WAL-MART STORES, INC. v. LORI CARMICLE; HONORABLE SHEILA C. LOWTHER, CHIEF ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD; AND JEFFREY SAMPSON
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RENDERED:
SEPTEMBER 8, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000605-WC
WAL-MART STORES, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-74930
LORI CARMICLE; HONORABLE
SHEILA C. LOWTHER, CHIEF
ADMINISTRATIVE LAW JUDGE;
WORKERS' COMPENSATION BOARD;
AND JEFFREY SAMPSON
AND
NO. 2000-CA-000826-WC
LORI CARMICLE AND JEFFREY SAMPSON
v.
APPELLEES
CROSS-APPELLANTS
CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-74930
WAL-MART STORES, INC.; HONORABLE
SHEILA C. LOWTHER, CHIEF
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
OPINION
AFFIRMING
** ** ** ** **
CROSS-APPELLEES
BEFORE:
DYCHE, KNOPF, AND McANULTY, JUDGES.
DYCHE, JUDGE.
Wal-Mart Stores, Inc., brings this direct appeal
from an opinion of the Workers’ Compensation Board (“Board”)
which affirmed an award by the Administrative Law Judge (“ALJ”)
of income benefits to Lori Carmicle, and an award of attorney
fees to Carmicle; Carmicle cross-appeals, asserting that WalMart’s appeal is frivolous, and deserves sanctions.
Carmicle received a work-related injury to her lower
back on April 7, 1998, while helping other employees lift a
loaded pallet; the pallet became too heavy, and it fell,
partially trapping Carmicle beneath it.
It is unchallenged that
she received an injury from this incident.
Wal-Mart insists,
however, that two earlier incidents caused her to have preexisting injuries to her back which should be taken into
consideration when figuring her disability.
The earlier injuries occurred when Carmicle lifted one
of her children on July 31, 1997, and on March 30, 1998, when she
was playing ball with her children.
It is clear from the record,
however, that specific examination following those two incidents,
and before the Wal-Mart incident, showed no neurological deficit,
and that the injury received while at Wal-Mart was different in
character than an injury which might have been received in either
of the other two incidents.
The medical evidence is completely consistent with her
receiving the injury which has caused her disability at work on
April 7, 1998, and not on any other date.
-2-
Wal-Mart complains of the unconstitutionality of the
provisions of Kentucky Revised Statutes 342.320(2)(c), which
requires an employer, or its insurer, to pay a maximum of $5,000
in additional attorney fees if the employer unsuccessfully
appeals an order of an arbitrator or ALJ.
such restriction/penalty on an employee.
The statute imposes no
While we might agree
with Wal-Mart that this is a violation of its equal protection
rights and is without rational basis in fact or law, this matter
has been adversely decided to Wal-Mart in Earthgrains v. Cranz,
Ky. App., 999 S.W.2d 218 (1999).
Until that decision is reversed
by this court en banc, or by the supreme court, it is binding
upon us.
Carmicle and her attorney cross-appeal, claiming that
Wal-Mart’s appeal is frivolous, and seeking sanctions for the
prosecution of the cross-appeal.
We decline the opportunity to
so hold.
McANULTY, JDUGE, CONCURS.
KNOPF, JUDGE, CONCURS IN RESULT.
BRIEF FOR APPELLANT/
CROSS-APPELLEE:
BRIEF FOR APPELLEES/
CROSS-APPELLANTS LORI
CARMICLE AND JEFFREY SAMPSON:
David L. Murphy
Louisville, Kentucky
Jeffrey T. Sampson
Louisville, Kentucky
-3-
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