Opinion
2023-CA-1328-WC
09-27-2024
SARMARRA BURKS APPELLANT v. UNITED PARCEL SERVICE, INC.; HONORABLE STEPHANIE L. KINNEY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Sarmarra Burks, pro se Louisville, Kentucky BRIEF FOR APPELLEE, UNITED PARCEL SERVICE, INC.: Sarah C. Rogers K. Lance Lucas Florence, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-20-68797
BRIEF FOR APPELLANT: Sarmarra Burks, pro se Louisville, Kentucky
BRIEF FOR APPELLEE, UNITED PARCEL SERVICE, INC.: Sarah C. Rogers K. Lance Lucas Florence, Kentucky
BEFORE: CETRULO, L. JONES, AND LAMBERT, JUDGES.
OPINION AND ORDER
LAMBERT, JUDGE
Sarmarra Burks, proceeding pro se, has petitioned this Court for review of the decision of the Workers' Compensation Board (the Board) affirming the decision of the Administrative Law Judge (ALJ) on her claim for injury benefits. We affirm.
Burks, born in 1976, began working for UPS in October 2019, and during her time with UPS, she worked as a driver and a loader. Burks also worked concurrently as a driver for Uber and Lyft, in marketing for Pioneer Direct, and as a consultant. On August 29, 2020, Burks sustained a work-related injury to her dominant right hand, fingers, and arm as she was taking a tire off a belt at UPS. Burks filed a Form 101 application to resolve her injury claim on September 10, 2021. UPS agreed to pay for carpal tunnel surgery, which Burks underwent on September 12, 2021, and to pay temporary total disability (TTD) benefits until she reached maximum medical improvement (MMI). UPS filed pre-injury wage records establishing that Burks' average weekly wage (AWW) was $591.18.
Dr. Thomas Gabriel performed an independent medical examination (IME) on May 17, 2022. Following the examination, Dr. Gabriel diagnosed Burks with chronic right ring fingertip pain, status post work-related crush injury in October 2020; status post right carpal release in September 2021; and mild right shoulder adhesive capsulitis. He could not identify any residual carpal tunnel symptoms, but he noted that Burks continued to report nonspecific ring hand/ring finger pain for which he could not identify a clear etiology. He stated that Burks had reached MMI as of May 17, 2022. He did not believe that Burks required any permanent work or activity restrictions. Based upon her pain and capsulitis issues, Dr. Gabriel assigned a 5% permanent impairment to the right upper extremity, which translated to a 3% whole person impairment.
Dr. Huey Tien of Kleinert Kutz assessed Burks' physical capabilities on June 8, 2022. He released her to alternative duty that day with restrictions of lifting up to 10 pounds, no vibration, and no repetitive motion. He also recommended physical and occupational therapy.
Dr. Jules Barefoot performed an IME on October 20, 2022. Based upon his physical examination and review of her records, Dr. Barefoot assigned a 14% upper extremity impairment, or an 8% whole person impairment, attributed to her work injury. He stated that Burks was unable to repetitively lift, grasp, or carry with her right arm, and she was unable to use her right arm at or above shoulder level on a repetitive basis. He noted Dr. Tien's restrictions and added that she should not work on ladders, scaffolding, or heights while unprotected. Burks would also have difficulty with repetitive pushing and pulling with her right arm.
In her deposition, Burks testified about her work and the money she earned outside of UPS for Uber, Lyft, and the marketing and consulting businesses. She also explained the various positions she held at UPS and testified about the hourly wages she earned in these positions, which ranged between $14.00 and $21.00 per hour.
The ALJ held a Benefit Review Conference (BRC) on February 20, 2023, at which time the parties agreed to several stipulations and listed the contested issues. The parties stipulated that Burks' pre-injury AWW at UPS was $591.18, with a note that "there is a dispute regarding concurrent employment." Other contested issues were extent and duration, TTD, medical benefits, reimbursement of mileage and expenses, multipliers, and interest. Following the BRC, Burks moved the ALJ for leave to amend her Form 101 to include an additional injury to her right shoulder, which was granted.
The ALJ held a final hearing on March 31, 2023. The ALJ first confirmed that the stipulations remained the same and then heard testimony from Burks. Burks agreed that she was earning $591.18 per week from UPS at the time of her injury. At the same time, she was earning another $500.00 per week with her concurrent employment. Currently, Burks earned between $500.00 and $1,400.00 per week with her other jobs. Burks said she had been released to return to work on May 30, 2022, at which time her TTD benefits ended, but she had never been able to return to work for UPS because she had to do so without any restrictions. She did not believe she could return to her prior work for UPS due to her injury, limitations, and symptoms, although she could return to a small job there.
Following the final hearing, the parties filed briefs in support of their respective positions. Regarding AWW, UPS argued that wages from Burks' concurrent employment could not be included in the calculation of her AWW as these wages were earned as an independent contractor. As to benefits, UPS argued that the ALJ should rely upon Dr. Gabriel's 3% whole person impairment rating rather than Dr. Barefoot's 8% rating and that Burks was not entitled to a multiplier because of Dr. Gabriel's opinion that she did not have any permanent restrictions. UPS noted that Dr. Gabriel is a hand specialist while Dr. Barefoot is an addiction medicine specialist.
In her brief, Burks argued that she was entitled to include the additional $500.00 she earned per week from her concurrent employment, which increased her AWW to $1,091.18. She did not address whether her status as an independent contractor affected her ability to add these wages to her AWW. As to benefits, Burks requested that the ALJ rely upon the 8% impairment rating assigned by Dr. Barefoot and enhance her award with a "3" multiplier pursuant to Kentucky Revised Statutes (KRS) 342.730(1)(c)1. based upon her restrictions and limitations and because she currently earned less money than she did prior to her work injury.
The ALJ entered an Opinion, Award, and Order on May 23, 2023. Regarding AWW, the ALJ agreed with UPS and determined that Burks could not include earnings from her concurrent employment as she was acting as an independent contractor in those jobs. Therefore, the ALJ found Burks' AWW to be $591.18.
Regarding TTD, extent and duration, and the application of a multiplier, the ALJ considered the conflicting evidence and found Dr. Gabriel's assessments to be more persuasive, noting that "Dr. Gabriel is a board-certified orthopaedic surgeon that specializes in hands. Consequently, this ALJ concludes Dr. Gabriel's specialty places him in the best position to address permanent impairment." Based upon Dr. Gabriel's opinions, the ALJ concluded that Burks reached MMI on May 17, 2022, as opposed to Dr. Barefoot's assessment of October 20, 2022, and that she had sustained a 3% whole person impairment, rather than Dr. Barefoot's 8% rating. As to whether to apply a multiplier, the ALJ concluded:
The parties preserved capacity to perform preinjury work. UPS argues Burks retains the capacity to perform her pre-injury work based upon Dr. Gabriel's opinion that Burks does not require any permanent restrictions. Conversely, Dr. Barefoot recommended restrictions of no repetitive lifting, grasping, and carrying with the right upper extremity. He also opined Burks is unable to use her right arm at or above shoulder level on a repetitive basis. At the time of the work injury, Burks worked as a driver. She loaded trucks and drove trucks to make deliveries. This ALJ considered Drs. Gabriel and Barefoot's work restrictions as well as Burks' testimony. After doing so, this ALJ finds Dr. Gabriel's assessment of restrictions to be the most accurate
assessment of Burks' physical capabilities. Again, this ALJ notes Dr. Gabriel is an upper extremity specialist, and this ALJ concludes his specialty places him in a superior position to address restrictions.
The ALJ ultimately awarded Burks permanent partial disability (PPD) benefits for 425 weeks based on a 3% permanent impairment with the single multiplier at a rate of $7.69 per week beginning August 29, 2020, suspended during any period of TTD.
Burks filed a petition for reconsideration in which she argued that the ALJ committed patent error in misinterpreting the lay and medical evidence regarding whether she was entitled to the "3" multiplier. She stated that as a result of her symptoms, limitations, and restrictions, she could no longer perform her duties as a delivery driver for UPS. She had also sustained an actual job loss. While Burks recognized that the ALJ had fact-finding discretion, she requested additional findings and analysis for purposes of an appeal. UPS objected to this assertion, arguing that it constituted a re-argument of the merits, which was not appropriate in a petition for reconsideration. Other than correcting two parts of the opinion related to the rate of benefits and the award of reimbursement and mileage, the ALJ denied the petition on June 12, 2023. Regarding application of the multiplier, the ALJ stated that she had exercised her discretion in relying upon Dr. Gabriel's recommended work restrictions.
Burks appealed the ALJ's decisions to the Board. The sole issue Burks raised in her brief addressed whether she was entitled to the "3" multiplier. UPS argued that the ALJ's decision on this issue was supported by substantial evidence and should be affirmed. The Board entered an opinion affirming on October 12, 2023, finding no error by the ALJ, that substantial evidence supported the decision, and that a contrary result was not compelled. Specifically, the Board found that the ALJ had adequately reviewed the evidence, both lay and medical, and explained why she chose to rely upon Dr. Gabriel's opinions. The ALJ was not compelled to rely upon the contrary positions expressed by Dr. Tien and Dr. Barefoot. This petition for review follows.
Before we reach the merits of Burks' petition, we must address UPS's motion to strike portions of Burks' brief as inadmissible hearsay or because it was not introduced into the record below. This Court passed the motion to the merits panel, and the panel has now considered the motion and Burks' response. In the appendix of her brief, Burks included a transcript of a conversation with Dr. Gabriel recorded during her examination and copies of text messages. These exhibits were not introduced into the record. In the body of her brief, Burks also referenced statements she claims Dr. Gabriel made to her, which were also not introduced into the record. "Except for matters of which the appellate court may take judicial notice, materials and documents not included in the record shall not be introduced or used as exhibits in support of briefs." Kentucky Rules of Appellate Procedure (RAP) 32(E)(1)(c). Because these materials are not matters of which this Court could take judicial notice, they are not permitted to be included in Burks' brief. Therefore, we GRANT the passed motion to strike, and this Court shall not consider the documents contained in Enclosures 1 and 2 in the appendix or the references to what Dr. Gabriel told Burks on pages 2 and 5. We need not reach whether the stricken portions constitute inadmissible hearsay.
Turning to the merits, we shall first set forth our standard of review. In Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992), the Supreme Court of Kentucky stated that this Court's function is to correct a decision of the Board only where we perceive that "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."
The Supreme Court later addressed this standard in McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 860 (Ky. 2001), explaining:
KRS 342.285(2) provides that when reviewing the decision of an ALJ, the Board shall not reweigh the evidence and substitute its judgment for that of the ALJ with regard to a question of fact. The standard of review with regard to a judicial appeal of an administrative decision is limited to determining whether the decision was erroneous as a matter of law. See American Beauty Homes v. Louisville &Jefferson County Planning &
Zoning Commission, Ky., 379 S.W.2d 450, 457 (1964). 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, Ky., 708 S.W.2d 641, 643 (1986).
However, the Francis Court went on to instruct that when the ALJ finds against the party with the burden of proof, as is the case here, that party must establish the evidence compelled a different result:
If the fact-finder finds against the person with the burden of proof, his burden on appeal is infinitely greater. It is of no avail in such a case to show that there was some evidence of substance which would have justified a finding in his favor. He must show that the evidence was such that the finding against him was unreasonable because the finding cannot be labeled "clearly erroneous" if it reasonably could have been made.
Thus, we have simply defined the term "clearly erroneous" in cases where the finding is against the person with the burden of proof. We hold that a finding which can reasonably be made is, perforce, not clearly erroneous. A finding which is unreasonable under the evidence presented is "clearly erroneous" and, perforce, would "compel" a different finding.Id. Here, because she had the burden of proof ("[t]he claimant in a workman's compensation case has the burden of proof and the risk of persuading the [factfinder] in his favor" Snawder v. Stice, 576 S.W.2d 276, 279 (Ky. App. 1979)), Burks must establish that the evidence compelled a different result to be successful in her appeal.
For her first argument, Burks argues that her AWW was incorrect because it did not include some of the hours she had worked for UPS or the correct pay for the positions in which she worked. The record reflects that Burks stipulated to her AWW from UPS and that she only contested whether she was entitled to include the earnings from her concurrent employment to calculate her AWW. If she had intended to contest the amount of her wages at UPS, Burks was required to list that as a contested issue at the BRC:
(11) If at the conclusion of the BRC the parties have not reached agreement on all the issues, the administrative law judge shall:
(a) Prepare a final BRC memorandum and order including stipulations and identification of all issues, which shall be signed by all parties or if represented, their counsel, and the administrative law judge; and
(b) Schedule a final hearing.
(12) Only contested issues shall be the subject of further proceedings.803 Kentucky Administrative Regulations (KAR) 25:010 § 13. Furthermore, Burks did not raise the correctness of her wages from UPS at all during the pendency of her claim, including her brief to the ALJ, her petition for reconsideration, or her brief to the Board. Because Burks entered a stipulation as to her AWW at UPS and in addition failed to list it as a contest issue or otherwise raise it until this appeal, we have no basis upon which to review this issue and decline to do so.
For her second argument, Burks appears to be seeking review of the ALJ's decision not to apply the "3" multiplier to her award of PPD benefits pursuant to KRS 342.730(1)(c)1. We are well aware of the ALJ's authority:
The ALJ, as the finder of fact, and not the reviewing court, has the sole authority to determine the quality, character, and substance of the evidence. Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985). Where, as here, the medical evidence is conflicting, the question of which evidence to believe is the exclusive province of the ALJ. Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 123 (1977).Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). Furthermore, neither this Court nor the Board is permitted to reweigh the evidence. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999). Here, the ALJ chose to rely upon the opinion of Dr. Gabriel over the other medical witnesses, noting that Dr. Gabriel is a surgeon specializing in hands. While the ALJ could have chosen to rely upon Dr. Barefoot's recommendation as to impairment and restrictions, the evidence does not compel that result. We decline to invade the province of the ALJ in deciding what conflicting evidence to believe.
For the foregoing reasons, the opinion of the Workers' Compensation Board affirming the decision of the Administrative Law Judge is affirmed.