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Workers’
Compensation Board
OPINION ENTERED: May 25, 2018
CLAIM NO. 201601712
CINTAS CORPORATION PETITIONER
VS.
APPEAL
FROM HON. STEPHANIE L. KINNEY,
ADMINISTRATIVE LAW JUDGE
SERGIO RIVAS
AND HON. STEPHANIE L. KINNEY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART
VACATING
IN PART
AND
REMANDING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Cintas Corporation
(“Cintas”) appeals from the May 30, 2017 Opinion, Award and Order and the February
13, 2018 Order rendered by Hon. Stephanie L. Kinney, Administrative Law Judge
(“ALJ”), awarding Sergio Rivas (“Rivas”) permanent partial disability benefits
enhanced by the three multiplier pursuant to KRS 342.730(1)(c)1. Because we find the ALJ failed to perform the analysis required by Fawbush v. Gwinn,
103 S.W.3d 5 (Ky. 2003), we vacate the award of enhanced benefits and remand
the claim for further analysis.
Rivas has been employed by Cintas for approximately twenty
years as a loader. His pre-injury work
consisted of hanging clothing on overhead racks, typically about one thousand
articles of clothing per shift. He
alleged a repetitive use injury to his shoulders and neck, which reached an
apex on August 10, 2014, when he experienced a stabbing pain and tingling in
his back.
Following the work injury, Rivas was removed from the
loader position for a portion of his workday; he performs custodial duties
during the other portion of the day.
Rivas earns more in his current position than he did as a loader and he
is not working under any physical restrictions.
However, he continues to experience pain when he is required to load
clothes onto overhead racks. He takes
Tylenol on occasion when his pain is severe.
Rivas indicated he could not perform the loader work on a full-time
basis because of his pain.
Because the medical proof is not relevant to the issue on
appeal, only a brief summary is necessary.
Rivas treated with Dr. Ricardo Ferriera-Lopez for thoracic back pain in
September 2014. Dr. Ferriera-Lopez
prescribed pain medication and referred Rivas to physical therapy. He also
treated with US Healthworks, where Nurse Practitioner Patricia Groves imposed
restrictions against lifting and overhead work.
Dr. Jules
Barefoot performed an independent medical evaluation (“IME”) on October 27,
2016. Dr. Barefoot diagnosed a persistent severe scapulothoracic strain
secondary to repetitive work activities.
He assigned restrictions against overhead work and cautioned Rivas
should not return to his position as a loader.
Dr.
Barefoot assigned a 3% impairment rating for ongoing persistent painful
symptoms pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”).
Dr. Timothy Kriss performed an IME on
December 14, 2016. Dr. Kriss diagnosed
chronically recurring/persistent muscular strain related to repetitive
activities in the loader position. He
declined to assess a permanent impairment rating because Rivas does not have a
permanent injury or harmful change.
However, he warned Rivas would continue to aggravate his muscle strain
as long as he worked in the loader position.
Dr. Kriss opined Rivas would reach maximum medical improvement three
months after ceasing to perform loader duties.
Dr. Kriss later testified by
deposition and stated Rivas should avoid frequent or intensive work above
shoulder height. He reiterated Rivas
only has a muscular problem with no spinal or neurological problem. He further explained that, though Rivas does
not have a permanent injury, his symptoms require treatment. Dr. Kriss recommended the primary treatment
would be to cease working in the loader position.
Upon review of the evidence, the ALJ explained she was
convinced Rivas suffered an injury as defined by the Act. Relying on Dr. Barefoot’s opinion, she
concluded the work injury produced a 3% impairment rating. The ALJ then entered the following findings
regarding enhanced benefits:
Dr. Kriss was of the opinion Plaintiff’s condition would resolve
should he cease performing job duties associated with the loader position.
Unfortunately, that has not happened. Plaintiff continues to work and perform
custodial duties as well as limited job duties associated with his pre-injury
position. Plaintiff performs custodial tasks such as cleaning, which alleviates
his neck/shoulder symptoms. Plaintiff has not returned to his pre-injury job
duties on a full-time basis and is clearly not capable of doing so based upon
the opinions of Drs. Kriss and Barefoot. Dr. Kriss was quite clear that
activities associated with Plaintiff’s pre-injury loader position aggravate his
symptoms. Thus, this ALJ finds Plaintiff does not have the physical capacity to
perform his pre-injury job duties and Plaintiff’s permanent partial disability
benefits are enhanced by the 3 multiplier.
Cintas filed a petition for reconsideration requesting that
the ALJ perform an analysis pursuant to Fawbush to determine the
appropriate multiplier. In her February
13, 2018 Order on reconsideration, the ALJ provided the following additional
findings:
Fawbush, 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. These 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 done 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, supra, stated, it is not enough to
determine whether an injured employee is able to continue in his or her current
job.
First, this ALJ must determine whether Plaintiff retains the
physical capacity to perform his pre-injury work. This ALJ notes Plaintiff has
returned to work and continues to work for the Defendant. However, Plaintiff’s
current position differs from his pre-injury job duties. At the time of the
work injury, Plaintiff performed repetitive work at a fast pace handling
numerous items of clothing. Previously, this job required two people to
complete. Plaintiff has returned to work following the work injury but no
longer works at his previous fast pace.
Rather, Plaintiff now performs custodial job duties and hangs/handles
clothes intermittently. Thus, based upon Plaintiff’s testimony and the opinions
of Drs. Kriss and Barefoot, Plaintiff cannot return to his pre-injury position
as it significantly aggravates his symptoms. Given Plaintiff’s limitations, and
inability to perform his pre-injury work, this ALJ finds Plaintiff has
sustained a permanent alteration in his ability to earn money.
Plaintiff continues to earn a same or greater wage under the
employ of the Defendant. However, considering Plaintiff’s symptoms are
significantly aggravated and increased in relation to hanging clothes, this ALJ
does not feel Plaintiff will be able to continue earning a same or greater wage
in the indefinite future. While Plaintiff currently performs custodial work, he
is still required to hang/handle clothes. Plaintiff’s testimony and Dr. Kriss’ opinions
establish that continuing to hang clothes worsens Plaintiff’s shoulder and neck
symptoms. Dr. Kriss was clear-spoken and
unequivocally stated Plaintiff would get better if he "can simply get away
from the loader job which has over-the-shoulder work." This leads this ALJ
to conclude Plaintiff does not have the capacity to continue earning his
current same or greater wage, as it still requires him to perform some elements
of the loader job.
On appeal, Cintas argues the ALJ erred in failing to
conduct an adequate analysis regarding whether Rivas is likely to continue to
earn the same or greater wage for the indefinite future. Referencing KRS 342.730(1)(c), the ALJ
determined Rivas returned to work at the same or greater wages, and no longer
has the physical capacity to return to the type of work he performed at the
time of the injury. Cintas has not
appealed either of these findings. When
both KRS 342.730(1)(c)1 and 2 apply to a claim, Fawbush requires the ALJ
to determine which subsection of KRS 342.730(1)(c) is more appropriate on the
facts of the claim.
In making this determination, Fawbush and subsequent
case law provide that the ALJ must determine whether the work injury has
permanently altered the claimant’s ability to earn an income. The ALJ must consider a broad range of
factors, only one of which is the ability to perform the current job. See
Adkins v. Pike County Board of Education, 141 S.W.3d 387 (Ky. App.
2004). In this claim, the ALJ concluded
Rivas’ work injury permanently altered his ability to earn the same wages
indefinitely. However, she articulated
only a consideration of Rivas’ ability to continue employment with Cintas. Thus, we must vacate the award of income
benefits and direct the ALJ to render a complete Fawbush analysis
determining whether Rivas is likely to earn the same or greater wage for the
indefinite future in any employment.
Accordingly, the May 30, 2017 Opinion, Award and Order and the February 13, 2018 Order rendered by Hon. Stephanie L. Kinney, Administrative Law Judge, are hereby VACATED IN PART. The claim is REMANDED for additional findings and entry of an amended opinion, order and award in conformity with the views expressed herein.
STIVERS, MEMBER, CONCURS.
ALVEY, CHAIRMAN, DISSENTS AND FURNISHES A SEPARATE OPINION.
ALVEY,
Chairman. I respectfully dissent from the majority regarding the remand to the
Administrative Law Judge to conduct an analysis pursuant to Fawbush v. Gwinn,
103 S.W.3d 5 (Ky. 2003). The ALJ
adequately performed the analysis and expressed
her reason for applying the 3 multiplier pursuant to KRS
342.730(1)(c)1. She determined that
although Rivas had returned to the same or higher rate of pay, she did not
believe he will be able to continue earning the same or greater wage in the
indefinite future.
Therefore, I believe the requirements were adequately addressed,
and I would affirm the ALJ’s decision in its entirety.
COUNSEL
FOR PETITIONER:
HON JO ALICE VAN NAGELL
300 E MAIN ST #400
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON JEFFREY SAMPSON
450 S THIRD ST, 4TH FLOOR
LOUISVILLE, KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON STEPHANIE L. KINNEY
ADMINISTRATIVE LAW JUDGE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
