Opinion
NO. 2014-CA-000280-WC
05-01-2015
JOHN FUERTES APPELLANT v. FORD MOTOR COMPANY; HON. JAMES KERR, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Udell B. Levy Louisville, Kentucky BRIEF FOR APPELLEE, FORD MOTOR COMPANY: Elizabeth M. Hahn Philip J. Reverman, Jr. Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-03-64300
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; KRAMER AND VANMETER, JUDGES. KRAMER, JUDGE: An Administrative Law Judge (ALJ) awarded John Fuertes workers' compensation income benefits as a result of an injury Fuertes sustained while working in the course of his employment with Ford Motor Company ("Ford"), but refused to enhance Fuertes' income benefits by the two times multiplier specified in Kentucky Revised Statute (KRS) 342.730(1)(c)2. Fuertes subsequently appealed to the Workers' Compensation Board ("Board"), which affirmed. Upon review, we likewise affirm.
FACTUAL AND PROCEDURAL HISTORY
The Board correctly summarized much of the factual and procedural history of this matter as follows:
The Board previously rendered an opinion on October 27, 2011 affirming in part, reversing in part and remanding the October 21, 2010 Opinion and Award and June 24, 2011 Opinion and Award rendered by Hon. James Kerr, Administrative Law Judge ("ALJ"). The Board affirmed portions of the ALJ's decisions determining Fuertes did not sustain a compensable low back injury, is not entitled to enhancement of his benefits by the three multiplier contained in KRS 342.730(1)(c)1, and is entitled to medical benefits, but not income benefits, as a result of his work-related hearing loss. However, the Board reversed the ALJ's decision regarding Fuertes' entitlement to temporary total disability ("TTD") benefits, and remanded for entry of an amended opinion and award overruling Ford's amended petition for reconsideration and reinstating the award of TTD benefits from September 7, 2004, through September 28, 2004. The Board further determined the ALJ failed to address whether the two multiplier specified in KRS 342.730(1)(c)2 could have applied, and remanded for additional findings on this issue.
Ford Motor Company ("Ford") appealed the Board's holding concerning the remand for additional findings regarding the applicability of the two multiplier. The Court of Appeals rendered its Opinion Reversing and Remanding on October 4, 2013.[] It noted the ALJ
specifically held there is no evidence Fuertes' cessation of employment was the result of his work-related injury, and broadly refused to apply "any multiplier" to Fuertes' benefits. The Court of Appeals further noted the ALJ on reconsideration held Fuertes retained the capacity to return to the type of work performed at the time of injury until the termination for other reasons. The Court of Appeals concluded:
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).
The Court of Appeals remanded this matter to the Board to rule on the question of whether the record compelled a finding KRS 342.730(1)(c)2 applied to Fuertes' award.
See Ford Motor Co. v. Fuertes, No. 2011-CA-002128-WC, 2013 WL 5521636 (Ky. App. Oct. 4, 2013).
Upon remand, the Board affirmed that application of the two times multiplier to Fuertes' award, as of the date of the ALJ's order, was not warranted. In relevant part, the Board explained:
In his Form 101, Fuertes alleged he returned to work with Ford earning the same wage he earned at the time of his injury. In its Form 111, Ford acknowledged Fuertes returned to work at the same wage. The May 24, 2010 Benefit Review Conference order indicates "Stip" for current wage. Because the post-injury average wage was not at issue, the record compels a finding KRS 342.730(1)(c)2 is applicable to Fuertes' claim as he did return to work at the same wage as that earned at the time of his injury.
The evidence did not compel a finding Fuertes was entitled to enhancement by the two multiplier at the time of the ALJ's decision. Fuertes testified he was terminated for "performance related issues," though he believed his absence from work for procedures related to
his shoulder and knee played a role in his termination. However, he also testified he had asserted a claim for discrimination related to pay issues which preceded the termination. The ALJ determined Fuertes was terminated for reasons other than his work injury. Fuertes's speculative testimony, even if un-rebutted, does not compel a finding in his favor regarding the reasons for his termination.
Fuertes subsequently appealed to this Court. The focus of his appeal is whether he was entitled to have his income benefits enhanced by the multiplier specified in KRS 342.730(1)(c)2.
STANDARD OF REVIEW
The burden of proof and risk of non-persuasion rests with the party holding the affirmative of any issue before the ALJ. Thus, where the ALJ determines that a worker has satisfied his burden of proof with regard to a question of fact, the issue on appeal is whether substantial evidence supported the determination. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). "Substantial evidence" has been defined as "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971). Conversely, where the fact-finder's decision is to deny relief to the party with the burden of proof and persuasion, it is not enough for that party to note evidence which would have supported a conclusion contrary to the ALJ's decision; such evidence is not an adequate basis for reversal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). Rather, the issue on appeal is whether the evidence in that party's favor is so compelling that, as a matter of law, no reasonable person could have failed to have been persuaded by it. Carnes v. Tremco Mfg. Co., 30 S.W.3d 172, 176 (Ky. 2000); see also Francis, 708 S.W.2d at 643.
ANALYSIS
In Chrysalis House v. Tackett, 283 S.W.3d 671, 674 (Ky. 2009), the Kentucky Supreme Court explained that "KRS 342.730(1)(c)2 permits a double income benefit during any period that employment at the same or a greater wage ceases 'for any reason, with or without cause,' provided that the reason relates to the disabling injury." In Hogston v. Bell S. Telecommunications, 325 S.W.3d 314, 317 (Ky. 2010), the Supreme Court added that "KRS 342.730(1)(c)2 includes a cessation of employment due to the disabling effects of previous work-related injuries as well as the injury being compensated." Therefore, under KRS 342.730(1)(c)2 as interpreted by Chrysalis House and Hogston, a two times multiplier is appropriate if the record demonstrates the claimant: (1) sustained a work-related injury; (2) returned to work at a weekly wage equal to or greater than the average weekly wage at the time of the injury; and (3) thereafter ceased working for a reason related to the claimant's disabling injury or due to the disabling effects of previous work-related injuries.
The first and second of the above-stated elements are not at issue in this matter. The point of contention is the third element—specifically, whether evidence of record compels the conclusion that Fuertes' employment with Ford ceased "for a reason related to" his disabling work-related injury. Fuertes argues that it does. In support, Fuertes states in his appellate brief:
The undisputed evidence showed that Appellant, a twenty-seven year employee at Ford, had only been back to work for a month when he was terminated in March, 2005 for "performance related issues." Mr. Fuertes missed work due to his injury nearly thirty nine percent (39%) of the time from October 30, 2003 until he was terminated in March, 2005, including approximately six of the last twelve months of his employment with [Ford]. During his last month of employment, he was working with physical restrictions, attending physical therapy two to three times per week and taking longer to complete his work. He had medical examinations before returning to work in February, 2005 and a month after he was terminated in March, 2005. On both occasions, [Fuertes] was noted to have muscle spasms in his neck and low back. Mr. Fuertes also received an injection for arthritis in his shoulder within days of his termination. Conversely, [Ford] offered no reason for termination to counter this evidence.
If the grounds of Fuertes' termination were absenteeism or an inability to perform his duties due to his work-related injury, the third requisite element for a double multiplier of benefits would have been satisfied. See, e.g., Hogston, 325 S.W.3d 314. But, nothing aside from Fuertes' speculation supports either notion. The record only demonstrates that Ford continued to employ Fuertes in spite of his absences; it ultimately terminated Fuertes' employment one month after he had returned to work. Furthermore, while Fuertes asserts that "he was working with physical restrictions, attending physical therapy two to three times per week and taking longer to complete his work," nothing of record demonstrates those were considerations in Ford's decision to terminate his employment.
Indeed, the last sentence of Fuertes' above-quoted statement highlights the problem with his argument. Fuertes could have asked or compelled Ford through administrative discovery processes to explain why it terminated his employment, but he failed to do so prior to submitting this issue for final adjudication. As a result, the ALJ had nothing, aside from Fuertes' suspicion, conjecture, and speculation, upon which to base a finding that Fuertes' employment with Ford ceased for reasons relating to any disabling effects of his work injury.
803 Kentucky Administrative Regulation (KAR) 25:010 § 17(1) provides "Discovery and the taking of depositions shall be in accordance with the provisions of Civil Rules 26 to 37, inclusive, except for Civil Rules 27, 33, and 36 which shall not apply to practice before the administrative law judges or the board."
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In its own review, the Board explained that Fuertes' speculative testimony, even if un-rebutted, does not compel a finding in his favor regarding the reason for his termination. We find no error in this conclusion. It was ultimately Fuertes' burden as the claimant to produce evidence supporting that he was terminated for a reason relating to his disabling injury. Francis, 708 S.W.2d at 643. His speculation is not evidence. O'Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006). His self-serving testimony, even if un-rebutted, may be disregarded. Grider Hill Dock, Inc. v. Sloan, 448 S.W.2d 373, 374 (Ky. 1969). And, we decline to hold that where an employee who has been assigned medical restrictions or has been absent from work due to a work injury is terminated, and no evidence of record demonstrates why the termination occurred, there arises a compelling presumption that the termination related to the work injury for purposes of KRS 342.730(1)(c)2.
CONCLUSION
Fuertes has presented no basis for reversing the Board's disposition of this matter. We therefore AFFIRM.
ALL CONCUR. BRIEF FOR APPELLANT: Udell B. Levy
Louisville, Kentucky
BRIEF FOR APPELLEE, FORD
MOTOR COMPANY:
Elizabeth M. Hahn
Philip J. Reverman, Jr.
Louisville, Kentucky