Opinion
NO. 2012-CA-000949-WC
11-30-2012
FAMILY DOLLAR STORES, INC. APPELLANT v. BRENT HATTON, WORKERS' COMPENSATION BOARD, AND DOUGLAS W. GOTT, ADMINISTRATIVE LAW JUDGE APPELLEES
BRIEF FOR APPELLANT: Kimberly D. Newman Lucas R. Braun Lexington, Kentucky BRIEF FOR APPELLEES: Marcus A. Roland Lexington, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-10-93133
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND VANMETER, JUDGES. CAPERTON, JUDGE: The Appellant, Family Dollar Stores, Inc., appeals the April 30, 2012 opinion of the Workers' Compensation Board reversing and remanding the December 1, 2011 award and order of the Administrative Law Judge (ALJ) ordering the application of the double multiplier pursuant to Kentucky Revised Statutes (KRS) 342.730(1)(c). On appeal, Family Dollar argues that the Board's opinion was in error, and that the Board invaded the province of the ALJ as finder of fact by compelling application of the multiplier. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
Hatton sustained a work injury on March 12, 2010, while working for Family Dollar. Hatton attempted to pick up an empty pallet and experienced pain in his low back. Hatton alleged pain in the cervical and lumbar spine, as well as some thoracic complaints and a psychological overlay including symptoms of anxiety and depression. Following the injury, Hatton initially came under the treatment of Dr. William Lester, and subsequently under the treatment of Dr. Thomas Menke. Following his first examination of Hatton, Dr. Menke assessed restrictions of no lifting greater than ten pounds, no overhead work, and an hourly sit/stand option. Physical therapy was also recommended. In June of 2010, Dr. Menke recommended a cessation of physical therapy, and modified Hatton's restrictions to no lifting greater than twenty pounds, and no overhead lifting for one month. At that time, Dr. Menke anticipated an eventual return to regular duty. Nevertheless, in July of 2010, Dr. Menke concluded that Hatton could not tolerate the previous restrictions, and modified them to include no repetitive bending, stooping, or twisting. He defined those restrictions as permanent and opined that Hatton had attained maximum medical improvement.
Thereafter, in August of 2010, Hatton returned to Dr. Menke and the two decided at that time to attempt to return Hatton to regular duty work under Family Dollar's "ramp-up" program. Dr. Menke stated that he understood the program to be designed to commence at a certain restriction level, and gradually build the patient up to a more functional level. Hatton testified that the ramp-up program did not work out as he expected, and that he was returned to work in a position requiring work outside of the assessed restrictions, with the expectation that he self-modify his duties by performing only what he could do. Dr. Menke nevertheless determined that Hatton had been performing much better, and decided that an attempt to return to full duty was in order. Hatton was released to return to work at regular duty.
Subsequently, however, at an October 2010, office visit, Hatton advised Dr. Menke that the return to regular duty was not working out as expected. After several days of lifting up to 50 pounds, Hatton was forced to miss work due to increased back pain. Dr. Menke then decided that the permanent restrictions assessed in July of 2010, should be reinstated. Hatton returned to work under those restrictions. In a report dated March 25, 2011, Dr. Menke assessed a final diagnosis of cervical and lumbar strain, with the cervical strain having resolved. He assessed a lumbar impairment rating of 8% and restrictions of no overhead work, no lifting over 20 pounds, and no repetitive bending, stooping, or twisting. Dr. Menke did not feel that Hatton retained the physical capacity to perform his previous work duties.
In January of 2011, Family Dollar required Hatton to return to Dr. Lester, who performed an independent medical examination and found that Hatton could return to work at regular duty. Hatton again attempted to return to work at regular duty pursuant to Dr. Lester's recommendations, but as noted previously herein, believed that he could not continue to do so, and was terminated after advising human resources that such was the case.
Below, Family Dollar submitted into evidence the psychiatric report of Dr. Douglas Ruth, a Functional Capacity Evaluation (FCE) report completed by Mr. Rick Pounds, a medical report from Dr. Lester, and correspondence of Dr. Menke, Hatton's treating physician. Family Dollar asserts that the FCE report of Mr. Pounds indicated that Hatton had the ability to return to work safely as a bulk order filler for Family Dollar, and anticipated a successful return to that position. As noted, the medical report of Dr. Lester opined that Hatton required no restrictions relative to his job description, and that he was capable of a return to full-duty work. Family Dollar asserts that Dr. Menke also agreed that it would be safe for Hatton to return to work at the level outlined in the FCE.
As his evidence, Hatton filed medical records and correspondence from Dr. Menke and a psychiatric report from Dr. Dennis Sprague. As evidence of restrictions, Hatton submitted Dr. Menke's written restrictions. Hatton also testified through deposition and at the final hearing. During the course of the final hearing, Hatton testified that Dr. William Lester released him to return to work at full duty, which he did on February 17, 2011. Hatton testified that on that date, he worked a portion of a shift after which time he felt he could no longer handle the pain in his back. He then reported to Human Resources that despite his medical release to full duty, he refused to do the work to which he had been released. Hatton acknowledged that after refusing to do the work, he had some "choice words" for the human resources representative after which time he was escorted from the building.
A Benefit Review Conference was held on October 12, 2011, and a Final Hearing was held on October 27, 2011. As noted, the ALJ entered an opinion, award, and order on December 1, 2011. Therein, Hatton was awarded permanent partial disability benefits of $43.13 per week, based upon a 13% impairment rating, without any multipliers, based upon the opinions of Drs. Menke and Sprague. In so finding, the ALJ opined that he was:
[U]nwilling to give Hatton the benefit of the doubt on his testimony concerning his ability to return to his prior job. The ALJ finds that the insufficiency of objective findings on physical exam, the inference in Dr. Menke's notes of an expectation to return to unrestricted work, the results of the FCE, and the opinion of Dr. Lester support the finding that Hatton retains the physical capacity to return to his pre-injury work.
Hatton filed a petition for reconsideration on December 5, 2011, asserting that the ALJ was required to make a finding of fact relative to the double benefit multiplier, pursuant to KRS 342.730(1)(c)(2). The ALJ issued an order making additional findings of fact, but declined to apply the multiplier. As a basis for making that decision, the ALJ relied upon Chrysalis House v. Tackett, 283 S.W.3d 671 (Ky. 2009), in finding that in determining whether to apply the double multiplier under KRS 342.730(1)(c)(2), the ALJ must determine whether the cessation of the claimant's wages was a result of the work-related injury. Sub judice, the ALJ found the opinion of Dr. Lester to be the most credible, and thus, concluded that the cause of Hatton's work cessation was not his injury but instead personal. Thus, the ALJ found the double multiplier to be inapplicable.
Hatton appealed the decision to the Board, which entered an opinion reversing and remanding the decision of the ALJ and ordering application of the double multiplier. In making that decision, the Board found that Dr. Lester's opinion was merely "conflicting evidence," and that the cessation of Hatton's employment was the result of a disagreement over his ability to perform full-duty work "at a time when no judicial determination had been made concerning his physical capacity." Thus, the Board reasoned that as a matter of law, the dispute had to be viewed as a reason relating to Hatton's disabling injury. It is from that opinion that Family Dollar now appeals to this Court.
Prior to reviewing the arguments of the parties, we note that the function of this Court on review is to correct the Board only where the Court perceives that the Board has overlooked or misconstrued controlling statutes or precedent, or has committed an error in assessing the evidence so flagrant as to cause gross injustice. See Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687088 (Ky. 1992). We review this matter with this standard in mind.
On appeal, Family Dollar argues first, that applicable precedent requires that for the double multiplier to apply pursuant to KRS 342.730(1)(c)(2), the cause for cessation of employment must be related to the disabling injury. Family Dollar asserts that the decision of the Board was ultimately inconsistent with the holding in Chrysalis House, which involved a claimant who suffered a work-related injury, but returned to light-duty work at a same or greater wage. After being terminated for illegally cashing a blank money order that he found on the premises, Tackett claimed entitlement to the double benefit multiplier under KRS 342.730(1)(c)(2). The ALJ found that, regardless of the fact that Tackett was terminated for cause relating to the illegal act, he was entitled to the double multiplier because of the statutory language "with or without cause," contained in KRS 342.730(1)(c)(2).
After the Board and this Court affirmed the ALJ's decision based upon the statutory language, the Kentucky Supreme Court held that the statute is not required to be read in a vacuum, rather than in context. The Court held that while the double multiplier of KRS 342.730(1)(c)(2) appears to apply to any situation where the claimant has been terminated, in fact it must be read in the larger context of KRS 342.730(1), which addresses disability due to a work injury. Thus, the Court held that the double multiplier applies provided that the reason for cessation of employment relates to the disabling injury.
Family Dollar now argues that whether the cessation of employment was related to the work injury was a question of fact to be determined by the Administrative Law Judge, and must have been affirmatively proven by Hatton. Family Dollar argues that sub judice, the ALJ engaged in appropriate findings of fact pursuant to Chrysalis House. Family Dollar asserts that sub judice, the ALJ found that Hatton's employment did not cease because of his work injury, a finding that the ALJ had sufficient evidence to make. Family Dollar notes that the evidence of record reflects that Dr. Lester released Hatton to return to full-duty work, and that Hatton did so on February 17, 2011. Family Dollar asserts that it was Hatton alone who made the determination that he could not continue working, and that he did so by turning in his badge and leaving of his own volition. Family Dollar asserts that the ALJ was entitled to rely upon Dr. Lester's opinion that there were no objective medical findings to indicate an inability to return to work, and that the Board erroneously assumed the position of fact-finder in determining otherwise. While acknowledging that Dr. Lester's opinion was contrary to Dr. Menke's opinion, Family Dollar nevertheless asserts that it was for the ALJ to review the evidence and determine which was most credible.
Additionally, Family Dollar argues that public policy supports the ALJ's decision. It argues that it would be dubious public policy to find in accordance with the Board's arguments, because such a holding would allow a claimant to take him or herself off of work at any time, based only upon subjective complaints of pain, and receive an award with the double multiplier. Family Dollar argues that such a holding would prevent employers from being able to rely upon medical opinions for decision-making purposes, and instead, would force them to rely upon the claimant's subjective complaints and whims. Family Dollar argues that this is a decision best left to the ALJ, and urges this Court to reverse.
In response to the arguments made by Family Dollar, Hatton asserts that the Board correctly reversed the ALJ because the ALJ made inappropriate findings of fact. Hatton argues that the ALJ's decision proceeded from an assumption that Hatton voluntarily quit his employment for "personal reasons," which Hatton now asserts was an incorrect interpretation of controlling law, and a flagrant error in the evaluation of the evidence. Hatton argues that he did not quit, and was instead fired because he told his employer that he was in too much pain to continue performing the duties that he was assigned. Hatton argues that Family Dollar offered no rebuttal to Hatton's description of his termination and that, accordingly, the ALJ's finding that his termination was unrelated to the injury was not supported by the evidence.
Hatton asserts that the facts of Chrysalis House are in no way analogous to those presented in this appeal. He argues that in Chrysalis House, the evidence was unrebutted that the claimant was terminated as a result of an illegal act and the cessation of employment was therefore in no way related to his work injury or disability. Hatton asserts that by contrast, the reason for the termination of his employment was related to his injury and that the conflicting evidence on restrictions rendered by Drs. Lester and Menke only pertained to whether Hatton had "cause" to believe he could not continue working at his regular work duties, and that it was Family Dollar who forced Hatton to leave at a time when no judicial determination had been made concerning his physical capacity and ability to work at the level required. Accordingly, Hatton argues that the Board correctly reversed the ALJ, and urges this Court to affirm.
In reviewing the arguments of the parties, the applicable law, and the holding of the Board, we are compelled to affirm. Ultimately, the resolution of this matter depends upon the interpretation of controlling precedent, and that of KRS 342.730(1)(c)(2), which sets forth conditions for the application of the double multiplier.
KRS 342.730(1)(c)(2) provides that:
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 light of the language of the statute itself, and the holding of Chrysalis House, supra, we are compelled to agree with the Board's interpretation of Chrysalis House in finding that the decision did not obviate the "with or without cause" language of KRS 342.730(1)(c)(2), but simply required that the cessation be related to the disabling injury. As the Board noted in its April 30, 2012 opinion:
Here, the evidence establishes the dispute between Family Dollar and Hatton was over whether Hatton could perform the work assigned by Family Dollar. Therefore, Hatton's reason for no longer working at Family Dollar relates to the disabling work injury.
Upon review, the record clearly establishes that Hatton was released to return to full-duty work, that he made an attempt to do so, that he told the human resources personnel that he could no longer do the work as required, and that he was terminated accordingly. Likewise, there is no dispute that Hatton now no longer earns a wage equal to or greater than his pre-injury wage. Thus, as a matter of law, we are compelled to agree with the Board that Hatton is entitled to the application of the double multiplier of KRS 342.730(1)(c)(2).
As the Board correctly noted, there is nothing in the record to suggest that Hatton's cessation of employment involved anything other than a dispute as to his physical capacity, which was unquestionably related to the injury itself. Under the holding of Chrysalis House, and in light of the plain language of KRS 342.730(1)(c)(2), we affirm.
In so finding, we certainly recognize the public policy concerns raised by Family Dollar. However, this Court is bound by the plain language of the statutes we are called to interpret, and to apply precedent as it currently stands. The more proper remedy for such concerns sub judice would be legislative, and not judicial.
Wherefore, for the foregoing reasons, we hereby affirm the April 30, 2012 decision of the Workers' Compensation Board, reversing the December 1, 2011 opinion, award, and order of the Administrative Law Judge, and remanding this matter for application of the double multiplier pursuant to KRS 342.730(1)(c)(2).
LAMBERT, JUDGE, CONCURS.
VANMETER, JUDGE, DISSENTS AND WILL NOT FILE SEPARATE OPINION. BRIEF FOR APPELLANT: Kimberly D. Newman
Lucas R. Braun
Lexington, Kentucky
BRIEF FOR APPELLEES: Marcus A. Roland
Lexington, Kentucky