PRESCOTECH INDUSTRIES, INC. v. SHERYL WESTMORELAND; HON. JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: July 19, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000967-WC
PRESCOTECH INDUSTRIES, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-00-00512
v.
SHERYL WESTMORELAND; HON. JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, HUDDLESTON AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Prescotech Industries, Inc., has petitioned for
review of an opinion entered by the Workers’ Compensation Board
on April 4, 2001.
The Board reversed and remanded an opinion and
award rendered by the Administrative Law Judge on October 23,
2000, as modified by an order dated December 5, 2000.
Having
concluded that Prescotech waived its right to claim an offsetting
credit under KRS1 342.730(6) because it failed to raise the issue
at the hearing before the ALJ and that the Board did not err in
1
Kentucky Revised Statutes.
remanding the case for consideration of lay testimony in
assessing the claimant’s ability to return to her previous
employment, we affirm.
In May 1997, Sheryl Westmoreland began her employment
as a production line worker with Prescotech Industries in
Louisville, Jefferson County, Kentucky.
Westmoreland’s job
required her to remove various die-cut materials such as
Styrofoam®, fiberglass, aluminum, cardboard, rubber and wire
screen from their frames, to inspect the pieces, and then to
remove any excess material still attached.
At the hearing before
the ALJ, Westmoreland characterized her job as highly repetitive,
requiring her to continuously perform the same pulling motion
with her upper body.
Not long after Westmoreland began her employment at
Prescotech, she began experiencing a sensation of numbness in her
hands.
Often the sensation would be most acute in the mornings,
but would abate in the afternoons.
On May 14, 1998, however, her
symptoms intensified and she notified her supervisor of the
numbness she had been experiencing.
After informing her
supervisor that she had no feeling whatsoever in her hands,
Westmoreland left Prescotech and sought medical treatment at the
emergency room at Jewish Hospital.
The physicians at Jewish Hospital diagnosed
Westmoreland with bilateral carpal tunnel syndrome and treated
her with injections of cortisone and velcro wrist splints.
While
Westmoreland testified that her condition improved and that she
could perform some aspects of her job as long as she wore her
wrist braces, she never fully returned to work at Prescotech.
-2-
From May 1998 until February 1999, when Westmoreland ended her
employment with Prescotech, her work attendance was sporadic.
On August 24, 2000, a hearing was held before the ALJ
who had been assigned to review Westmoreland’s claim for workers’
compensation benefits.
The contested issues were listed as: the
extent and duration of the injury, the average weekly wage,
Westmoreland’s entitlement to temporary total disability benefits
and medical expenses, Westmoreland’s entitlement to vocational
rehabilitation, whether Prescotech was given proper notice of the
claim, and whether Westmoreland’s injury was work-related.
In
support of her claim, Westmoreland introduced the deposition
testimony of several medical experts as well as her own
testimony.
Prescotech countered with the deposition testimony of
its medical experts and the testimony of its human resources
director, Rose Marie Kuchenbrod.
Both Westmoreland and
Kuchenbrod testified about “short-term disability” benefits that
Westmoreland received from Prescotech subsequent to her injury.
However, the testimony concerning the benefits was only in the
context of whether the payment of the benefits tended to show
that Westmoreland’s injury was not work-related.
According to
Kuchenbrod, the company’s policy limited the payment of “sickleave” benefits to injured Prescotech employees who had been
injured outside the scope of their employment.
On October 23, 2000, the ALJ rendered an opinion
awarding Westmoreland temporary total disability benefits in the
amount of $152.11 per week for the periods of May 15, 1998,
through September 8, 1998, and December 3, 1998, through March 1,
1999.
The ALJ also awarded Westmoreland permanent partial
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disability benefits in the amount of $18.25 per week, beginning
on March 2, 1999, and continuing for a period of 425 weeks.
On
November 1, 2000, and November 6, 2000, respectively, the parties
filed petitions for reconsideration of the ALJ’s opinion and
award.
Citing KRS 342.730,2 Prescotech, for the first time,
requested a credit for the short-term disability benefits it had
voluntarily paid to Westmoreland.
In her petition, Westmoreland
noted, pursuant to KRS 342.730(1)(b), that the ALJ failed to
apply the statutory multiplier of 1.25 to her permanent partial
disability award.
Westmoreland also claimed that she was
entitled to have her permanent partial disability award further
enhanced by a factor of 1.5 because her disability precluded her
from returning to the same type of work she had been performing
at the time of her injury.3
On December 5, 2000, the ALJ rendered an order which
addressed the parties’ petitions for reconsideration.
The order
first acknowledged the computation error alleged by Westmoreland
and applied the correct 1.25 multiplier to her permanent partial
2
KRS 342.730(6) provides:
All income benefits otherwise payable
pursuant to this chapter shall be offset by
payments made under an exclusively employerfunded disability or sickness and accident
plan which extends income benefits for the
same disability covered by this chapter,
except where the employer-funded plan
contains an internal offset provision for
workers’ compensation benefits which is
inconsistent with this provision.
3
See KRS 342.730(1)(c).
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disability award.4
The ALJ also agreed with Prescotech and
awarded it a credit of $3,900.005 for the short-term disability
payments it had made to Westmoreland.
Finally, the ALJ ruled
that Westmoreland was not entitled to have her permanent partial
disability award enhanced by a factor of 1.5 because “no
physician testified that the plaintiff is incapable of returning
to the work performed at the time of the injury.”
Westmoreland appealed the ALJ’s revised award to the
Workers’ Compensation Board.
Westmoreland argued that Prescotech
had waived any credit from the short-term disability payments
because it had failed to properly raise the issue before the ALJ.
Westmoreland further claimed that the ALJ had erred when he held
that she was not entitled to have her award enhanced by a factor
of 1.5 due to the lack of medical evidence.
The Board rendered
an opinion on April 4, 2001, reversing and remanding.
The Board
reversed the ALJ on the issue of the credit for payments under
the short-term disability plan because “the issue was never
raised before the ALJ[.]”
The Board noted:
The purpose of a petition for reconsideration
is to bring to the attention of the fact
finder those issues not addressed in his
opinion but raised and litigated by the
parties. . . . If we were to accept the
argument of Prescotech, this would allow for
nothing more than trial by ambush and deny
Westmoreland a fair opportunity to be heard.
The Board also opined that “[e]ven if we were to attempt to
address the merits, we believe Westmoreland must still prevail
for failure of proof on the part of Prescotech.”
4
See KRS 342.730(1)(b).
5
$150.00 per week for 26 weeks.
-5-
As to the issue of the ALJ’s denial of an enhancement
by the 1.5 factor, the Board stated that “[i]f in fact it was the
ALJ’s opinion that enhanced benefits could not be awarded because
no physician specifically testified to pre-employment versus
post-employment capabilities, the ALJ erred.”
The Board then
rejected Westmoreland’s argument that the evidence of record
compelled a finding in her favor.
The Board remanded this matter
to the ALJ “to consider the entirety of the medical evidence,
including whatever reasonable inferences he may draw from it, as
well as Westmoreland’s testimony to which he may assign such
weight or credibility as he deems appropriate.”
This petition
for review followed.
While both Westmoreland and Kuchenbrod testified at the
evidentiary hearing concerning the payment of short-term
disability benefits, Prescotech never listed its claim to a
credit as a contested issue.
Likewise, Prescotech never
mentioned its claim to a credit at either the pre-conference
hearing or the evidentiary hearing.
Based on these omissions,
Westmoreland argues that Prescotech was precluded from raising
the issue in its petition for reconsideration.
Pertinently, 803 KAR6 25:010 § 18(6)-(7) provides that:
(6)
(a)
6
If at the conclusion of the
prehearing conference the parties
have not reached agreement on all
issues, the administrative law
judge shall:
Prepare a summary stipulation of
all contested and uncontested
issues not previously stipulated at
the benefit review conference which
Kentucky Administrative Regulations.
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shall be signed by representatives
of the parties and by the
administrative law judge; and
(b) Schedule a final evidentiary hearing.
(7)
Only contested issues shall be the
subject of further proceedings.
This regulation has been interpreted by our Supreme Court as
limiting Board review to only issues which were contested before
the ALJ.7
KRS 342.730(6) states that a credit will not be given
“where the employer-funded plan contains an internal offset
provision for workers’ compensation benefits which is
inconsistent with this provision.”
As the Board stated in its
opinion, “we cannot assume that the internal offset provision for
workers’ compensation benefits contained in the benefits plan is
consistent with the provisions of the statute.”
The burden was
on Prescotech to raise the offset issue before the ALJ and to
present sufficient evidence in support of its claim.
to do either.
It failed
Accordingly, we hold that Prescotech waived its
right to assert a credit pursuant to KRS 342.730(6).
The second issue for our review is whether the Board
erred when it remanded Westmoreland’s case to the ALJ for
consideration of lay testimony in determining the extent of her
injury.
In his order of December 5, 2000, the ALJ stated that
Westmoreland was not entitled to have her award enhanced by a
factor of 1.5 because “no physician testified that the plaintiff
7
See Roberts v. Estep, Ky., 845 S.W. 2d 544, 547 (1993)
(holding that an issue which was not listed as a contested issue
at the evidentiary hearing phase was considered waived for
purposes of Board review).
-7-
is incapable of returning to the work performed at the time of
the injury.”
The Board agreed with Westmoreland that this
language meant that the ALJ had considered only expert testimony
in arriving at his conclusion regarding the extent of
Westmoreland’s disability.
Prescotech, on the other hand, argues
that the ALJ’s statement meant only that he was more heavily
influenced by the physician testimony in the case, but that he
had considered both lay and expert testimony in arriving at his
conclusion.
We hold that the Board was correct in ruling that
Westmoreland was entitled to more specific findings on this
issue.
It was error for the ALJ to fail to consider
Westmoreland’s testimony concerning the extent of her injury.
As
our Supreme Court stated in Ira A. Watson Department Store v.
Hamilton:8
It is among the functions of the ALJ to
translate the lay and medical evidence into a
finding of occupational disability. Although
the ALJ must necessarily consider the
worker’s medical condition when determining
the extent of his occupational disability at
a particular point in time, the ALJ is not
required to rely upon the vocational opinions
of either the medical experts or the
vocational experts. . . . 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 [citations omitted].
Accordingly, we hold that the Board properly remanded this matter
to the ALJ for consideration of Westmoreland’s own testimony in
addition to the other evidence of record.
8
Ky., 34 S.W.3d 48, 52 (2000).
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For the foregoing reasons, the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, SHERYL
WESTMORELAND:
C. Thomas Hectus
Louisville, Kentucky
Christopher P. Evensen
Louisville, Kentucky
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