Opinion
NO. 2012-CA-001252-WC
03-22-2013
MICHAEL COLEMAN APPELLANT v. AREA WIDE PROTECTIVE, INC.; HON. R. SCOTT BORDERS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Robert J. Greene Pikeville, Kentucky BRIEF FOR APPELLEE, AREA WIDE PROTECTIVE, INC.: Kamp T. Prudy Patrick D. O'Connor II Lexington, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-11-95971
OPINION
AFFIRMING
BEFORE: CLAYTON, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: Michael Coleman appeals the amount of his workers' compensation award ruling of partial disability claiming that the Administrative Law Judge (ALJ) erred by finding that he could return to the same type of work and erred on determining the amount of his average weekly wages.
Beginning in 2009, Coleman was employed by Area Wide Protective, Inc., as a flagger and eventually became a crew chief. His job duties consisted of setting up a work zone by placing stands, setting up signs, setting out traffic cones, directing traffic and driving a truck. On August 4, 2009, Coleman was injured when the Area Wide Protective truck in which he was riding was involved in a traffic accident. He exacerbated his previous injury on March 3, 2010, while lifting roadside stands and suffered a further injury on February 2, 2011, while lifting and carrying traffic cones.
Following each injury, Coleman received temporary total disability benefits. Coleman has not returned to work following his last injury.
After considering extensive medical testimony regarding the nature and extent of Coleman's injuries, the ALJ found the opinions of Dr. Potter and Dr. Travis persuasive that Coleman suffered a work-related injury to his thoracic spine and cervical spine, and that his headaches were a result of the injury to his cervical spine. The ALJ determined that the appropriate average weekly wage to be $305.48 based upon the agreement to this amount by Coleman. The ALJ found that the temporary total disability benefits had been overpaid based upon the average weekly wage, but the periods of temporary total disability were appropriate.
The ALJ also determined that Coleman suffered from a permanent partial disability of 16% as a result of his injuries. The ALJ determined that based upon the results of the two functional capacity evaluations and Coleman's testimony describing his duties, that Coleman retained the physical capacity to return to the same type of work he had previously performed as a flagger, which qualified as medium work. He was awarded permanent partial disability benefits without any multipliers for 425 weeks and awarded medical benefits. KRS 342.730(1).
Coleman filed a petition for reconsideration claiming that the ALJ mischaracterized his work by stating that he could return to his employment as a flagger without considering that the job required lifting and, therefore, he was entitled to a three times multiplier because he could not return to his previous employment. The ALJ denied the petition stating that Coleman's job duties were considered in making the determination that he could return to his previous employment.
Coleman appealed to the Workers' Compensation Board arguing that the ALJ's order denying his motion for reconsideration improperly revisited the merits of the case by determining that he could perform job duties beyond that of a flagger and, thus, had not limited review to that of patent error as required by KRS 342.281. He also challenged the ALJ's finding that his average weekly wage was $305.48 at the time of each of his injuries, claiming that it should be $364.48 for the periods he was disabled before the February 2, 2011, injury based on Area Wide Protective's wage records for his August 4, 2009, injury. The Board affirmed.
On appeal, our standard of review of a decision of the Board "is limited to determining whether the decision was erroneous as a matter of law." Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). We only correct the Board 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." Pike County Bd. of Educ. v. Mills, 260 S.W.3d 366, 368 (Ky.App. 2008) (quoting Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-688 (Ky. 1992)).
The ALJ is the exclusive finder of fact pursuant to KRS 342.285(1). Accordingly, the ALJ "has the sole discretion to determine the quality, character, weight, credibility, and substance of the evidence, and to draw reasonable inferences from the evidence." Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky.App. 2009). This discretion includes "decid[ing] whom and what to believe" and gives the ALJ the freedom to "reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party's total proof." Id. We will affirm the ALJ's finding of fact if it is supported by substantial evidence and will not reverse it unless it is erroneous as a matter of law. Hamilton, 34 S.W.3d at 52.
We agree that the Board properly affirmed the ALJ when ruling on the petition for reconsideration. The ALJ's ruling that Coleman could return to his work as a flagger was based upon an examination of all tasks that Coleman's job entailed. The Board correctly concluded that this explanation was not an improper revision of the ALJ's opinion. The ALJ's original determination that Coleman could return to his previous employment was supported by substantial evidence and disqualified Coleman as a matter of law from being eligible for the applicable multiplier for workers' compensation available to those that cannot return to their previous type of employment. KRS 342.730(1)(c).
We also agree with the Board that the ALJ's determination on the amount of Coleman's average weekly wage was supported by substantial evidence and that Coleman waived this issue by failing to present it in his brief before the ALJ or in his petition for reconsideration. An average weekly wage for an hourly worker is computed in accordance with KRS 342.140(1)(d). "An injured worker bears the burden of proof and risk of non-persuasion before the fact-finder with regard to every element of a claim, including her average weekly wage." Nesco v. Haddix, 339 S.W.3d 465, 472 (Ky. 2011). Coleman failed to prove an alternative average weekly wage of $364.48 before the ALJ. Area Wide Protective provided evidence on the amount of Coleman's average weekly wage and Coleman agreed to that amount in his brief to the ALJ.
A factual issue in a workers' compensation case which has not been raised in the brief to the ALJ or in a motion for reconsideration is waived. Shelby Motor Co. Inc. v. Quire, 246 S.W.3d 443, 446-447 (Ky. 2007); Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327, 330 (Ky.App. 2000). An ALJ's order or award on workers' compensation benefits is conclusive and binding as to all questions of fact if a petition for reconsideration is not filed. KRS 342.285(1).
Although Coleman had the right to challenge Area Wide Protective's assertion that his average weekly wage was $305.48 for all relevant time periods, he abandoned any claim he had for an alternative amount by failing to address this issue in his brief to the ALJ or in his motion for reconsideration. Therefore, the Board's decision to affirm the ALJ's finding as supported by substantial evidence is not erroneous as a matter of law.
Accordingly, we affirm the opinion of the Workers' Compensation Board.
ALL CONCUR. BRIEF FOR APPELLANT: Robert J. Greene
Pikeville, Kentucky
BRIEF FOR APPELLEE, AREA
WIDE PROTECTIVE, INC.:
Kamp T. Prudy
Patrick D. O'Connor II
Lexington, Kentucky