JAMES HANSEL v. FRUIT OF THE LOOM; SPECIAL FUND; HON. J. LANDON OVERFIELD, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED: March 5, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000435-WC
JAMES HANSEL
v.
APPELLANT
PETITION FOR REVIEW
OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
WC-96-088570
FRUIT OF THE LOOM;
SPECIAL FUND;
HON. J. LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDGE; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
VACATING AND REMANDING
* * *
BEFORE:
GUDGEL, CHIEF JUDGE; DYCHE AND KNOX, JUDGES.
KNOX, JUDGE:
James Hansel petitions our Court for the review of
a ruling by the Workers’ Compensation Board (Board) affirming the
decision of the Administrative Law Judge (ALJ) that appellant was
terminated from his employment for reasons not related to his
work injury, and interpreting KRS 342.730(1)(b) in such a way as
to limit appellant’s temporary total disability (TTD) benefits to
two (2) times his impairment rating.
Appellant began work at Fruit of the Loom (FOL) in
September 1994 as an inker in the screen print department.
In
September 1995, while lifting buckets of ink, appellant injured
his back.
After reporting the incident, he continued to work.
He requested to be sent to a doctor, and was sent to see Dr. Lynn
Haddix, the company doctor.
Ultimately, he was referred to Dr.
Bothwell Lee, a neurosurgeon, who performed back surgery in
October 1995.
Appellant returned to work in February 1996,
starting on light-duty work, then gradually working into his
regular duties.
He re-injured his back in May 1996.
consulted with Dr. Haddix and Dr. Lee.
He
Dr. Haddix diagnosed a
muscle strain and placed him on light-work duty.
appellant began to miss several days of work.
However,
On June 20, 1996,
he returned to Dr. Lee, who gave him a statement directing him to
be off work as of June 20, 1996, for a period of three (3) weeks.
When appellant arrived at his workplace on June 21, 1996, to give
Dr. Lee’s statement to his employer, he was told he had missed
too much work, and was terminated for excessive absenteeism.
The ALJ found that appellant’s termination was not
related to his back problem, and, consequently, his “off-work
status . . . does not alter his status as having returned to work
in a manner so as to subject him to the limitations of KRS
342.730(1)(b).”1
The ALJ then awarded appellant benefits equal
1
The 1994 amendment to KRS 342.730(1)(b), which applies
here, reads in part:
(continued...)
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to two (2) times his functional impairment attributable to the
injury he sustained while employed by FOL.
Appellant appealed
the ALJ’s ruling and award of benefits, both of which were later
affirmed by the Board.
Appellant disputes the ALJ’s conclusion that his
termination from employment was due to excess absenteeism rather
than his work-related back problem.
The record reflects that FOL
had an absentee policy in place which allowed an employee,
depending upon his length of employment, a particular number of
hours of absence during the year.
In appellant’s case, he was
allowed sixty-four (64) hours of absences within the year.
missed in excess of sixty-four (64) hours of work, he was to
If he
1
(...continued)
(1) Except as provided in KRS 342.732, income
benefits for disability shall be paid to
the employee as follows:
(b) For permanent, partial disability,
where an employee returns to work at
a wage equal to or greater than the
employee’s preinjury wage, 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 his percentage
of impairment caused by the injury
. . .unless the employee establishes
a greater percentage of disability as
determined under KRS 342.0011(11), in
which event the benefits shall not
exceed two (2) times the functional
impairment rate . . . .
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After eighty (80) hours of missed2
receive a verbal warning.
work, appellant was to receive a written warning informing him
that, if he reached eighty-eight (88) hours of absences, he would
receive a final warning, in which he would be informed that, at
ninety-six (96) hours, he would be terminated.
The record
reflects that appellant missed work on June 5, 14, 18, and 19 of
1996, and that, after the June 5 absence, his yearly absence
total stood at 93.25 hours.
Jana Moore, a supervisory employee
with FOL, testified that appellant had reached 101.5 hours of
absences as of June 19, 1996.
Appellant saw Dr. Lee on June 20, 1996, and obtained
from him a statement taking him off work beginning June 20, 1996,
for a period of three (3) weeks.
However, when appellant gave
the statement to FOL’s plant manager on June 21, 1996, the plant
manager terminated appellant’s employment.
Although appellant
testified his June 1996 absences were work related, the ALJ noted
the testimony of Tony Pelaski, another of FOL’s supervisory
employees, that, on June 20, 1996, when Pelaski asked appellant
where he had been, appellant responded that he was having
personal problems, and mentioned nothing about his back.
In
addition, the ALJ noted Dr. Lee’s handwritten notes of June 20,
1996, wherein he noted that appellant complained of various
personal concerns.
2
The record appears to reflect that appellant did not
receive warnings from FOL about his absences.
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The record also reflects that, on May 13, 1997, as a
part of the record before the ALJ, FOL stipulated that appellant
was entitled to TTD payments from June 20, 1996, to August 26,
1996.
The record appears to reflect that those benefits were
indeed paid.
Appellant argues that the stipulation is a
conclusive admission by FOL that appellant’s termination was
injury related, and compels a conclusion that appellant’s
dismissal on grounds of excessive absenteeism was not the true
reason for his dismissal.
The ALJ did not initially address the stipulation in
his opinion and award.
Appellant moved the ALJ for
reconsideration, arguing the stipulation represented a conclusive
judicial admission by FOL that appellant was totally disabled at
the time of his termination, and therefore, his “off-work status”
as a result of his termination was related to his injury.
The
ALJ, in response to appellant’s motion for reconsideration,
entered an order recognizing that appellant was temporarily
totally disabled from June 20, 1996 through August 26, 1996.
However, the ALJ did not alter his conclusion that appellant’s
dismissal was due to absenteeism.
Nor does his order reflect
that he weighed the effect of the stipulation upon his conclusion
that appellant was terminated due to excess absenteeism.
On
appeal, the Board ruled that since the stipulation was entered
into after June 20, 1996, the date appellant’s employment was
terminated, it was not determinative of the reasons for the
termination.
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Appellant argues the stipulation is of such evidentiary
significance, it rebuts any other evidence that his termination
was for a non-injury-related reason.
FOL counters that the ALJ
heard evidence sufficient to establish appellant’s termination
was due to excessive absenteeism.
We agree that FOL’s payment of TTD benefits from June
19, 1996, to August 26, 1996, subsequent to termination of
appellant’s employment, is an important evidentiary fact the ALJ
could have considered in ruling upon the reason for appellant’s
termination.
Durham v. Copley, Ky., 818 S.W.2d 610 (1991).
We
further agree that stipulations made by an employer in the
context of a workers’ compensation proceeding can be binding upon
that employer.
Shuman Co. v. May, Ky., 327 S.W.2d 14 (1959).
However, we see the question here as relating to whether FOL’s
payment of TTD benefits to appellant after his termination is a
conclusive admission that appellant was terminated due to his
disability, or whether the ALJ could consider other
circumstances, in addition to FOL’s payment of TTD benefits, in
determining the cause of appellant’s dismissal.
We believe, according to the weight of authority, FOL’s
payment of TTD benefits is not a conclusive admission that the
cause of appellant’s dismissal was related to his injuries.
See
7 Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation
Law § 79.43 (1998), wherein it is stated:
Payment of compensation or furnishing or
offering of medical services is not in itself
an admission of liability. This is
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especially true when the Commission has made
a practice of encouraging carriers to pay
voluntarily, assuring them that any
overpayment will be credited to them. Sound
public policy . . . requires that carriers be
allowed to make voluntary payments without
running the risk of being held thereby to
have made an irrevocable admission of
liability.
Note that, although all states agree that
payment should not in itself amount to a
complete estoppel to deny liability, or to
conclusive evidence of liability, there is
some variation in the weight, short of this,
which payment may be accorded.
Given that authority, we believe FOL’s payment of TTD
benefits is, as recognized in Durham, an “important” factor
related to the cause of appellant’s dismissal, and should have
been weighed by the ALJ in the context of the other evidence
considered by him.
However, while the ALJ acknowledged the
stipulation in his order responding to appellant’s motion to
reconsider, he merely affirmed his original conclusion that
appellant was fired for absenteeism, without any indication that
he considered the effect of the stipulation.
“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[,]” in workers’
compensation proceedings.
Square D Co.. v. Tipton, Ky., 862
S.W.2d 308, 309 (1993) (citation omitted).
Further, the
reviewing Court is limited to determining whether the ALJ
“committed an error in assessing the evidence so flagrant as to
cause gross injustice.”
Western Baptist Hosp. v. Kelly, Ky., 827
-7-
S.W.2d 685, 687-88 (1992).
Because it is not our role to assess
the weight to be given to the facts and the evidence, we believe
this matter should be remanded to the ALJ with instructions to
re-evaluate the reasons for appellant’s dismissal, taking into
consideration the fact that FOL paid TTD benefits after June 20,
1996.
Because the issue raised by appellant with respect to
whether the ALJ and the Board properly interpreted KRS
342.730(1)(b) in limiting appellant’s TTD benefits is dependent
upon the ultimate outcome of the ALJ’s findings concerning the
cause of appellant’s termination, we decline to address that
issue.
For the foregoing reasons, we vacate the Board’s
decision and remand this matter with instructions to direct the
ALJ to re-evaluate the reasons for appellant’s dismissal,
weighing all appropriate evidence, including the stipulation made
by FOL.
GUDGEL, CHIEF JUDGE, CONCURS.
DYCHE, JUDGE, DISSENTS.
BRIEF FOR APPELLANT:
BRIEF FOR FRUIT OF THE LOOM:
Roy C. Gray
Frankfort, Kentucky
Norman E. Harned
Amanda Anderson Young
Bowling Green, Kentucky
BRIEF FOR SPECIAL FUND:
David W. Barr
Louisville, Kentucky
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