Opinion
NO. 2013-CA-002093-WC
08-01-2014
PENNY BERRY APPELLANT v. CEDAR LAKE PARK PLACE; HON. WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Wayne C. Daub Louisville, Kentucky BRIEF FOR APPELLEE: Andie Brent Camden Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-83372
OPINION
AFFIRMING
BEFORE: DIXON, NICKELL, AND TAYLOR, JUDGES. DIXON, JUDGE: Penny Berry petitions this Court for review of a decision of the Workers' Compensation Board reversing in part, affirming in part, and remanding the decision of an Administrative Law Judge (ALJ). Finding no error, we affirm.
Berry was born April 20, 1963. She graduated from high school and obtained certification as a registered nurse. Berry began working as a registered nurse for Cedar Lake in September 2010. During the course of her employment, Berry developed pulmonary symptoms and ultimately sought medical treatment. Berry was diagnosed with work-related asthma attributable to mold allergens in her workplace. Berry was off work for four months, and she briefly returned to her job with Cedar Lake in September 2012. Berry ultimately ended her employment due to her pulmonary symptoms on October 26, 2012.
Berry sought workers' compensation benefits for her pulmonary symptoms associated with sick building syndrome. Following a final hearing, the ALJ assessed a 25% permanent impairment for Berry's work-related asthma. The ALJ awarded Berry permanent partial disability (PPD) benefits enhanced by the three multiplier in Kentucky Revised Statutes (KRS) 342.730(1)(c)1. The ALJ relied on the testimony of Berry and the medical report of the university evaluator to conclude that Berry retained the ability to return to the type of work she performed at the time of her injury. KRS 342.730(1)(c)1. The ALJ also determined that Berry did not return to work as a nurse earning equal or greater wages following her injury. KRS 342.730(1)(c)2. The ALJ concluded that it was unlikely Berry would earn an equal or greater wage for the indefinite future; accordingly, he applied the three multiplier to Berry's award of benefits.
Cedar Lake filed a petition for reconsideration, arguing the ALJ's findings of fact precluded application of the three multiplier. The ALJ overruled the petition, and Cedar Lake appealed to the Board. The Board concluded that Berry was not entitled to an enhanced benefit, and it reversed that portion of the ALJ's decision. The Board remanded the claim for the ALJ to enter an amended order awarding benefits without enhancement. Berry now seeks review of the Board's decision.
When this Court reviews a decision of the Board, we "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." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
The sole issue on appeal is whether the Board erred by reversing the ALJ's determination that Berry was entitled to the three multiplier in KRS 342.730(1)(c)1.
The statute provides that the three multiplier is applicable if the claimant is physically unable to resume the type of work performed at the time of the injury. KRS 342.730(1)(c)1. The statute alternatively provides that a claimant who returns to work earning a wage equal to or greater than the pre-injury wage is entitled to an enhanced benefit of a two multiplier for benefits paid during any cessation of that post-injury employment. KRS 342.730(1)(c)2.
In Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003), the Kentucky Supreme Court addressed the application of the enhancement multipliers in the calculation of benefits. If a claimant is not physically able to return to the type of work performed pre-injury, but the claimant does return to employment post-injury at an equal or higher wage, then the ALJ has the authority to determine which statutory multiplier is more appropriate under the facts. Id. at 12. In determining which multiplier is more appropriate, the Court explained: "If the evidence indicates that a worker is unlikely to be able to continue earning a wage that equals or exceeds the wage at the time of injury for the indefinite future, the application of paragraph (c)1 is appropriate." Id.
In the case at bar, the Board stated, in relevant part:
Without question an analysis pursuant to Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003), is only necessary in cases in which the two and three multipliers are both potentially applicable. See Adkins v. Pike County Bd. of Educ., 141 S.W.3d 387 (Ky. App. 2004). Here, the ALJ specifically found Berry 'can return to the type of work which she performed at the time of her occupational disease and injury in accordance with KRS 342.730(1)(c)1.' Thus, the three multiplier is not applicable. Additionally, the ALJ determined Berry 'has not returned to work as a nurse earning the same or greater average weekly wage than she earned at the time of [sic] occupational disease and injury per KRS 342.730(1)(c)2.' Thus, the two multiplier is not applicable. For the ALJ to continue with the Fawbush analysis and resolve the third prong in favor of the three multiplier defies the applicable law. As the ALJ initially found both multipliers were not applicable, the enhancement of Berry's PPD benefits by the three multiplier must be reversed. In the case sub judice, the award of PPD benefits cannot be enhanced by a multiplier.
After careful review, we agree with the Board that the ALJ plainly made factual findings requiring a conclusion that Berry was not eligible for enhanced benefits under either KRS 342.730(1)(c)1 or 2. The Board properly applied the controlling law by reversing the portion of the ALJ's opinion that awarded enhanced PPD benefits and remanding the claim for entry of an amended order awarding benefits without enhancement.
For the reasons stated herein, the opinion of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Wayne C. Daub
Louisville, Kentucky
BRIEF FOR APPELLEE: Andie Brent Camden
Louisville, Kentucky