R&L CARRIERS v. DONALD E. GREGORY, JR.; HOWARD FRAISER, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD AND DONALD E. GREGORY v. R & L CARRIERS; HOWARD FRAISER, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION
Annotate this Case
Download PDF
RENDERED: APRIL 13, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002013-WC
R&L CARRIERS
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-02-78593
DONALD E. GREGORY, JR.;
HOWARD FRAISER, ADMINISTRATIVE
LAW JUDGE; WORKERS' COMPENSATION
BOARD
APPELLEES
AND
NO. 2006-CA-002179-WC
DONALD E. GREGORY
v.
CROSS-APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-02-78593
R & L CARRIERS;
HOWARD FRAISER, ADMINISTRATIVE
LAW JUDGE; WORKERS' COMPENSATION
BOARD
CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: WINE, JUDGE; BUCKINGHAM AND HENRY, SENIOR JUDGES.1
BUCKINGHAM, SENIOR JUDGE: R & L Carriers petitions and Donald E. Gregory
cross-petitions from an opinion of the Workers’ Compensation Board (Board) affirming
in part and reversing and remanding in part an order of an administrative law judge
(ALJ). The Board upheld the ALJ’s findings of fact, conclusions of law, and award of
worker’s compensation benefits, except that it reversed the ALJ’s denial of the
multipliers contained in Kentucky Revised Statute (KRS) 342.730(1)(c)1 and KRS
342.730(1)(c)3 for the psychological impairment associated with Gregory's work-related
accident, and remanded for a recalculation of benefits to include application of the
multipliers to the psychological impairment. For the reasons stated below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Gregory was hired by R & L in October 2001 as a part-time laborer. Two
or three months later, he was assigned to the position of forklift driver. On July 12, 2002,
while turning the forklift, the vehicle flipped and landed on his right foot, severely
injuring it. Eventually, the majority of Gregory’s right foot was amputated. There
1
Senior Judges David C. Buckingham and Michael L. Henry sitting as Special Judges by
assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes (KRS) 21.580.
-2-
followed a period of unsuccessful attempts to fit a functional prosthesis to Gregory’s foot,
which, ultimately, was successfully resolved.
On April 14, 2004, Gregory filed a Form 101 seeking workers’
compensation benefits pursuant to KRS Chapter 342. On October 11, 2004, the ALJ
entered an Opinion and Award awarding Gregory temporary total disability (TTD)
benefits “until such time as [Gregory] has been fitted with a workable prosthesis and
reaches MMI [maximum medical improvement].” On August 1, 2005, after retaining
new counsel, Gregory attempted to amend his complaint to include the allegation of
safety violations by R & L which, if established, would entitle Gregory to a 30% benefit
enhancement pursuant to KRS 342.165. However, the ALJ denied the amendment as
untimely.
Following discovery and a hearing the ALJ entered an Opinion and Award
awarding Gregory permanent partial disability benefits at the rate of $150.87 per week
for a period of 425 weeks. The award did not apply the multipliers contained in KRS
342.730(1)(c)1 and KRS 342.730(1)(c)3 for the psychological impairment associated
with the accident. R & L appealed and Gregory cross-appealed to the Board.
On August 25, 2006, the Board entered an opinion upholding the ALJ’s
findings of fact, conclusions of law, and award of worker’s compensation benefits, except
that it reversed the ALJ’s denial of the multipliers contained in KRS 342.730(1)(c)1 and
KRS 342.730(1)(c)3 for the psychological impairment associated with the work-related
-3-
accident, and remanded for a recalculation of benefits to include application of the
multipliers to the psychological impairment. These petitions for review followed.
STANDARD OF REVIEW
We begin by noting our standard of review. First, we give broad deference
to the ALJ’s factual findings. “The ALJ, as the finder of fact, and not the reviewing
court, has the sole authority to determine the quality, character, and substance of the
evidence.” Square D Co. v.. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). Similarly, the
ALJ has the sole authority to judge the weight and inferences to be drawn from the
evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S .W.2d 329, 331 (Ky.
1997). The ALJ, as 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. Magic Coal v. Fox, 19 S.W.3d 88, 96 (Ky. 2000) .
Mere evidence contrary to the ALJ's decision is not adequate to require reversal on
appeal. Whittaker v. Rowland, 998 S.W.2d 479, 482 (Ky. 1999). And, as always, our
review of questions of law is de novo. Bob Hook Chevrolet Isuzu, Inc. v.
Commonwealth, Transportation Cabinet, 983 S.W.2d 488, 490 (Ky. 1998)
Our function in reviewing the Board’s decision “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.” Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky.
1992).
-4-
PETITION 2006-CA-002013-WC
We first consider the issues raised by R&L Carriers in its petition for
review.
KRS 342.730(1)(c)1 3X MULTIIPLIER
The ALJ determined that Gregory had an 18% physical disability rating and
a 10% psychiatric disability rating. Based upon the 18% disability impairment alone, the
ALJ determined that Gregory did not have the capacity to return to his job as a forklift
operator. The ALJ further determined, however, that the psychiatric impairment alone
would not prevent Gregory from returning to his former job. Based upon this, the ALJ
applied the 3x multiplier contained in KRS 342.730(1)(c)1 and 1.2x multiplier
enhancement contained in KRS 342.730(1)(c)3 to the benefits associated with the foot
impairment, but not the psychological impairment. The ALJ explained his reasoning as
follows:
In regard to the application of [the] three multiplier, the
undersigned finds that the Plaintiff has not provided any
medical or psychological evidence that he lacks the physical
capacity to return to his prior position as a result of his
psychiatric impairment, particularly since he now has a
workable prosthesis. The undersigned finds the opinion of
Dr. Granacher to be more credible that the Plaintiff’s
psychological impairment does not impact his ability to
perform his prior job. While the undersigned understands
why an individual would not want to operate a forklift again
after having part of his foot amputated, no medical
professional has opined that Mr. Gregory cannot physically
perform such a position as a result of his psychological
impairment.
-5-
In summary, the ALJ concluded that the 3x multiplier contained in KRS
342.730(1)(c)(1) should not be applied to the benefits attributable to Gregory’s
psychological impairment because that impairment, standing alone, would not have
prevented Gregory from returning to his job as a forklift operator. The Board disagreed
with the ALJ’s interpretation of KRS 342.730(1)(c)(1) and remanded for application of
the multiplier to the psychological impairment as well.
KRS 342.730(1)(c)(1) provides as follows:
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;
KRS 342.0011(1) defines “injury” as follows:
“Injury” means any work-related traumatic event or series of
traumatic events, including cumulative trauma, arising out of
and in the course of employment which is the proximate
cause producing a harmful change in the human organism
evidenced by objective medical findings. . . .. “Injury” . . . .
shall not include a psychological, psychiatric, or stress-related
change in the human organism, unless it is a direct result of a
physical injury.
Thus, the term “injury” refers to the traumatic event or series of events that
causes a harmful change rather than to the harmful change itself. Lexington-Fayette
Urban County Government v. West, 52 S.W.3d 564, 566 (Ky. 2001). Therefore, for
purposes of the 1996 version of KRS 342.0011(1), a “physical injury” is an event that
involves physical trauma and proximately causes a harmful change in the human
-6-
organism that is evidenced by objective medical findings. Id. An event that involves
physical trauma may be viewed as a “physical injury” without regard to whether the
harmful change that directly and proximately results is physical, psychological,
psychiatric, or stress-related. Id. But in instances where the harmful change is
psychological, psychiatric, or stress-related, it must directly result from the physically
traumatic event. Id. As further discussed elsewhere in this opinion, the ALJ determined
that Gregory’s psychological injury was directly related to his physical injury, and we
affirm this finding herein. Thus, his psychological injury is on equal basis with his foot
injury for all relevant purposes.
Because Gregory’s psychiatric impairment was a direct result of his
physical injury, the “harmful change” in the present case was both the foot impairment
and the psychiatric impairment. Therefore, the “injury” in the present case, as defined in
KRS 342.0011(1), is both the foot impairment and the psychiatric impairment. The plain
language of KRS 342.730(1)(c)(1) provides that the multiplier is to be applied to the
“injury.” Hence, we agree with the Board that the multiplier should be applied to the
psychological trauma associated with the work-related injury. In addition, we adopt the
following discussion by the Board:
The Act defines “permanent disability rating” as the
“permanent impairment rating selected by an administrative
law judge times the factor set forth in the table that appears at
KRS 342.730(1)(b)” and defines “permanent impairment
rating” as the “percentage of whole body impairment caused
by the injury” as determined by the AMA Guides, latest
available edition. KRS 342.0011(35) and KRS 342.0011(36).
-7-
Thus, by definition and in accordance with existing authority,
partial disability resulting from a single traumatic event must
be measured by the sum of the injured worker’s whole-body
impairment flowing from the event, thereby compensating the
injured worker for the full occupational effect of all harmful
changes caused by the event. In order to reflect accurately
the injured worker’s level of permanent partial disability, all
impairment flowing from a single work-related event must, in
accordance with the express language of the statute, be
combined into a single rating regardless of whether different
body parts are involved.
Where various injuries producing different whole-body
impairment ratings occur as a result of successive and distinct
work-related traumatic events, the disability ratings pursuant
to KRS 342.730(1)(b) for those injuries must be calculated
separately. Moore v. Pontiki Coal Corp., 2001-SC-0089-WC
(rendered October 25, 2001, and designated not to be
published.) However, where the harmful changes in question
trace their chain of causation to a single work-related event,
the ALJ is directed to combine the various impairment ratings
produced by the event into a single whole-body impairment
rating, and then calculate the appropriate disability rating
using that single whole-body impairment rating in accordance
with KRS 342.730(1)(b). Thomas v. United Parcel Service,
58 S.W.3d 455, 458-459 (Ky. 2001).
The ALJ is to utilize the combined values chart provided in
the AMA Guides to arrive at the single whole-body
impairment rating. Cf. Caldwell Tanks v. Roark, 104 S.W.3d
753 (Ky. 2003) (holding that administrative law judge should
have utilized table in the AMA Guides to convert percentage
of binaural hearing impairment into whole-body impairment
rating, as such requires no medical expertise); Gamco
Products v. George, 2003-CA-001270-WC (rendered October
24, 2003 and designated not to be published) (relying on
Caldwell Tanks v. Roark, supra, court of appeals held that
administrative law judge should have used combined values
chart to determine percentage of whole-body impairment
resulting from impairments of the left knee and low back).
-8-
In summary, the ALJ erred in its treatment of Gregory’s psychiatric
impairment. Thus, the Board correctly reversed and remanded on this issue for the
calculation of an award based on a disability rating using the combined value of his 18%
physical and 10% psychiatric impairments, and for a recalculation of benefits based upon
the multiplier contained in KRS 342.730(1)(c)1 and the multiplier enhancement
contained in KRS 342.730(1)(c)3.
PSYCHOLOGICAL IMPAIRMENT RATING
R & L contends that the ALJ erred by assigning Gregory a 10%
psychological impairment rating rather than a 5% rating. This argument is founded upon
the theory that because the ALJ accepted Dr. Granacher’s finding of an overall 10%
psychological impairment rating, it was improper for the ALJ to at the same time
disregard Granacher’s conclusion that half of that rating was preexisting and attributable
to pre-accident factors relating primarily to Gregory’s girlfriend’s pregnancy and her
telling him she had aborted the child, when, in fact, she had not. The ALJ explained his
decision to reject Dr. Granacher’s pre-existing condition opinion as follows:
On the other hand, the undersigned finds more credible the
opinions of Dr. Wagner and Dr. Underwood that all of Mr.
Gregory’s psychiatric impairment is due to the work injury.
While the undersigned does not doubt that the events
surrounding the Plaintiff’s decision to quit school were
stressful, he had absolutely NO prior counseling or treatment
or any record of a diagnosis of anxiety or depression.
Further, it does not even seem logical to give equal weight to
a few months of non-physical stressor and to an amputation
of a majority of a foot, particularly when considered with the
difficulties in obtaining a workable prosthesis.
-9-
In addition, there is absolutely no evidence that any
psychological symptoms, if any, that may have existed when
the Plaintiff was in the 10th grade remained active up to the
time of the injury on July 12, 2002. Dr. Granacher did NOT
opine that the Plaintiff had unresolved, preexisting active
psychological impairment at the time of his injury to his right
foot. The causal event for the Plaintiff’s need for
psychological treatment was the injury and resulting
amputation.
As previously noted, the ALJ, as 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. Magic Coal, supra. Upon
the record as a whole, we cannot conclude that the ALJ’s findings that Gregory’s 10%
psychological impairment was wholly related to the accident and that none of the
impairment was related to a pre-existing condition was erroneous. The ALJ’s finding is
supported by substantial evidence. As such, we will not disturb the ALJ’s rejection of
R & L's contention that one-half of the impairment is related to factors unassociated with
the accident.
PHYSICAL CAPACITY - 3X MULTIPLIER
Next, R & L contends that “the undisputed medical evidence demonstrates
that Gregory had the physical capacity to return to his pre-injury job (driving a forklift)
and is not entitled to a 3x multiplier” as contained in KRS 342.730(1)(c)1. We disagree.
Gregory’s testimony alone, that he is unable to operate a forklift because of
a lack of feeling in the prosthesis in the right foot; that he cannot operate a forklift with
his left foot alone; and that he needs both feet to operate the forklift is substantial
- 10 -
evidence supporting this finding. See Commonwealth, Transportation. Cabinet v. Guffey,
42 S.W.3d 618, 621 (Ky. 2001) (A worker's testimony is competent evidence of his
physical condition and of his ability to perform various activities both before and after
being injured). In addition, we adopt the Board’s discussion of the issue:
To describe the medical evidence as “undisputed”
misrepresents the matter.
The report on which R & L relies is the August 3, 2004,
report of Dr. Sheridan in which he conjectures, “I think that if
[Gregory] got an appropriate prosthetic device, the work
restrictions that I allocated to him would be lifted.” R & L
characterizes this as a “clarification” of Dr. Sheridan’s earlier
report, in which he declared Gregory to be at MMI and
recommended “permanent work restriction” of no standing or
walking more than 45 minutes; no climbing, squatting,
crouching, crawling, kneeling, or walking on irregular
ground; and no lifting, pushing or pulling anything greater
than 15 pounds frequently and 20 pounds infrequently. There
was nothing in Dr. Sheridan’s original report to indicate that
these restrictions were temporary or conditioned upon
Gregory’s lack of an appropriate prosthetic device. Indeed,
Gregory had just received a new prosthesis days before his
evaluation by Dr. Sheridan, which is noted in the physician’s
report. It seems most reasonable to conclude that Dr.
Sheridan would have accounted for Gregory’s new prosthesis,
which was assumed at the time to be workable, in making his
assessment of Gregory’s physical capacity. Dr. Sheridan
certainly gave no indication in his original report that the
prosthesis with which Gregory presented at the time of his
evaluation was not appropriate. In short, Dr. Sheridan’s
subsequent “clarification” of his opinion on restrictions might
reasonably be considered suspect by the ALJ. That being
said, the ALJ’s stated basis for discounting Dr. Sheridan’s
later opinion regarding restrictions is that said opinion is
contingent upon Gregory’s having an “appropriate”
prosthesis. It is reasonable for the ALJ to infer that, by
“appropriate,” Dr. Sheridan meant a device in which Gregory
is able to perform the various functions previously restricted
- 11 -
by Dr. Sheridan. It is within the ALJ’s authority as factfinder to draw reasonable inferences from the evidence.
Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky.
1979). Gregory testified, however, that he is not able to
perform those functions.
Even with a working prosthesis, Gregory is unable to stand or
walk for extended distances or periods of time. He explained
that a trip to Wal-Mart is enough to cause “pretty good pain.”
By the time he exits the store, he “can’t wait to get to the car
and sit down and really get home and take [his] brace off.”
He is able to drive a car with his left foot, but does not think
he would be able to operate a forklift in the same manner. He
noted that the driver has to get on and off the forklift
frequently to help the checker, and this would be problematic
for him. Their terminal manager for R & L in Lexington,
Wade Reed, confirmed that the forklift operator would be off
the forklift about 20% of the time, assisting the checker with
lifting boxes, both light and heavy, and maneuvering drums
weighing up to 500 pounds. Gregory testified that he does
not believe he could go back to any of the jobs he has held in
the past, because of limitations on his ability to stand and lift.
He explained that all of his past employment has required
“heavy lifting.”
It is well-established that a worker’s own testimony is
competent evidence of his physical condition and of his
ability to perform various activities both before and after his
injury. Commonwealth of Kentucky, Transportation Cabinet
v. Guffy, 42 S.W.3d 618 (Ky. 2001); Ira A. Watson
Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000);
Ruby Construction Company v. Curling, 451 S.W.2d 610
(Ky. 1970); Hush v. Abrams, 584 S.W.2d 48 (Ky. 1979).
Here, the ALJ was persuaded by Gregory’s testimony
regarding the physical requirements of the job he was
performing for R & L at the time of his injury and his
inability post-injury to perform that full range of duties. The
ALJ was not bound to accept the opinions of those physicians
who optimistically speculated that, with a working prosthesis,
Gregory could return to work without restrictions (Dr.
Sheridan) or could “possibly” return to driving a forklift (Dr.
Mook). As noted by the ALJ, none of these physicians
- 12 -
actually evaluated Gregory after he was fitted with his latest
prosthesis.
The ALJ placed credence in Gregory’s testimony that, while
the prosthesis is workable, it has not allowed him to recover
his pre-injury level of functioning. Gregory’s testimony
alone meets the standard for “substantial evidence.” There
being substantial evidence to support the ALJ’s
determination, we may not disturb his decision on appeal.
Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
Accordingly, as to the ALJ’s application of the 3.2 multiplier,
we affirm.
VOCATIONAL BENEFITS
KRS 342.730(1)(c)3 provides as follows:
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 eight (8) years of formal education, the multiplier shall
be increased by four-tenths (0.4); if the employee had less
than twelve (12) years of education or a high school General
Educational Development diploma, the multiplier shall be
increased by two-tenths (0.2); if the employee was age sixty
(60) or older, the multiplier shall be increased by six-tenths
(0.6); if the employee was age fifty-five (55) or older, the
multiplier shall be increased by four-tenths (0.4); or if the
employee was age fifty (50) or older, the multiplier shall be
increased by two-tenths (0.2).
Because Gregory has less than twelve (12) years of education or a high school General
Educational Development diploma, he was entitled to have the multiplier contained in
342.730(1)(c)1 increased by two-tenths (0.2).
Citing Wilson v. SKW Alloys, Inc., 893 S.W.2d 800 (Ky.App. 1995), R & L
contends that “[i]f the Court agrees that all of the medical evidence demonstrates that the
- 13 -
claimant can return to his prior job as a forklift operator, the award of vocational
rehabilitation was not appropriate.” As discussed above, we have affirmed the ALJ’s
determination that Gregory is not able to return to his job as a forklift operator and,
accordingly, this argument is moot.
TTD BENEFITS
Finally, R & L contends that the ALJ erred by awarding Gregory TTD
benefits through February 25, 2005. R & L argues that Gregory should not have been
awarded TTD benefits after February 10, 2004, because he had by then reached MMI, or,
alternatively, no later than September 30, 2004, because by then he had a working
prosthetic device.
The record demonstrates that following his amputation Gregory had
difficulty with finding a suitable prosthesis and unsuccessfully tried several models
before obtaining a suitable one. Ultimately, the ALJ determined that Gregory reached
MMI and thus became ineligible for further TTD benefits, as of February 25, 2005, when
Dr. Gregory released him to wear the prosthesis on a full-time basis. While there are
other dates that may have been used, under facts of this case, we are persuaded that the
ALJ’s determination that Gregory reached MMI on February 25, 2005, was not a clearly
erroneous finding. Moreover, we adopt the discussion of the Board on the issue as
follows:
Lastly, we turn to R & L’s argument that the ALJ erred in
awarding TTD benefits to Gregory through February 25,
2005. R & L presents this argument in multiple parts,
proposing three alternative dates for the earlier termination of
- 14 -
TTD benefits. Obviously, the evidence on this issue is
conflicting. It is of no consequence that R & L can point to
other facts upon which the ALJ might reasonably have
concluded that Gregory was no longer temporarily totally
disabled. Whittaker v. Rowland, 998 S.W.2d 479, 482 (Ky.
1999). The question before us on appeal is whether the date
selected by the ALJ is clearly erroneous on the basis of
reliable, probative and material evidence contained in the
whole record. See KRS 342.285(2)(d). A determination that
is based upon substantial evidence is clearly not erroneous.
Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App.
1984). Substantial evidence is defined as evidence of
relevant consequence, having the fitness to induce conviction
in the minds of reasonable people. Smyzer v. B. F. Goodrich
Chemical Co., 474 S.W.2d 367 (Ky. 1971). The ALJ’s
finding with respect to TTD is based on substantial evidence
and comports with the statutory definition of TTD.
Pursuant to KRS 342.0011(11)(a), TTD is defined as the
condition of an employee who has not reached MMI from an
injury and has not reached a level of improvement that would
permit a return to employment. In Central Kentucky Steel v.
Wise, 19 S.W.3d 657, 659 (Ky. 2000), the supreme court held
that, if a totally disabled worker has not reached MMI, a
release to perform minimal work is not the equivalent of “a
level of improvement that would permit a return to
employment.” The work must be “of a type that is customary
or that he was performing at the time of his injury.” Id. The
court’s decision, however, “does not alter the definition of
total disability or stand for the principle that workers who are
unable to perform their customary work after an injury are
always entitled to TTD.” Advance Auto Parts v. Mathis, No.
2004-SC-0146-WC, 2005 WL 119750 (rendered Jan. 20,
2005, and designated not to be published).
In Magellan Behavioral Health v. Helms, 140 S.W.3d 579
(Ky.App. 2004), the court of appeals weighed in on the
matter, emphasizing that the two prongs of the analysis are
connected by the conjunctive “and.” The court explained that
the second prong of KRS 342.0011(11)(a) operates to deny
eligibility of TTD to individuals who, though not at MMI,
- 15 -
have improved enough following an injury that they can
return to work. Id. at 581.
In the case sub judice, the ALJ found that Gregory does not
retain the physical capacity to return to his customary work, a
finding we have affirmed hereinabove. Thus, the question of
TTD must be answered with reference to the date on which he
achieved MMI. Notwithstanding R & L’s argument to the
contrary, the ALJ was not bound to accept Dr. Sheridan’s
opinion that Gregory reached MMI as of February 10, 2004.
Rather, the ALJ was free to consider that the prosthesis issued
to Gregory days before Dr. Sheridan’s evaluation turned out
to be unsuitable. Gregory wore the prosthesis for just a few
days before resorting to the “shoe-n-shoe” prosthesis he had
been given in 2002, which, though worn out and in need of
replacement, was still the more functional of the various
prostheses he had tried.
Kerr’s records establish that the “shoe-n-shoe” prosthesis was
replaced with a new model by January 18, 2005, and this is
the next date proposed by R & L for the termination of TTD
benefits. However, Kerr’s records also indicate that Gregory
did not begin wearing the device full-time right away. On his
visit of February 25, 2005, Kerr noted that Gregory was still
“progressing” and advised him at that point to “increase
wearing schedule to full time wear and increase walking
distance daily.” Kerr scheduled another follow-up
appointment with Gregory and did not finally release him
“prn” [as needed] until July 28, 2005. Thus, there is also
some evidence upon which the ALJ might have concluded
that Gregory was not at MMI until later in the year.
Nonetheless, we believe it was reasonable for the ALJ to
conclude that the release to full-time use of the prosthesis
corresponded with Gregory’s reaching MMI and that the
subsequent visits were merely for monitoring purposes. In
sum, we believe that ALJ’s analysis is both factually and
legally sound, and affirm his award of TTD benefits.
- 16 -
PETITION 2006-CA-002179-WC
In his cross-petition Gregory raises the sole issue that the ALJ erred by
denying his motion to amend his workers’ compensation claim to include the allegation
pursuant to KRS 342.165(1) that his accident was related to safety violations known to
R & L. KRS 342.165(1) provides as follows:
If an accident is caused in any degree by the intentional
failure of the employer to comply with any specific statute or
lawful administrative regulation made thereunder,
communicated to the employer and relative to installation or
maintenance of safety appliances or methods, the
compensation for which the employer would otherwise have
been liable under this chapter shall be increased thirty percent
(30%) in the amount of each payment. If an accident is
caused in any degree by the intentional failure of the
employee to use any safety appliance furnished by the
employer or to obey any lawful and reasonable order or
administrative regulation of the executive director or the
employer for the safety of employees or the public, the
compensation for which the employer would otherwise have
been liable under this chapter, shall be decreased fifteen
percent (15%) in the amount of each payment.
Safety violations alleged by Gregory include that the forklift he was
operating was in disrepair and not equipped with safety restraints; the brakes were
inadequate; the tire tread was insufficient; the surface over which he was required to
drive was damaged; and he was not properly trained or certified to operate the forklift.
KRS 342.210(1) provides the following in relation to workers’
compensation applications:
When the application is filed by the employee or during the
pendency of that claim, he shall join all causes of action
against the named employer which have accrued and which
- 17 -
are known, or should reasonably be known, to him. Failure to
join all accrued causes of action will result in such claims
being barred under this chapter as waived by the employee.
Gregory’s motion was filed during the “pendency” of his claim and is not
barred by KRS 342.210(1). In support of his argument, Gregory directs our attention to
Kentucky Rule of Civil Procedure (CR) 15.01, which provides as follows:
A party may amend his pleading once as a matter of course at
any time before a responsive pleading is served or, if the
pleading is one to which no responsive pleading is permitted
and the action has not been placed upon the trial calendar, he
may so amend it at any time within 20 days after it is served.
Otherwise a party may amend his pleading only by leave of
court or by written consent of the adverse party; and leave
shall be freely given when justice so requires. A party shall
plead in response to an amended pleading within the time
remaining for response to the original pleading or within 10
days after service of the amended pleading, whichever period
may be longer, unless the court otherwise orders.
In Caldwell v. Bethlehem Mines Corp., 455 S.W.2d 67, 68-69 (Ky. 1970)
the former court of appeals stated as follows:
A court, under CR 15, has liberal discretion to allow
amendments to pleadings, and is directed to give leave freely
when justice so requires. . . . We would not conceive that
there should be less liberality in the treatment of the rules of
procedure adopted by the board for workmen's compensation
cases.
Accordingly, we believe CR 15.01 provides a reliable guide upon which to
review the ALJ’s decision. In a trial court setting, the judge possesses broad discretion in
determining whether to permit an amendment under CR 15.01. See, e.g., Cheshire v.
Barbour, 481 S.W.2d 274, 276 (Ky. 1972); First National Bank of Cincinnati v.
- 18 -
Hartmann, 747 S.W.2d 614, 616 (Ky.App. 1988). “The test for abuse of discretion is
whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004) (citation and
internal quotation marks omitted).
We are unpersuaded that the ALJ abused his discretion in denying the
motion to amend. The motion was filed over 13 months after the original Form 101 was
filed to initiate the proceedings. The proceedings were well underway, and it appears that
the principal factor which resulted in the amendment was Gregory’s retention of new
counsel. We are unable to conclude that the ALJ abused his discretion in denying the
motion to amend.
CONCLUSION
The Opinion and Order of the Workers' Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David D. Black
Dinsmore & Shohl LLP
Cincinnati, Ohio
Stuart E. Alexander
Kathleen M.W. Schoen
Tilford, Dobbins, Alexander, Buckaway &
Black, LLP
Louisville, Kentucky
- 19 -
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.