Opinion
NO. 2015-CA-000254-WC
06-12-2015
FORD MOTOR COMPANY (LAP) APPELLANT v. ROSS A. BURT; STEVEN G. BOLTON, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: George T. T. Kitchen, III Louisville, Kentucky BRIEF FOR APPELLEE, ROSS A. BURT: Derek P. O'Bryan Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-14-00422
OPINION
AFFIRMING
BEFORE: J. LAMBERT, STUMBO, AND THOMPSON; JUDGES. LAMBERT, J., JUDGE: Ford Motor Company (LAP) (Ford) has petitioned this Court for review of the opinion of the Workers' Compensation Board (the Board) affirming the decision of the Administrative Law Judge (ALJ) awarding permanent partial disability benefits to Ross A. Burt based upon a 19% impairment and enhanced by the 3 multiplier. Finding no error, we affirm.
Burt is a resident of Shepherdsville, Kentucky, with a date of birth of May 9, 1972. He completed two years of college; one year at Globe College of Business in St. Paul, Minnesota, and one year at University of Wisconsin, Stevens Point. Burt began working for Ford's Louisville Assembly Plant in December 2011, but he had worked for Ford in St. Paul, Minnesota, since 1995. In the Louisville plant, Burt worked on the assembly line trimming doors. On May 2, 2012, Burt went to the Ford clinic complaining of numbness and tingling for the past month in his left small and ring fingers. He indicated that his job required him to "push on the plastic trim piece that covers the post between the metal door and the window. The channel is tight and it is hard to pop the piece on." Clinic physician Dr. Kathleen Harter looked at his job area and observed:
He primarily is using his right hand. He has a plastic piece that covers the A-post area. He seats it in a channel, then there are three locators that pop into three holds. While he is using his left hand to hold the piece, it is the right hand that is pressing it in. He also uses his right hand to shoot in the speaker. There is no repetitive flexion/extension of the left elbow, and he is not putting any pressure on the elbow. Discussed with him that we would send him for a NCS[,] but then would have to evaluate the result, in view of the motions that were observed on his job. [A]lso, the person on the other side is not having problems getting this piece in, because they open the channel before putting it on. The supervisor is going to have him train with the person on the other side. Will schedule NCS....
NCS done on May 8, 2012 showed a mild left ulnar neuropathy localized at the elbow region.Dr. Harter indicated that Burt was fit for work.
Burt also sought treatment from Norton Immediate Care Center on May 19, 2012, for bilateral wrist and hand injuries. In July 2012, Burt sought treatment at Norton Healthcare and was diagnosed with ulnar neuropathy. The notes indicate that Burt had experienced an onset of pain and numbness in his left ulnar distribution from the elbow down in February, followed by a similar onset on his right side. Dr. Ali Choucair noted that his examination was "compatible with bilateral ulnar neuropathies at the elbow with positive tinnel's sign, weakness of ulnar innervated flexors and first dorsal interosseus bilaterally." Dr. Choucair recommended that Burt have a neurological consultation with Dr. Christopher Shields, who saw him on August 23, 2012. Dr. Shields noted an onset of left elbow pain in April 2012 followed by the development of pain in his right elbow. Dr. Shields then observed:
[F]or significant periods of time the patient was off work building cars and was texting on a cell phone while at work. During that period of time his elbows were both leaning against a table and his symptoms gradually became more severe. On close questioning there is no occurrence at home in which this nerve compression might have occurred. He sat on a soft ... chair and actually [used] pillows on his elbows while sleeping. It appears that the symptoms are entirely related to these symptoms occurring while at work, during the time that he was not making cars but time spent at work on a cell phone. Apparently when the orders are short at Ford Motor Company the orders [sic] are kept at work and on
the premises. He was doing that time [sic] at the time the symptoms first developed.Following a physical examination and a review of the diagnostic studies, Dr. Shields diagnosed bilateral ulnar neuropathy at the cubital tunnel (profound). He recommended bilateral ulnar transpositions at the elbow, first on the right side. Dr. Todd Shanks performed the right ulnar nerve decompression and submuscular transposition in October 2012.
Burt filed a Form 101 Application for Resolution of Injury Claim in February 2014, stating that he had sustained a work-related injury to his upper extremities due to repetitive motion. He included the medical records from Dr. Shields, Dr. Shanks, Ford's clinic, and Norton Immediate Care Center as detailed above. Ford filed a medical fee dispute related to treatment and surgery for Burt's right ulnar nerve condition, arguing that it was non-compensable pursuant to Kentucky Revised Statutes (KRS) 342.020. Ford filed a motion to join Dr. Shanks and Dr. Shields as indispensible parties to the medical fee dispute, which was granted by the ALJ. Ford also filed a notice denying Burt's claim as well as a special answer pleading the applicable statute of limitations as an affirmative defense. In addition, Ford filed medical records establishing past injuries to Burt's extremities.
Ford later moved to amend the medical fee dispute to include the out-of-pocket expenses Burt submitted on May 19, 2014.
Burt filed the report and addenda of Dr. Warren Bilkey's independent medical examination. In the January 6, 2014 report, Dr. Bilkey detailed Burt's medical history, his work duties for Ford, his physical examination, and other relevant records. Dr. Bilkey concluded:
Mr. Burt had the relatively rapid development of symptoms characteristic of ulnar neuropathy occur in response to repetitive exertional hand activities at the work site as documented by the Ford Employee Clinic assessment. He was found to have an ulnar neuropathy. Initially this did not appear to be severe but on subsequent electrodiagnostic evaluation, was indeed found to be severe. Certainly from the clinical stand point this is a severe neuropathy. Mr. Burt has undergone surgery to the right but not to the left. He remains symptomatic with persistent ulnar neuropathy symptoms on both sides. He has been able to return to work however is not tolerant of return to the full scope of his usual repetitive and exertional bilateral upper extremity activities. Mr. Burt has residual loss of feeling affecting both hands in the ulnar distribution, weakness affecting the intrinsic musculature and residual claw deformity.Dr. Bilkey attributed his diagnosis to Burt's April 2012 work injury and determined that the treatment he received was reasonably and medically necessary and related to his work. He did not find that Burt had any active impairment prior to April 2012. Dr. Bilkey attributed Burt's condition to his work because the onset of symptoms occurred with his work activities and there were no other likely causes conducive to the development of an ulnar neuropathy. Dr. Bilkey stated that Burt had reached maximum medical improvement (MMI) and that he may need surgery on his left elbow. Dr. Bilkey recommended that Burt refrain from repetitive, exertional upper extremity work due to the April 2012 work injury. He was "not able to carry out the full scope of his usual work duties successfully performed prior to April 2012." Dr. Bilkey went on to assign an 11% whole person impairment for the right upper extremity and a 9% whole person impairment for the left, for a total 19% whole person impairment. This was all due to his April 2012 work injury.
In the first addendum, dated April 20, 2014, Dr. Bilkey addressed additional medical records related to prior work injuries to his upper extremities. Dr. Bilkey did not believe these records caused any of his initial report to change because they were concerning other aspects of Burt's upper extremities, including his shoulder and hands. The later addendum, dated July 20, 2014, addressed Dr. DuBou's report and the attached medical literature, and Dr. Bilkey did not change his original opinion related to causation or his assigned impairment rating.
Burt submitted the medical records from Norton Healthcare, including the records of Dr. Shanks. In a January 2013 letter, Dr. Shanks stated that Burt would be able to return to work on January 15, 2013, with the restriction that he lift no greater than 25 pounds for one month. A progress note dated December 2, 2012, stated that Burt was two months post surgery. At that time, Dr. Shanks noted improved motor strength since the surgery on the right ulnar nerve as well as improved hand strength on the left side. Burt wanted to return to work on full duty, and Dr. Shanks agreed but stated Burt needed to refrain from repetitive motions and compressive activities, as he instructed. Burt told Dr. Shanks that he had started taking courses at Ford related to electronics assembly, which Dr. Shanks thought was more suitable for him and would reduce his lifting requirements. Dr. Shanks opted to defer surgery on his left arm. Burt returned for a follow up visit in May 2013, when he had a new complaint of left elbow pain that began when he was attempting to open a jug of milk and felt a pop and pain in his elbow. Dr. Shanks assessed this as an acute muscle strain and told him to continue with physical therapy and medications. Burt returned to the office in August 2013 and stated that he had gained some strength back in his right hand and that his left hand was getting better. Dr. Shanks diagnosed Burt with bilateral ulnar neuropathy, noting that the left had been improving on its own and that the right was better since the surgery but was still problematic.
Burt introduced the report of Dr. Vasudeva Iyer, who performed electrodiagnostic testing in August 2012. Based upon the testing, Dr. Iyer diagnosed severe ulnar nerve neuropathy at the elbow on both sides with evidence of focal demyelination and axon loss.
Burt testified by deposition in May 2014. He testified that he performed the passenger side front speaker installation position at Ford from January through July 2012 and that he had been doing this job when he started having symptoms. He worked on the day shift. He explained that he grabbed parts with his left hand while he assembled them with his right hand. He said he had problems picking up the plastic piece from the box. He would have to squeeze with his fingers and thumb to pop in pins to secure the piece to the metal door. Burt started to experience numbness in his left pinky and index finger in March or April. He reported this to his team leader and his supervisor, and he later asked to seek medical attention. The numbness moved to more places in his hand, and he developed soreness in his wrist. He began using both hands to try to get the pieces together.
Burt first sought treatment in May 2012 at the Ford clinic. He was sent for diagnostic testing, but did not receive any treatment and was told his condition was not work-related. He sought treatment from his personal physician, Dr. Wilding, and a chiropractor. Dr. Wilding referred him for a neurological consultation with Dr. Choucair, who referred him to Dr. Shields. He was then referred to Dr. Shanks. He underwent surgery in October 2012. Burt began noticing problems in his right hand in May or June when he began compensating with that hand when the speed of the line began picking up. He continued to work this job until the shutdown in July, and then he asked his supervisor if he could move off of that job and go to another one. He bid on and received another position on the night shift, which started after the two-week July shutdown. Burt earned an additional 25 cents per hour in the new position. This was a utility position at the end of the final line, which involved scanning and moving vehicles. He was off for surgery from October until mid-January 2013. He said that he is still having numbness in his right pinky, pain in his left hand, and pain in his wrist. He did not believe that surgery helped. He reported that he had gotten a lot of strength back in his left hand from physical therapy. He had never had surgery on his left side, and he planned to continue with conservative treatment.
Ford submitted Burt's medical certification form for his leave of absence request. Dr. Shanks indicated that Burt's condition commenced on September 12, 2012, that he had treated him via outpatient surgery on October 9, 2012, and that his treatment plan would last for six months. Dr. Shanks stated that Burt would be unable to perform his work functions until he had been cleared from surgery. His estimated return to work date was January 15, 2013. Finally, Dr. Shanks did not attribute Burt's condition to his work. Ford's visit summary report indicated that Burt was able to return to work on January 15, 2013, with "personal restrictions of no lifting greater than 25 lbs for one month (2/12/13)."
A Benefit Review Conference (BRC) was held on July 10, 2014. The parties stipulated to jurisdiction, that an employment relationship existed, that Burt sustained an alleged work-related injury on August 23, 2012, that Ford received due and timely notice, that no temporary total disability (TTD) benefits were paid, that $387.70 had been paid in medical expenses by Ford, and that Burt returned to work on January 16, 2013. Contested issues remained benefits, work-relatedness, Burt's average weekly wage (AWW), medical expenses, whether Burt sustained an injury as defined by the Act, pre-existing disability or impairment, TTD, and extent and duration with multipliers.
Following the BRC, Burt submitted the medical record of Dr. James E. McKiernan related to his May 2012 sensory studies. He also filed the medical records from his May 2012 MRI at High Field & Open MRI. In addition, Burt filed pre- and post-injury wage certification forms. Pre-injury, his AWW was $1,733.19. Post-injury, it was $1,492.62.
Also following the BRC, Ford filed the June 19, 2014, medical report of Dr. Richard DuBou, who performed an independent medical examination on Burt. Dr. DuBou diagnosed status post right ulnar nerve release and submuscular transposition; left cubital tunnel syndrome, severe electrically and mild on clinical examination. Dr. DuBou did not identify a specific work injury and did not associate his cubital tunnel syndrome with his work. He attached several publications concerning the lack of connection between cubital tunnel syndrome and work, other than holding a tool in position. Regarding the rapid increase in severity, Dr. DuBou did not believe any work could do this even if he had been using a jackhammer. Dr. DuBou did not assign an impairment rating for any work-related condition and stated that Burt had the physical capacity to return to his prior work. Dr. DuBou went on to address Dr. Bilkey's report and disagreed with his conclusions. In an addendum, Dr. DuBou provided an impairment rating if the ALJ determined that Burt's ulnar nerve dysfunction was related to his work. Based upon the results, Dr. DuBou assigned an 8.4% impairment for the upper extremity, which translated into a 5% whole person impairment. However, Dr. DuBou continued to state that Burt's condition was not related to his work, but rather was due to leaning on his elbow.
A final hearing was held on July 23, 2014. At the beginning of the hearing, the parties stipulated that Burt's AWW was $1,733.19. Counsel for Ford stated his position that Burt continued to earn the same or greater wages post-injury that he earned pre-injury. Counsel posited that the way the wage records lined up, Burt's highest post-injury quarter was less than his highest pre-injury quarter, but he was earning the same or greater wages based on the entirety of his wages as opposed to individual quarters. The ALJ heard additional testimony from Burt. He stated that prior to being transferred to the Louisville plant, he had a desk job working with the union and management on training employees. He explained his original position in the Louisville plant as well as the onset of symptoms. He continued to take Neurontin and Baclofen three times per day for symptoms in his hands as well as B12 for nerve regeneration. He indicated that he still had numbness in his left hand and that his hands were now gaunt. After his claim was denied, he decided he needed to get off the right speaker installation job and he bid for a different job. He had to go on night shift to take the new position. He earned an additional 5% for working the night shift and still had overtime available. Counsel for Ford asked Burt about leaning on his elbows on breaks or when the line was down. The parties filed briefs following the hearing.
The ALJ entered an opinion, award, and order on September 29, 2014. Based upon the evidence, the ALJ found that Burt had suffered a work-related injury to his bilateral elbows that had arisen out of and in the course of his employment for Ford. He relied upon the medical opinions of Dr. Shields and Dr. Bilkey, which the ALJ found "to be the most complete, compelling and persuasive evidence in the record with regard to the issues of work-relatedness and injury as defined by the Act. KRS 342.0011(1)." The ALJ also found that the injury became manifest on August 23, 2012, and that there was no pre-existing active disability based upon Dr. Bilkey's testimony. The medical treatises cited by Dr. DuBou did not address the anomalies in this case, in the ALJ's opinion.
The ALJ then addressed Burt's level of impairment and relied upon Dr. Bilkey's testimony to assign a 19% whole person impairment pursuant to the AMA Guides. The ALJ also found the testimony of both Dr. Bilkey and Dr. DuBou to be persuasive regarding the 3 multiplier. Due to the restrictions that arose because of the work injury, Burt could no longer carry out the full scope of his usual work duties he performed prior to April 2012. Dr. DuBou specifically stated that Burt should avoid repetitive extending and flexing of the elbow, both of which the ALJ stated were required to perform the right front speaker install position. Considering Burt's AWW, the ALJ recognized the parties' stipulation that his pre-injury AWW was $1,733.19. His post-injury wage records established that he no longer earned as much money as he did prior to his injury. Therefore, the ALJ determined that the 2 multiplier did not apply and a Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003), analysis was not necessary or appropriate. The ALJ went on to find that Burt was owed TTD from the date of his surgery on October 9, 2012, through January 16, 2013, at a rate of $736.19 per week. Finally, the ALJ found that Ford was obligated to pay for all medical expenses incurred for the cure and relief of Burt's chronic hypertension and bilateral ulnar neuropathy at his elbows, including surgery and treatment. The ALJ ultimately awarded Burt PPD benefits for 425 weeks effective August 23, 2013, calculated as follows: "$1,733.19 x 2/3 = ($1,155.46) $552.13 (max. employee factor) x 19% = $104.90 x 3 (multiplier) = $314.71."
Ford filed a petition for reconsideration raising issues about the termination of PPD benefits, the application of the 3 multiplier, the impairment rating, and causation. Ford specifically argued that Burt retained the physical capacity to return to his former position but chose to bid on a new job that was less physically demanding. Ford also argued that the statute does not mandate that the ALJ consider a claimant's pre- and post-injury high quarterly earnings to determine whether he is earning the same or greater wages. Ford noted Burt's testimony that he was currently earning 5% more per hour as well as another 25 cents per hour. Burt filed a response in objection, and the ALJ denied the petition by order entered October 31, 2014.
Ford filed a notice of appeal to the Board, and in its brief argued that the ALJ erred in finding a 19% impairment and in finding Burt was entitled to application of the 3 multiplier. The Board entered an opinion affirming on January 15, 2015. The Board determined that the ALJ "could reasonably rely upon the impairment rating assessed by Dr. Bilkey." Concluding that this decision fell squarely within the ALJ's discretion, the Board declined to disturb that exercise of discretion. The Board also declined to disturb the ALJ's decision to apply the 3 multiplier because the ALJ had conducted the appropriate analysis as set forth in Ball v. Big Elk Creek Coal Co., Inc., 25 S.W.3d 115, 117-18 (Ky. 2000), in determining that Burt had not returned to work at the same or higher wages. This petition for review now follows.
On appeal, Ford continues to argue that substantial evidence did not support the assessment of the 19% whole body impairment or that Burt's benefits were subject to enhancement by the 3 multiplier. Burt, on the other hand, contends that the ALJ's decision was based upon substantial evidence of record and should not be disturbed.
This Court's standard of review in workers' compensation appeals is well-settled in the Commonwealth. "The function of further review of the [Board] in the Court of Appeals 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." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
Kentucky law is well-settled that "[t]he claimant in a workman's compensation case has the burden of proof and the risk of persuading the board in his favor." Snawder v. Stice, 576 S.W.2d 276, 279 (Ky. App. 1979) (citations omitted). "When the decision of the fact-finder favors the person with the burden of proof, his only burden on appeal is to show that there was some evidence of substance to support the finding, meaning evidence which would permit a fact-finder to reasonably find as it did." Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). However, "[i]f the board finds against a claimant who had the burden of proof and the risk of persuasion, the court upon review is confined to determining whether or not the total evidence was so strong as to compel a finding in claimant's favor." Snawder, 576 S.W.2d at 280 (citations omitted). The Francis Court went on to explain:
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.Francis, 708 S.W.2d at 643 (Ky. 1986).
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.
For its first argument, Ford contends that the ALJ's decision to rely upon the impairment rating assessed by Dr. Bilkey rather than the rating assessed by Dr. DuBou was unreasonable, noting that Dr. DuBou's evaluation was more than a year after Dr. Bilkey's evaluation when Burt's condition would have improved post-surgery; that his evaluation was more in line with Burt's current level of functioning as he was working full time with overtime, agreed that he was capable of performing his current job duties, and had been released to work without any formal restrictions; and Dr. Bilkey's calculations were not in compliance with the AMA Guides. Burt argues that the ALJ's findings should not be disturbed and that the ALJ was not required to adopt the findings of the last performed IME. We agree with Burt.
It has long been the law in Kentucky that "[t]he 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." Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993), citing Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). Here, the ALJ thoroughly considered the medical evidence as well as Burt's testimony before finding that he had a 19% whole body impairment based upon Dr. Bilkey's evaluation and reports. Because this finding was based upon substantial evidence of record, we shall not disturb the ALJ's decision.
For its second argument, Ford asserts that Burt was not entitled to have his benefits enhanced by the 3 multiplier, and at a minimum the ALJ should have performed a Fawbush analysis. Ford states that Burt was physically capable of performing his prior job and was currently earning more than he did prior to his work injury.
KRS 342.730(1)(c) addresses the enhancement of benefits and provides in relevant part as follows:
1. If, due to an injury, an employee does not retain the physical capacity to return to the type of work that the employee performed at the time of injury, the benefit for permanent partial disability shall be multiplied by three (3) times the amount otherwise determined under paragraph (b) of this subsection,[] but this provision
shall not be construed so as to extend the duration of payments; or
2. 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.
KRS 342.730(b) provides:
For permanent partial disability, sixty-six and two-thirds percent (66-2/3%) of the employee's average weekly wage but not more than seventy-five percent (75%) of the state average weekly wage as determined by KRS 342.740, multiplied by the permanent impairment rating caused by the injury or occupational disease as determined by the "Guides to the Evaluation of Permanent Impairment," times the factor set forth in the table that follows [table omitted.]
Any temporary total disability period within the maximum period for permanent, partial disability benefits shall extend the maximum period but shall not make payable a weekly benefit exceeding that determined in subsection (1)(a) of this section. Notwithstanding any section of this chapter to the contrary, there shall be no minimum weekly income benefit for permanent partial disability and medical benefits shall be paid for the duration of the disability.
In Fawbush, the Supreme Court of Kentucky provided an instructive discussion of the application of KRS 342.730:
KRS 342.730(1)(b) sets forth a method for calculating the income benefit for permanent partial disability under which the benefit is the product of the worker's average weekly wage, AMA impairment, and a statutory factor. As amended effective July 14, 2000, KRS 342.730(1)(c) provides, in pertinent part, as follows:
[KRS 342.730(1)(c)1. and 2. omitted.]Fawbush, 103 S.W.3d at 11-12. The Supreme Court went on to address which paragraph of KRS 342.730(1)(c) should apply and concluded as follows:
. . . .
Since December 12, 1996, KRS 342.730 has limited an ALJ's discretion in determining the extent of permanent partial disability. The formula for calculating income benefits that was enacted at that time was weighted to favor more severely impaired workers who were more likely to have a greater occupational disability. Other considerations were the worker's physical capacity to return to the pre-injury employment and post-injury earnings. Those who were the most severely impaired were entitled to benefits for a longer period of time. See Adkins v. R & S Body Co., Ky., 58 S.W.3d 428 (2001).
As amended in 2000, the formula for calculating a permanent partial disability benefit was further refined. The statutory factors in subsection (1)(b) were decreased. In subsection (1)(c), paragraphs (c)1 and 2 were amended, and the word "or" was inserted between them. Furthermore, paragraph (c)3, which contains additional multipliers based upon age and education, was added. The Board's opinion referred to decisions wherein it determined that the pre-2000 versions of KRS 342.730(1)(c)1 and 2 could be applied concurrently where appropriate. Thus, the legislature presumably knew of those decisions when it inserted the word "or" at the end of paragraph (c)1 and, by doing so, evinced an intent for only one of the provisions [to] be applied to a particular claim. See Whitley County Board of Education v. Meadors, Ky., 444 S.W.2d 890 (1969).
[A]n ALJ is authorized to determine which provision is more appropriate on the facts. 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. at 12. We agree with Burt that the ALJ did not need to perform a Fawbush analysis based upon the evidence submitted in the record.
First, we disagree with Ford that the ALJ improperly found that Burt was not capable of returning to his prior position. While he was released to full-duty work, both Dr. Bilkey and Dr. DuBou recommended restrictions related to repetitive work with his upper extremities. Ford contends that there is no substantial evidence to support the ALJ's finding that Dr. DuBou imposed this restriction based upon the work activities he had to perform. Rather, Ford contends that Dr. Harker was the only physician who observed Burt's job duties, and she stated that his job did not involve repetitive flexion or extension of the elbows. However, our review of Dr. Harker's report establishes that she only referred to the left elbow, not both, in her report. As noted above, Dr. Bilkey recommended that Burt refrain from repetitive, exertional upper extremity work and stated that he was "not able to carry out the full scope of his usual work duties successfully performed prior to April 2012." Therefore, we agree with Burt that substantial evidence supports the ALJ's finding that he was unable to return to his prior position.
Ford also argues that Burt is currently earning a higher wage than he was earning prior to his work injury. We disagree with this argument, and we shall adopt the portion of the Board's opinion addressing this issue:
In Ball v. Big Elk Creek Coal Co., Inc., 25 S.W.3d 115, 117-118 (Ky. 2000), the Supreme Court of
Kentucky explained, for purposes of KRS 342.730(1)(c)2, an employee's post-injury AWW is subject to calculation under KRS 342.140, using the same method employed to determine a claimant's pre-injury AWW. Therefore, the analysis must focus on the worker's AWW, not simply his hourly pay rate. Id. at 117. This reaffirms the previous holding in Whittaker v. Robinson, 981 S.W.2d 118 (Ky. 1998), where the Court "rejected the argument that the worker's pre-injury and post-injury hourly pay rate should be compared and concluded that the legislature intended for a comparison of the pre- and post-injury average weekly wage." Id.
Therefore, for an employee who is paid hourly, as Burt, his post-injury AWW must be calculated pursuant to KRS 342.140(1)(d)[] to determine whether there has been a return to work at a higher wage. This calculation requires an analysis of Burt's earnings over a fifty-two week period, and identification of his "best" quarter. We are satisfied the ALJ conducted the appropriate analysis required by Ball, supra and reached a result supported by substantial evidence in determining that Burt had not returned to the same or higher wages. Therefore, the ALJ's application of the three multiplier will not be disturbed.
KRS 342.140(1)(d) provides for the calculation of an injured employee's AWW as follows: "[If the] wages were fixed by the day, hour, or by the output of the employee, the average weekly wage shall be the wage most favorable to the employee computed by dividing by thirteen (13) the wages (not including overtime or premium pay) of said employee earned in the employ of the employer in the first, second, third, or fourth period of thirteen (13) consecutive calendar weeks in the fifty-two (52) weeks immediately preceding the injury[.]"
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Accordingly, we conclude that the ALJ's decision to award Burt benefits enhanced by the 3 multiplier was supported by substantial evidence.
For the foregoing reasons, the opinion of the Board affirming the ALJ's opinion, award and order is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: George T. T. Kitchen, III
Louisville, Kentucky
BRIEF FOR APPELLEE, ROSS A.
BURT:
Derek P. O'Bryan
Louisville, Kentucky