Opinion
NO. 2011-CA-002303-WC
01-25-2013
ALLEN TIRE & MUFFLER, INC. APPELLANT v. LAWRENCE M. BLACKBURN, HONORABLE JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE, AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEFS FOR APPELLANT: James G. Fogle Louisville, Kentucky BRIEF FOR APPELLEE: John Earl Hunt Stanville, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS COMPENSATION BOARD
ACTION NO. WC-09-96923
OPINION
REVERSING AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND STUMBO, JUDGES. STUMBO, JUDGE: Allen Tire & Muffler, Inc. (Allen Tire) appeals from an adverse decision by the Workers' Compensation Board (the Board) in favor of the Appellee, Lawrence M. Blackburn. On appeal, Allen Tire argues the Administrative Law Judge's (ALJ's) determination that Blackburn is unlikely to continue earning an equal or greater average weekly wage is erroneous. Upon a thorough review of the record, we agree.
History
Blackburn worked for Allen Tire from October 20, 2008 through February 9 of 2009. He is 53 years old, has his GED, and has previously worked in general labor, welding, painting, construction, truck driving, furniture building, carpentry, as a maintenance man, as a motorcycle mechanic, and in other odd jobs involving manual labor. In the five to ten years preceding the action, he performed mostly carpentry work.
During the few months that Blackburn worked for Allen Tire, he was engaged in carpentry work building portable outbuildings. He was paid by the square foot and worked thirty to thirty-five hours per week. His average weekly wage (AWW) was $204.85.
On February 9, 2009, Blackburn was injured while on the job. His hand was pulled into the blade of an electric saw. Blackburn was treated at Cabell Huntington Hospital with Dr. Farid B. Mozffari for a laceration to the dorsum of his right hand. Dr. Mozfarri performed a repair of the extensor tendon on the right index finger. Blackburn was discharged the following day and instructed to follow up with Dr. Mozfarri. Blackburn was seen by Dr. Mozfarri on February 17, February 24, March 10, March 24, and for the final time on May 5, 2009. Blackburn also participated in physical therapy sessions during this time, the last of which was on May 1, 2009.
Dr. Ronald C. Burgess performed an independent medical examination (IME) on Blackburn on July 15, 2009. At that time, Blackburn reported to Dr. Burgess that he had transferred his care to Dr. Johnson, a family practitioner in Prestonsburg, who was prescribing him Lortab. Dr. Burgess concluded that the use of narcotics, such as Lortab, was neither necessary nor appropriate. Dr. Burgess noted that Blackburn had decreased flexion of his right index finger. He found that Blackburn had reached maximal medical improvement (MMI) and that no further treatment was required. He further found that Blackburn's impairment rating was 4% and no work restrictions were necessary.
Dr. David P. Herr performed an IME on August 26, 2009. Dr. Herr's diagnosis was a power saw laceration to the dorsum of the right hand, a laceration of the extensor tendon of the right index finger, an avulsion fracture of the right index metacarpal, and aggravation of pre-existing osteoarthritis of the right hand. Dr. Herr concluded that Blackburn had an impairment rating of 14% and that he would require work restrictions against heavy lifting with his right upper extremity and a weight restriction of thirty pounds for the right hand. Nonetheless, Dr. Hen-found that Blackburn retained the physical capacity to perform the type of work he performed at the time of his injury.
The only medical record from Blackburn's family practitioner, Dr. Johnson, is a release for him to return to work, indicating that Blackburn was able to return to work on September 3, 2009.
On October 11, 2010, Dr. Gregory T. Snider also performed an IME on Blackburn. Part of the history for that IME, as provided by Blackburn, was that Dr. Johnson had stopped seeing him. Dr. Snider diagnosed a right hand laceration and right index extensor repair, and concluded that Blackburn had reached MMI on June 9, 2009, and had a 3% impairment rating with no work restrictions.
After his hand injury, Blackburn did not seek employment again until January of 2011. Blackburn stated that he did not seek work prior to this time because he was waiting to be released by a doctor.
Although the ALJ opinion indicates Blackburn was incarcerated for a period of time in 2010, it appears this was only during the month of September.
In January of 2011, Blackburn obtained a job at Prestonsburg Honda that entailed loading and unloading four-wheelers and motorcycles, washing them, and doing other miscellaneous tasks. He worked for 56 hours per week in this position. Blackburn was subsequently promoted to the parts department, where he currently works 40 hours per week. Blackburn handles small parts in this position and is paid minimum wage. At the time of the hearing, Blackburn testified that he had no trouble performing his current job. Blackburn testified that he did have some trouble with his previous position at Prestonsburg Honda while washing motorcycles and four-wheelers. Nonetheless, he did not experience such problems while working in the parts department. Instead, he stated of his current position, "I can handle it pretty good."
On May 18, 2011, the ALJ, Jeanie Owen Miller, rendered her opinion, order, and award. ALJ Miller chose to believe Dr. Herr's testimony and awarded PPD benefits based upon a 14% impairment rating. With respect to ongoing medical treatment, the ALJ concluded that the prescription of narcotics was not reasonable and necessary to Blackburn's work-related injury and ordered the treating physician to slowly begin weaning Blackburn off them. ALJ Miller found Blackburn had met his burden of proof to show that he could not return to the type of work he performed prior to his injury.
Allen Tire filed a petition for reconsideration. In its petition, among other things, Allen Tire requested that ALJ Miller employ the analysis in Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003). Based upon Blackburn's testimony that he was working forty to fifty-six hours per week at minimum wage, Allen Tire concluded that his post-injury AWW was $290.00 per week ($7.25 minimum wage x 40 hours) to $406 per week ($7.25 minimum wage x 56 hours), which was higher than his pre-injury AWW of $204.85 per week. Allen Tire argued that ALJ Miller erroneously applied the 3x multiplier in KRS 342.730(1)(c)1.
ALJ Miller entered an order in response to the petition for reconsideration on June 21, 2011. In the order, the relevant Fawbush analysis was as follows:
The Defendant/employer appears to argue that if the Plaintiff is not entitled to the 2 multiplier, then he cannot be entitled to the 3 multiplier...
The undersigned found that the Plaintiff lacked the physical capacity to return to the same type of work as he was performing at the time of the injury. Specifically, the Plaintiff lacked the capacity to return to general carpentry as he lacked the grip strength to hold and strike
a hammer. (Plaintiff's testimony). Dr. Herr had testified that he could "frequently do light carpentry work" and was limited to "25 to 30 pounds of lift and carry" (due to stiffness of the right hand).
The Plaintiff did not return to work until January 26, 2011 and that was to a job unlike his previous work for the Defendant/employer. The job he returned to was a minimum wage, non-skilled job. The undersigned considered these factors (per Fawbush)in determining the Plaintiff was not performing his prior work, he was regularly taking narcotic pain medication and was still having symptoms of pain in his right hand which prevented him from doing the type of work he was performing at the time of the injury. The fact that he may have technically been making the stipulated average weekly wage or greater upon his return to work, did not over-shadow the other Fawbush factors. I find that based upon the totality of the evidence, it is unlikely that Mr. Blackburn will be able to continue earning a wage that equals or exceeds his wage at the time of the injury for the indefinite future. Therefore, I find no error in my determination that the multiplier of 3 was applicable.
Allen Tire appealed to the Board. The Board found that ALJ Miller failed to provide an analysis of whether Blackburn retained the physical ability to continue earning an AWW that equals or exceeds the AWW at the time of injury, but that ALJ Miller cured this error by addressing it in the order ruling on the petition for reconsideration. The Board concluded that it was unable to reverse the ALJ's decision because it was supported by substantial evidence.
Allen Tire now appeals to this Court.
Standard of Review
When reviewing a decision of the Board, we will not reverse unless the Board has misconstrued or overlooked controlling law, or has so flagrantly erred in evaluating the evidence that gross injustice has occurred. Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). The ALJ is the finder of fact in workers' compensation claims, and the ALJ is free to judge the weight and credibility of the evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). As the decision to apply the 3x multiplier in KRS 342.730(1)(c)(1) favored the claimant in this case, our standard on review is whether there was "some evidence of substance to support the finding, meaning evidence which would permit a fact-finder to reasonably find as it did." Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
Analysis
On appeal, Allen Tire argues that the ALJ's conclusion (that Blackburn was unlikely to continue earning an equal or greater AWW) was erroneous because the ALJ focused almost solely on whether Blackburn had lost the physical capacity to perform his pre-injury job. Allen Tire does not dispute the ALJ's finding that Blackburn lost the capacity to perform the physical requirements of his pre-injury job. However, Allen Tire disputes that Blackburn is entitled to the three multiplier.
Allen Tire alleges that the ALJ failed to follow the precedent set forth in Adkins v. Pike County Bd. of Educ., 141 S.W.3d 387 (Ky. App. 2004), that "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." The standard, Allen Tire argues, is whether the injury has permanently altered the worker's ability to earn an equal or greater AWW, not whether he has lost the physical ability to perform his pre-injury job.
It is admitted by both sides that Blackburn cannot return to his pre-injury job, but also, that his present AWW exceeds his pre-injury AWW. KRS 342.730(1)(c)1 & 2 provides, in pertinent part, that:
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(Emphasis added).The legislature amended this statute in 2000 to include the disjunctive word "'or' at the end of paragraph (c)1 and, by doing so, evinced an intent for only one of the provisions [to] be applied to a particular claim." Fawbush, 103 S.W.3d at 12. However, Fawbush holds that if the evidence indicates the worker will be unable to maintain the higher AWW for the indefinite future, paragraph (c)1 may be applied instead of (c)2. Id.
2. 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.
Two months after Fawbush, the Supreme Court issued its opinion in Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206 (Ky. 2003). In Elkins, the Court noted that when a claim would support application of both KRS 342.730(1)(c)1 and 2, the ALJ should determine which provision is more appropriate on the facts, and calculate the benefit under that provision. Id. at 211. Subsection (c)1 is appropriate where the ALJ finds that it is unlikely the claimant will be able to continue in earning an AWW that exceeds or equals his pre-injury AWW. Id.
In 2004, the Supreme Court revisited the issue again in Adkins, supra. In Adkins, like in the present case, the claimant was not physically able to return to his pre-injury employment; however, his AWW for his post-injury employment was greater than his pre-injury AWW. The Court in Adkins clarified the holdings in Fawbush and Elkins by stating that it is not the particular job that is important, but the ability to earn an equal or greater AWW. Id. at 390.
Adkins, Fawbush, and Elkins touch on some of the factors that may be considered when determining a claimant's ability to continue making an equal or greater AWW post-injury, including whether the claimant is currently working outside of his work restrictions (i.e. claimant doing "heavy" work although he is restricted to "light" work) and whether the claimant's work is unsustainable because he has to take more narcotic pain medication than prescribed in order to do the job.
In the present case, the ALJ found that Blackburn was unlikely to be able to continue making an equal or greater AWW; however, no factors are cited in support of this conclusion. Instead, Blackburn's own testimony was that he had no trouble performing his duties in the parts department. There were no other factors in the record which indicated Blackburn would not be able to earn minimum wage at a forty hour per week job (which, incidentally, is more than he was making before the accident). Accordingly, we find that there was no evidence of substance from which the ALJ could have reasonably concluded that Blackburn was unlikely to continue to earn an equal or greater AWW.
Hence, we reverse and remand for entry of a new order omitting application of the 3x multiplier in KRS 342.730(1)(c)1.
ACREE, CHIEF JUDGE, CONCURS.
COMBS, JUDGE, DISSENTS AND FILES SEPARATE OPINION. COMBS, JUDGE, DISSENTING: I would affirm the Board in this matter, and, therefore, I dissent from the majority opinion.
ALJ Miller conducted the Fawbush analysis properly and thoroughly with an eye toward the totality of the circumstances and the continuity of Blackburn's ability to make a living long term.
In responding to the petition for reconsideration, the ALJ correctly determined that the non-skilled, minimum wage jobs to which he returned after his injury were not the same type of carpentry work that he had performed before very serious injury to his right hand. As was her prerogative, the ALJ elected to select and to rely upon the impairment rating of 14%. She clearly based her conclusions on evidence in the record.
I find no flaw in her analysis - legal or otherwise. Nor did the Board. Therefore, I believe that we are compelled to affirm and would do so. BRIEFS FOR APPELLANT: James G. Fogle
Louisville, Kentucky
BRIEF FOR APPELLEE: John Earl Hunt
Stanville, Kentucky