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Workers’
Compensation Board
OPINION
ENTERED: May 4, 2018
CLAIM NO. 201491253
HEATHER MORGAN PETITIONER
VS. APPEAL FROM HON. JONATHAN
R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
BLUEGRASS OAKWOOD INC.
and HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
VACATING
IN PART AND REMANDING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Heather Morgan (“Morgan”) seeks review of the November 17, 2017, Opinion and
Award of Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ”) finding
she sustained a work-related cervical injury generating a 28% impairment rating
while in the employ of Bluegrass Oakwood Inc. (“Bluegrass Oakwood”). The ALJ
awarded temporary total disability (“TTD”) and permanent partial disability
(“PPD”) benefits enhanced by the two multiplier contained in KRS 342.730(1)(c)2
and medical benefits. Morgan also appeals from the January 9, 2018, Order
amending the opinion and award to correct the date of Morgan’s second injury as
stipulated by the parties but denying the remainder of her petition for
reconsideration. In doing so, the ALJ affirmed the enhancement of Morgan’s PPD
benefits by the two multiplier.
On appeal, Morgan challenges the ALJ’s decision on two
grounds. First, Morgan asserts the ALJ erred by failing to enhance the award by
the three multiplier set forth in KRS 342.730(1)(c)1. Morgan notes that, in
four separate paragraphs within the findings of fact, the ALJ found she did not
retain the ability to return to the same type of work she performed at the time
of the injury. Thus, Morgan is entitled to the three multiplier. Instead, the
ALJ chose to apply the two multiplier since he also found Morgan returned to
work at the same or greater wages and ultimately had to stop due to her work
injuries. Morgan notes she filed a petition for reconsideration addressing the
issue of the multipliers which the ALJ overruled stating:
There is no credible evidence of any
additional impairment suffered or of more significant restrictions issued that
would constitute any change in her condition such that the ‘3’ multiplier could
be justified.
Morgan argues the ALJ’s order is at best
confusing since it directly contradicts his finding Morgan did not retain the
ability to return to the same type of work. Morgan argues the ALJ failed to
explain why the two multiplier is appropriate. This is further complicated by
his statement there was no credible evidence to support the application of the
three multiplier. Morgan requests the claim be remanded to the ALJ for
enhancement of her award by the three multiplier. Alternatively, Morgan
requests remand with instructions to conduct an analysis pursuant to Fawbush
v. Gwinn, 102 S.W.3d 5 (Ky. 2003) and in accordance with the Kentucky
Supreme Court’s directive in Adams v. NHC Healthcare, 199 S.W.3d 163
(Ky. 2006).
Next, Morgan asserts the ALJ failed
to adequately address her entitlement to additional TTD benefits. Morgan notes
the ALJ determined she was entitled to two periods of TTD benefits in addition
to those already paid but failed to address her entitlement to two other
periods of TTD benefits. Morgan claims she is entitled to TTD benefits from
June 17, 2014, through July 31, 2014, and from June 14, 2015, through September
30, 2015.
Morgan notes entitlement to TTD
benefits was listed as a contested issue in the September 18, 2017, Benefit
Review Conference Order & Memorandum (“BRC Order”). She also notes her
petition for reconsideration raised as an issue the ALJ’s failure to address
her entitlement to TTD benefits during these two periods. However, in the
January 9, 2018, Order, the ALJ failed to address her request for an award of
TTD benefits during the periods in question, including the weekly TTD benefit rate
to be paid.
In her Form 101, Morgan alleged a February 17, 2014, injury
to her neck when she was struck on the side of her neck by a resident of
Bluegrass Oakwood.
By agreement of the parties, the claim was bifurcated for
the ALJ to decide the sole issue of Morgan’s entitlement to C6-7 artificial
disk placement surgery. In an August 24, 2015, Interlocutory Opinion and Order,
relying upon the opinions of Dr. Magdy El-Kalliny, the ALJ concluded the
proposed surgery was reasonable, necessary, and causally work-related.
Consequently, Bluegrass Oakwood was directed to immediately pre-authorize
payment for the recommended surgery and was responsible for all medical
expenses related to the treatment of the work-related cervical spine injury.
The claim was placed in abeyance pending maximum medical improvement (“MMI”)
and Bluegrass Oakwood was to institute payment of TTD benefits commencing from
the date of the surgery until Morgan attained MMI.
Thereafter, Morgan successfully amended her Form 101 to
include a claim for injuries to the cervical region on June 14, 2015, and April
19, 2016.
The BRC Order reflects the parties stipulated Morgan
sustained work-related injuries on February 17, 2014, July 15, 2016, and April
19, 2016. The contested issues were: benefits per KRS 342.730 and TTD.
In the November 17, 2017, Opinion and Award, relying upon
the opinion of Dr. El-Kalliny, the ALJ found Morgan retained a 28% impairment
rating as a result of the February 17, 2014, work-injury.[1] As
noted by Morgan, in paragraphs 10, 14, 15, and 16 within the findings of fact
and conclusions of law, the ALJ found Morgan did not retain the ability to
return to the same type of work. However, in paragraph 16, in addition to
finding Morgan did not retain the ability to return to the same type of work,
the ALJ also found as follows:
The ALJ finds that the
Plaintiff, despite not retaining the ability to return to the same type of
work, did return at the same or greater wages and then ultimately had to stop
due to the work injuries suffered herein. The ALJ therefore finds that the “2”
multiplier applies per KRS 342.730(1)(c)2.
With respect to Morgan’s entitlement
to TTD benefits beyond those previously paid by Bluegrass Oakwood, the ALJ
concluded Morgan reached MMI as of January 11, 2015, and she was entitled to additional
TTD benefits during the periods from April 20, 2016, through April 26, 2016,
and from August 31, 2016, through January 11, 2017.[2]
Morgan filed a petition for
reconsideration asserting, in relevant part, the ALJ had concluded in four
different paragraphs that she did not retain the ability to return to the same
type of work. However, the ALJ failed to award the three multiplier, and
instead, chose to enhance Morgan’s benefits by the two multiplier. Morgan
contended the fact the ALJ found she returned to work at the same or greater
wages following the first two injuries did not dispose of the issue of whether
she is entitled to enhanced benefits by the two multiplier or the three
multiplier. Thus, Morgan contended the award should be enhanced by the three
multiplier. Alternatively, Morgan requested “additional Findings of Fact and/or
Conclusions of Law regarding the application of the three (3) multiplier versus
the two (2) multiplier” pursuant to Fawbush.
Concerning the award of TTD benefits,
Morgan noted the parties stipulated TTD benefits had been paid during three
different periods. Morgan pointed out that in addition to the periods of TTD
benefits awarded by the ALJ in his decision, she had sought TTD benefits during
the periods from June 17, 2014, through July 31, 2014, and from June 14, 2015,
through September 30, 2015. Morgan requested the ALJ award TTD benefits for the
previous periods paid as well as the additional periods cited within her
petition for reconsideration. Morgan also requested the ALJ correct the weekly
TTD benefit rate.
In the January 9, 2018, Order, the ALJ
amended the opinion and award to reflect the second date of injury was June 14,
2015. However, with regard to Morgan’s claim of entitlement to the three
multiplier or her request for a Fawbush analysis, the ALJ stated as
follows:
After an
additional review of the evidence, the facts found to be credible by the ALJ
support the award of the "2" multiplier. The ALJ specifically finds that
the Plaintiff's credible testimony supports the issuance of the "2"
multiplier.
The Plaintiff
testified that she returned at the same wages but had to stop working due to
the residual effects of her prior injuries. There is no credible evidence of
any additional impairment suffered or of more significant restrictions issued
that would constitute any change in her condition such that the "3"
multiplier could be justified.
Significantly, the ALJ did not address Morgan’s request for resolution
of her claim for TTD benefits for the periods in question and resolve the issue
of the TTD benefit rate.
Finding the ALJ erred in not conducting a Fawbush
analysis and in failing to resolve Morgan’s entitlement to the two periods of
TTD benefits which she sought in her brief to the ALJ and the petition for
reconsideration, we vacate the enhancement of the award by the two multiplier
and the award of TTD benefits.
Unquestionably, the ALJ found the three
multiplier was applicable. The ALJ further found Morgan had returned to work
earning the same or greater wages, thus causing the two multiplier to be
applicable. Consequently, an analysis pursuant to Fawbush is mandated.
In Fawbush, the Kentucky Supreme Court directed when the two multiplier
and the three multiplier are found to be applicable to a claim, the ALJ “is
authorized to determine which provision is more appropriate on the facts.” Id.
at 12. The Supreme Court further instructed if the evidence indicates, “a
worker is unlikely to be able to continue earning a wage that equals or exceeds
the wage at the time of the injury for the indefinite future application of
paragraph (c)1 is appropriate.” Id. As a result, in the case sub judice, the ALJ was required to
determine which multiplier is more appropriate based on the facts.
In Adams,
the Supreme Court addressed the range of factors to be considered in conducting
a Fawbush analysis, stating:
The court
explained subsequently in Adkins v. Pike County Board of Education, 141 S.W.3d 387 (Ky. App. 2004), that the Fawbush analysis includes a broad range of factors, only
one of which is the ability to perform the current job. The standard for the
decision is whether the injury has permanently altered the worker's ability to
earn an income. The application of KRS 342.730(1)(c)1 is appropriate if an individual returns to
work at the same or a greater wage but is unlikely to be able to continue for
the indefinite future to do work from which to earn such a wage.
Id. at 168-169.
In
the case sub judice, the ALJ failed
to determine, pursuant to Fawbush, whether Morgan is unlikely to be able
to continue earning a wage that equals the wage at the time of the injury for
the indefinite future based on the factors set forth in Adams. Thus,
enhancement of the award by the two multiplier must be vacated.
Similarly, the ALJ erred in not addressing
in his decision and in the January 9, 2018, Order all of Morgan’s claim for
additional TTD benefits. In her brief to the ALJ, Morgan noted TTD benefits
were paid from February 18, 2014, through June 16, 2014, and benefits were
terminated based on Dr. Richard Sheridan’s opinion who performed an examination
on July 1, 2014. However, Morgan came under the care of Dr. El-Kalliny who saw
her on July 2, 2014. Dr. El-Kalliny took her off work that day and directed she
remain off work until September 2, 2014. Dr. El-Kalliny subsequently released
Morgan to return to work as of July 31, 2014. Morgan sought TTD benefits from
June 17, 2014, through July 31, 2014, the day before she returned to work.
Morgan also argued she continued to work until her second injury on June
14, 2015, at which time she was again taken off work with no payment of TTD
benefits. Morgan noted the ALJ issued an interlocutory opinion awarding TTD
benefits from the date of surgery on October 1, 2015, until she attained MMI.
Morgan submitted there was a gap during which TTD benefits were not paid
following the second injury from June 14, 2015, through September 30, 2015, and
she was entitled to benefits during this period.
Morgan further asserted there was a gap in the payment of TTD benefits
from April 20, 2016, through April 26, 2016, and from April 31, 2016, through
January 11, 2017. In the decision, the ALJ awarded TTD benefits for the last
two periods Morgan sought TTD benefits but failed to address the first two
periods for which Morgan claimed she was entitled to TTD benefits. Morgan
timely raised this issue in her petition for reconsideration, and the ALJ
failed to resolve it. The ALJ also failed to address the weekly TTD benefit
rate as requested by Morgan. Therefore, the award of TTD benefits must be
vacated. On remand, the ALJ must address Morgan’s entitlement to TTD benefits
during the periods in question, which includes the weekly TTD benefit rate.
Accordingly, the award of income benefits enhancing Morgan’s benefits by
the two multiplier is VACATED. The
award of TTD benefits is also VACATED.
This claim is REMANDED to the ALJ to
conduct a Fawbush analysis and a determination as to whether it is more
appropriate to enhance the award of PPD benefits by the two multiplier or three
multiplier. The ALJ shall also enter an amended decision resolving Morgan’s
claim of entitlement to TTD benefits from June 17, 2014, through July 30, 2014,
and from June 14, 2015, through September 30, 2015. This includes resolution of
the weekly TTD benefit rate to which Morgan is entitled.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON MARK D KNIGHT
P O BOX 49
SOMERSET KY 42502
COUNSEL
FOR RESPONDENT:
HON ROBERT FERRERI
614 W MAIN ST STE 5500
LOUISVILLE KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R WEATHERBY
657 CHAMBERLIN AVE
FRANKFORT KY 40601
[1] Neither party disputes the ALJ’s finding
that the impairment rating is solely attributable to the first injury.
[2] The ALJ did not find Morgan was entitled to
an award of TTD benefits during the periods the parties stipulated TTD benefits
were paid to Morgan. Apparently, the ALJ’s reference to TTD benefits already
awarded is those TTD benefits voluntarily paid as stipulated by the parties.
