Opinion
2013-SC-000130-WC
04-17-2014
LAWRENCE M. BLACKBURN APPELLANT v. ALLEN TIRE & MUFFLER, INC.; HONORABLE JEANIE OWEN MILLER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
COUNSEL FOR APPELLANT, LAWRENCE M. BLACKBURN: John Earl Hunt COUNSEL FOR APPELLEE, ALLEN TIRE & MUFFLER, INC.: James Gordon Fogle
IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE ; PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2011-CA-002303-WC
WORKERS' COMPENSATION NO. 09-96923
MEMORANDUM OPINION OF THE COURT
REVERSING
Appellant, Lawrence M. Blackburn, appeals from a decision of the Court of Appeals which held that he was not entitled to the multiplier provided in KRS 342.730(1)(c)(1). That statute provides that "[i]f, 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 the 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." Blackburn argues that the Court of Appeals erroneously held that he was not entitled to the triple multiplier because there is evidence that he is unlikely to continue to earn an equal or greater average weekly wage than what he earned prior to his injury. For the reasons set forth below, we reverse the Court of Appeals.
Blackburn was employed by Allen Tire 8b Muffler, Inc. to construct portable outbuildings. He was paid by the square foot he constructed and worked thirty to thirty-five hours per week. His average weekly wage was $204.85.
Blackburn was injured while working when his hand was pulled into the blade of an electric saw. Blackburn had surgery to reattach a tendon and underwent physical therapy. He filed for workers' compensation benefits.
Dr. Ronald C. Burgess performed an independent medical examination ("IME") on Blackburn. He 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. Dr. Burgess assigned Blackburn a 4% impairment rating and stated that no work restrictions were necessary.
Dr. David P. Herr also performed an IME on Blackburn. He diagnosed Blackburn's injury as a power saw laceration to the dorsum of the right hand, a laceration of the extensor tendon of the right index finger, and avulsion fracture of the right index metacarpal, and aggravation of pre-existing osteoarthritis of the right hand. Dr. Herr assigned Blackburn an impairment rating of 14% and imposed work restrictions against heavy lifting with his right upper extremity and a weight restriction of thirty pounds for the right hand. Dr. Herr also found that Blackburn retained the physical capacity to perform the type of work he performed at the time of his injury.
Finally, Dr. Gregory T. Snider performed an IME on Blackburn. He diagnosed a right hand laceration and right index extensor repair, and concluded that Blackburn had reached MMI. He assigned Blackburn a 3% impairment rating with no work restrictions.
For about two years after his injury, Blackburn did not work. However, he ultimately obtained a job with Prestonsburg Honda that involved loading, unloading, and washing four-wheelers and motorcycles, and other miscellaneous tasks. Blackburn worked approximately fifty-six hours per week in this position. He then received a promotion to the parts department where he works forty hours per week and is paid minimum wage. He receives an average weekly wage of $290.00. Blackburn testified that he had no trouble performing his current job.
The ALJ rendered an opinion, order, and award giving benefits to Blackburn based on Dr. Herr's assignment of a 14% impairment rating. She also found that Blackburn met his burden of proof to show he could not return to the type of work he performed prior to his injury. The ALJ found that both sections of KRS 342.732(1)(c) were applicable and chose to give Blackburn the triple multiplier under KRS 342.732(1)(c)(1).
Allen Tire filed a petition for reconsideration asking the ALJ to specifically perform the analysis in Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003). Fawbush held that an ALJ is authorized to determine which provision of KRS 342.732 (1)c is more appropriate, if both are potentially applicable, based on the facts of the workers' compensation application. The ALJ provided the following Fawbush analysis in her response to the petition for reconsideration:
[Allen Tire] appears to argue that if the Plaintiff is not entitled to the 2 multiplier, then he cannot be entitled to the 3 multiplier. . .The Board affirmed the ALJ.
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 [Allen Tire]. The job he returned to was a minimum wage, non-skilled job. The undersigned considered these factors (per Fawbush) in determining that 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.
The Court of Appeals, in a two to one decision, reversed the Board. The majority stated:
[t]he legislature amended [KRS 342.732 (1)c] 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 aThe dissenting opinion believed that the ALJ properly conducted the Fawbush analysis to find that Blackburn would not be able to return to carpentry work in the future. Blackburn subsequently filed this appeal.
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.
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 [v. Pike County Board of Education, 141 S.W.3d 387 (Ky.App. 2004)]. 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.
The Court of Appeals incorrectly believes that Adkins is a Supreme Court decision. We point out that Adkins was actually rendered by the Court of Appeals.
Blackburn argues that the Court of Appeals erred by finding that the ALJ did not properly apply the Fawbush factors. In reviewing a decision of the Board, the Court of Appeals should 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). Because Blackburn prevailed in his claim, the 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).
The ALJ found that as a result of the totality of the circumstances Blackburn would not be able to continue to earn an equal or greater AWW than what he earned pre-injury. While the ALJ noted that Blackburn is currently earning a greater AWW than before, the ALJ also found that Blackburn could not return to the type of work he performed at the time of his injury, was still using narcotic pain killers, and was having continued difficulty using his right hand. Indeed, Blackburn cannot hold or use a hammer as he could before. He also ended up taking an unskilled job which paid him less of an hourly wage than he received at Allen Tire. The ALJ believed that those factors cast doubt on whether Blackburn could continue to earn an equal or greater salary and overshadowed the fact that Blackburn was earning a greater AWW now than he did previously. While the ALJ did not perform an elaborate Fawbush analysis, there is sufficient evidence in the record to support her conclusion to grant Blackburn the triple multiplier.
Thus, for the above stated reasons, we reverse the decision of the Court of Appeals and reinstate the opinion and award of the Administrative Law Judge.
Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ., sitting. All concur. Scott, J., not sitting. COUNSEL FOR APPELLANT,
LAWRENCE M. BLACKBURN:
John Earl Hunt COUNSEL FOR APPELLEE,
ALLEN TIRE & MUFFLER, INC.:
James Gordon Fogle