TELEPLAN V. VICKIE CONNER; HON . JAMES L, KERR, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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CASE INANY COUR T OF THIS STA TE.
RENDERED : December 18, 2003
NOT TO BE PUBLISHED
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2003-SC-0065-WC
TELEPLAN
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APPELLANT
APPEAL FROM COURT OF APPEALS
2002-CA-1537-WC
WORKERS' COMPENSATION BOARD NO. 01-01189
VICKIE CONNER; HON . JAMES L, KERR,
ADMINISTRATIVE LAW JUDGE ; AND
WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
REVERSING AND REMANDING
The Workers' Compensation Board (Board) and the Court of Appeals have
affirmed a finding that the claimant lacks the physical capacity to return to the type of
work that she performed at the time of her injury. Appealing, the employer maintains
that an award under KRS 342 .730(1)(c)1 was erroneous as a matter of law because the
claimant returned to the same job that she was performing at the time of her injury,
working within her medical restrictions, and with only an accommodation in the height of
her work table . Consistent with the principles that were expressed in Fawbush v.
Gwinn , Ky., 103 S .W.3d 5 (2003), we reverse and remand the claim for the entry of an
award under KRS 342.730(1)(c)2 .
The claimant was born in 1966 and graduated from high school with training in
health occupations . She has worked as a cashier and retail clerk, machine operator,
special order clerk for a building supplies company, customer service agent, and fast
food worker. After working for the defendant-employer as a temporary employee
through an agency since November 28, 2000, the claimant became a regular employee
on March 12, 2001 . The company packages hard drives for computers .
The claimant testified that hard drives were sent to her department on carts,
packaged in foam buns that she thought contained up to 28 drives . As she described
her duties, she was required to stand at three tables, remove each hard drive, inspect it,
and package it for shipping . Her claim alleged that she sustained an injury due to the
heavy and/or repetitive nature of her work and the height of her work station . Although
the claimant admitted that she returned to her previous job and earned the same or a
greater wage, her claim alleged that she did not retain the physical capacity to perform
the type of work that she performed when injured . Among the contested issues was
whether an award to the claimant should be made under KRS 342 .730(1)(c) 1 or 2 .
The claimant testified that the work was fast-paced and involved repetitive and
forceful gripping and pushing with her hands. She indicated that she inspected and
packed approximately 1,250 hard drives per shift. Due to her 5 foot 1 inch height and
the height of the table, she worked with her arms at and above shoulder level, a factor
that she thought contributed to her problems. She indicated that, at the time of her
injury, the number of workers decreased for a period of time from the usual four or five
down to two . Thus, the work was more stressful at that time because there were fewer
workers than there were presently.
The claimant denied any previous arm or elbow problems and stated that on
March 14, 2001, she began to experience pain in her right forearm and informed her
supervisor. She described her initial symptom as a constant ache in her forearms .
Eventually, both arms were affected, and she experienced numbness and tingling in her
hands . About a week later, she went to Baptistworx and was placed on light duty, told
to restrict her movements, and prescribed Motrin and heat packs for pain . She
indicated that she was released to regular duty for about a month, but her symptoms
worsened, and she was placed on light duty again. However, the employer had no light
duty available, so she did not work for about three months. She indicated that after she
was evaluated by Dr. Kasdan, the employer terminated voluntary benefits . Then, early
in August, 2001, the employer informed her that light duty was available, and she
returned to work . The record indicates that the claimant returned to work on August 13,
2001 .
At the hearing, the claimant testified that after trying other duties, she had
returned to her previous job as a packer and presently worked in that capacity . She
testified that the company had lowered her work tables and that her elbow problem was
"much better." Although her elbows were still tender, they no longer ached. She
indicated that she continued to experience occasional tingling and pinching sensations
in the bottom of her wrists but indicated that they, too, had improved . She testified that
although her job could at times require lifting buns of hard drives that weighed more
than 20 pounds off a cart, help was available when such lifting was required . She did
not have to do it herself . She did not state whether such help was available at the time
of her injury . On cross-examination, the claimant indicated that Dr. Breidenbach knew
she had returned to her previous job and did not object as long she complied with her
restrictions.
On March 21, 2001, about a week after her symptoms began, the claimant
sought medical treatment at Baptistworx . Treatment records indicated that she was
prescribed Naprosyn and B-complex vitamins for wrist strain . She was restricted from
forceful or repetitive gripping and limited to wearing splints while working . On March 28,
2001, limitations from lifting more than 5 pounds and from wrist flexion or extension
were added . By April 12, 2001, the claimant was released to return to work without
restrictions but was advised to wear splints as needed . Her symptoms increased
thereafter, and on May 16, 2001, both the previous restrictions and an additional
restriction against reaching above shoulder level were imposed . Unable to
accommodate all of the restrictions, the employer took her off work altogether, and the
parties stipulated that the employer paid temporary total disability benefits from May 17,
2001, through July 24, 2001 .
On May 24, 2001, the claimant's family physician prescribed ibuprofen and
referred her for an EMG study. The study was performed by Dr. Weston on June 11,
2001, and the results were introduced into evidence . They were normal .
Dr. Kasdan evaluated the claimant on July 25, 2001 . X-rays and nerve
conduction studies that he ordered were negative for carpal or cubital tunnel syndrome,
leading him to diagnose chronic wrist and elbow pain. He did not think that the
condition was work-related because the claimant reported that her symptoms worsened
while she was off work. Furthermore, in the absence of sufficient information about the
physical requirements of the claimant's work, he would not recommend any work
restrictions .
The claimant sought treatment with Dr. Breidenbach on August 9, 2001, shortly
before she returned to work. He diagnosed bilateral lateral epicondylitis and mild right
carpal tunnel syndrome for which he prescribed physical therapy. On that date, he
indicated that the claimant could return to light work, which he described as "Lifting 20
Ibs maximum . Frequent lifting or carrying restricted to objects weighing 10 Ibs or less
(using both hands) ."
He also required her to wear a brace . On September 26, 2001,
he injected both arms because the claimant continued to complain of elbow pain as well
as tingling and numbness . As of November 1, 2001, he limited the claimant to light
work, required her to wear splints, and prohibited overtime work. On January 9, 2002,
Dr. Breidenbach permanently restricted the claimant to light work, as previously
described on August 9, 2001 . Although the form that he completed does not indicate
that she was required to wear braces permanently, the parties appear to agree that she
does so.
On August 17, 2001, Dr. Wolens, conducted a utilization review of the claimant's
medical records and the results of Dr. Kasdan's evaluation. He determined that
because the claimant's symptoms continued to increase when she was off work, the
condition was probably not work-related .
Dr. Bilkey examined the claimant on November 12, 2001, and reviewed her
medical records .
He noted that July 24, 2001, x-rays and June 11 and July 24, 2001,
nerve conduction studies were all normal. Range of motion was normal, but there was
some grip strength weakness .
He noted that, consistent with Dr. Breidenbach's
diagnosis of bilateral epicondylitis, there was tenderness below the elbows . In his
opinion, the claimant's symptoms were work-related . Dr. Bilkey recommended no lifting
more than 20 pounds occasionally and 10 pounds frequently, no overtime work, and
continued use of splints on both wrists. He assigned a 0% impairment under the Fourth
edition of the AMA Guides and a 3% impairment for chronic pain under the Fifth edition .
Furthermore, he indicated that the claimant could be evaluated on the basis of grip
strength, in which case the whole-body impairment would be 12% .
Jeffrey Hooper, the claimant's supervisor, testified that the company had no work
available within the restrictions that were in place from May 17 to August 13, 2001 . He
testified that after the claimant returned to work on August 13, 2001, her work tables
were lowered, at her request . He also testified that the duties of a packer complied with
the claimant's restrictions and did not require heavy lifting . He explained that both
before and after the claimant's injury, other workers would do such lifting when it was
necessary.
Relying upon Drs. Breidenbach and Bilkey, the Administrative Law Judge (ALJ)
determined that the claimant sustained a work-related cumulative trauma injury.
Although noting that the diagnostic tests were negative, the ALJ pointed out that there
was objective evidence of grip strength weakness and a 3% AMA impairment . The ALJ
determined that the claimant was at maximum medical improvement on July 24, 2001,
when examined by Dr. Kasdan, and that no temporary total disability benefits were
warranted thereafter.
Finally, the ALJ determined that the claimant was entitled to a
triple benefit as provided by KRS 342.730(1)(c)1, stating as follows :
The Administrative Law Judge further finds that the plaintiff
lacks the physical capacity to returned (sic) to the type of
work performed at the time of the injury based upon the
permanent restrictions of Dr. Breidenbach. The Administrative Law Judge notes that while plaintiff has returned to
the work earning the same or greater wages, her work
station has had to be modified to accommodate her and
plaintiff essentially works on a light duty basis within her
restrictions .
In affirming the decision, the Board interpreted the words "type of work" in KRS
342 .730(1)(c)1 as requiring a review of the specific requirements of the job that the
worker was performing when injured rather than a more general review of the
classification to which the job belonged . The Board was persuaded that although an
individual might return to work, factors such as restrictions from performing a job
requirement, from working overtime, a requirement to wear splints, or special
accommodations would warrant a finding in the worker's favor under KRS
342 .730(1)(c)1 . Noting that the claimant did not return to work symptom free, that she
would not be able to work without accommodations, and that her permanent restrictions
would likely reduce her future job opportunities, the Board determined that the award of
a triple benefit under KRS 342 .730(1)(c)1 was appropriate despite the claimant's return
to work at the same or a greater wage.
As amended effective July 14, 2000, KRS 342.730(1)(c) provides, in pertinent
part, as follows :
1 . 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, but this provision shall not be construed
so as to extend the duration of payments; or
2. If an employee returns to work at a weekly wage equal to
or g reater t han t he av erage w eekly w age 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 o r w ithout
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 .
KRS 342 .730(1)(c)3 recognizes that "limited education and advancing age impact an
employee's post-injury earning capacity" and, in certain instances, enhances the
multiplier to be applied under paragraph (c)1 . Finally, KRS 342.730(1)(c)4 provides
that, notwithstanding KRS 342.125, a claim may be reopened at any time during the
period of partial disability to conform the award to KRS 342.730(1)(c)2 .
As amended effective July 14, 2000, KRS 342 .730(1)(b) and (c) refined the
system for calculating partial disability benefits that was enacted in 1996 . As amended,
the provisions take into account the extent of a worker's physical impairment due to a
work-related injury. KRS 342.730(1)(b) provides a basic partial disability benefit, but
because the factors are smaller than under the 1996 Act, the benefit is smaller. An
individual who does not retain the physical capacity to return to the previous type of
work receives triple the basic benefit and may be entitled to additional enhancement of
the award under KRS 342 .730(1)(c)1 and 3. Whereas, an individual who retains the
physical capacity to return to the previous type of work but fails to do so receives only
the basic benefit under KRS 342.730(1)(b) . An individual who returns to work earning
the same or greater wage receives the basic benefit and is entitled to receive double
the basic benefit for any period that the employment ceases, regardless of the reason .
KRS 342.730(1)(c)2 .
An apparent goal of the 2000 amendments was to provide a greater incentive for
workers who retain the physical capacity to return to their previous type of work after an
injury to do so and, presumably, to earn the same or a greater wage than when injured .
While they continue in the employment, they are entitled to receive the basic benefit in
addition to their wage. Yet, they are assured that if for any reason they are unable to
maintain employment earning the same or a greater wage, they will receive double the
basic benefit . Furthermore, KRS 342 .730(1)(c)2 operates as an incentive to employers
to make reasonable accommodations that will enable injured workers to continue
working and earning the same or a greater wage.
As is demonstrated by the frequent amendment of the Act and the many judicial
decisions interpreting the Act, situations arise that the Act does not directly address.
Like their predecessors, the 2000 versions of KRS 342.730(1)(b) and (c) are imperfect .
In Fawbush v. Gwinn , supra , which was decided while this appeal was pending, we
were faced with a claim in which an ALJ determined that although the injured worker
lacked the physical capacity to return to framing carpentry, he had returned to work as a
construction superintendent and earned more than he had before the injury . The ALJ
awarded a triple income benefit under KRS 342.730(1)(c)1 .
Among the matters at issue on appeal was whether the award should have been
made under the 2000 version of KRS 342.730(1)(c)1 or 2. It was undisputed that the
worker lacked the physical capacity to return to framing carpentry . We concluded that
because only one provision could apply and because the Act did not express a
preference for either provision, an ALJ would be required to determine which was more
appropriate on the facts. Focusing on the facts at hand, we determined that if a worker
was unlikely to be able to continue earning a wage that equaled or exceeded the wage
at the time of injury for the indefinite future, the application of KRS 342.730(1)(c)1
would be appropriate . Id . at 12. In view of the unrebutted evidence that Mr. Gwinn's
post-injury work was done out of necessity, was outside his medical restrictions, and
was possible only when he took more narcotic pain medication than prescribed, we
concluded that it was apparent he would not likely be able to maintain the employment
for the indefinite future . We determined, therefore, that the ALJ's decision to apply
KRS 342 .730(1)(c)1 was reasonable .
The employer maintains that the claimant not only retains the physical capacity
to return to the type of work that she performed at the time of the injury, she has done
so and earns the same or a greater wage than before the injury . For that reason, the
employer asserts that an award under KRS 342.730(1)(c)1 is clearly erroneous .
Furthermore, the employer asserts that Fawbush v. Gwinn, supra , supports its
argument that the award should have been made under KRS 342.730(1)(c)2 .
The employer argues that the claimant returned to the same job that she was
performing when she was injured, that she continues to perform the full range of her
prior duties, that all of those duties are within her medical restrictions, and that its only
accommodation is a lower work table, something that no physician required . Although
acknowledging that the claimant is restricted from lifting more than 20 pounds as a
result of her injury, the employer maintains that she was not required to do so before
the injury . Likewise, although acknowledging that the claimant wears wrist splints while
working, the employer maintains that they do not interfere with her physical capacity to
do her job. Taking issue with the opinions of the Board and the Court of Appeals, the
employer asserts this is not a case where a special job with less strenuous
requirements was created for the claimant . It maintains that the job requirements are
no different than they were before the claimant's injury and that it should not be
penalized for making a minor accommodation at her request.
It is unnecessary for us to interpret KRS 342 .730(1)(c)1 in order to determine
whether the finding that the claimant lacked the physical capacity to return to the type of
work that she performed at the time of injury was erroneous as a matter of law. We
reach that conclusion because, regardless of whether the evidence supported a finding
under KRS 342 .730(1)(c)1, our decision in Fawbush v. Gwinn , supra , compelled an
award under KRS 342 .730(1)(c)2 on these facts. When stating a rationale for affirming
the award, the Board and the Court of Appeals misstated the claimant's permanent
10
restrictions, indicated that the employer had made "numerous accommodations," and
concluded that the employer had simply provided the claimant with 'sheltered
employment.' The evidence does not reasonably support such a conclusion .
Dr. Breidenbach used the same form each time he imposed work restrictions.
Although restrictions that were imposed temporarily included the wearing of splints and
no overtime work, the sole permanent restriction that Dr. Breidenbach imposed on
January 9, 2002, was a limitation to "light work." As defined on Dr. Breidenbach's form,
the term "light work" means : "Lifting 20 Ibs maximum . Frequent lifting or carrying
restricted to objects weighing 10 lbs or less (using both hands)." On January 24, 2002,
after having returned to her job for five months, the claimant testified that since the
employer had lowered her work tables, not only was she able to perform her duties as a
packer, her condition had improved . Although her elbows remained tender, they no
longer ached, and the tingling and pinching sensations in her wrists had improved . She
also testified that she was not required to lift more than 20 pounds . Under those
circumstances, the evidence would not reasonably have permitted a finding that the
effects of the claimant's injury were likely to prevent her from continuing to perform her
job indefinitely .
The decision of the Court of Appeals is reversed, and the claim is remanded to
the ALJ for the entry of an award under KRS 342.730(1)(c)2 .
Cooper, Johnstone, Keller, and Wintersheimer, JJ . concur. Lambert, C.J.,
dissents by separate opinion in which Graves and Stumbo, JJ ., join .
COUNSEL FOR APPELLANT:
Dana Clemons Hulbert
James G. Fogle
Ferreri & Fogle
203 Speed Building
333 Guthrie Green
Louisville, KY 40202
COUNSEL FOR APPELLEE:
Wayne C . Daub
730 West Main Street, Suite 200
Louisville, KY 40202
RENDERED : DECEMBER 18, 2003
NOT TO BE PUBLISHED
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2003-SC-0065-WC
TELEPLAN
V
APPELLANT
ON REVIEW FROM THE COURT OF APPEALS
2002-CA-1537-W C
WORKERS' COMPENSATION BOARD NO. 01-01189
VICKIE CONNER ; HON. JAMES L . KERR,
ADMINISTRATIVE LAW JUDGE ; AND
WORKERS' COMPENSATION BOARD
APPELLEES
DISSENTING OPINION BY CHIEF JUSTICE LAMBERT
Respectfully, I dissent from the majority's decision, and would affirm the Court of
Appeal's holding that the claimant lacked the physical capacity to return to the type of
work that she performed at the time of her injury thereby warranting an award under
KRS 342 .730(1)(c)1 .
Based upon the claimant's work restrictions, modification of her workstation, and
the fact that she worked on a light duty basis within her restrictions, the ALJ found that
claimant lacked "the physical capacity to return to the type of work performed at the
time of the injury based upon the permanent restrictions of Dr. Breidenbach ." The ALJ
noted that claimant's workstation had been modified to accommodate her disability and
that she essentially worked on a light duty basis . Upon these findings, the ALJ awarded
benefits pursuant to KRS 342.730(1)(c)1 . The Board agreed that the enhanced benefit
award was appropriate despite the claimant's return to work at the same or greater
wage . The Board noted in its decision that the claimant did not return to work symptom
free, that she would not be able to work without accommodations, and that her
permanent restrictions would likely reduce her future job opportunities. Both the AU
and the Board found that she could return to work with restrictions at the same or
greater wage, but her future wage earning capacity was diminished due to the injury
justifying an award under KRS 342.730(1)(c)1 .
The majority opinion is inconsistent with this Court's recent decisions in Fawbush
v. Gwinn' and inconsistent with Western Baptist Hosp. v. Kelly.2 In Fawbush, the ALJ
awarded the claimant benefits under KRS 342 .730(1)(c)1 because the claimant was
unlikely to be able to continue earning a wage that equaled or exceeded the wage at
the time of injury for the indefinite future. This Court held :
We conclude, therefore, that an ALJ is authorized to determine
which provision is more appropriate on the facts. If the evidence
indicates that 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, the application of paragraph (c)1 is appropriate .
Fawbush specifically held that the ALJ was authorized, with discretion, to determine
which statutory provision to apply to the disability award .5
Fawbush held that an award under KRS 342 .730(1)(c)1 was reasonable under
the following facts : First, the claimant's lack of physical capacity to return to the type of
work that he performed was undisputed . Second, although he was able to earn more
' Ky., 103 S .W .3d 5 (2003).
2 Ky., 827 S.W .2d 685 (1992) .
3103 S .W.3d at 12.
4 _Id .
5
Id .
money than at the time of his injury, his unrebutted testimony indicated that the post
injury work was done out of necessity, was outside his medical restrictions, and was
possible only when he took more narcotic pain medication than prescribed . Although
the majority attempted to distinguish this case from Fawbush , it seems to have
inadvertently established the Fawbush type facts as the only means of achieving
entitlement to an enhanced award and excluded other factual circumstances, despite
ALJ findings and conclusions to the contrary .
The key provision that determines the application of KRS 342.730(1)(c)l is
whether an injured worker is unlikely to be able to continue earning for the indefinite
future a wage that equals or exceeds the wage at the time of injury . The AU so found,
but the majority supplanted that finding and reversed the ALJ and the Board with its
own finding. The Court of Appeals correctly held there was sufficient evidence to
support the ALJ and the Board .
In the venerable Western Baptist,6 an employer appealed a Workers'
Compensation Board's (WCB) finding that an employee's injury was work related .' The
employer appealed and the Court of Appeals affirmed . This Court held that it would not
review the workers' compensation disability claim where the view taken by the Board
and the Court of Appeals was not patently unreasonable or flagrantly implausible .$ This
Court held that the standard of review for resolving inferences from the evidence is as
follows :
The WCB is suppose[d] to decide whether the evidence is sufficient to
support a particular finding made by the ALJ, or whether such evidence as
there was before the AU should be viewed as uncontradicted and
Supra .
_Id . at 687-88 .
g Id . at 688.
6
compelling a different result. These are judgment calls . No purpose is
served by second guessing such judgment calls, let alone third-guessing
them. Our Court must provide appeals where the Constitution so
mandates, but in so doing we need not obstruct legislative intent
unnecessarily, nor should we encourage multiple appeals of the same
issue.
The function of further review of the WCB in the Court of Appeals is to
correct the Board only where the Court perceives the Board has
overlooked or misconstrued controlling statutes or precedent, or
committed an error in addressing the evidence so flagrant as to cause
gross injustice . The function of further review in our Court is to address
new or novel questions of statutory construction, or to reconsider
precedent when such appears necessary, or to review a question of
constitutional magnitude . 9
In the present case, the finding by the ALJ, affirmed by the Board, was that the
claimant was injured and was entitled to a treble award under (c)1 . This does not
amount to an error so flagrant as to cause a gross injustice . The AU and the Board
heard the testimony concerning the claimant's ability to return to work. The decision
that the claimant was injured thereby decreasing her future earning capacity was
supported by competent evidence . Nothing in the record suggested that Board's
decision was patently unreasonable or flagrantly implausible . Although there was
conflicting testimony, it was not so convincing as to demand our "second guess" of the
judgment of the ALJ, the Board, and the Court of Appeals.
I am hopeful that this opinion will be an aberration and not a retreat from the
standard set by Western Baptist. As the fourth tribunal to consider workers'
compensation cases we should neither be in the fact finding business nor in the
business of determining what inferences are reasonable from the facts .
Graves and Stumbo, JJ., join this dissenting opinion .
9
Id. at 687-88 .
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