RENDERED: JULY 1, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
FRAZIER’S FARMERS SUPPLY COMPANY
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-07-94513
OTTO DANIEL WOLFF, IV,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
** ** ** ** **
BEFORE: DIXON AND NICKELL, JUDGES; SHAKE,1 SENIOR JUDGE.
DIXON, JUDGE: Frazier’s Farmers Supply (Frazier) seeks review of a decision of
the Workers’ Compensation Board, which reversed an ALJ’s order on
reconsideration and reinstated the ALJ’s initial order favoring Vicki Jones,
Senior Judge Ann O’Malley Shake sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Frazier’s former employee. Specifically, the Board concluded the ALJ exceeded
his authority by re-evaluating the evidence as to the average weekly wage (AWW)
used to calculate permanent total disability (PTD) benefits. We affirm.
Jones began working as a cashier at Frazier in September 2006.
While at work on February 16, 2007, Jones fell down a flight of stairs and injured
her leg. Complications from her injury rendered her unable to work, and she filed
a claim for workers’ compensation benefits alleging permanent total disability.
Several contested issues were argued before the ALJ; however, for the purposes of
our review, we need only address the issue of Jones’s AWW. Jones’s testimony
indicated she earned $7.00 per hour and worked forty hours per week; accordingly,
she argued that benefits should be calculated pursuant to an AWW of $280.00,
producing a PTD award of $186.67 per week. Frazier submitted an initial wage
statement and two supplemental AWW-1 forms, which appeared to include
overtime hours. Frazier argued its evidence established an AWW of $220.26,
based upon earnings of $6.00 per hour.
The ALJ rendered an opinion and award on April 19, 2010, finding
Jones permanently totally disabled. The ALJ awarded Jones PTD benefits of
$186.67 per week; however, the ALJ did not make an explicit finding regarding
Frazier filed a petition for reconsideration, contending that its wage
records established an AWW of $220.26, which equated to weekly PTD benefits of
$146.84. Jones responded, arguing the ALJ’s award was correctly based on her
testimony regarding her AWW of $280.00. The ALJ rendered an order on
reconsideration sustaining Frazier’s petition and amending the award to reflect a
PTD rate of $146.84 per week. Jones appealed to the Board, arguing the ALJ
exceeded his authority on reconsideration by revisiting the merits of a contested
issue, Jones’s AWW. The Board agreed with Jones and reversed the ALJ’s order
and remanded the matter for reinstatement of the initial PTD award.
When this Court reviews a workers’ compensation decision, our
function is to correct the Board only where we believe “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
Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
Frazier urges this Court to conclude that the Board exceeded its
authority by engaging in improper fact-finding when it reversed the ALJ’s order on
reconsideration. Frazier asserts that it filed “several sets of wage records” and,
because Jones did not object, it was “presumed by all parties” that Jones’s AWW
was consistent with the records submitted by Frazier. We disagree.
A review of the record indicates that AWW was a contested issue.
Frazier submitted various conflicting calculations of AWW, and Jones testified that
she earned $7.00 per hour for a forty hour work week. In his initial opinion, the
ALJ awarded $186.67 in PTD benefits, which correlated to the AWW of $280.00
submitted by Jones. Although it is unfortunate that the ALJ did not explicitly state
the basis for his determination, the Board accurately pointed out that only two
AWW calculations were argued by the parties, and the ALJ chose to rely on the
AWW advocated by Jones.
Pursuant to KRS 342.281, when considering a petition for
reconsideration, the ALJ “shall be limited in the review to the correction of errors
patently appearing upon the face of the award . . . [.]” The Kentucky Supreme
Court has explained that this language precludes the ALJ “from reconsidering the
case on the merits and/or changing the findings of fact.” Garrett Mining Co. v.
Nye, 122 S.W.3d 513, 520 (Ky. 2003).
Here, by sustaining the petition for reconsideration, the ALJ
impermissibly changed his prior factual finding as to Jones’s AWW. The parties
presented conflicting evidence regarding AWW, and the ALJ chose to rely on
Jones’s testimony regarding her wages. Jones’s testimony constituted substantial
evidence to support the award of PTD benefits. Young v. Vanover, 476 S.W.2d
836, 837 (Ky. 1972). The ALJ had “the authority to determine the quality,
character and substance of the evidence[,]” Paramount Foods, Inc. v. Burkhardt,
695 S.W.2d 418, 419 (Ky. 1985), and he was free “to believe part of the evidence
and disbelieve other parts of the evidence . . . [.]” Caudill v. Maloney's Discount
Stores, 560 S.W.2d 15, 16 (Ky. 1977). We agree with the Board that the ALJ
exceeded his authority by sustaining Frazier’s petition for reconsideration.
For the reasons stated herein, we affirm the decision of the Workers’
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kamp T. Purdy
Tonya M. Clemons