Opinion
2024-CA-0653-WC
09-06-2024
JACK PAGE APPELLANT v. BJK FLEXIBLE PACKAGING, ALPHA IND.; COMMONWEALTH OF KENTUCKY WORKERS' COMPENSATION BOARD; AND THOMAS POLITES, ADMINISTRATIVE LAW JUDGE APPELLEES
BRIEF FOR APPELLANT Alan S. Rubin Louisville, Kentucky BRIEF FOR APPELLEE BJK FLEX, ALPHA IND.: Michelle Enoch Louisville, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-21-83858
BRIEF FOR APPELLANT Alan S. Rubin Louisville, Kentucky
BRIEF FOR APPELLEE BJK FLEX, ALPHA IND.: Michelle Enoch Louisville, Kentucky
BEFORE: CETRULO, L. JONES, AND MCNEILL, JUDGES.
OPINION
CETRULO, JUDGE
Appellant Jack Page ("Page") has filed this Petition for Review of a decision of the Workers' Compensation Board ("the Board") which affirmed an Opinion, Award, and Order ("Opinion") of the Administrative Law Judge ("ALJ") Thomas Polites. Having reviewed the entire record before the Board, we also affirm.
BACKGROUND
Page filed a claim for benefits following an electrical shock sustained while working at BJK Flexible Packaging Alpha Ind. ("BJK"). The incident occurred on April 6, 2021 while he was employed as a machine operator. There is no dispute as to the occurrence of the electrical shock and that Page was off from work receiving temporary total disability ("TTD") benefits, as well as medical benefits, through April 2022. There is no appeal from that determination.
Page asserted, however, that the electrocution was the result of an intentional safety violation which should trigger the 30% award enhancement provided by Kentucky Revised Statutes ("KRS") 342.165(1) and KRS 338.031. He further sought enhancement of permanent partial disability ("PPD") benefits by the three-multiplier contained in KRS 342.730(1)(c)1. The ALJ awarded PPD benefits to Page based upon a 14% impairment rating. Again, that award is not contested. However, the ALJ denied application of the safety penalty violation and further held that Page failed to prove that he lacked the physical capacity to return to his previous employment. This then resulted in denial of enhancement of PPD benefits under KRS 342.730.
Page filed a petition for reconsideration, which the ALJ overruled by order of January 26, 2024. Page then appealed to the Board. The Board entered its Opinion affirming the ALJ on May 17, 2024, addressing both of Page's arguments which he restated in this petition for review.
STANDARD OF REVIEW
Page acknowledges that the ALJ has "the sole authority to determine" the weight, substance, and credibility of the evidence in a workers' compensation claim. Square D. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). Similarly, the ALJ "has the sole authority to judge the weight" to be accorded the evidence and the inferences to be drawn therefrom. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329, 331 (Ky. 1997). The function of the Board in reviewing an ALJ's decision is limited to determining whether the findings made are so unreasonable under the evidence that they must be reversed as a matter of law. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). Similarly, in reviewing the decision of the ALJ and the Board, this Court must determine if the evidence compels a different result. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984).
ANALYSIS
On appeal, Page argues, as he did below, that the decision denying application of the three-multiplier is not supported by substantial evidence and compels a different result.
KRS 342.730(1)(c)1. provides that if an employee does not possess the physical ability to return to the type of work he performed at the time of the injury, the PPD benefit "shall" be multiplied by three times. This provision was designed to compensate a worker who sustained a permanent disruption to his ability to earn. Apple Valley Sanitation Inc. v. Stambaugh, 645 S.W.3d 434, 438-39 (Ky. 2022). However, the ALJ determines "both the permanence of . . . [the] injury and the effect of that injury on the employee's capacity to return to work[.]" Id. at 439.
Here, Page asserts that he lacks the ability to return to the specific job he was performing as a machine operator, primarily based upon his testimony that he was still having psychological symptoms that made it difficult for him to use or operate any electrical devices. He supported his claim with a report by Dr. Greg Perri, who performed a psychological evaluation and diagnosed Page with post-traumatic stress disorder ("PTSD"). Dr. Douglas Ruth, a psychiatrist, evaluated Page at the employer's request. Dr. Ruth similarly diagnosed PTSD but found Page had reached maximum medical improvement in April 2022, after undergoing therapy with Jacqueline Saunders. Dr. Ruth also reported that Page preferred to pursue his own fashion design business rather than return to factory work.
Another expert hired by the employer, Dr. Dennis McClain, initially opined that Page lacked the capacity to return to his prior job duties. However, as the ALJ noted in response to the petition for reconsideration, Dr. McClain subsequently provided a report concluding that Page had now met his therapeutic goals and returned to a pre-injury level of psychological functioning. Although Page testified that he did not feel able to return to operating machinery that was plugged into electric current, he also testified that he uses such machinery and electrical devices at home and in his daily life.
The ALJ accepted Dr. Perri's assessment of a 14% impairment, but Dr. Perri did not address Page's ability to return to his pre-injury job. Similarly, Dr. Ruth did not express any opinion as to whether Page could return to his preinjury work. Page asserts that the ALJ believed a worker's testimony had to be supported by medical testimony in order to award a three-multiplier. However, that is not our interpretation of the ALJ's Opinion. The ALJ clearly considered all of the evidence, both from experts and from Page himself, to determine whether to apply the three-multiplier. The Opinion points out inconsistencies within the various experts' reports, but also noted that Page had not returned to his prior job. The ALJ acknowledged that Page testified that he could not do so but found the testimony unpersuasive, noting that he functions around electricity on a daily basis. As the ALJ noted, no physical limitations were placed upon Page's activities.
Page acknowledged on cross-examination that he was designing and manufacturing some of his own clothing on electric machines. He had not treated for any injuries since April 2022 when he completed therapy. On appeal, the Board noted that an ALJ may, but is not compelled to, rely upon the claimant's self-assessment of his ability to perform his prior work. Ira A. Watson Department Store, supra, at 52. The ALJ was charged with analyzing the actual tasks that Page performed prior to his injury and then assessing the limitations and restrictions on his job tasks as a result of the injury. Voith Industrial Services, Inc. v. Gray, 516 S.W.3d 817, 821 (Ky. App. 2017) (citing Ford Motor Co. v. Forman, 142 S.W.3d 141, 145 (Ky. 2004)). Here, the ALJ performed the analysis. We reiterate that weighing the evidence is the role assigned to the ALJ as factfinder. George Humfleet Mobile Homes v Christman, 125 S.W.3d 288, 294 (Ky. 2004).
The Board held that the ALJ sufficiently outlined the evidence upon which he relied in finding the three-multiplier inapplicable. Simply put, and consistent with our standard of review, the evidence does not compel a different result than that reached by the ALJ and upheld by the Board.
Secondly, Page asserted error in failing to award a safety penalty against BJK. KRS 338.031 requires an employer to comply with occupational safety standards and provide a place of employment free from hazards that are likely to cause death or serious physical harm. This "is commonly referred to as the general duty clause[.]" Lexington-Fayette Urban County Government v. Offutt, 11 S.W.3d 598, 599 (Ky. App. 2000). In Offutt, this Court outlined the four-part test to determine if a violation of KRS 338.031 had occurred. Id. We cited to Nelson Tree Services, Inc. v. Occupational Safety and Health Review Commission, where the Sixth Circuit suggested that the factors to be considered in determining a violation of the general duty clause were whether:
It is arguable that this is not preserved as an issue on appeal since appellant's brief does not list it as a specific argument. However, in order to address the merits fully, and as it is discussed in the statement of the case, we elect to speak to this contention.
[1] A condition or activity in the workplace presented a hazard to employees;
[2] The cited employer or the employer's industry recognized the hazard;
[3] The hazard was likely to cause death or serious physical harm; and
[4] A feasible means existed to eliminate or materially reduce the hazard.Nelson Tree Services, Inc. v. Occupational Safety and Health Review Commission, 60 F.3d 1207 at 1209 (6th Cir. 1995). In general, the worker has the burden to demonstrate that the employer intentionally failed to comply with a "specific statute or regulation[.]" Cabinet for Workforce Dev. v. Cummins, 950 S.W.2d 834, 837 (Ky. 1997). Not all violations are egregious enough to justify granting of an enhancement. See, id. at 836 ("Nowhere did we state or imply that every violation of KRS 338.031(1)(a) constituted the violation of a specific safety statute for the purposes of KRS 342.165.")
KRS 342.165 provides for an enhanced penalty of 15% if any injury is caused by the intentional failure of the employer to comply with a specific statute or regulation.
Turning back to the four elements posed in Offutt, the ALJ concluded that prongs one and two of the test were not satisfied. Here, Page informed his employer that there was a problem with a hoist on a machine that he operated. The employer contacted maintenance, and the maintenance worker came and fixed it. The co-worker thought that he had fixed the faulty wiring, but when Page returned from his lunch break and went to use it, he became grounded and was electrocuted. The ALJ found that while there was a condition in the workplace that presented a hazard to employees, no one was aware of the issue; thus, BJK had no reason to recognize the hazard. The ALJ noted that factors three and four of the Offutt case appeared to have been satisfied, but held that there was no testimony in the record that BJK committed any type of safety violation. While Page contends that the rewiring of the hoist should have been performed by a certified electrician rather than a maintenance worker, he did not present any evidence that such a decision was a safety violation.
As the Board noted, the ALJ appropriately reviewed the standard necessary to assess the award enhancement, clearly outlined the required tests, and set forth the reasoning behind the determination. We agree that the ALJ adequately considered the evidence, provided a sufficient analysis, and the evidence does not compel a contrary result. Therefore, we AFFIRM the decision of the Board.
ALL CONCUR.