ALICE FAY JACKSON v. J.C. PENNY COMPANY AND WORKERS' COMPENSATION BOARD
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RENDERED: MAY 10, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001957-WC
ALICE FAY JACKSON
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-97-90519
v.
J.C. PENNY COMPANY
AND WORKERS' COMPENSATION BOARD
AND
NO.
APPELLEES
2001-CA-002184-WC
J.C. PENNY COMPANY
v.
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-97-90519
ALICE FAY JACKSON;
LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, EMBERTON, AND KNOPF, JUDGES.
BARBER, JUDGE:
The Appellant, Alice Fay Jackson (“Jackson”),
seeks review of an opinion of the
Workers’ Compensation Board,
reversing the ALJ’s determination of the dollar amount of her
award and remanding.
Jackson’s employer, J.C. Penney Company,
cross-petitions, on the ground that the psychiatric element of
Jackson’s award lacks a substantial evidentiary foundation.
Finding no error, we affirm.
On January 4, 2000, Jackson filed her application for
resolution of injury claim, alleging a March 22, 1997 left knee
injury and depression due to that injury.
The ALJ determined
that Jackson had an 8% functional impairment due to her knee
injury and a 25% functional impairment due to her psychological
condition caused by the left knee injury, for a combined
functional rating of 31% based upon the AMA Guidelines.
The ALJ
calculated the award as follows:
6. Plaintiff has a 69.75% permanent partial
disability. This is calculated by
multiplying Plaintiff’s 31 functional
impairment rating times the 2.25 factor as
required by K.R.S. 342.730(1)(b).
7. I find that, . . . Plaintiff does not
retain the physical capacity to return to the
type of work she was performing at the time
of her injury. Therefore, her benefit for
permanent partial disability shall be 1 2
times the amount otherwise determined under
subparagraph (b) of KRS 342.730(1). Based on
Plaintiff’s average weekly wage, $192.13,
. . . Plaintiff’s permanent partial
disability benefits will be paid at the rate
of $134.01 per week. The calculations are as
follows:
(a)
(b)
$192.13 x 66-2/3% = $128.09.
$128.69.75% = $89.34 x 1.5 = $134.01
Thus, the ALJ awarded ppd benefits in a weekly amount
greater that what Jackson would have received had she been
totaled.
Not surprisingly, the employer appealed, and also
challenged the foundation of the psychiatric award, contending
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that Dr. Granacher’s opinion was based upon an inaccurate
history.
The Board reversed in part and affirmed in part:
It is JC Penny’s [sic] belief that Dr.
Granacher was operating under a mistaken or
false history and, therefore, his statement
that the problems were related to the 1997 JC
Penny [sic] injury does not constitute
substantial evidence of probative value. It
relies in part upon Osborne vs. Pepsi-Cola,
Ky., 816 S.W.2d 643 (1991) . . . . As we
have stated on numerous occasions, this case
authorizes but does not mandate that the fact
finder disregard this testimony. The
evidence from Dr. Granacher is by way of
report. His report outlines, . . . a
multitude of medial evidence that was
considered by him. While there are certainly
statements within his report which could have
led the ALJ to conclude Dr. Granacher lacked
a complete and accurate medical history, we
also believe it was a reasonable inference to
be drawn from the record that in Dr.
Granacher’s review of all of this information
he was presented with as clear of an object
picture as was available without relying upon
historical information provided by the
worker.
Reasonable inferences, of course, are for the
ALJ. [Citation omitted.] Upon considering
the totality of this information, it returns
us to a question of weight and credibility.
There was conflicting testimony from Dr.
Granacher and Dr. Shraberg concerning
causation and the sole authority for
assessing weight and credibility rests with
the factfinder . . . . Dr. Grancher’s
evidence is of such a qualitative nature as
to constitute substantial evidence.
. . . .
JC Penny [sic] believes the ALJ erroneously
interpreted KRS 342.730(1)(d) and Jackson’s
benefits should have been limited to 99% of
66 2/3% of her average weekly wage. The ALJ,
however, in response to the petition for
reconsideration concluded otherwise and in
doing so relied upon the Board’s and Court of
Appeals opinion in Kiah Creek Mining vs.
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Stewart, Claim No. 97-76963, rendered
September 3, 1999. That case has how [sic]
been resolved by the Supreme Court which
affirmed this Board’s interpretation of that
statutory provision. See Stewart vs. Kiah
Creek Mining, Ky., 42 S.W.3d 614 (2001).
. . . .
As we view KRS 342.730(1)(d) as a general
concept it is what might be considered a
statutory provision of limits. It identifies
limits to be applied to [the duration of]
permanent partial disability awards . . . .
After the assessment of these initial limits,
three distinct limitations are placed upon
the dollar amount available to an individual
receiving a permanent partial disability
award. They are 99% of 66 2/3% of the
individual’s average weekly wage; 75% of the
state average weekly wage; or 100% of the
state average weekly wage if the 1.5 enhancer
based upon the lack of the physical ability
to return to work is implemented. Therefore,
in every circumstance, each of these limits
must be viewed differently.
The first limitation is 99% of 66 2/3% of the
average weekly wage. This dollar limitation
is applicable to every injured employee
receiving a permanent partial disability
award. The remaining two limits apply only
if weekly benefits, after the permanent
disability rating is determined and after the
1.5 enhancer is used, are greater than 75% or
100% of the state average weekly wage. We
believe the entire purpose of the 99% limit
is to satisfy a general purpose that an
individual receiving a permanent partial
disability award may not receive a weekly
dollar amount greater than what the
individual would receive if they were awarded
permanent total disability benefit . . . .
As was seen in Stewart vs. Kiah Creek Mining,
if the individual has an average weekly wage
sufficient for maximum benefits then the
remaining limits based upon the state average
weekly wage would be appropriate.
The instant action presents us with a
different picture and one in which the
initial dollar limiting percentage is
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appropriate. If Jackson had been awarded
total disability benefits, she would have
received $128.09 per week . . . . If the
interpretation of [KRS 342.730(1)(d)] . . .
is as set forth by the ALJ . . . she will
receive approximately $6.00 more per week,
. . . than she would have received on a
weekly basis for total disability. This, in
our opinion, is an unreasonable result
. . . [Jackson] is therefore limited to the
sum of $126.81 per week for a period of 520
weeks, which represents 99% of 66 2/3% of her
average weekly wage for a permanent partial
disability. Accordingly, the ALJ shall enter
an award of $126.81 per week for a period of
520 weeks. (Emphasis added.)
On appeal, Jackson argues that the Board erred in
reversing the ALJ’s calculation of benefits, specifically that
the Board “refused to adhere to the Supreme Court’s holding” in
Kiah Creek, supra.
Penney cross-petitions and contends that Dr.
Granacher’s opinion on causation cannot support an award, because
he did not have a correct history.
We address the cross-petition first.
The Board
explained that Dr. Granacher had reviewed a multitude of medical
evidence; thus, it could be inferred that he had other
information upon which to rely besides the historical information
related by Jackson.
We also note that the employer did not
object to the filing of Dr. Granacher’s report, nor did the
employer challenge Dr. Granacher’s causation opinion by way of
cross-examination.
We agree with the Board that Dr. Granacher’s
opinion constitutes substantial evidence, and we affirm in that
regard.
Kiah Creek deals with “the method for calculating the
weekly benefit of a partially disabled worker who does not retain
-5-
the physical capacity to return to the type of work that he
performed at the time of the injury.
(d).”
Id. at 615.
KRS 342.730(1)(b)(c) and
The version of the statute applicable there1,
and in the case sub judice, provides, in pertinent part:
(b) For permanent partial disability, sixtysix and two-thirds percent (66- 2/3%) of the
employee’s average weekly wage but not more
than seventy-five percent (75%) of the state
average weekly wage as determined by KRS
342.740, multiplied by the permanent
impairment rating caused by the injury or
occupational disease as determined by "Guides
to the Evaluation of Permanent Impairment,"
American Medical Association, latest edition
available, times the factor set forth in the
table . . . .
. . . .
(c) 1. 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 one and
one-half (1- 1/2) 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.
. . . .
(d) For permanent partial disability, if an
employee has a permanent disability rating of
fifty percent (50%) or less as a result of a
work-related injury, the compensable
permanent partial disability period shall be
four hundred twenty-five (425) weeks, and if
the permanent disability rating is greater
than fifty percent (50%), the compensable
permanent partial disability period shall be
five hundred twenty (520) weeks from the date
the impairment or disability exceeding fifty
percent (50%) arises. Benefits payable for
permanent partial disability shall not exceed
ninety-nine percent (99%) of sixty- six and
1
the Decem ber 12, 1996 version
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two-thirds percent (66- 2/3%) of the
employee's average weekly wage as determined
under KRS 342.740 and shall not exceed
seventy-five percent (75%) of the state
average weekly wage, except for benefits
payable pursuant to paragraph (c)1. of this
subsection, which shall not exceed one
hundred percent (100%) of the state average
weekly wage, nor shall benefits for permanent
partial disability be payable for a period
exceeding five hundred twenty (520) weeks,
notwithstanding that multiplication of
impairment times the factor set forth in
paragraph (b) of this subsection would yield
a greater percentage of disability.
(Emphasis added.)
The Supreme Court explained that when the 1.5
multiplier is applied to benefits where the disability rating is
greater than 66.67%, that results in a ppd benefit that exceeds
the maximum benefit for total disability, which becomes
significant under KRS 342.730(1)(d).
The Court found nothing
unclear in KRS 342.730(1)(d) — the statute limits the maximum
benefit for partial disability to 99% of 66 2/3% of the worker’s
average weekly wage, unless KRS 342.730(1)(c) applies, in which
case the benefit is limited to 100% of the state’s average weekly
wage.
The Court set forth the proper method for calculating
the award of a partially disabled worker who is unable to return
to the type of work he performed at the time of the injury:
1. Calculate the benefit for partial
disability as directed by KRS 342.730(1)(b):
a.) Calculate the permanent disability rating
by multiplying the AMA impairment by the
-7-
applicable factor from the table in KRS
342.730(1)(b)
b.) Multiply the disability rating by 66 2/3%
of the worker’s average weekly wage or 75% of
the state's average weekly wage, whichever is
less.
2. Multiply the benefit for partial
disability by 1.5 as directed by KRS
342.730(1)(c)
3. Apply KRS 342.730(1)(d):
a.) Determine the duration of the benefit
based upon the permanent disability rating
obtained in step 1a.
b.) Limit the benefit to a maximum of 99% of
66 2/3% of the worker’s average weekly wage
and 100% of the state’s average weekly wage
because KRS 342.730(1)(c)1 applies.
c.) The duration of the benefit may not
exceed 520 weeks even if the permanent
disability rating equals or exceeds 100%.
Id. at 618.
(Emphasis added.)
Applying this method of calculation to the facts before
us gives us the same result as reached by the Board’:
(1)(a) The permanent disability rating is 69.75%
(31% AMA functional x 2.25 factor from the table in KRS
342.730(1)(b))
(b) Jackson’s average weekly wage is $192.13
66 2/3% x $192.13 = $128.09
$128.09 x disability rating of 69.75% = $89.34.
2.
Multiply $89.34 x 1.5 = $134.01
(a) The duration of the benefit is 520 weeks.
(b) Limit the benefit to a maximum of 99% of 66 2/3%
of the workers’ average weekly wage and 100% of the
state’s average weekly wage, because KRS
342.730(1)(c)(1) applies.
-8-
99% x $128.09 = $126.81.
As the Board explained, Jackson’s average weekly
wage is less than 100% of the state average weekly wage, so
that limitation does not apply.
We conclude that the Board
correctly applied the holding in Kiah Creek, supra, and find
no error.
We affirm the Board’s August 15, 2001 opinion
affirming in part, and reversing in part, and remanding.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John E. Anderson
Cole, Cole & Anderson PSC
Barbourville, Kentucky
W. Barry Lewis
Lewis and Lewis Law Offices
Hazard, Kentucky
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