Opinion
NO. 2013-CA-000633-WC
12-12-2014
MARY WEDDING APPELLANT v. COLLECTIVE BRAND, INC.; STRIDE RITE CORP.; HON. EDWARD D. HAYS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Eric M. Lamb Louisville, Kentucky BRIEF FOR APPELLEE, COLLECTIVE BRAND, INC.: Whitney L. Lucas Lexington, Kentucky BRIEF FOR APPELLEE, STRIDE RIGHT: R. Johnson Powell James E. Skaggs Lexington, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NOS. WC-08-75597 AND WC-10-99647
OPINION
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; JONES AND VANMETER, JUDGES. ACREE, CHIEF JUDGE: Mary Wedding appeals from a decision of the Workers' Compensation Board vacating an Administrative Law Judge's (ALJ) conclusion that she was entitled to permanent partial disability (PPD) benefits, medical benefits, and vocational rehabilitation benefits. For the reasons that follow, we affirm in part, reverse in part, and remand.
I. Facts and Procedure
Wedding began working for Appellee Stride Rite Corporation in 1997. Her job duties required her to engage in repetitive lifting, tugging, pushing and overhead work with cases of six to twenty-four pairs of shoes.
In 2005, while still employed by Stride Rite, Wedding was diagnosed with carpal tunnel syndrome in both wrists. She underwent a carpal tunnel release and a cubital tunnel release on her left wrist and elbow on April 18, 2005, and a simple carpal tunnel release on her right wrist on June 1, 2005. Dr. Richard DuBou performed both surgeries. To combat post-operative pain, Wedding participated in physical therapy, which proved successful. Dr. DuBou released Wedding to full duty on September 29, 2005.
In early 2006, Dr. DuBou requested a post-operative EMG, which revealed Wedding's left wrist had returned to normal but mild residual carpal tunnel remained in her right wrist. In light of lingering pain symptoms and the positive EMG on Wedding's right wrist, Dr. DuBou assessed a 2% whole person impairment rating; he issued no impairment rating related to Wedding's left wrist.
Wedding sought workers' compensation benefits due to her right-wrist impairment. She was paid temporary total disability (TTD) benefits and medical benefits. On June 12, 2006, Wedding was issued a check for $1,686.97. Wedding admitted the check was intended as a settlement of her claim. However, no Form 110 was ever executed or filed with the Department of Workers' Claims, and no ALJ approved the settlement.
Sometime after Wedding's 2005 injury, Stride Rite was acquired by Appellee Collective Brand, Inc.
In late 2007, Wedding testified she again experienced pain in her hands, wrists, and arms, and later, her right shoulder. When the pain returned in 2008, Wedding participated in physical therapy with Occupation Kinetics. She also sought treatment from her primary care provider, Dr. Mark Winders. Dr. Winders examined Wedding on February 26, 2008.
Wedding informed Dr. Winders that the pain in her elbow and shoulder had persisted for one year, and the pain in her right wrist had been present for one week. Dr. Winders diagnosed Wedding with a right-wrist sprain, right-shoulder-bicep grove tendonitis, and right-elbow epicondylitis. Dr. Winders found Wedding's right shoulder to be diffusely tender. Dr. Winders referred Wedding to Dr. Phillip Dripchak, an orthopedic surgeon.
Dr. Dripchak examined Wedding on June 24, 2008. Wedding complained of right-shoulder pain. An MRI revealed Wedding had degenerative right-joint AC with mild tendinopathy, no full thickness tear of the infraspinatus/supraspinatus, and a type 1 SLAP lesion. A week later, after reviewing x-rays of Wedding's right shoulder, Dr. Dripchak found Wedding had right-shoulder AC arthrosis and right-shoulder subacromial impingement with accompanying rotator cuff tendonitis in a sequential fashion. Injections in the AC joint and subacromial bursa provided Wedding with some pain relief. Dr. Dripchak recommended an arthrogram with a repeat MRI (MRA). Dr. Dripchak also referred Wedding to Dr. Cyna Khalily, an orthopedic surgeon, for surgery.
Dr. Khalily examined Wedding on July 22, 2008, to evaluate her complaints of right-shoulder pain. Dr. Khalily discovered stiffness and weakness in Wedding's right shoulder. Wedding advised Dr. Khalily that she experienced the onset of right-shoulder pain over the course of a year. Dr. Khalily noted that joint injections, physical therapy, and medication had failed to provide relief. Dr. Khalily performed a right-shoulder arthroscopy on August 20, 2008. Following the surgery, Wedding developed a stiff shoulder. Consequently, on November 7, 2008, Dr. Khalily performed a right-shoulder manipulation under anesthesia. Dr. Khalily restricted Wedding from work from July 22, 2008, until December 5, 2008. Dr. Khalily opined that the surgeries were brought about by work-related cumulative trauma, but declined to issue an impairment rating.
Wedding returned to work in January 2009. According to Wedding, she missed approximately 20 days over the next year and a half due to pain in her wrists and shoulders. Wedding was eventually terminated when she failed to provide a physician's note excusing her from work.
Wedding filed a Form 101 and multiple amendments seeking compensation for the 2005 and 2008 injuries. For the 2005 incident, Wedding claimed work-related injuries to her left wrist, right wrist, and left elbow. For the 2008 incident, Wedding claimed work-related injuries to her right wrist, left wrist, right shoulder, and left shoulder. The ALJ consolidated the claims.
Dr. Warren Bilkey conducted an independent medical examination of Wedding on June 16, 2010. Dr. Bilkey thought Wedding's wrist and shoulder pain stemmed from repetitive work activities. He diagnosed Wedding with a February 13, 2008 work-related right-shoulder strain due to repetitive lifting with a labrum tear, and aggravated right-wrist pain from repetitive work activities. Dr. Bilkey attributed both the wrist and shoulder problems to repetitive motion or cumulative trauma work activities. He also noted that, due to right-shoulder pain, Wedding had to compensate with her left shoulder which resulted in ongoing left-shoulder soreness.
In Dr. Bilkey's estimate, Wedding appeared to have reached maximum medical improvement. He concluded Wedding had a preexisting 3% whole person impairment rating for each wrist (for a total 6% whole person impairment) as a result of the 2005 incident. He then assessed a 10% whole person impairment rating, dissected as follows: 3% for the right shoulder, 4% for the right wrist, and 3% for the left wrist. He recommended Wedding conduct home exercises for her wrists and shoulder and, if needed, occupational therapy. Dr. Bilkey did not issue work restrictions, noting Wedding had returned to regular-duty work; however, he pointed out that work activity aggravated her symptoms and opined she probably would not be able to tolerate her job indefinitely.
On May 26, 2011, Dr. Bilkey provided an addendum wherein he stated that Wedding suffers from right-shoulder pain aggravated by exertion and repetitive motion coupled with left-shoulder pain due to compensating or favoring the right shoulder. Notably, Dr. Bilkey altered his impairment rating to include a 1% whole person impairment attributable to the left shoulder. Dr. Bilkey further stated that combining the 2005 and 2008 impairments yields a 15% whole person impairment.
Dr. Ellen Barrett performed an independent medical examination on June 1, 2010. Dr. Barrett examined Wedding and reviewed her medical records. Dr. Barrett agreed that Wedding's June 2008 MRI suggested a right-shoulder SLAP tear and mild degenerative changes of the AC joint, and the July 2008 MRA revealed a right-shoulder SLAP tear. Dr. Ballard opined that Wedding's right shoulder injury did not result from cumulative trauma and was not work related. Dr. Ballard explained that a SLAP tear is not caused by cumulative trauma but, instead, results from an acute injury, the likes of which Wedding denied. Consequently, Dr. Ballard concluded that Wedding's job duties were not the etiology of her SLAP tear, and assessed a 0% right-shoulder impairment rating. Dr. Ballard disagreed with Dr. Bilkey's impairment ratings and vigorously attacked his opinion and methodology on multiple occasions. Dr. Ballard thought Wedding could return to her previous employment and did not require work restrictions or further treatment.
Dr. DuBou reexamined Wedding on December 6, 2011. His examination revealed Wedding had full range of motion of her shoulders, full sensation, and normal x-rays. He also reviewed the evaluations performed by Dr. Ballard and Dr. Bilkey. Dr. DuBou agreed with Dr. Ballard that the 2008 injury was not due to cumulative trauma, but resulted from a SLAP tear. Dr. DuBou further found the 2008 injury did not exacerbate the 2005 injury, and opined Wedding had reached maximum medical improvement for the 2005 injury. Dr. DuBou disagreed with Dr. Bilkey's 6% whole person impairment rating for the 2005 surgery; he believed his rating to be more accurate because it was accompanied by a post-operative EMG/nerve conduction study.
By opinion and order issued on April 30, 2012, the ALJ determined Wedding sustained a cumulative trauma injury to her wrist which manifested on January 24, 2005, while employed by Stride Rite, resulting in a 2% whole person impairment. The ALJ found persuasive the opinions of Dr. DuBou and Dr. Ballard. For this injury, the ALJ awarded TTD benefits and PPD benefits. The ALJ also ordered Stride Rite responsible for any future medical benefits stemming from this injury.
The ALJ credited Stride Rite for the $1,686.97 previously paid to Wedding in 2006.
The ALJ further determined that Wedding sustained a cumulative trauma injury to her right shoulder on or about February 13, 2008, while employed by Collective Brand. The ALJ found persuasive the opinions of Wedding's treating physicians - Dr. Winders, Dr. Dripchak, and Dr. Khalily - that the repetitive nature of Wedding's work caused the injury. For this injury, the ALJ awarded TTD benefits, PPD benefits, medical benefits, and vocational rehabilitation benefits. The ALJ reasoned:
The ALJ is faced with deciding between 0% impairment [assessed by Drs. DuBou and Ballard] and 10% impairment to the body as a whole [assessed by Dr. Bilkey]. It cannot be ignored that [Wedding] has undergone two surgical procedures to her right shoulder. [Wedding] complains to have continuing pain of such severity that she believes she is precluded from any of the former work which she has ever done. She is not working at present and has not worked for a considerable period of time. She is not asking for total occupational disability, but has requested vocational rehabilitation. She appears credible to the ALJ and has a past work record which indicates she would rather be working than unemployed. When faced with the decision of awarding [Wedding] nothing versus the 10 % impairment rating opined by Dr. Bilkey, the ALJ will follow the opinion of Dr. Bilkey and does hereby find Wedding to have a 10% permanent impairment under the AMA Guidelines, Fifth Edition, as a result of the 2008 injury.(R. at 977-78). The ALJ ordered Collective Brand responsible for any future medical benefits stemming from the 2008 injury.
The parties filed competing petitions for reconsideration. Wedding requested that the ALJ hold Collective Brand, as opposed to Stride Rite, responsible for all future medical treatment of her wrists. Collective Brand asked the ALJ to reconsider his reliance upon the 10% impairment rating assessed by Dr. Bilkey as the basis for the award of PPD benefits for the 2008 right-shoulder injury. Collective Brand pointed out that Dr. Bilkey's 10% impairment rating was compound in nature in that it attributed 3% to her right-shoulder injury and the remaining impairment to pain in her wrists and left shoulder. However, the ALJ found Wedding only sustained a work-related injury to her right shoulder. In light of this, Collective Brand argued the proper choice of impairment ratings was the 0% assessed by Drs. DuBou and Ballard or the 3% (not 10%) assessed by Dr. Bilkey. Collective Brand also claimed the ALJ committed a patent error by failing to provide appropriate findings and conclusions to support his award of vocational rehabilitation; it requested additional findings of fact pertaining to the award. The ALJ denied both petitions.
Collective Brand appealed to the Board and Wedding cross-appealed raising the same arguments asserted in their respective petitions for reconsideration. The Board found Collective Brand's arguments to have merit, concluding first that, because the ALJ found Wedding sustained only a right-shoulder injury in 2008, he erred in adopting, in toto, Dr. Bilkey's 10% impairment rating. The Board reasoned:
Dr. Bilkey's 10% impairment rating, which includes an impairment rating for the left shoulder and both wrists, is not consistent with the ALJ's finding regarding the nature of Wedding's February 13, 2008 injury. Consequently, the ALJ should not have considered Dr. Bilkey's impairment ratings for the left shoulder and both wrists in determining the extent of the impairment of the right shoulder. Stated another way, based on the ALJ's determination that Wedding sustained only a right shoulder injury, the ALJ could not rely upon the entirety of Dr. Bilkey's impairment rating which included impairment ratings for each wrist and the left shoulder.
Significantly, Collective Brand raised this issue in its petition for reconsideration. Since the ALJ refused to
alter his finding that Wedding sustained only a cumulative trauma injury to her right shoulder and there was no finding of left shoulder and bilateral wrist injuries due to the 2008 event, the only impairment ratings relevant to the 2008 injury are those assessed for the right shoulder. The ALJ must choose between the 0% impairment rating assessed by Drs. DuBou and Ballard and the 3% impairment rating assed by Dr. Bilkey. Therefore, the award of PPD benefits enhanced by the three multiplier and the award of medical benefits for the February 13, 2008 injury must be vacated and the claim remanded for a finding of the impairment rating attributable to the right shoulder injury(R. at 1173-74). The Board reiterated that, because the ALJ determined Wedding sustained only a right-shoulder injury in 2008, Collective Brand is not responsible for medical benefits for the treatment of her left shoulder and wrists. The Board also agreed that the ALJ failed to issue appropriate findings of fact and conclusions of law to support the award of vocational rehabilitation benefits, stating:
In the summary of Wedding's testimony, the ALJ discussed her testimony regarding the pain in her shoulders and wrists. He noted that she continued to have pain in her wrists, elbow, and both shoulders and those problems existed when she returned to work in early 2008. The ALJ cited extensively to Wedding's hearing testimony indicating she could not go back to work because of the pain in her shoulders and wrists. He also noted she could not put any pressure on her wrists because of the pain. He stated Wedding also indicated reaching up or lifting heavy objects hurt her shoulders and her left shoulder gives her problems at night while sleeping. At the hearing, Wedding's testimony dealing with her inability to perform her previous job at Collective Brand pertained to her symptoms in both shoulders and wrists. Based on the ALJ's summary of Wedding's testimony, we conclude he awarded vocational rehabilitation benefits based upon Wedding's testimony regarding the effects of her problems in both
wrists and shoulders, and not just her problems due to the right wrist and right shoulder injuries. . . .(R. at 1180-81). Finally, the Board concluded that Wedding is not entitled to medical benefits to treat her left wrist because the ALJ did not determine she sustained a left-wrist injury in 2005 or 2008.
In summary, because the ALJ relied upon Dr. Bilkey's impairment rating attributing impairments to both wrists and shoulders and Wedding's testimony she could not return to her previous employment because of her bilateral problems in both wrists and shoulders, we believe remand is necessary. On remand, the ALJ must provide sufficient findings of fact and conclusions of law regarding Wedding's entitlement to vocational rehabilitation benefits based on the effects of the right wrist and right shoulder injuries.
In her cross-appeal, Wedding asked the Board to hold Collective Brand responsible for all the medical benefits stemming from the 2005 and 2008 injuries, rather than apportioning them between Collective Brand and Stride Rite. The Board declined to do so. Wedding promptly appealed.
II. Standard of Review
This Court's role in reviewing a decision of the Board "is to correct the Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
Assessment of the credibility of the witnesses and the persuasive weight of the evidence is entirely within the ALJ's authority. Kentucky Revised Statutes (KRS) 342.285. For this reason, the Board "shall not substitute its judgment for that of the administrative law judge as to the weight of evidence on questions of fact." FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 316 (Ky. 2007). Despite this, it is the Board and, in turn, this Court's function to review the ALJ's decision to determine whether the decision was erroneous as a matter of law. See KRS 342.285(2)(c) - (e). Our review of questions of law which arise in a Workers' Compensation adjudication is de novo. Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky. App. 2009).
III. Analysis
A. Preservation by Collective Brand
Wedding first argues Collective Brand failed to preserve "some or all of the issues upon which it appeals." To support her position, Wedding cites to Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985), and CR 54.02. In Eaton Axle, the Kentucky Supreme Court held that patent errors in an ALJ's opinion and award are unpreserved for appeal if not asserted in a petition for reconsideration. 688 S.W.2d at 338; Osborne v. Pepsi Cola, 816 S.W.2d 643, 645 (Ky. 1991). "The purpose of this rule is to require that all justiciable issues are disposed of before the appellate process begins." Eaton Axle, 688 S.W.2d at 338. Thus, to preserve a question of fact for appellate review the disgruntled party must file a petition for reconsideration identifying the factual error. Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327, 330 (Ky. App. 2000) ("Eaton Axle held that a party was required to file a petition for reconsideration with the finder of fact before seeking appellate relief.").
Kentucky Rules of Civil Procedure
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Wedding argues, pursuant to Eaton Axle, Collective Brand had to request in its petition for reconsideration a finding by the ALJ that Wedding sustained work-related left-shoulder and wrists injury due to cumulative trauma in 2008. Wedding claims the ALJ implicitly, though admittedly not explicitly, found such injuries when he relied on Dr. Bilkey's combined impairment rating. Consequently, Wedding maintains, to challenge those implicit findings, Collective Brand had to raise them in its reconsideration petition, but it did not. We are not persuaded.
First, we reject any attempt by Wedding to rely on the ALJ's "implicit" factual findings. The ALJ unequivocally found Wedding sustained a work-related right-shoulder injury in 2008; the ALJ did not find a 2008 work-related injury to Wedding's left shoulder or wrists. A party may not interpret an ALJ's order to implicitly find work-related injuries simply because the ALJ failed to explicitly find one. Likewise, it is neither the duty nor the prerogative of this Court to breathe into an ALJ's opinion that which the ALJ has not put there. Regarding the 2008 injury, the ALJ's opinion is clear and stands on its face.
Second, neither Eaton Axle nor CR 54.02 requires a party who is successful before the ALJ to petition the ALJ to reconsider arguments that turned in favor of that victorious party. That view is nonsensical. We reiterate that, in this case, the ALJ did not find a 2008 work-related left-shoulder or wrist injury due to cumulative trauma. There was no need for Collective Brand to challenge the ALJ's favorable decision in its petition for reconsideration. Indeed, to the extent the ALJ declined to find all the work-related injuries requested by Wedding, it was incumbent upon her to challenge the ALJ's decision in her reconsideration petition.
A simple review of the record reveals Collective Brand raised before the Board, and this Court, the exact same arguments contained in its petition for reconsideration. We perceive no preservation mishaps affecting our review.
B. 2005 Left- Wrist Injury
Similar to her first argument, Wedding contends the ALJ implicitly determined that Wedding sustained injuries to both her right and left wrists in 2005. Wedding points out that the ALJ interchangeably used the phrases "2005 injury" and "2005 injuries" in his opinion and order.
The Board rejected Wedding's interpretation of the ALJ's order. The Board explained:
In defining Wedding's 2005 injuries, the ALJ accepted Dr. DuBou's 2% impairment rating for the right wrist injury. Dr. DuBou did not assess an impairment rating for the left wrist and left elbow conditions even though carpal intended release and cubital release procedures were performed on the left wrist and left elbow, respectively. . . . Consequently, based on the ALJ's definition of the 2005 injury, Wedding sustained no injury to her left wrist and elbow. Since the ALJ found the opinions of Drs. DuBou and Ballard more persuasive and Dr. DuBou opined Wedding needed no additional medical treatment for the 2005 injury, Wedding is not entitled to future medical benefits for the left wrist and left elbow conditions.(R. at 1176).
Before this Court, Wedding argues the Board improperly made findings of fact and usurped the authority of the ALJ when it concluded the ALJ did not find a 2005 work-related left-wrist injury and, in turn, vacated the ALJ's award of future medical benefits for this injury. At the very least, Wedding contends, the Board should have remanded the matter to the ALJ for clarification and additional factual findings, if needed.
It is clear that the Board, in its order, sought to interpret an ambiguous portion of the ALJ's order and opinion. As noted by the Board, the ALJ did not make a specific finding regarding the 2005 injury. Instead, the ALJ, after discussing the medical evidence relevant to both of Wedding's wrists, noted that Dr. DuBou "opined that [Wedding] retained a 2% permanent impairment to the body was a whole as a result of the 2005 injuries." (R. at 973; emphasis added). The ALJ then adopted Dr. DuBou's impairment rating, concluding Wedding sustained a permanent impairment as a result of the 2005 injury.
It is unclear from the ALJ's order whether he intended to find that Wedding sustained only a right-wrist injury in 2005, or that she sustained work-related injuries to both wrists, but only the right-wrist injury resulted in a permanent impairment. This distinction is particularly important in light of the ALJ's award of future medical benefits because the absence of a permanent impairment rating does not preclude an award of future medical benefits. Cavin v. Lake Constr. Co., 451 S.W.2d 159, 161-62 (Ky. 1970) ("We do not believe it is necessarily inconsistent for the [B]oard to award payment of medical expenses without finding some extent of disability. It is not impossible for a non-disabling injury to require medical attention."); Combs v. Kentucky River Dist. Health Dep't, 194 S.W.3d 823, 826-27 (Ky. App. 2006). Stated differently, a finding that Wedding sustained both a right- and left-wrist injury in 2005 would, perhaps, entitle her to future medical benefits for both injuries, even absent a permanent impairment to her left wrist. See KRS 342.020(1) (entitling a claimant to medical benefits for a work-related injury "for so long as the employee is disabled regardless of the duration of the employee's income benefits"); Kroger v. Ligon, 338 S.W.3d 269, 273 (Ky. 2011) (explaining "a worker who reaches maximum medical improvement with no permanent impairment rating" may still be entitled to future medical benefits under KRS 342.020(1) provided the "injury causes impairment" and there is competent evidence that the worker may be in need of future medical care); Mullins v. Mike Catron Constr./Catron Interior Sys., Inc., 237 S.W.3d 561, 563 (Ky. App. 2007).
Consequently, we agree with Wedding that this matter should be remanded to the ALJ for more specific findings of fact regarding the 2005 injury. The ALJ must make definite findings of fact to permit a meaningful review by the Board and by this Court. As a reviewing body, neither this Court nor the Board may "supplant" essential findings of fact not made by the ALJ. See Finley v. DBM Technologies, 217 S.W.3d 261, 266 (Ky. App. 2007). Upon remand, the ALJ should reconsider the evidence as a whole and issue a specific finding as to whether Wedding sustained a work-related left-wrist injury in 2005. Should the ALJ so find, he shall then consider whether Wedding is entitled to future medical benefits for the treatment and care of this injury.
C. Vocational Rehabilitation Benefits
Wedding next contends that the ALJ made ample findings to support the vocational rehabilitation award, and the Board erred in finding otherwise. We disagree. According to KRS 342.710(3), "[w]hen as a result of [an] injury [covered by this chapter an employee] is unable to perform work for which he or she has previous training or experience, he or she shall be entitled to such vocational rehabilitation services, including retraining and job placement, as may be reasonably necessary to restore him or her to suitable employment." This statute makes clear that an injured worker is only entitled to vocational rehabilitation benefits when the work-related injury renders the worker unable to perform work for which she has previous training or experience. See id.
Here, the ALJ found Wedding physically incapable of performing work for which she has previous training or experience. See Haddock v. Hopkinsville Coating Corp., 62 S.W.3d 387, 391 (Ky. 2001) (explaining this factual finding "is mandatory whenever a worker seeks to obtain rehabilitation benefits"). However, as noted by the Board, the ALJ failed to identify sufficient facts to fulfill the relevant causal connection outlined in KRS 342.710(3). Stated differently, instead of focusing on whether the compensable, work-related injuries, as found by the ALJ, prevented Wedding from engaging in other work for which she has training or experience, the ALJ focused on all of Wedding's ailments, including non-work-related injuries. This was error.
Accordingly, we agree with the Board that the ALJ's opinion was deficient in its analysis on the issue of vocational rehabilitation benefits because it failed to identify a proper evidentiary basis for the finding. The matter must be remanded to the ALJ for further findings on this issue as the Board ordered.
Wedding also argues the Board erroneously took away the award for vocational rehabilitation benefits rather than remand to the ALJ and failed to make clear that the ALJ could consider vocational rehabilitation on remand. We are perplexed by Wedding's argument because our review of the record reveals the Board did exactly that. The Board did not direct a finding that Wedding was not entitled to vocational rehabilitation benefits. Instead, it remanded the issue to the ALJ, and directed the ALJ to consider the evidence presented and identify sufficient factual findings to support the award. We find no error by the Board.
D. Allocation of Medical Benefits
Finally, Wedding argues: (1) all her medical benefits should be paid by Stride Rite in the event Collective Brand is found to have no liability; or (2) responsibility of all medicals should fall on Collective Brand as the second employer. In support of her position, Wedding cites to Derr Constr. Co. v. Bennett, 873 S.W.2d 824 (Ky. 1994), in which the Kentucky Supreme Court, interpreting KRS 342.020, "rejected an argument that the Special Fund could be held responsible for a portion of the expenses for medical treatment of a gradual injury simply because it was sustained in multiple employments." Phoenix Mfg. Co. v. Johnson, 69 S.W.3d 64, 68 (Ky. 2001) (interpreting Derr). Derr is inapposite to our review because it simply "does not address the factual situation present in this case: apportionment between employers." Sears Roebuck & Co. v. Dennis, 131 S.W.3d 351, 356 (Ky. App. 2004); Phoenix Mgf., 69 S.W.3d at 68.
Furthermore, this Court has recognized that "there is no statutory prohibition for splitting the award of medicals among the claimant's various employers." Sears Roebuck, 131 S.W.3d at 356. Accordingly, we find it perfectly proper to split the award of future medical benefits among the employee's various employers if "the circumstances so warrant." Id.
Taking his cue from Sears Roebuck, the ALJ found Wedding sustained two distinct injuries: a wrist injury in 2005 while employed by Stride Rite, and a right-shoulder injury in 2008 while employed by Collective Brand. It was reasonable for the ALJ to hold Stride Rite responsible for medicals for the 2005 wrist injury, and Collective Brand responsible for medicals for the 2008 right-shoulder injury. The Board committed no error when it affirmed the ALJ's decision.
IV. Conclusion
We reverse the March 8, 2013 Opinion of the Workers' Compensation Board only insofar as the Board vacated the ALJ's award of future medical benefits, if any, pertaining to Wedding's 2005 left-wrist injury and remand for additional proceedings consistent with this opinion. In all other respects, the Board's order is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Eric M. Lamb
Louisville, Kentucky
BRIEF FOR APPELLEE,
COLLECTIVE BRAND, INC.:
Whitney L. Lucas
Lexington, Kentucky
BRIEF FOR APPELLEE, STRIDE
RIGHT:
R. Johnson Powell
James E. Skaggs
Lexington, Kentucky