BERNARD BAKER v. WAL-MART STORES; HON. R. SCOTT BORDERS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: JUNE 10, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001807-WC
BERNARD BAKER
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. 02-WC-65861
v.
WAL-MART STORES; HON. R. SCOTT
BORDERS, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND McANULTY, JUDGES; HUDDLESTON, SENIOR JUDGE.1
JOHNSON, JUDGE:
Bernard Baker has petitioned for review of an
opinion of the Workers’ Compensation Board entered on August 6,
2004, which affirmed the Administrative Law Judge’s award of
permanent partial disability benefits for a back injury Baker
sustained while working as a meat cutter for Wal-Mart Stores.
Having concluded that the Board did not overlook or misconstrue
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
controlling statutes or precedent or commit an error in
assessing the evidence so flagrant as to cause a gross injustice
by affirming the ALJ’s refusal to enhance Baker’s benefits by
the multipliers contained in KRS 342.730(1)(c)1, and (1)(c)3, we
affirm.
Baker, who was born on December 19, 1960, has a tenth
grade education.
He began working for the Wal-Mart Super Center
in Shelbyville, Kentucky, in May 1998.2
At the time of the
injury, Baker was employed in the meat department where his
duties included cutting meat with saws and knives, stocking the
meat cases, assisting customers, unloading trucks, lifting meat
and boxes weighing up to 100 pounds, and cleaning and organizing
the meat department.
These tasks involved repetitive pushing,
pulling and bending activities, and prolonged standing.
His
hourly wage at the time of his injury was $13.68, his average
weekly wage was $489.33, and he worked approximately 40 hours
per week.
On October 27, 2002, Baker slipped on some “ice
buildup” inside a walk-in cooler as he was attempting to replace
a box of frozen food and fell on his buttocks, injuring his low
2
Baker’s career history included working as a farm hand and meat cutter. He
was originally hired by Wal-Mart as a sales associate, then reassigned as a
meat cutter. Baker also worked at Robertson’s Country Hams for approximately
16 hours per week from 2001 until the injury.
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back.3
Baker’s supervisor witnessed the fall and helped Baker
get off the floor.
Baker immediately went to the emergency room
at Jewish Hospital and initially missed four days of work.
Following his emergency room visit, Baker began to
receive treatment from Wal-Mart’s company doctors, Dr. Waldridge
and Dr. Powers.
Wal-Mart referred Baker to Dr. Ellen Ballard
for an independent medical examination.
Due to increased pain,
Baker saw Dr. Stacie Grossfield,4 from November 2002 until
February 2003, and she performed an MRI, and ordered physical
therapy and medications during this time of treatment.
Baker returned to work at Wal-Mart performing light
duty tasks on December 26, 2002, but his pain continued to
worsen, and he was off work for approximately six weeks.
began treatment with Dr. Mark Myers in April 2003.
Baker
Dr. Myers
reviewed Baker’s MRI and found he had disk degeneration at L4-5
and L5-S1 and a bulge at the L4-5 level.
Baker returned to Dr.
Myers in May 2003 with complaints of severe back pain, severe
leg pain, fatigue, and trouble lifting.
Dr. Myers opined that
Baker’s pain was entirely due to his work-related injury.
Baker
then took leave from work on May 25, 2003, and underwent a
lumbar fusion performed by Dr. Myers on May 27, 2003.
3
Baker denies having any previous back injuries, despite some conflicting
evidence from 1998 through 2000.
4
Baker saw Dr. Grossfield for a second opinion.
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Baker saw Dr. S. Pearson Auerbach, as his own
independent medical examiner, at the Medical Assessment Clinic
on September 18, 2003.
After reviewing Baker’s medical records
and prior X-rays, and conducting a physical exam, Dr. Auerbach
concluded that Baker had “first-degree spondylotisthesis and had
an injury, which aggravated the area and required stabilization
and fusion.”
When Baker returned to work at Wal-Mart on August 31,
2003,5 he was unable to return to his position as a meat cutter.
Rather, Wal-Mart accommodated him, and he worked as a cashier in
the electronics section and in the lawn and garden section of
the store.
As a cashier, he no longer had to perform heavy
lifting or bending.
Baker’s wages as a cashier were $14.196 per
hour, which he admitted was more money than he was earning at
the time of his injury; however, he is only working a 40-hour
week7 as Wal-Mart does not normally allow any employees overtime.
However, Baker testified that if it were offered to him, he
would try to work overtime.
After the injury, Baker did not
return to work at his part-time job at Robertson’s Country Hams.
5
Baker received short-term disability benefits during this period of
temporary total disability through a private plan that he had purchased.
6
This was also the wage for his former position as meat cutter at the time he
returned to work.
7
This may include some overtime because a full-time position at Wal-Mart was
for approximately 32 to 38 hours per week.
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On June 12, 2003, Baker filed an application for
benefits as a result of the October 27, 2002, injury.
was held before the ALJ on December 3, 2003.
A hearing
Baker testified
that the surgery had relieved the pain in his legs, but he still
had light pain, or an ache, in his back.
He further testified
that prolonged standing, lifting, and bending increased his
symptoms.
He currently takes Risperadol regularly for
depression and Ultram for pain in his feet, both of which were
prescribed to him prior to the injury.
Baker also introduced the report of Dr. Auerbach, who
noted that Baker would not likely be able to return to any type
of work that required heavy lifting or bending and was medically
unable to return to his previous work as a meat cutter.
Dr.
Auerbach assigned Baker a 20% permanent impairment rating under
the AMA Guides to the Evaluation of Permanent Impairment to the
body as a whole and placed restrictions on Baker.8
Wal-Mart
introduced the report of Dr. Ballard, who agreed with Dr.
Auerbach’s rating of 20% permanent impairment, and that Baker
was medically unable to return to work as a meat cutter.
8
Dr. Auerbach recommended the following restrictions: maximum occasional lift
of 30 pounds; maximum frequent lift of 10 pounds; maximum occasional carry of
20 pounds; and maximum frequent carry of 10 pounds; avoid lifting from the
ground to the knees, waist or above the shoulder; avoid bending/crawling
activities; and limit twisting/turning, standing and kneeling activities.
-5-
However, she noted that Baker could continue to work within his
restrictions.9
The ALJ entered his opinion and award on February 5,
2004, limiting Baker’s benefits to those provided in KRS
342.730(1)(b).
The ALJ found that Baker had a 20% functional
impairment rating as a result of his work-related back injury
and the subsequent surgery, which he found was reasonable and
necessary and a direct result of the work-related injury.
He
awarded Baker temporary total disability benefits in the amount
of $326.23 per week from October 27, 2002, until August 31,
2003, permanent partial disability benefits in the amount of
$65.24 per week beginning September 1, 2003, for 425 total
weeks, and payment of his medical bills.
The ALJ determined
that Baker lacked the physical capacity to return to the type of
work he was performing at the time of his injury, but he stated
that Baker could continue earning wages in the foreseeable
future that exceeded the wages he was earning at the time of his
injury, and refused to utilize multipliers as indicated in KRS
342.730(1)(c)1 and (1)(c)3 in setting Baker’s award.
The ALJ stated as follows:
In this instance, the Administrative
Law Judge is convinced the Plaintiff cannot
work as a butcher, the evidence however does
not indicate the Plaintiff is unlikely to be
9
Dr. Ballard did not believe the May 2003 surgery was necessary. She also
testified that she believed Baker had a history of chronic back pain.
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able to continue earning a wage that exceeds
the wage at the time of injury for the
indefinite future.
Therefore, the Administrative Law Judge
is simply not convinced the Plaintiff is
entitled to the 3.2 multiplier. There is
simply no evidence in this claim whatsoever
to show that the Plaintiff is not capable of
working as a cashier for Wal Mart and will
be so capable into the future.
In fact, the Plaintiff testified while
he is not getting overtime hours, he stated
nobody in the store gets overtime hours. He
did admit, however, if they would offer it
to him, he would try to perform the work,
which is an indication to the Administrative
Law Judge that the Plaintiff should be able
to keep this job at an equal or greater wage
into the foreseeable future.
Baker filed a petition for reconsideration of the
ALJ’s award on February 9, 2004, which was denied by the ALJ by
order entered on March 5, 2004.
Baker then appealed the award
to the Board on March 19, 2004, which affirmed the ALJ’s award
in its entirety by opinion entered on August 6, 2004.
This
petition for review followed.
“The standard of review with regard to a judicial
appeal of an administrative decision is limited to determining
whether the decision was erroneous as a matter of law”
[citations omitted].10
The burden of proof in a worker’s
compensation claim falls on the employee, who must prove every
10
Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000).
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element of the claim.11
Because the ALJ decision was not in
favor of Baker, the issue on appeal is “whether the evidence was
so overwhelming, upon consideration of the entire record, as to
have compelled a finding in [Baker’s] favor.”12
Compelling
evidence is such “that no reasonable person could reach the
conclusion of the [ALJ]”13
The ALJ acts as the finder of fact in all workers’
compensation cases, and he, not the Board nor this Court, “has
the authority to determine the quality, character, . . .
substance, . . .”14 and weight of the evidence.15 The ALJ “may
reject any testimony and believe or disbelieve various parts of
the evidence, regardless of whether it comes from the same
witness or the same adversary party’s total proof.”16 This Court
11
Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000).
12
Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky.App. 1984).
13
R.E.O. Mechanical v. Barnes, 691 S.W.2d 224, 226 (Ky.App. 1985). See also
Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986)(holding “[i]f the
fact-finder finds against the person with the burden of proof, his burden on
appeal is infinitely greater”).
14
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985).
15
Miller v. East Kentucky Beverage/PepsiCo., Inc., 951 S.W.2d 329, 331 (Ky.
1997). See also Magic Coal Co., 19 S.W.3d at 96 (citing McCloud v. BethElkhorn Corp., 514 S.W.2d 46 (Ky. 1974)).
16
Magic Coal Co., 19 S.W.3d at 96 (citing Caudill v. Maloney's Discount
Stores, 560 S.W.2d 15, 16 (Ky. 1977)). See also Ira A. Watson, 34 S.W.3d at
52, (holding that mere evidence contrary to the ALJ’s decision is not
adequate to justify reversal).
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cannot “substitute its judgment” for that of the ALJ’s, nor can
this Court “render[ ] its own findings” [citations omitted].17
If the ALJ’s findings of fact were supported by
substantial evidence, this Court is bound by them.18
Substantial
evidence has been defined as “evidence of substance and relevant
consequence having the fitness to induce conviction in the minds
of reasonable [people]” [citation omitted].19
It is well-
established that the function of this Court in reviewing the
Board “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.”20
Baker’s sole issue on appeal is that the ALJ committed
reversible error by refusing to award him the appropriate
benefits pursuant to KRS 342.730(1)(c), instead of KRS
342.730(1)(b).21
KRS 342.730, sections (1)(c)1 through (1)(c)3
provide, in pertinent part, as follows:
17
Wolf Creek Collieries, 673 S.W.2d at 736.
18
Id. See also Addington Resources, Inc. v. Perkins, 947 S.W.2d 421, 423
(Ky.App. 1997).
19
Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky.App. 1971).
20
Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
21
KRS 342.730 (1) (b) provides, based on Baker’s AMA impairment of 20%, that
to determine his permanent partial disability, it is proper to take 66 2/3%
of his average weekly wage multiplied by a factor of 1.0.
-9-
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
temporary 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.
3.
Recognizing that limited education and
advancing age impact an employee’s
post-injury earning capacity, an
education and age factor, when
applicable, shall be added to the
income benefit multiplier set forth in
paragraph (c)1. of this subsection. If
at the time of injury . . . the
employee had less than twelve (12)
years of education or a high school
General Education Development diploma,
the multiplier shall be increased by
two-tenths (0.2)[.]
-10-
In Fawbush v. Gwinn,22 our Supreme Court interpreted
this statute by concluding that the Legislature by inserting the
word “or” between subsections (1)(c)1 and (1)(c)2 in the 2000
amendment to KRS 342.730 “evinced an intent for only one of the
provisions to be applied to a particular claim.”23
The Supreme
Court further held that neither subsection “takes precedence
over the other . . . [and] that an ALJ is authorized to
determine which provision is more appropriate on the facts.”24
Baker argues that the ALJ failed to make an
appropriate analysis of the statutory language regarding the
multipliers.
He argues that a claimant should neither be denied
an award based on the 3 multiplier of KRS 342.730(1)(c)2 nor the
.2 multiplier of (1)(c)3, because he returned to work for the
same or greater wages, nor should a claimant’s benefits be
limited to the provisions of KRS 342.730(1)(b) because he
returned to work for the same employer.
In comparing this case to Fawbush, we note that the
injured worker in both cases lacked the physical capacity to
return to the type of work he performed at the time of the
injury and both returned to work at a wage equal to or greater
22
103 S.W.3d 5 (Ky. 2003).
23
Fawbush, 103 S.W.3d at 12 (citing Whitley County Board of Education v.
Meadors, 444 S.W.2d 890 (Ky. 1969)).
24
Id. See also Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206,
211 (Ky. 2003).
-11-
than his average weekly wage at the time of the injury.
However, the two cases are distinguishable factually on a very
important point.
In Fawbush, there was a question as to whether
the claimant would be able to continue to earn a wage that
equaled or exceeded his pre-injury wage indefinitely.
The
Supreme Court in Fawbush stated:
Furthermore, although he was able to earn
more money than at the time of his injury,
his unrebutted testimony indicated that the
post-injury work was done out of necessity,
was outside his medical restrictions, and
was possible only when he took more narcotic
pain medication than prescribed. It is
apparent, therefore, that he was not likely
to be able to maintain the employment
indefinitely.25
The case before us is clearly distinguishable since
the ALJ made extensive findings that Baker had been accommodated
by Wal-Mart, had returned to work within his restrictions, and
was willing to work overtime if it were offered.26
Based on
these factors, the ALJ concluded that there was no reason that
Baker could not continue working for Wal-Mart as a cashier
earning those same or greater wages for the indefinite future.27
25
Fawbush, 103 S.W.3d 12.
26
See Kentucky River Enterprises, Inc., 107 S.W.3d at 211 (stating that
“[w]hat remains to be decided, however, is whether he is able to work at
least the same number of hours as before the injury, and, therefore, to earn
an average weekly wage that equals or exceeds his average weekly wage at the
time of his injury” [citations omitted]).
27
This reasoning falls in line with the holding in Adkins v. Pike County
Board of Education, 141 S.W.3d 387, 390 (Ky.App. 2004)(holding that an ALJ
must determine whether a claimant “[w]as likely to be able to continue
-12-
The ALJ considered both subsections (1)(c)1 and
(1)(c)2, and chose subsection (1)(c)2 of KRS 342.730, which
provides that when the claimant returns to work at the same or
greater wage, the benefits “shall be determined under paragraph
(b) of this subsection.”
The ALJ’s opinion devoted two pages to
this election not to use the multiplier and the findings are
sufficient to justify that decision.
The Board in its August 6, 2004 opinion stated,
Absent some testimony or other evidence that
Baker would be unlikely to be able to
continue in some employment at the same or
greater wage, we cannot say the ALJ’s
finding is unreasonable. The evidence cited
by the ALJ in reaching his determination is
substantial evidence that supports a finding
that Baker could continue to earn a wage
that equals or exceeds his pre-injury wages.
Thus, Baker failed in meeting his burden of proof to justify the
use of the multipliers.
For the foregoing reasons, the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Ched Jennings
Louisville, Kentucky
BRIEF FOR APPELLEE, WAL-MART
STORES, INC.:
David L. Murphy
Louisville, Kentucky
earning a wage that equals or exceeds the wage at the time of his injuries
for the indefinite future”).
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