TELEPLAN v. VICKIE CONNER; JAMES L. KERR, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED: DECEMBER 20, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2002-CA-001537-WC
TELEPLAN
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
CLAIM NO. WC-01-01189
v.
VICKIE CONNER; JAMES L. KERR,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM and HUDDLESTON, Judges.
HUDDLESTON, Judge:
Teleplan appeals from a Workers’ Compensation
Board opinion affirming an award of an administrative law judge to
Vicki Conner of permanent partial disability benefits based on a 3%
impairment caused by a work-related cumulative trauma injury.
Finding that Conner “lacks the physical capacity to [return] to the
type of work performed at the time of the injury based upon the
permanent
restrictions
of
Dr.
[Warren]
Breidenbach,”
the
ALJ
enhanced her award by a multiplier of three pursuant to Kentucky
Revised Statutes (KRS) 342.730(1)(c)1.
Conner was born on October 18, 1966, and is a high school
graduate with vocational training in “health occupations” which she
received while in high school.
Her work experience includes
employment as a fast food worker, cashier and retail clerk, machine
operator, special order clerk for a building supplies company, ice
bin cleaner for a vending machine company, customer service agent
for
a
health
insurer
and
owner/operator
of
a
licensed
home
childcare facility.
Conner began working for Teleplan as a temporary employee
on November 28, 2000, and became a permanent employee on March 12,
2001.
Her job duties involved working at a table inspecting
computer hard drives which entailed removing the hard drives from
the boxes and packing material and reinserting them upon completing
the inspection.
Conner’s height (5’1”), in conjunction with the
height of the table resulted in her doing the work at approximately
shoulder level.
She
first
noticed
symptoms
promptly notified her supervisor.
on
March
14,
2001,
and
She complained of pain in her
right arm with a constant ache from the wrist to the elbow.
On
March 21, 2001, she sought treatment at Baptistworx and was advised
to restrict her movements, use Motrin and work light duty which she
began doing immediately.
Conner denied having any history of
wrist, arm or elbow problems.
Although she was restored to regular duty on April 12,
2001, her pain continued to increase and the restrictions were
again imposed on May 16, 2001.
Because Teleplan was unable to
accommodate her restrictions, she was off work from May 17, 2001,
-2-
until
August
13,
2001,
at
which
time
she
returned
permanent restrictions and wearing arm splints.
but
with
She worked in
various capacities, ultimately resuming her previous job as a
packer
which
she
is
currently
doing
full-time
within
her
restrictions at the same or greater wages than before the injury.
Upon her return to work, Teleplan lowered the height of Conner’s
worktable to accommodate her condition.
Conner filed an application for resolution of injury
claim with the Department of Workers’ Claims on September 7, 2001,
and the claim was assigned to an ALJ for final adjudication two
weeks later.
Conner testified both by deposition and at the
hearing.
addition
In
to
Conner’s
testimony,
the
evidence
considered by the ALJ consisted of medical records and/or reports
from Dr. Warren Bilkey, Dr. Warren Breidenbach, Baptistworx, Dr.
David Westin, Dr. Daniel Wolens, Dr. Morton Kasdan and the lay
testimony
of
Jeffrey
Hooper,
the
mass
storage
supervisor
at
Teleplan and Conner’s immediate supervisor.
Based on the testimony of Dr. Bilkey, the ALJ found that
Conner “has a 3% impairment as a result of the work-related injury
of March 14, 2001.”
Relying on the restrictions imposed by Dr.
Breidenbach, the ALJ further found that Conner lacks the physical
capacity to return to the type of work she performed at the time of
the injury.
While acknowledging that Conner “has returned to the
work earning the same or greater wages,” the ALJ emphasized that
“her work station has had to be modified to accommodate her and
[Conner]
essentially
works
on
a
light
duty
basis
within
her
restrictions” in finding that she is entitled to an enhanced award
-3-
pursuant to KRS 342.730(1)(c)1.
Teleplan appealed to the Board
arguing that the ALJ erred in multiplying Conner’s award by three
since Conner returned to the same job that she was performing at
the time of her injury.
As the ALJ specifically relied on the testimony of Dr.
Bilkey in assessing the degree of impairment and the testimony of
Dr. Breidenbach (Conner’s primary treating physician since August
9, 2001) in applying the triple disability multiplier contained in
KRS 342.730(1)(c)1, our review must necessarily begin there.
The
ALJ’s summary of their testimony is set forth below:
6.
Dr. Warren Bilkey performed an independent medical
evaluation
on
[Conner]
on
November
12,
2001.
He
diagnosed chronic wrist and elbow pain, consistent with
the
diagnosis
of
bilateral
elbow
epicondylitis.
Electrodi[a]gnostic studies were negative and he did not
believe [Conner’s] cervical spine was implicated.
Bilkey
found
that
[Conner]
is
at
maximum
Dr.
medical
improvement and he related her symptoms to the work
injury of March 14, 2001.
He further assessed a 3%
permanent impairment for chronic pain.
Also, [Conner]
may not lift over 10 pounds on a frequent basis and 20
pounds
on
occasion
and
should
avoid
overtime
work.
[Conner] should also wear protective splints on both
wrists.
As an alternative to his 3% impairment rating,
Dr. Bilkey offered that [Conner] could be evaluated using
grip strength which would yield a 12% whole person
impairment.
-4-
7.
Dr. Warren Breidenbach initially saw [Conner] on
August 9, 2001. He diagnosed bilateral epicondylitis and
mild bilateral carpal tunnel syndrome.
Dr. Breidenbach
causally connected [Conner’s] symptoms to her injury and
he placed [Conner] on a restricted work status.
Dr.
Breidenbach continued to treat [Conner] on August 23,
2001, September 26, 2001, October 31, 2001[,] and January
9, 2002.
As of the later date, Dr. Breidenbach stated
[Conner’s] permanent restrictions include light work with
lifting of 20 pounds on a maximum basis and 10 or less
pounds on a frequent basis.
After conducting an “independent review of the evidence
and the applicable law,” the Board found as follows:
.
.
.
[B]ased
upon
the
medical
opinions
of
Dr.
Breidenbach and Dr. Bilkey, together with Conner’s own
testimony, we believe that the ALJ acted well within his
discretion in determining that [Conner] now lacks the
physical capacity to perform the full range of her prior
type of work.
Given her current circumstances, we
believe it was reasonable for the fact-finder to conclude
that her current situation is simply a form of “sheltered
employment,”
specifically
designed
to
assist
continue in her pre-injury job classification.
her
to
The fact
that the employer in this instance is acting out of
genuine concern for its employee is unfortunately of no
legal consequence. In that there is substantial evidence
to
support
the
ALJ’s
-5-
decision
to
apply
the
three
multiplier
to
[Conner’s]
disability
rating,
we
are
without authority to hold otherwise.
Teleplan appeals from that determination. On appeal, the
sole issue as framed by Teleplan is “whether the [Board] erred in
affirming ALJ Kerr’s ruling that [Conner] has lost the physical
capacity to return to the type of work she performed at the time of
the injury.”
On the current facts, our standard of review is well
established.
In a workers’ compensation claim, the claimant bears
the burden of proving every essential element of a claim.1
As the
fact-finder, the ALJ has the sole authority to determine the
quality, credibility and substance of the evidence as well as the
inferences to be drawn.2
The ALJ may choose to believe parts of
the evidence and disbelieve other parts, even when it comes from
the same witness or the same party’s total proof.3
When, as is the case here, the decision of the factfinder is in favor of the party with the burden of proof, the issue
on appeal is whether the ALJ’s decision is supported by substantial
evidence, which is defined as some evidence of substance and
consequence
sufficient
to
induce
conviction
in
the
minds
of
1
Magic Coal Co. v. Fox, Ky., 19 S.W.3d 88, 96 (2000);
Snawder v. Stice, Ky. App., 576 S.W.2d 276, 280 (1979).
2
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418,
419 (1985).
3
Caudill v. Maloney’s Discount Stores, Ky., 560 S.W.2d 15,
16 (1977).
-6-
reasonable people.4
Furthermore, the Board may not substitute its
judgment for that of the ALJ in matters involving the weight to be
afforded the evidence on questions of fact.5
A party challenging
the ALJ’s factual findings must do more than present evidence
supporting a contrary conclusion to justify reversal.6
reviewing
correcting
the
the
Board’s
Board
decision,
where
we
our
function
perceive
that
When
is
limited
to
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.”7
KRS 342.730(1)(c)1 provides as follows:
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 multiplied by three
(3) 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[.]
Thus, the inquiry becomes whether the ALJ’s determination
that the aforementioned condition, i. e., inability to return to
the type of work performed at the time of injury, is supported by
4
Whittaker v. Rowland, Ky., 998 S.W.2d 479, 481 (1999).
5
KRS 342.285(2).
6
Ira A. Watson Dep’t Store v. Hamilton, Ky., 34 S.W.3d 48,
52 (2000).
7
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687-688 (1992).
-7-
substantial evidence.
Further, this dispositive issue encompasses
the question of whether returning to work for the same employer
performing duties within the same job classification constitutes a
return “to the type of work” being performed at the time of injury,
thereby precluding application of this subsection.
In this case, no credible argument can be made that the
record does not resolve the former question in favor of Conner as
reflected by the following excerpt from the Board’s opinion:
. . . Dr. Breidenbach imposed permanent restrictions of
no lifting more than twenty pounds, wearing splints on
both arms, and no working any overtime.
Dr. Bilkey
corroborates Dr. Breidenbach’s diagnosis of epicondylitis
and recommends the same restrictions.
Moreover, both
Conner and Hooper testified that upon [Conner’s] return
to work, numerous accommodations were made to oblige her
restrictions.
What is more, Conner testified that when
she is required to lift more than twenty pounds, she must
ask another employee to perform the activity for her.
As this medical and lay testimony constitutes substantial
evidence which supports the ALJ’s decision, the Board was precluded
from substituting its judgment for that of the ALJ as to the weight
the evidence should be afforded.
Likewise, because we perceive no
error in the Board’s assessment of the evidence, no correction is
needed, nor is one authorized.
We now turn to the remaining question of whether the
Board
“overlooked
or
misconstrued
controlling
statutes
or
precedent” in applying KRS 342.730(1)(c)1. on the facts presented.
-8-
In the Board’s view, KRS 342.730(1)(c)1 “requires more than a
cursory review of job titles.
Instead, that provision requires a
review of the physical requirements of a particular job” when
making that determination.
In our opinion, such an approach is
justified.
“The Workers’ Compensation Act is social legislation, the
purpose of which is to compensate workers who are injured in the
course of their employment for necessary medical treatment and for
a loss of wage-earning capacity, without regard to fault.”8
In
Osborne v. Johnson,9 this Court reiterated that one of the primary
purposes of the Act is to compensate injured employees for their
loss of earning capacity, not just a present loss of income.10
All
presumptions are to be indulged in favor of those for whose
protection the enactment was made.11
Consistent with the foregoing principles, we believe
that KRS 342.730(1)(c)1 is applicable in the instant case.
As
observed by the Board: “Conner has not returned to work symptom
free and absent the special accommodations that have been made for
her, she would not be able to return to her job as a packer.
Moreover, her permanent restrictions will likely decrease her
8
Adkins v. R & S Body Co., Ky., 58 S.W.3d 428, 430 (2001).
9
Ky., 432 S.W.2d 800, 804 (1968).
10
While a workman who has sustained a permanent bodily
injury of appreciable proportions may suffer no reduction of
immediate earning capacity, it is likely that his ultimate earning
capacity will either be reduced by a shortening of his work life or
a reduction of employment opportunities through a combination of
age and physical impairment. Id.
11
Vance v. Unemployment Ins. Comm’n, Ky. App., 814 S.W.2d
284, 286 (1991)(citation omitted).
-9-
future job opportunities.”
It could be argued that this result is
counterintuitive given that Conner will receive triple the normal
benefit despite the fact that her wages have not been diminished.
However, the General Assembly has acknowledged that a loss of
earning capacity warrants a significant increase in income benefits
as evidenced by the amended income benefit multipliers found in KRS
342.730(1)(c)1 and 212 as well as the factors which are added to the
multipliers pursuant to KRS 342.730(1)(c)3.
Because the application of KRS 342.730(1)(c)1 in the
present context is consistent with the explicit purpose of the Act,
the presumption in favor of the claimant (Conner) and the overall
statutory scheme, the ALJ did not err in multiplying Conner’s
benefit award by three in accordance with this statutory provision,
nor
did
the
authority.
Board
“overlook
or
misconstrue”
this
governing
Thus, the Board’s opinion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James G. Fogle
FERRERI & FOGLE
Louisville, Kentucky
Wayne C. Daub
Louisville, Kentucky
12
Although the current version of the statute at issue
became effective on July 14, 2000, the language employed prior to
the amendment was nearly identical, with the only changes being the
multipliers to be applied to the benefit amounts and the insertion
of the word “or” at the end of subsection 1.
Originally,
subsection 1 contained a x 1.5 multiplier and subsection 2 mandated
that the weekly benefits be reduced by one-half for each week
during which that employment was sustained.
-10-
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.
