LAUREL COOKIE FACTORY v. ANNA FORMAN; JOHN B. COLEMAN, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED: SEPTEMBER 20, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2002-CA-000608-WC
LAUREL COOKIE FACTORY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-00-69127
v.
ANNA FORMAN; JOHN B.
COLEMAN, Administrative Law Judge;
and WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, HUDDLESTON and MILLER, Judges.
HUDDLESTON, Judge:
Laurel Cookie Factory appeals from a Workers’
Compensation Board decision affirming an administrative law judge’s
opinion and award arguing that the ALJ committed errors warranting
vacating the award to Anna Forman of permanent partial disability
benefits.
Laurel contends alternatively that Forman should only
have been awarded temporary total disability benefits and, in any
event, that her award of permanent partial disability benefits
should not have been doubled.
Laurel also contends that the ALJ
erred in his determination of when Forman reached maximum medical
improvement.
Forman slipped in water in a Laurel break room and fell,
resulting
in
the
immediate
onset
of
pain.
Temporary
total
disability benefits were paid to Forman from September 7, 2000,
through November 5, 2000, at the rate of $200.01 per week.1
Since
her injury, Forman has been treated or seen by Drs. Werner Grentz,
Steven Kiefer, Robert Hoskins, Robert Nickerson, Gregory Snider and
William Lester.
She continues to suffer from significant pain in
her lumbar spine and right leg, pain in her right knee and head and
neck pain.
Forman has not returned to work; she believes herself
unable to do so.
Laurel
argues
that
the
ALJ
erred
in
considering
a
permanent impairment rating from Dr. Nickerson, who testified that
Forman had not reached maximum medical improvement (MMI).
Laurel
contends that an impairment rating should not be assessed until
clinical findings show that the injured person has reached MMI.
Although Dr. Nickerson indicated that he did not believe that
Forman had reached MMI as of March 1, 2001, when he examined her,
Dr. Kiefer opined that Forman reached MMI in early November 2000
and Dr. Grentz stated that Forman reached MMI by January 4, 2001.
The ALJ found the testimony of Dr. Grentz convincing and set the
MMI date at January 4, 2001.
In assessing whether Forman had a
permanent partial disability, the ALJ accepted the testimony of Dr.
1
Forman’s average weekly wage was $300.13. The ALJ found,
and the parties agree, that Forman should have been paid more than
$200.01 per week. The ALJ found the proper amount to be $220.08
per week.
-2-
Nickerson, who indicated that Forman had an 8% permanent partial
impairment.
The
role
of
this
Court
in
reviewing
a
Workers’
Compensation Board decision “is to correct the Board [or the ALJ]
only where [we perceive that] the Board [or the ALJ] has overlooked
or misconstrued controlling statutes or precedent, or committed an
error in assessing the evidence so flagrant as to cause gross
injustice.”2
The ALJ, the fact-finder, not the reviewing Court
“has the sole discretion to determine the quality, character, and
substance of evidence.”3
The ALJ “may reject any testimony and
believe or disbelieve various parts of the evidence, regardless of
whether it came from the same witness or the same adversary party’s
total proof.”
When the claimant, who “bears the burden of proof
and risk of nonpersuasion before the fact-finder with regard to
every element of the claim,” is “successful before the ALJ, the
issue on appeal is whether substantial evidence support[s] the
conclusion.”4
ALJ’s
Substantial
evidence
means
“evidence
of
substance and relevant consequence, having the fitness to induce
conviction in the minds of reasonable men.”5
Even though a party
“may note evidence which would have supported a conclusion contrary
2
Western Baptist Hospital v. Kelly, Ky., 827 S.W. 2d 685,
687-88 (1992).
3
Whittaker v. Rowland, Ky., 998 S.W. 2d 479, 481 (1999).
4
Id.
5
Id.
-3-
to the ALJ’s decision, such evidence is not an adequate basis for
reversal on appeal.”6
The ALJ accepted Dr. Grentz’s opinion as to when Forman
reached MMI.
The ALJ accepted Dr. Nickerson’s opinion that Forman
had an 8% permanent partial impairment.
The ALJ was free to accept
these parts of Dr. Grentz’s testimony and Dr. Nickerson’s testimony
while rejecting Dr. Grentz’s finding of 0% impairment and Dr.
Nickerson’s finding that Forman had not reached MMI.
Because the
ALJ found that Forman reached MMI on January 4, 2001, before her
evaluation by Dr. Nickerson, we reject Laurel’s argument that the
ALJ adopted a permanent partial impairment rating for a person who
had not reached MMI.
Laurel argues that Forman must produce, pursuant to
Kentucky
Revised
Statutes
(KRS)
342.011(1),
evidence
compensable injury through objective medical findings.
of
a
After
performing a physical examination, reviewing various diagnostic
studies and the notes of Drs. Lester, Grentz and Kiefer, Dr.
Nickerson
diagnosed
Forman
as
suffering
from
a
lumbosacral
musculoigamentous sprain/strain, a right knee contusion and chronic
pain syndrome.
Dr. Nickerson also noted Forman’s inability to
perform toe raises and fixed her permanent partial impairment at
8%.
When Dr. Hoskins treated Forman almost three months after Dr.
Nickerson, he found muscle spasms and diagnosed Forman as suffering
from back pain.
review,
6
the
Within the parameters of this Court’s standard of
medical
testimony
of
Id. at 482.
-4-
Drs.
Nickerson
and
Hoskins
constitutes substantial evidence to support the findings of the
ALJ.7
Laurel argues that Forman did not suffer a work-related
injury.
Laurel’s contention rests primarily upon the testimony of
Dr. Snider that Forman did not suffer a work-related injury and the
discrepancies between the testimony of Forman and Tammy Jackson, a
witness to the incident.
Laurel contends that Forman is either
mistaken in her account or lying and that the medical experts who
did find a work-related injury are being unduly influenced by her
retelling of the tale.
Again, Laurel fails to properly recognize the role of
this Court in reviewing decisions of the Board and ALJ.
Forman
testified that she fell; two doctors found that she had suffered a
work-related injury.
The ALJ was free to believe this testimony
and discount the discrepancies between Jackson’s and Forman’s
testimony and the opinion of Dr. Snider that a work-related injury
did not occur.8
support
the
There is substantial evidence in the record to
finding
of
the
ALJ
that
a
work-related
injury
occurred.9
The ALJ doubled Forman’s benefits under Kentucky Revised
Statute (KRS) 342.730(1)(c)(2).
Laurel asserts that the permanent
partial disability award should be reduced by eliminating this
doubling of the award arguing that the doubling is improper as
Forman did not return to work.
7
Id. at 481.
8
Id.
9
Forman contends that the ALJ’s and
Id.
-5-
the Board’s statutory interpretation is reasonable; furthermore,
she states that she did return to work, albeit briefly.
findings
of
the
ALJ,
however,
regarding her return to work.
contradict
Forman’s
The
assertion
The ALJ determined that Forman has
not returned to work at an average weekly wage equal to or greater
than the average weekly wage she had at the time of her injury,
and, in fact, has not returned to work at all.
This Court may not
substitute itself as a fact-finder in place of the ALJ.10
However,
this Court’s role does include considering whether the ALJ or the
Board have “overlooked or misconstrued controlling statutes or
precedent . . . .”11
Therefore, the issue before this Court is not
whether Forman returned to work.
Rather, it is whether KRS
342.730(1)(c)(2) provides for doubling of benefits for workers who
do not return to work at a wage equal to or greater than their
average weekly wage at the time of their injury.
We
agree
with
the
Board’s
reasoning
and
adopt
the
following portion of its opinion:
Finally, we address Laurel’s argument that the
ALJ erred in applying the 2 multiplier pursuant to KRS
342.730(1)(c)2.
That section provides:
If an employee returns to work at a
weekly
wage
equal
to
or
greater
than
the
average weekly wage at the time of injury, the
weekly
benefits
for
permanent
partial
disability shall be determined under paragraph
10
Id.
11
Western Baptist Hospital, supra, n. 2.
-6-
(b) of this subsection for each week during
which that employment is sustained.
During
any period of cessation of that employment,
temporary or permanent, for any reason, with
or without cause, payment of weekly benefits
for permanent partial disability during the
period of cessation shall be two (2) times the
amount otherwise payable under paragraph (b)
of this subsection.
This provision shall not
be construed so as to extend the duration of
payments.
(Emphasis ours.)
In interpreting statutory provisions, reviewing
bodies must ascertain the intention of the statute from
its wording and unless it contains some ambiguity, it is
not open to construction.
A reviewing body must give
credence to the actual words used and avoid offering an
alternative which the reviewing body might believe to be
a better result.[12]
This Board, as a reviewing body,
does
right
not
have
the
to
offer
an
alternative
explanation of what the Legislature might have intended
or said but, rather, we must follow what the Legislature
did say.[13]
If, however, there is an ambiguity, then it is
appropriate to consider legislative history, the language
12
Overnight Transportation Co. v. Gaddis, Ky. App., 793
S.W.2d 129 (1990) and Ky. Ass’n of Chiropractors, Etc., v.
Jefferson Cty. Medical Soc., Ky., 549 S.W.2d 817 (1977).
13
Clark v. Clark, Ky. App., 601 S.W.2d 614 (1980).
-7-
of the statute, the general purpose of the provision and,
also, we may look to the statutory provision as a whole,
the circumstances which gave rise to its enactment and
the mischief to be remedied.[14]
The result offered by
Laurel is that since Forman had not returned to work at
a wage equal to or greater than her wage at the time of
the injury the provision quoted above has no application
to her claim and, thus, she would be limited to 8%
impairment times the .85 factor at KRS 342.730(1)(b).
The ALJ, however, apparently concluded the applicable
portion of KRS 342.730(1)(c)2 was the second sentence
and, thus, the 2 multiplier is applicable. The effect of
Laurel’s interpretation would be that if an individual
sustains an injury but returns to work at the same or
greater
wage
and
then,
for
whatever
reason,
ceases
employment then the 2 multiplier would be appropriate.
If an identical individual, however, is never able to
return to work at the same or greater wage then, absent
the 3 multiplier from (c)1, that individual would be
limited to only the factor contained in (1)(b).
Admittedly, one way of looking at the language
of 342.730(1)(c)2 could lead to an interpretation offered
by Laurel.
We do not, however, believe it is so clear
and unambiguous that it is the only interpretation and,
further, we believe reaching such a result, if not
14
See Princess Manufacturing Co. v. Jarrell, Ky., 465
S.W.2d 45 (1971) and Button v. Hikes, 296 Ky. 163, 176 S.W.2d 112
(1943).
-8-
absurd, is certainly illogical.
The statutory provision
in question was enacted by the regular session of the
2000
Legislature.
342.730(1)(c)
and
Prior
the
to
this
mathematical
enactment,
factors
in
KRS
KRS
342.730(1)(b) first appeared in December of 1996 with the
sweeping
changes
Compensation Act.
that
took
place
with
the
Workers’
At that time, the factors in (1)(b)
were greater than the factors that now exist.
However,
rather than having a 2 multiplier, an individual who
returned to work at the same or greater wage had his or
her benefits cut in half pursuant to KRS 342.730(1)(c)2.
In modifying subsection (c) in 2000, the Legislature
intended as part of its purpose to additionally consider
such factors as age and education, now contained in
(1)(c)3.
In order for those factors to play a role it
was necessary as a mathematical function to remove the
fractions that existed prior to that time and begin using
whole numbers.
It was clearly never the intent of the
Legislature to reduce weekly benefits to injured workers
who had not returned to work at the same or greater wage.
To follow Laurel’s logic, an individual such as Forman
would be obligated to return to work at least one day and
then for whatever reason leave that employment and then
have the 2 multiplier.
Ultimately, however, we do not believe it is
necessary to conclude the statute in its application is
illogical or absurd.
Rather, we believe the second
-9-
sentence
in
employment”
which
is
it
uses
talking
the
about
terminology
the
employment
“that
the
individual was involved in and at the wage being received
at the time of the injury.
This, in our opinion, is
consistent with the first sentence, which is comparing
the weekly wage of employment both before and after the
injury. We, therefore, conclude the ALJ’s application of
the
2
multiplier
under
these
circumstances
appropriate.
The Board’s opinion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bradford L. Breeding
London, Kentucky
Timothy J. Wilson
WILSON, SOWARDS, POLITES
& MCQUEEN
Lexington, Kentucky
-10-
was
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.
