Opinion
NO. 2011-CA-002128-WC
2013-10-04
FORD MOTOR COMPANY APPELLANT v. JOHN FUERTES; HON. JAMES KERR, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Peter J. Glauber Louisville, Kentucky BRIEF FOR APPELLEE JOHN FUERTES: Udell B. Levy Louisville, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-03-64300
OPINION
REVERSING AND REMANDING
BEFORE: JONES, MOORE, AND THOMPSON, JUDGES. MOORE, JUDGE: Ford Motor Company (Ford) appeals from an opinion of the Workers' Compensation Board (the Board) remanding John Fuertes's claim back to the Administrative Law Judge (ALJ) for a determination of whether Fuertes is entitled to a "two times" multiplier of his permanent partial disability benefits pursuant to Kentucky Revised Statutes (KRS) 342.730(1)(c)2. Upon review, we hold that the ALJ's order, which held that Fuertes failed to present evidence that would support the application of "any multiplier" to his award, has in fact made a determination addressing this issue. Therefore, we reverse the Board in this respect and remand for the Board to consider on the merits whether the ALJ erred in his determination that substantial evidence does not support the application of the multiplier described in KRS 342.730(1)(c)2 to Fuertes's award.
FACTUAL AND PROCEDURAL HISTORY
Because this appeal is limited to only one alleged error of law, we will limit the summary of the facts accordingly. Fuertes completed a journeyman electrician program and began employment with Ford on July 21, 1977, where he served in various manufacturing and engineering management positions. He was transferred to Ford's Kentucky truck plant in December 1993. Fuertes asserted he sustained a work-related injury on October 30, 2003, while working at the truck plant after his foot slipped on a hex washer nut and caused him to fall. As a result of the fall, Fuertes claimed that he suffered injuries to his lower back, right knee, right shoulder, and neck. He also claimed hearing loss. Ford stipulated that there was a work-related injury to Fuertes's right knee as a result of the fall, but contested causation of the other alleged injuries.
Fuertes argues that the ALJ and Board erred in several respects, but he has not cross-appealed. Thus, we decline to address any of his alleged errors on appeal because they are not properly before this Court.
After a substantial period of discovery, the parties submitted several issues to the ALJ for final adjudication, including: 1) "work-relatedness / causation / injury as defined by the Act for all body parts except the right knee"; and 2) "benefits per KRS 342.730." The ALJ resolved these issues in an October 21, 2010 order. With regard to the former issue, the ALJ determined that Fuertes's October, 2003 fall caused Fuertes to sustain a 12% permanent impairment, consisting of "a 5% permanent impairment for his right knee, a 4% permanent impairment for his right shoulder and a 3% permanent impairment for his cervical spine."
With regard to the latter issue, the ALJ held that while Fuertes's work-related injury warranted benefits, no multiplier should apply to those benefits. Specifically, the ALJ's order states:
As to the application of KRS 342.730(1)(c)1, the Administrative Law Judge may award a 3 multiplier with a .2 enhancement given plaintiff's age of 50 at the time of his injuries provided that plaintiff can meet his burden of proof that he lacks the physical capacity to return to the type of work performed at the time of the injury. While plaintiff has received various restrictions at different times, it is noted that plaintiff was working in his usual and customary position in management when he was terminated in March of 2005. There is no evidence that plaintiff's cessation of employment was the result of his work-related injury. Further, Dr. Bilkey, a specialist in physical medicine and rehabilitation, is considered credible on the issue of plaintiff's restrictions. Dr. Bilkey noted after a records review that there were no work restrictions recommended as of the date of his evaluation on May 4, 2010. Further, Dr. Bilkey declined to assess any work restrictions for the plaintiff. Wherefore, the credible evidence is that the plaintiff does retain the(Emphasis added.)
physical capacity to return to the type of work performed at the time of the injury on October 30, 2003, and the Administrative Law Judge declines to award any multipliers in plaintiff's claim. Wherefore, plaintiff's permanent partial award shall be calculated as follows: $428.57 x 12% x 1.0 = $51.43.
Fuertes filed a petition for reconsideration, arguing in relevant part:
Defendant stipulated that, after his injury and before he was terminated, Plaintiff returned to work at the same weekly wage he was earning at the time of his injury. As a result, Plaintiff may qualify for application of the multiplier set out in KRS 342.730(1)(c)2. Therefore, Plaintiff respectfully requests that the ALJ make a determination, citing facts drawn from the evidence, of the reason for Plaintiff's termination from Ford Motor Company.
On June 24, 2011, the ALJ subsequently entered an order overruling Fuertes's petition for reconsideration, but modifying Fuertes's award in other respects not pertinent to this appeal. Of note, the ALJ's order stated:
The remainder of the plaintiff's Petition for Reconsideration involves the failure to apply the three multiplier and further involves Dr. Bilkey's opinions in respect to work restrictions. It is noted that there had been restrictions placed upon the plaintiff, including those by Dr. Sexton, Dr. Kuiper and Dr. Caborn but the Administrative Law Judge considers it more important that the plaintiff continued working for the defendant-employer as a manager following the injury and this is the same employment that he had until he was terminated from the company in March of 2005. The Administrative Law Judge stands by the opinion that the plaintiff retained the capacity to return to the type of work performed at the time of the injury until the termination for other reasons from the company and the plaintiff's Petition for Reconsideration in this respect is denied.
Fuertes subsequently appealed to the Board. Of relevance, Fuertes argued:
[Ford] acknowledged on the Form 111-I that [Fuertes] returned to work at the same weekly wage he was earning at the time of his injury. Therefore, even if the evidence hadn't proven that Mr. Fuertes did not retain the physical capacity to perform all the tasks of a maintenance supervisor, he would have qualified for application of the two multiplier set out in KRS 342.730(1)(c)2 during any period of cessation of that employment related to any work-related injury, regardless of when it may have occurred. Hogston v. Bell South Telecommunications, 325 S.W.3d 314 (Ky. 2010). While the only evidence in this case proves that Petitioner was terminated by Ford Motor Company for reasons related to the present work injury, the ALJ, once again, improperly denied Petitioner's request to make findings, citing facts drawn from the evidence, of the reason(s) for Petitioner's cessation of employment.
Upon review, the Board agreed with the ALJ's conclusion that neither Fuertes's work-related injury, nor anything else, had rendered Fuertes incapable of performing his pre-injury position with Ford. The Board agreed with the ALJ's conclusion that, at all relevant times, Fuertes could still perform the same tasks he performed at the time of his injury. The Board also agreed that Fuertes was therefore not entitled to have his benefits enhanced by a multiplier of three pursuant to KRS 342.730(1)(c)1.
However, upon review of the ALJ's two above-referenced orders, the Board also held that the ALJ had failed to address whether the two multiplier specified in KRS 342.730(1)(c)2 could have applied. Consequently, the Board remanded this matter to the ALJ and directed the ALJ to "determine whether Fuertes is entitled to enhancement of his PPD benefits pursuant to KRS 342.730(1)(c)2 and the applicable case law." The subject of Ford's appeal is whether it was appropriate for the Board to do so.
ANALYSIS
Generally speaking, the Court of Appeals is to correct the Board only when it "has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). That aside, the focus of this appeal is the Board's legal interpretation of two orders entered by an ALJ; and, like deeds, contracts, wills, and other writings, the interpretation of a court or administrative order is a legal issue subject to de novo review. See Board of Ed. of Campbellsville Independent School Dist. v. Faulkner, 433 S.W.2d 853, 855 (Ky. 1968). To summarize, Ford's argument on appeal is that the Board's remand was unnecessary because the ALJ's October 21, 2010 order, along with the ALJ's June 24, 2011 order, already addressed the question of whether Fuertes was entitled to the multiplier specified in KRS 342.730(1)(c)2, and answered that question in the negative.
It is helpful to begin our analysis of Ford's argument by briefly discussing the factors that an ALJ must analyze to determine whether an award of benefits should be enhanced pursuant to KRS 342.730(1)(c)2. KRS 342.730(1)(c)(2) provides:
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.
In short, the evidence of record must demonstrate: 1) the claimant sustained a work-related injury; 2) the claimant returned to work at a weekly wage equal to or greater than the average weekly wage at the time of injury; and 3) the claimant thereafter ceased working. But, this third factor comes with a caveat: the evidence must also demonstrate that the reason for the cessation of employment must either "relate to the claimant's disabling injury" or be "due to the disabling effects of previous work-related injuries." See Chrysalis House, Inc. v. Tackett, 283 S.W.3d 671, 672 (Ky. 2009); Hogston v. Bell South Telecommunications, 325 S.W.3d 314, 317 (Ky. 2010).
Here, the ALJ's October 21, 2010 order specifically held that "There is no evidence that [Fuertes']s cessation of employment was the result of his work-related injury," and broadly refused to apply "any multiplier" to Fuertes's benefits. After Fuertes filed his petition for reconsideration asking for a determination of why Ford terminated him, the ALJ answered by holding that "[Fuertes] retained the capacity to return to the type of work performed at the time of the injury until the termination for other reasons from the company[.]"
While it is true that neither of the ALJ's orders makes any specific reference to KRS 342.730(1)(c)2, "the phraseology of judgments are to be interpreted as any other writing, and, if the terms employed are such as to clearly convey the intention of the court rendering it, it will be upheld, although the most apt terms were not employed." Decker v. Tyree, 204 Ky. 302, 264 S.W. 726, 728 (Ky. App. 1924). It is the claimant's burden to prove entitlement to an enhanced income benefit, just as it is the claimant's burden to prove and carry the risk of non-persuasion regarding every other element of a claim. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984); see also Carte v. Loretto Motherhouse Infirmary, 19 S.W.3d 122 (Ky. App. 2000). Taken as a whole, we find that the phraseology of the ALJ's two orders clearly conveys the ALJ's belief that Fuertes failed to produce substantial evidence supporting that his termination was related to any work-related disability (i.e., the third of the above factors). And, because "effect must be given to that which is unavoidably and necessarily implied in a judgment, as well as that which is expressed in the most appropriate language," Furlow v. Sturgeon, 436 S.W.2d 485, 486 (Ky. 1969) (citation omitted), the ALJ's refusal to apply "any multiplier" to Fuertes's benefits effectively carried with it a refusal to apply the multiplier specified in KRS 342.730(1)(c)2. For this reason, we agree that the Board erred in remanding this matter to the ALJ for additional findings; the findings contemplated by the Board were already made.
Having resolved the only issue briefed by Ford in its appeal, there is now a question of how to proceed. Ford argues that because the Board erred in directing the ALJ to make additional findings, Fuertes's claim for benefits multiplied by KRS 342.730(1)(c)2 should simply be dismissed. We disagree.
In Hutchins v. General Elec. Co., 190 S.W.3d 333 (Ky. 2006), the Kentucky Supreme Court remanded to the Court of Appeals for a review of appellate issues on the merits after determining that the Court of Appeals had incorrectly dismissed a claimant's petition for review for failing to name an indispensable party. In Aisin Automotive Castings v. Rose, No. 2007-CA-000825-WC, 2007 WL 3317545 (Ky. App. Nov. 9, 2007), the Court of Appeals remanded to the Workers' Compensation Board for review of whether the ALJ's opinion regarding a claimant's entitlement to medical expenses was supported by substantial evidence after the Board erroneously determined that the failure to join the claimant's attorney as a party to the administrative appeal precluded any review of that issue. As a practical matter, an erroneous refusal to address an issue on appeal due to a perceived failure to join an indispensable party is the same as an erroneous refusal to address an issue on appeal for any other perceived lack of authority. Thus, taken together, these cases stand for the proposition that in the context of workers' compensation where a lower appellate tribunal disposes of all or part of an appeal as the result of a mistaken belief that it has no authority to conduct any review, the proper disposition of the case may include remanding the case back to the lower appellate tribunal for consideration of the undecided issues on the merits.
For this proposition of law, we find Aisin to be persuasive authority in this case and proper to cite as it fulfills the criteria of Kentucky Rules of Civil Procedure (CR) 76.28(4)(c).
We believe that this is the proper way to proceed. In the instant matter, when these proceedings were before the Board, in addition to arguing that the ALJ had failed to make any findings regarding KRS 342.730(1)(c)2, Fuertes also argued that the evidence of record compelled a finding that KRS 342.730(1)(c)2 applied to his award. The Board did not address Fuertes's latter argument because, in perceiving that the ALJ had failed to make any finding regarding KRS 342.730(1)(c)2—and in correctly understanding that only the ALJ has the authority to make any such finding—the Board assumed that it had no authority to address whether the evidence of record would have compelled such a finding.
KRS 342.285(1) designates the ALJ, and not the Board, as the finder of fact in workers' compensation claims.
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CONCLUSION
The Board incorrectly remanded this matter to the ALJ for additional findings. To that extent, we reverse. However, because the Board failed to address whether the ALJ erred in his determination that substantial evidence does not support the application of the multiplier described in KRS 342.730(1)(c)2 to Fuertes's award, we remand with directions for the Board to review this issue on the merits.
ALL CONCUR. BRIEF FOR APPELLANT: Peter J. Glauber
Louisville, Kentucky
BRIEF FOR APPELLEE JOHN
FUERTES:
Udell B. Levy
Louisville, Kentucky