Opinion
NO. 2012-CA-001555-WC
02-21-2014
NANCY MCDONALD APPELLANT v. COMMONWEALTH OF KENTUCKY; HON. CHRIS DAVID, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE, Wayne C. Daub Louisville, Kentucky COMMONWEALTH OF KENTUCKY: Matthew J. Zanetti Louisville, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-06-00568
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND STUMBO, JUDGES. ACREE, CHIEF JUDGE: Nancy McDonald appeals from the opinion of the Workers' Compensation Board which affirmed the Administrative Law Judge's (ALJ) order that established McDonald's entitlement to permanent partial disability (PPD) benefits for a twenty-three percent whole person impairment as of the date of her injury. We affirm.
I. Background
McDonald began employment at the Hazelwood Center in 1987. At the time of her injury, McDonald was employed as a manager of dietary services.
The Hazelwood Center is a mental health facility operated by the Commonwealth.
In a slip-and-fall accident on July 18, 2004, McDonald injured her lower back and right hip. She sought treatment and ultimately returned to work at the Hazelwood Center, but she was assigned a position which required less physical activity.
McDonald sought Workers' Compensation benefits for her injuries. She represents that one of her treating physicians initially assessed a zero percent disability rating on September 19, 2006. On January 23, 2007, McDonald claims, the same physician reevaluated her condition and assessed her disability at eight percent.
Following this reevaluation, the parties entered into a settlement agreement in July of 2007. McDonald was awarded a lump-sum payment based on a four percent whole person impairment rating.
Despite the change in job duties, McDonald's condition worsened, and she was advised that she needed to undergo surgery. Her claim was reopened on September 30, 2010, to address the change in her medical condition. Kentucky Revised Statutes (KRS) 342.125.
Following a hearing, the ALJ determined McDonald's injuries resulted in a twenty-three percent impairment rating. He awarded McDonald permanent partial disability benefits for a period beginning on the date of her injury, July 18, 2004. The employer would be credited for compensation previously paid.
McDonald appealed to the Board, alleging that the ALJ had set the benefits to begin on the wrong date. The Board affirmed the ALJ's order in all respects relevant to this appeal.
The Board reversed and remanded for a matter which does not affect the questions presented for our review.
II. Standard of review
McDonald presents both a question of fact and a question of law. The parties disagree as to the onset of impairment, a question of fact. We are permitted to reverse that finding only if it is not supported by substantial evidence. Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1964). They also dispute whether the ALJ set the correct date for the onset of PPD benefits in accordance with statutory authority as interpreted by Sweasy v. Wal-Mart Stores, Inc., 295 S.W.3d 835 (Ky. 2009). In that respect, the ALJ's order is reviewed de novo. Hutchison v. Kentucky Unemployment Ins. Com'n, 329 S.W.3d 353, 356 (Ky. App. 2010).
III. Discussion
Sweasy established that KRS 342.7301(1) "entitle[s] a partially disabled worker to permanent income benefits from the date that the permanent impairment or disability that they compensate arises." Sweasy, 295 S.W.3d at 836. The Supreme Court explained the operation of this rule as follows: "the compensable period for partial disability begins on the date that the impairment and disability arise, without regard to the date of MMI,[ ] the worker's disability rating, or the compensable period's duration." Id. at 840.
Maximum medical improvement.
McDonald asks that we reverse the ALJ's finding that her entitlement to permanent partial disability benefits begins on the date of her injury, July 18, 2004. She contends the correct date must fall somewhere between her treating physician's two disparate assessments of her impairment, the first at zero percent (on September 19, 2006) and the second at eight percent (on January 23, 2007). Her rationale is that her permanent partial disability could only have arisen between these two dates. She claims her impairment "could not have begun on the date of injury because she had no impairment on either July 18, 2004[,] or any date that preceded September 19, 2006 . . . ." (Appellant's brief, p. 13).
If McDonald prevails in this argument, she would receive more in payments because the employer would not be entitled to credit for compensation paid between the injury date, July 18, 2004, and a date not earlier than September 19, 2006.
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We are not persuaded. McDonald is entitled to receive compensation for an injury, or a "work-related traumatic event ... producing a harmful change in the human organism . . . ." KRS 342.0011. The Court in Sweasy clarified that "[a] condition 'arises' when it comes into being, begins, or originates. Thus, impairment arises for the purpose of Chapter 342 when work-related trauma produces a harmful change in the human organism. That usually occurs with the trauma but sometimes occurs after a latency period." Sweasy, 295 S.W.3d at 839.
Although McDonald's argument appears to be that her injuries only manifested after a period of latency, the evidence is to the contrary. She testified that the effects of her slip and fall occurred immediately; she lost sensation in her legs for the ten minutes immediately after the fall and she began treatment the next day. McDonald has since continued to treat with a variety of medical professionals. It was not clearly erroneous for the ALJ to determine McDonald's injury arose on the date of the slip and fall because she has not identified evidence of latency.
Furthermore, Sweasy mandates that the date of onset be determined "without regard to ... the worker's disability rating." Sweasy, 295 S.W.3d at 839. McDonald has asked us to consider the disability rating, and the date it was assessed, to determine when her impairment began. We are not permitted to do so. KRS 342.370(1) requires that McDonald's entitlement to benefits begin on the date of her injury. Id. The ALJ did not misapply the holding of Sweasy in so ruling.
IV. Conclusion
The ALJ's order establishing the onset of McDonald's entitlement to permanent partial disability benefits as the date of injury was based on substantial evidence and proper application of the law. KRS 342.370(1); Sweasy, 295 S.W.3d 835. We affirm the Board's opinion upholding the ALJ's order.
ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE, Wayne C. Daub
Louisville, Kentucky
COMMONWEALTH OF
KENTUCKY:
Matthew J. Zanetti
Louisville, Kentucky