R & S BODY COMPANY, INC. v. JOHN T. McCOY; HON. JOHN B. COLEMAN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 29, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000800-WC
R & S BODY COMPANY, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
CLAIM NO. WC-02-02148
JOHN T. McCOY;
HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE AND GUIDUGLI, JUDGES; PAISLEY, SENIOR JUDGE. 1
PAISLEY, SENIOR JUDGE:
R & S Body Company, Inc. (R & S) has
petitioned this Court for review of an opinion of the Workers’
Compensation Board affirming a decision of an Administrative Law
Judge (ALJ) that awarded John McCoy tripled permanent partial
disability benefits under KRS 342.730(1)(c).
R & S maintains
that the ALJ did not have sufficient evidence to meet the
1
Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
standard established in Fawbush v. Gwinn, 103 S.W.3d 5 (Ky.
2003) for awarding such enhanced benefits.
In the alternative,
R & S argues that the holding in Fawbush should be modified or
reversed.
Because we find that the Board did not err in
determining that there was sufficient evidence supporting the
ALJ’s award of tripled benefits, and because we must follow the
precedents established by our state Supreme Court, we affirm.
McCoy was born in 1955.
education and has earned a GED.
vocational training.
He has a tenth-grade
He has no specialized or
Since 1985, McCoy has been employed by
R & S as a production welder of truck bodies.
In his
deposition, he described the work as heavy and demanding because
a production quota must be met every day.
McCoy began experiencing neck and upper back pain in
the 1990s, and was told in 2000 that he had a bulging disk in
his neck.
His family physician began treating him for the neck
condition, and imposed a thirty-five pound lifting restriction.
McCoy then suffered three injuries at work.
The first occurred
on April 18, 2001, when he fell from a ladder while welding.
He
experienced lower back pain at that time, but it was not severe
enough to make him leave work.
Then, on January 14, 2002, he
fell from the deck of a truck bed, a distance of about three
feet.
He landed on his hips and lower back.
He testified that
he experienced pain in the same area as before, but that it was
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much more severe.
He consulted his family physician, who
referred him to a pain management specialist.
Finally, on May
17, 2002, McCoy fell from the back of a truck bed, again landing
on his lower back.
Against his doctors’ advice, McCoy did not
miss work following any of his injuries because he could not
afford to do so.
At the time of his hearing, he was still
performing the same job at R & S.
McCoy currently experiences back pain with
accompanying pain and numbness in his left leg.
He has trouble
getting up and down and sitting for long periods.
He finds it
difficult to weld beneath tailgates, and he can no longer weld
the tailgates themselves because they are far heavier than his
current twenty-five pound lifting restriction.
scarcely any overtime hours now.
He works
He has stated that he wants to
continue working for as long as he possibly can.
McCoy
testified that although he had complained of lower back pain to
his physicians for years, he felt that his more severe back pain
and problems did not begin until after the second work injury of
January 14, 2002.
The ALJ found that McCoy’s fall from the truck bed on
January 14, 2002, was a compensable injury.
He assessed an
impairment of 8% under the AMA Guidelines and found McCoy to
have a 6.8% permanent partial disability.
He further concluded
that as a result of the injury, McCoy would be unable to
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continue the type of work he was doing into the indefinite
future and therefore awarded him a tripling of his benefits
pursuant to KRS 342.730(1)(c)1.
R & S appealed to the Workers’ Compensation Board on
the sole issue of whether there was substantial evidence to
support the ALJ’s conclusion that McCoy did not retain the
physical capacity to return, for the indefinite future, to the
type of work he was performing at the time of the injury.
The
Board affirmed the ALJ’s decision, and this petition for review
followed.
The duty of this Court is to correct the Board only
where it has overlooked or misconstrued controlling statutes or
precedent, or committed an error in assessing the evidence so
flagrant as to cause gross injustice.
Western Baptist Hospital
v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992); Whittaker v.
Rowland, 998 S.W.2d 479, 482 (Ky. 1999).
KRS 342.730(c) provides, in relevant part, that:
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 . . . ; 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
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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 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.
In Fawbush v. Gwinn, our Supreme Court held that
paragraph (c)2 of the statute does not take precedence over
paragraph (c)1.
In other words, if an employee returns to work
after an injury at an equal or higher weekly wage, he or she is
not automatically ineligible for the triple multiplier.
The
Court reasoned as follows:
[T]he legislature did not preface paragraph
(c)2 with the word “however” or otherwise
indicate that one provision takes precedence
over the other. We conclude, therefore,
that an ALJ is authorized to determine which
provision is more appropriate on the facts.
If the evidence indicates that a worker is
unlikely to be able to continue earning a
wage that equals or exceeds the wage at the
time of injury for the indefinite future,
the application of paragraph (c)1 is
appropriate.
R & S argues that there was no evidence presented that
McCoy is unlikely to be able to continue earning a wage that
equals or exceeds his wage at the time of the injury for the
indefinite future.
Dr. James Templin, a specialist in
occupational medicine and chronic pain management, stated that
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McCoy would have difficulty continuing in his present
employment, but R & S has pointed out that Dr. Templin
nevertheless assessed no permanent restrictions.
Similarly,
although Dr. Shriram Iyer, 2 another pain management specialist,
concluded that McCoy did not retain the physical capacity to
return to his work as a welder, R & S contends that this was a
“conclusory” statement and that there was no evidence that Dr.
Iyer understood the type of work that was being performed by
McCoy.
R & S presents as further evidence of McCoy’s ability to
continue earning the same or greater wages the fact that he
returned to work after each of his work injuries, and that he
had modified his work behavior due to back problems well before
the January 14, 2002 injury.
In arriving at his decision, the ALJ relied on Dr.
Templin’s opinion and on McCoy’s own testimony regarding his
pain and the difficulty he has welding beneath tailgates and
lifting tailgates.
ALJ concluded that
[t]he plaintiff is clearly working beyond
his restrictions and is suffering on a daily
basis as a result thereof. The plaintiff
has proven himself to be a valued worker as
he has worked over the years through bouts
of cervical and lumbar pain as a welder
doing heavy manual labor work. The
plaintiff now suffers a herniated disc and
has restrictions against doing much of the
work he has done in the past although his
testimony indicates that he desires to do so
2
Appellant has spelled the name “Iyler” although the record indicates that
the doctor’s surname is Iyer.
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as long as he is able. The facts of this
case point to the fact that the plaintiff
will not be able to continue this type of
work into the indefinite future and
therefore, the multiplier set forth at KRS
342.730(1)(c)(1) is appropriate[.]
In reviewing the ALJ’s findings and conclusions, we
note that “the ALJ, as fact-finder, has the sole authority to
judge the weight, credibility and inferences to be drawn from
the record.”
Miller v. East Kentucky Beverage/Pepsico, Inc.,
951 S.W.2d 329, 331 (Ky. 1997).
“The fact-finder 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.”
Fox, 19 S.W.3d 88, 96 (Ky. 2000).
Magic Coal Co. v.
R & S has acknowledged the
broad discretion granted to the ALJ as factfinder, but alleges
that this power “can be too readily abused.”
We find no such abuse in this case.
The record shows
that both Dr. Templin and Dr. Iyer opined that McCoy would be
unable to continue his employment as a welder.
Although, as R&S
has noted, Dr. Templin did not impose permanent restrictions, he
also provided the following testimony:
Mr. McCoy should avoid activities requiring
extensive or repetitive bending, stooping,
kneeling, crouching, lifting, carrying or
climbing. He should avoid lifting or
carrying items weighing greater than 20
pounds from waist level for any extended
distance or time. He should also avoid
lifting items weighing greater than 10
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pounds from floor level or doing any
repetitive lifting from floor level. He
should avoid repetitive use of foot controls
or riding in or on vibratory vehicles for
any extended distance or time. And when I
note these activities what I’m saying is
that I believe these activities, if he
engages in them, will result in increased
pain and ultimately prevent him from
continuing his work activities.
. . .
Consideration should be given to vocational
training or additional education in another
area where the functional job duties are
more consistent and compatible with his
present medical condition.
As to R & S’s contention that Dr. Iyer was unaware of
the type of work McCoy was performing at the time of the January
2002 injury, and therefore unable to give an informed opinion,
we observe that Dr. Iyer’s report clearly states that McCoy is
“a skilled laborer and has worked as a welder for the past
several years.”
R & S further argues, however, that even if one were
to assume that the January 2002 injury resulted in some
modification in McCoy’s ability to engage in the work he was
performing before the injury, there is no evidence, nor can any
inference be drawn from the existing evidence, that it affected
his ability to earn equal or greater wages for the indefinite
future.
R & S points out that the Supreme Court in Fawbush and
thereafter in Kentucky River Enterprises v. Elkins, 107 S.W.3d
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206 (Ky. 2003), recognized that an individual may lack the
physical capacity to return to his prior work but may still
possess the capability of earning the same or greater wages for
the indefinite future.
See Elkins, 107 S.W.3d at 211.
R & S
claims that the ALJ failed to make a finding regarding McCoy’s
future wage-earning potential, and that the Board consequently
shored up the lack of evidence by embarking on an improper factfinding mission to fill the evidentiary void.
R & S refers specifically to the Board’s treatment of
the evidence regarding the lifting restrictions placed on McCoy
and the Board’s statement that it is “implied” in the evidence
that McCoy could work on tailgates before his injury.
It is undisputed that McCoy had had restrictions
placed on the amount he could lift well before the January 2002
injury.
R & S claims that the Board overstepped its role as a
reviewing body when it wrote that prior to the injury McCoy was
not “absolutely precluded” from lifting heavier objects, and
that it was “implied” that he had been able to work on tailgates
before his low back injury.
Our review of the record indicates
that there was some reduction in the amount of weight that his
physicians recommended McCoy could lift before and after the
injury.
We also see no error in the Board’s comment that the
ALJ was acting within his discretion in relying on McCoy’s own
testimony that he now does not lift more than twenty-five
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pounds, nor in its conclusion that this implies that he was not
absolutely precluded from lifting heavier objects before the
lower back injury.
As to the evidence regarding the tailgates, McCoy
testified as follows at the hearing:
Q. Do you still do the same job you did at
the time you got hurt?
A. No, I don’t weld tailgates no more.
Q. Why is that?
A. Because I can’t stand the lifting and
tugging on them.
On the basis of this evidence, we do not agree with
R & S that it was an impermissible inference for the Board to
state that it was implied in McCoy’s testimony that he had been
able to work on tailgates before his injury.
Moreover, the Board also stressed the following
evidence as supporting the ALJ’s opinion:
Beyond these lifting restrictions, there are
multiple limitations on McCoy’s other work
activities that are entirely disregarded by
R & S in its argument. These include, most
notably, limitations on bending, stooping
and crawling, all of which are required of
McCoy in his work as a production welder of
truck bodies. McCoy testified at the final
hearing that he avoids these activities to
the extent he is able, though that is not
always the case. Contrary to R & S’
assertion that there is no evidence that
McCoy labors in pain and has difficulty
performing his work, McCoy’s testimony at
the final hearing reveals that he gets “to
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where [he] can’t function” whenever he
bends, stoops, crawls, and lifts. McCoy
testified that sometimes he goes home after
work and spends the entire evening sitting
and doing nothing because of the pain. He
also has difficulty sleeping at night
because he cannot find a comfortable
position because of low back pain. Dr.
Templin expressly testified that, because of
his low back injury, some of the tasks
required of McCoy’s work as a welder “will
result in increased pain and ultimately
prevent him from continuing his work
activities.”
As to R & S’s contention that the Board improperly
tried to compensate for the ALJ’s failure to address the
question of whether McCoy could continue to earn the same or
greater wage for the indefinite future, we note that the ALJ
clearly articulated the Fawbush standard at the beginning of the
paragraph wherein he explained why he was applying the triple
multiplier.
The ALJ was not required to restate that standard
again at the end of the paragraph.
As to R & S’s argument that Fawbush v. Gwinn should be
overruled, we are constrained by the Rules of our Supreme Court
which plainly state that “[t]he Court of Appeals is bound by and
shall follow applicable precedents established in the opinions
of the Supreme Court and its predecessor court.”
SCR
1.030(8)(a)
For the foregoing reasons, the opinion of the Board is
affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Walter W. Turner
Dwight T. Lovan
Owensboro, Kentucky
Bobby Rowe
Prestonsburg, Kentucky
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