PATTY G. WILLIAMS v. UNITED PARCEL SERVICE; HON. SHEILA C. LOWTHER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: May 27, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002046-WC
PATTY G. WILLIAMS
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
NO. WC-03-00394
UNITED PARCEL SERVICE;
HON. SHEILA C. LOWTHER,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY AND VANMETER, JUDGES; MILLER, SENIOR JUDGE.1
VANMETER, JUDGE:
Patty G. Williams petitions for review from an
opinion of the Workers’ Compensation Board affirming a decision
of the Administrative Law Judge (ALJ) awarding permanent partial
disability (PPD) benefits for work-related injuries to Williams’
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
arms, shoulders, neck, and back sustained during her employment
with United Parcel Service (UPS) as a package handler.
She
argues that the ALJ erred by failing to also award her total
temporary disability (TTD) benefits.
For the reasons stated
below, we affirm the Board’s decision.
Williams, who was born in 1967, has a GED, but no
specialized vocational training.
She began her employment with
UPS in 1993, was laid off in 1995, and returned to work in 1996.
Williams’ duties as a package handler required her to
repetitively lift packages weighing up to seventy pounds and to
use pushing, pulling, bending, and twisting motions.
Although
she reported to her supervisor that she felt pain in her arms,
shoulders, neck, and back on September 17, 2001, she was not
referred to the company doctor at that time.
Williams continued to work until January 25, 2002,
around which time she sought medical attention from a
chiropractor.
She then consulted a neurosurgeon who
administered epidural blocks to her lower back and recommended
fusion surgery to alleviate pain.
Williams was also treated by
a pain management specialist, and she sought treatment from
another orthopedic surgeon, Dr. William Moss, who recommended
bilateral carpal tunnel surgery.
After obtaining a second
opinion and attempting more conservative treatment in an effort
to avoid surgery, Williams underwent bilateral carpal tunnel
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surgery in March and June 2002.
She further underwent a left
lateral epicondylitis surgery in August 2002.
According to UPS
wage records, during 2002 Williams did not work between January
26 and April 26; between June 15 and August 16; and her final
day of employment was on September 20, 2002.
During her
absences from work Williams received short-term disability
benefits from Kemper National Services, which were fully funded
by UPS.
Williams filed an injury report, on February 26, 2003,
stating that the injury occurred on September 17, 2001.
She
subsequently filed a medical report from Dr. S. Pearson
Auerbach, who assigned her a 5% functional impairment rating.
After a hearing the ALJ determined that Williams had a 3.25%
permanent disability rating, but he was not persuaded that
Williams had a “complete and permanent inability to perform any
type of work as a result of her injury.”
Thus, he awarded
Williams medical benefits plus PPD benefits of $14.51 per week
for a period of 425 weeks beginning on September 18, 2001, but
he denied any award of TTD benefits.
UPS was credited for its
payment of sickness and accident benefits during the period of
PPD.
Both parties petitioned for reconsideration.
Williams
asserted that she was entitled to TTD benefits for January 18
through April 15, 2002; April 20 through April 22, 2002; April
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26 through May 14, 2002; and August 18, 2002, through January
21, 2003.
UPS sought additional findings of fact regarding
Williams’ physical work capacity after January 25, 2002 and
requested the ALJ reduce its award of PPD benefits from $14.51
to $9.68 per week if her capacity was normal after that date.
The Chief Administrative Law Judge denied Williams’ petition but
granted UPS’ petition finding that Williams “retained the
physical capacity to perform her regular employment,” and
reducing her PPD benefits to $9.68 per week.
Williams appealed
to the Workers’ Compensation Board (Board), which affirmed the
ALJ’s opinion and award.
This petition for review followed.
William’s sole contention on appeal is that the ALJ
erred by denying TTD benefits.
We disagree.
An ALJ’s finding in favor of a claimant must be based
on substantial evidence.2
As stated in Smyzer v. B.F. Goodrich
Chemical Co.,3 “[s]ubstantial evidence means evidence of
substance and relevant consequence having the fitness to induce
conviction in the minds of reasonable men.”
An ALJ’s finding
may be overturned only if upon review, the Board determines that
the ALJ acted outside the scope of his power, was clearly
2
Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
3
474 S.W.2d 367, 369 (Ky. 1971).
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erroneous in his decision, or rendered a decision which was
arbitrary or capricious.4
Here, the Board determined that the ALJ’s decision was
supported by substantial evidence and, indeed, that Williams had
utterly failed to meet her burden of proof.
After reviewing the
evidence, we cannot say that the evidence compelled a different
conclusion.
The dates during which Williams claims she was
eligible for TTD benefits vary from pleading to pleading.
Williams’ failed to submit any medical records from her treating
physicians to substantiate the reasons for her absences from
work during the debated periods of 2002.
Further, we are not
persuaded by Williams’ contention that “[t]he medical evidence
confirm[s] such periods of TTD,” since the only medical report
submitted was that of Dr. Auerbach, who did not account for
Williams’ work absences.
Additionally, the dates listed on the
Return to Work Status forms issued by Dr. Moss do not coincide
with the dates for which Williams claims TTD benefits.
Due to
these inconsistencies and Williams’ failure to meet her burden
of proof we cannot say that the ALJ abused his discretion5 by
denying the award of TTD benefits, or that the Board erred by
4
KRS 342.285(2)(a),(d), and(c).
5
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985).
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failing to find that the evidence compelled a different
conclusion.
For the foregoing reasons the Board’s decision is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ched Jennings
Louisville, Kentucky
Thomas L. Ferreri
Louisville, Kentucky
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