EARTHGRAINS BAKING COMPANY v. KENNETH SUMNER; HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
September 3, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000038-WC
EARTHGRAINS BAKING COMPANY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-02271
KENNETH SUMNER; HON. DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE; AND WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GARDNER, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal by Earthgrains Baking Company
(Earthgrains) from an opinion of the Workers’ Compensation Board
(the Board) which, among other things, affirmed an award of
rehabilitation benefits to the appellee, Kenneth Sumner (Sumner).
Earthgrains contends that Sumner is not entitled to an award of
rehabilitation benefits because he was fired for insubordination,
and the termination of his employment was unrelated to his
injury.
We affirm.
On November 9, 1995, Sumner, while in the course and
scope of his employment as a baker’s helper with Earthgrains,
caught his foot in a conveyor belt causing him to trip and fall.
The fall resulted in fractures to his right wrist and elbow.
Sumner’s arm was placed in a sling, and he underwent physical
therapy for several months.
Sumner returned to light-duty work a
few days after the injury but was limited to fewer work hours.
On January 16, 1991, Sumner was released to regular duty with the
restriction of repetitive motion in the use of his right arm.
On
August 26, 1996, Sumner underwent surgery on his right elbow.
Sumner, whom the Administrative Law Judge (ALJ) found
to be credible, testified that prior to his injury he had worked
from 35 to 40 hours per week plus overtime.
Sumner further
testified that following the injury, although he returned to his
usual job, he worked only 24 to 30 hours per week.
Sumner
additionally testified that following the surgery on his right
elbow he did not return to performing his former job; instead he
was assigned tasks such as telephone duties and paperwork.
Earthgrains contends that, following his surgery, Sumner
returned to the same job and performed the same duties.
On October 21, 1997, Sumner filed an Application for
Resolution of Injury Claim against Earthgrains.
1997, Sumner was fired for insubordination.
On October 23,
Following a hearing
before the ALJ on August 19, 1998, the ALJ issued an opinion and
award in which Sumner received an award for 15% permanent partial
disability benefits and a rehabilitation evaluation in accordance
with KRS 342.710.
The award was affirmed on appeal to the
Workers’ Compensation Board.
This appeal followed.
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Earthgrains argues that since Sumner was forced to
leave his employment because of inappropriate conduct and not by
virtue of his injury he is precluded from receiving vocational
rehabilitation benefits under KRS 342.710.
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 a gross injustice.
Western
Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992).
The statutory authority for the awarding of vocational
rehabilitation benefits is set forth in KRS 342.710(3), which
provides, in pertinent part, as follows:
When as a result of the injury [an employee]
is unable to perform work for which he has
previous training or experience, he shall be
entitled to such vocational rehabilitation
services, including retraining and job
placement, as may be reasonably necessary to
restore him to suitable employment. . . .
The arbitrator or administrative law judge on
his own motion, or upon application of any
party or carrier, after affording the parties
an opportunity to be heard, may refer the
employee to a qualified physician or facility
for evaluation of the practicability of, need
for, and kind of service, treatment, or
training necessary and appropriate to render
him fit for a remunerative occupation.
The term "suitable employment" in KRS 342.710(3) means
"work which bears a reasonable relationship to an individual's
experience and background, taking into consideration the type of
work the person was doing at the time of injury, his age and
education, his income level and earning capacity, his vocational
aptitude, his mental and physical abilities and other relevant
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factors both at the time of injury and after reaching his
post-injury maximum level of improvement."
Wilson v. SKW Alloys,
Inc., Ky. App., 893 S.W.2d 800, 802 (1995).
At the time of his
injury, Sumner was earning $12.50 per hour and was working 35 to
40 hours per week as a baker’s helper.
Following the accident
and surgery, Sumner’s work hours declined to 24 to 30 hours per
week, and his duties were reduced to answering the telephone and
paperwork.
Following his termination, at the time of the
hearing, Sumner was working as a farm hand earning $4.50 per
hour.
We cannot say that the ALJ or the Board committed flagrant
error in concluding that Sumner was not engaged in suitable
employment following his accident or injury.
In determining that Sumner was entitled to a vocational
evaluation at the employer’s expense, the ALJ found as follows:
Although not specifically raised as an issue,
the Plaintiff has sought vocational
rehabilitation pursuant to KRS 342.710. In
reviewing the record, the Court finds that
the Plaintiff has a GED education with no
specialized or vocational training. His
injury has rendered him unable to perform
some of the work which he has previously done
in the past. Accordingly, the Plaintiff
shall be referred to the Department of
Vocational Rehabilitation for a vocational
evaluation in accordance with the provisions
of the aforementioned statute. The
vocational evaluation shall be at the expense
of the Defendant-Employer and a determination
as to the propriety of recommended training
for the Plaintiff shall be in accordance with
the provisions of KRS 342.710. (Emphasis
added.)
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,
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meaning evidence which would permit a fact-finder to reasonably
find as it did.
643 (1986).
Special Fund v. Francis, Ky., 708 S.W.2d 641,
The finding that Sumner is unable to perform “some
of the work which he has previously done in the past,”
we
conclude, meets the statutory requirements of KRS 342.710(3) and
is supported by substantial evidence in the record.
The ALJ is authorized by KRS 342.710(3) to order a
rehabilitation evaluation to determine if there is a need for
rehabilitative services.
One of the primary purposes of the
Workers' Compensation Act is to help restore an injured employee
to gainful employment.
KRS 342.710(1).
KRS 342.710(3) provides
that the gainful employment to which the injured employee that is
eligible for rehabilitation is to be restored must be suitable
employment.
Wilson, 893 S.W.2d at 800.
In determining a
claimant's right to vocational rehabilitation benefits, we must
adhere to the general rule that the workers' compensation
statutes will be liberally construed to effect their humane and
beneficent purposes.
Oaks v. Beth-Elkhorn Corporation, Ky., 438
S.W.2d 482, 484 (1969).
In view of Sumner’s prior earning history, prior work
history, prior training, the reduction in hours upon his return
to work following his injury, the testimony that following his
return to work his duties were limited to answering the telephone
and paperwork, the ascertainment of a 15% permanent partial
disability and the various physical restrictions caused by the
work injury, we cannot say that the Board misconstrued KRS
342.710(3) or committed an error in assessing the evidence so
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flagrant as to cause a gross injustice.
v. Kelly, 827 S.W.2d at 685.
Western Baptist Hospital
The decision of the Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
William P. Swain
Douglas A. U’Sellis
Louisville, Kentucky
Kent Overstreet
Owensboro, Kentucky
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