT:

 

HON JOSEPH A MAYHORN

401 WEST MAIN ST, STE 1910

LOUISVILLE, KY 40202

 

ADMINISTRATIVE LAW JUDGE:

 

HON CHRIS DAVIS

657 CHAMBERLIN AVE

FRANKFORT, KY 40601