JAMES WOODFORD v. FORD MOTOR COMPANY, HON. GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE, AND WORKERS' COMPENSATION BOARD
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RENDERED:
JANUARY 26, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2006-CA-001516-WC
JAMES WOODFORD
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-00-67906
FORD MOTOR COMPANY, HON. GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE, AND WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
ABRAMSON AND DIXON, JUDGES; HOWARD,1 SPECIAL JUDGE.
HOWARD, SPECIAL JUDGE:
James Woodford appeals from an opinion
of the Workers’ Compensation Board (“the Board”) affirming an
opinion and order of the Administrative Law Judge (“ALJ”).
The
ALJ awarded benefits consistent with a 12% permanent partial
disability arising from a work-related back injury, found that a
neck injury was not compensable, and ruled that the KRS
342.730(1)(c)(1) and (2) multipliers were not applicable.
Woodford brings this appeal from the failure of the ALJ or the
1
Special Judge James I. Howard sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110 (5) (b) of the Kentucky Constitution.
Board to apply the multipliers.
For the reasons stated below,
we affirm.
The facts are not disputed.
On February 27, 2002,
Woodford filed an Application for Resolution of Injury Claim
with the Department of Workers’ Claims.
Woodford alleged that
he sustained a number of injuries arising during the course of
his employment with Ford Motor Company (“Ford”).
These alleged
injuries occurred or manifested themselves between March, 2000
and March, 2001 and included neck, right arm and wrist injuries
resulting from the use of an air gun, injuries to his lower back
sustained while lifting a crossbar and a re-injury of his back
and neck which occurred when he jerked to avoid hitting his head
at work.
The claim proceeded before the Honorable Irene Steen,
ALJ, who upon taking proof rendered an opinion dismissing the
claim in its entirety.
ALJ Steen found that the injuries were
temporary and had been resolved.
She also noted that while
Woodford might experience flare-ups in the future, he was a
strong and motivated individual who had returned to his job
duties and whose symptoms had resolved.
Woodford filed a
petition for reconsideration, whereupon ALJ Steen granted
Woodford an award for future medical costs pursuant to KRS
342.020, “as his work-related flare-ups occur, rather than on an
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ongoing basis.”
No appeal was taken by either Woodford or Ford.
On January 22, 2004, Woodford filed a motion to reopen
the claim, alleging a work-related worsening of his low back
condition.
Woodford submitted a December 4, 2003 medical report
of Dr. Ricky Collis, who diagnosed Woodford with lumbar
degenerative disc disease, DeQuervain’s syndrome and depression
from chronic pain.
Dr. Collis opined that “this is all a
condition which was started with the initial injury on September
of 2000.”
He assessed an 8% whole body impairment and stated
that Woodford had been “unable to function.”
reports were also provided.
worked since April 17, 2003.
Other medical
Woodford stated that he had not
The motion to reopen was granted,
and the matter was assigned to the Honorable Grant S. Roark,
ALJ.
Depositions were taken and other proof, including
Woodford’s testimony, was submitted.
Woodford stated that he
initially worked in a “fluid fill” position with Ford, but
because of his back problems was assigned as a shop driver.
After several weeks, his supervisor told him to “find a job on
the line.”
plates.
Woodford complied, and began installing scuff
He claims that he was then released by Ford because “no
work was available.”
He has not returned to Ford, nor has he
worked anywhere since.
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Ford introduced evidence that the fluid fill position
was not physically demanding and that Woodford was able to
handle its physical requirements.
Persons doing this job use a
hose on the assembly line to supply various fluids to the engine
area as vehicles move slowly past the worker.
A final hearing on the matter was conducted on
September 28, 2005.
Additional proof was tendered and sometime
thereafter, ALJ Roark accompanied the parties to the Ford plant
in Louisville, Kentucky to observe the fluid fill position.
Woodford filed a brief on November 7, 2005 arguing that his
injuries were work-related; that he was entitled to additional
benefits under KRS 342.125 based on a worsening of his
condition; that he was entitled to an award of benefits based on
a 25% whole body impairment enhanced by the KRS 342.730(1)(c)(1)
3-multiplier; that he was entitled to an award of additional
temporary total disability through January, 2005 and that he was
entitled to medical benefits to address low back and cervical
injuries and erectile dysfunction.
On December 2, 2005, the ALJ rendered a decision
holding that Woodford’s back injury and erectile dysfunction
were work-related and that he was entitled to medical expenses
for the back injury.
The ALJ relied on the medical report of
Dr. Wolens to conclude that Woodford’s cervical injury was not
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work-related, and went on to hold that Woodford was not entitled
to an additional period of temporary total disability benefits
and was not entitled to the 3-multiplier.
On December 14, 2005, Woodford filed a petition for
reconsideration, arguing for the first time that he was entitled
to a KRS 342.730(1)(c)(2) 2-multiplier enhancement of his award.
As a basis for this argument, he maintained that he returned to
his employment following his October 27, 2002 back injury at the
same or a higher wage, and that he continued at that wage until
April 15, 2003.
He also noted that although the ALJ found his
erectile dysfunction to be compensable, an award for its
treatment was inadvertently omitted from the ALJ’s opinion.
ALJ Roark rendered an order on January 30, 2006
amending the opinion to include medical benefits to treat
Woodford’s erectile dysfunction.
He did not enhance Woodford’s
award by the 2-multiplier upon finding that Woodford did not
offer sufficient evidence showing that his wages after October
27, 2005 were the same or greater than his pre-injury wages.
Woodford appealed to the Board, which rendered an
opinion on June 23, 2006 affirming ALJ Roark’s December 2, 2005
decision.
This appeal followed.
Woodford first argues that the Board committed
reversible error in upholding the ALJ’s refusal to award the 3- 5 -
multiplier.
While conceding that substantial evidence exists in
support of the finding that he was physically able to return to
work, Woodford argues that the ALJ and the Board improperly
failed to consider that Ford did not place him in appropriate
employment.
That is to say, Woodford contends that the 3-
multiplier is applicable because he was not offered any position
at Ford where he was able to make the same wages he enjoyed
before the injury.
We find no error on this issue.
KRS 342.730(1)(c)(1)
states,
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 . . . .
The dispositive issue, then, is whether Woodford
“retains[s] the physical capacity to return to the type of work
that ... [he] performed at the time of injury.”
must be answered in the affirmative.
This question
Dr. K. M. Farmer, the Ford
plant physician, was personally familiar with the fluid fill job
and not only stated that Woodford could do that job, he
encouraged Woodford to do so.
This testimony constitutes
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substantial evidence in support of the ALJ’s finding on this
issue.
Wolfe Creek Collieries v. Crum, 637 S.W.2d 735 (Ky. App.
1985).
Woodford concedes that there is evidence in the record
to support this finding.
If the ALJ’s opinion is supported by
substantial evidence, it will not be reversed.
Special Fund v.
Francis, 708 S.W.2d 671 (Ky. 1986).
There is no basis in the statute or the case law for
the conclusion that an employer’s failure to offer a position
paying the same wage as before the injury triggers application
of the 3-multiplier.
Rather, the only question is whether the
employee has “the physical capacity” to return to the type of
work engaged in prior to the injury.
Substantial evidence
exists that Woodford retains that capacity, and as such the
Board properly affirmed the ALJ on this issue.
The other issue raised by Woodford is his claim that
he was entitled to the KRS 342.730(1)(c)(2)
2-multiplier.
He
maintains that an employer-provided printout of his wages
constitutes a sufficient basis for calculating his wages for
purposes of KRS 342.730(1)(c)(2), and that the Board erred in
failing to so rule.
KRS 342.730(1)(c)(2) states,
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
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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. This provision shall not be
construed so as to extend the duration of
payments.
The burden rests with Woodford to prove entitlement to
Chapter 342 benefits generally, and the KRS 342.730(1)(c)(2) 2multiplier specifically.
Paramount Foods, Inc. v. Burkhardt,
695 S.W.2d 735 (Ky. 1985).
He did not raise this issue in his
petition to re-open, but only, for the first time, on his
petition for reconsideration.2
Woodford offered no evidence on
the issue himself, but relied only on a printout provided and
filed of record by Ford.
Thus, the question is whether this
printout was sufficient to satisfy Woodford's burden of proof.
Both the ALJ and the Board concluded that it was not.
KRS 342.140 provides a statutory basis for calculating
average weekly wage.
It states at section (1)(d) that, for
purposes of KRS Chapter 342, wages are calculated “not including
overtime or premium pay.”
2
Both the ALJ and the Board concluded
It is questionable whether this issue was timely raised. KRS 342.281
states that, in addressing a petition for reconsideration, “The
administrative law judge shall be limited in the review to the correction
of errors patently appearing upon the face of the award, order or
decision.” However, as the ALJ and the Board both considered this issue on
its merits and as this Court is affirming their decisions, we will do the
same.
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that the data sheet submitted by Ford, and upon which Woodford
relies, did not provide data sufficient for calculating
Woodford’s base pay or average weekly wage.
We find no basis in
the record or the law for reversing this conclusion.
The sheet
clearly indicates that its figures include some overtime.
But
it does not reveal the number of hours worked in a given time
period, either at regular pay or overtime; nor the rate of pay
for either.
When the record is viewed in its totality on this
issue we find no error in the Board’s decision.
For the foregoing reasons, we affirm the opinion of
the Workers’ Compensation Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James D. Howes
Louisville, Kentucky
Wesley G. Gatlin
Louisville, Kentucky
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