MICHELLE BASTIN v. NORTON SUBURBAN HOSPITAL; HON. JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD
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RENDERED: MAY 13, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000171-WC
MICHELLE BASTIN
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-03-77748
NORTON SUBURBAN HOSPITAL;
HON. JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE;
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.1
COMBS, CHIEF JUDGE; GUIDUGLI, JUDGE; MILLER, SENIOR
MILLER, SENIOR JUDGE:
Michelle Bastin (Bastin) has petitioned
for review of an opinion of the Workers' Compensation Board
(Board) entered on December 23, 2004, which affirmed an opinion
and award of the administrative law judge (ALJ) rendered August
4, 2004, 1) limiting her award of permanent partial disability
(PPD) benefits against Norton Suburban Hospital (Norton) to a
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
13% permanent impairment rating calculated pursuant to Kentucky
Revised Statutes (KRS) 342.730(1)(b) and (c)2;2 and 2) declining
to award her an additional period of temporary total disability
(TTD) benefits resulting from a broken collarbone sustained in a
2
(1) Except as provided in KRS 342.732, income benefits for disability shall
be paid to the employee as follows:
* * *
(b) For permanent partial disability, sixty-six and two-thirds percent (662/3%) 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 that follows:
AMA Impairment
0 to 5%
6 to 10%
11 to 15%
16 to 20%
21 to 25%
26 to 30%
31 to 35%
36% and above
Factor
0.65
0.85
1.00
1.00
1.15
1.35
1.50
1.70
Any temporary total disability period within the maximum period for
permanent, partial disability benefits shall extend the maximum period but
shall not make payable a weekly benefit exceeding that determined in
subsection (1)(a) of this section. Notwithstanding any section of this
chapter to the contrary, there shall be no minimum weekly income benefit for
permanent partial disability and medical benefits shall be paid for the
duration of the disability.
(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
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; or
2. 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 benefit for
permanent partial disability shall be determined under paragraph (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.
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fall at home that she related back to her original work injury
of March 10, 2003.
Before us, Bastin claims that the Board erred in not
remanding the case to the ALJ 1) for additional findings
concerning Bastin's pre- and post-injury physical abilities,
contending that she is entitled to findings of fact concerning
both, and if both KRS 342.730(1)(c)1 and 2 are applicable, then
she is entitled to an award based on (c)1, the "times-three"
multiplier; and 2) with directions to award additional
appropriate TTD benefits from June 9, 2003, through July 28,
2003.
Our standard of review of a decision of the Board "is
to correct the Board only where the the (sic) Court perceives
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."
Western Baptist Hospital
v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
Having reviewed
the Board's application of the law and the evidence, we conclude
that the Board committed no error.
Bastin, born March 27, 1970, has a bachelor of science
degree in nursing.
Since May, 1994, she has worked as a
registered nurse (RN).
In October, 2002, after a six to eight-
month orientation period, she fulfilled a personal goal when she
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transitioned to Norton's labor and delivery unit, working the
seven p.m. to seven a.m. shift.
On March 10, 2003, while lifting the end of a bed
during a typical reassembly following a delivery, Bastin felt
back pain.
She reported the injury to Norton, and sought
treatment from her family physician.
Occupational Physician's
Services (OPS) referred her to a specialist, who diagnosed a low
back strain, prescribed medication and released her to return to
work at light duty.
Bastin continued to work from the date of her injury
until June 9, 2003, when, according to her testimony, her right
leg gave out from under her at home and she fell, breaking her
collarbone.
weeks.
Following that incident, she was off work for six
She went off work again on July 28, 2003, and that date
TTD benefits commenced.
When the pain in her back failed to improve, Bastin
was first referred to an orthopedic surgeon and later to a
neurosurgeon.
On August 25, 2003, she had back surgery.
Immediately thereafter, she enjoyed complete relief of her back
and leg pain; however, the pain soon returned and did not
respond to treatment.
Bastin continued to complain of pain in the right
lumbar region which was aggravated with walking.
was also reduced.
Motor strength
A referral for pain management was made to
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physical medicine and rehabilitation specialist Dr. Rodney Chou,
who took over her case on November 6, 2003.
Ultimately, Dr.
Chou prescribed pain medication and recommended restrictions on
lifting, bending, twisting, standing and walking.
He advised
that she could work twelve-hour shifts as long as she was able
to take regular sit-down breaks and remain within the
recommended restrictions.
Bastin returned to work at Norton on November 7, 2003,
and TTD benefits were terminated.
Because of the restrictions,
she was unable to return to her pre-injury work as an RN in
labor and delivery and was reassigned to light work duties in
triage in labor and delivery, earning the same or greater wages.
In a follow-up visit with Dr. Chou on December 4,
2003, he noted that she had returned to work within the
recommended restrictions and was tolerating her duties well.
adjusted her medications.
He
In another follow-up on February 4,
2004, he ordered a Functional Capacity Evaluation (FCE) to
establish a baseline of Bastin's physical abilities.
According
to the FCE, Bastin did not meet the minimum physical demands
required of her pre-injury job as she did not meet the minimum
lifting requirements, was unable to perform repetitive squatting
due to weakness in the right leg, could not tolerate standing
more than 30 minutes due to cramping in the right posterior
thigh, and reported back pain and cramping in the right
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posterior thigh after prolonged walking.
Dr. Chou advised by
letter dated April 15, 2004, that he agreed with the results of
the FCE, indicating that Bastin was at maximum medical
improvement at that time.
He assessed permanent restrictions
consistent with the therapist's recommendations and advised that
Bastin's permanent impairment rating under the AMA Guides to the
Evaluation of Permanent Impairment, Fifth Edition (AMA Guides)
would be 10%.
Bastin had an independent medical examination
performed on April 22, 2004.
Dr. S. Pearson Auerbach assessed a
13% permanent impairment rating in accordance with the AMA
Guides, advising that it was unlikely that Bastin would be able
to return to her pre-injury work as an RN with moderate to heavy
physical activities.
He recommended insofar as lifting and
carrying that while Bastin could occasionally carry a maximum of
twenty pounds and frequently carry five pounds, she could not
perform frequent or occasional lifting up to twenty-five pounds.
He additionally recommended that she never bend or crawl; only
occasionally stand or kneel; and could tolerate between two to
four hours per day of twisting, turning, sitting, walking,
pushing, and pulling but could not return to heavy physical
activities.
According to Bastin, her current position in triage
fits within the restrictions recommended by her doctor.
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Her
duties are necessary to the hospital operations of the labor and
delivery unit as she makes the initial assessment as to whether
an incoming patient is in labor; and if so, starts the "I-V" and
draws blood, but there is no heavy lifting or maneuvering of
bodies.
After a busy night in which she has done a lot of
walking, she reports occasional increased pain that requires
additional medication.
She testified that she cannot perform
her previous regular duties.
Her condition is better now than
it was before surgery, but she continues to have pain.
The sole issue before the ALJ was Bastin's entitlement
to benefits pursuant to KRS 342.730.
the following:
The parties stipulated to
that Bastin suffered a work-related injury on
March 10, 2003; that TTD benefits were paid at the rate of
$549.14 per week from July 28, 2003, through November 6, 2003,
for a total of $8,001.72; that her average weekly wage was
$824.04 per week; and that she returned to work in November,
2003.
Bastin's testimony and other evidence revealed that 1)
she is earning greater wages now ($866.02 per week) than at the
time of the injury; 2) she works the same twelve-hour night
shift; 3) she has no reason to believe that she will not be able
to continue working and earning wages greater than her average
weekly wage for the foreseeable future; and 4) she may move to a
day shift when her children are in school, which would likely
open up more job opportunities for her.
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On August 4, 2004, the ALJ issued his opinion and
award.
With regard to PPD, after considering the two opinions
on impairment, the ALJ awarded Bastin PPD benefits commensurate
with the higher rating of 13%.
The ALJ further determined that
insofar as a multiplier, both KRS 342.730(1)(c)1 and 2 were
applicable and concluded that KRS 342.730(1)(c)2 (no
enhancement) was more appropriate than KRS 342.730(1)(c)1
(times-three multiplier) because Bastin was likely to be able to
continue earning an average weekly wage equal to or greater than
that earned at the time of the injury as determined under KRS
342.730(1)(b).
With regard to TTD, the ALJ awarded Bastin benefits
from July 28, 2003, through November 6, 2003.
Bastin argued for
the first time in her brief before the ALJ that she was also
entitled to TTD for the period from June 9, 2003 (the date she
broke her collarbone in a fall at home) through July 28, 2003.
The ALJ denied this request, finding no medical evidence to
support her contention that her fall was caused by the workrelated injury.
On appeal to the Board, Bastin argued that the ALJ
improperly calculated her benefits under KRS 342.730(1)(c)2 by
failing to properly apply Fawbush v. Gwinn, 103 S.W.3d 5 (Ky.
2003), alleging that the ALJ failed to make a determination with
respect to her post-injury physical capacity to engage in the
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type of work she performed at the time of the injury, and thus
contending that she is entitled to an award based on KRS
342.730(1)(c)1, the "times-three" multiplier.
On December 23,
2004, the Board affirmed the opinion and award of the ALJ,
finding that it was supported by substantial evidence, including
but not limited to Bastin's testimony.
In so affirming, the
Board concluded that the ALJ properly applied Fawbush and
Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206 (Ky.
2003), in that once he found both KRS 342.730(1)(c)1 and 2
applicable, he gave consideration to Bastin's future wageearning capacity and properly concluded that she is likely to be
able to continue to earn wages equal to or greater than her
average weekly wage for the indefinite future.
Additionally, with regard to Bastin's claim of
entitlement to TTD benefits calculated from the date of her fall
on June 9, 2003, the Board concluded that the ALJ was free to
accept or reject Bastin's account that her fall was attributable
to the work-related injury, finding in support of the ALJ that
there was no medical evidence in the record regarding the
causation of the fall.
This petition for review follows.
With regard to the issue of which section of KRS
342.730(1)(c) is applicable, the Board concluded that the ALJ
correctly applied Fawbush, and we agree.
analyzing KRS 342.730(1)(c)1 and 2:
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As stated therein when
(W)e note that the legislature did not
preface paragraph (c)2 with the word
"however" or otherwise indicate that one
provision takes precedence over the other.
We conclude, therefore, that an ALJ is
authorized to determine which provision is
more appropriate on the facts.
Fawbush at 12.
In the instant case, the evidence is undisputed
that Bastin could not return to her pre-injury duties.
Such was
the testimony of Bastin, and her testimony was termed "accurate"
by her supervisor.
medical experts.
Such was also implied in the findings of the
The threshold for the application of KRS
342.730(1)(c)1 was thus met.
Fawbush went on to indicate, however, that subsection
(c)1 was appropriate "(i)f the evidence indicates that a worker
is unlikely to be able to continue earning a wage that equals or
exceeds the wage at the time of injury for the indefinite
future."
The evidence is further undisputed that Bastin
returned to work at a weekly wage equal to or greater than the
average weekly wage at the time of injury, and that, according
to her own testimony, she had no reason to expect that she would
not be able to continue working and earning wages greater than
her average weekly wage for the foreseeable future.
The
threshold for the application of KRS 342.730(1)(c)2 was thus
met.
Under Fawbush, therefore, the ALJ acted appropriately in
determining which provision was more appropriate, and in the
instant case, due to the undisputed evidence not only that
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Bastin's weekly wage equaled or exceeded the average weekly wage
at the time of the injury but that she expected to continue
working and earning that wage, that KRS 342.730(1)(c)2 was the
more appropriate section.
at 210-11.
See also Kentucky River Enterprises
There was no error by the Board in affirming the
ALJ.
With regard to Bastin's claim that she was entitled to
TTD benefits from the date of the fall because the fall was
caused by her leg giving way due to the work-related injury, we
also conclude that the Board did not err in affirming the ALJ on
this issue.
The ALJ was free to accept or reject Bastin's
uncontradicted testimony.
S.W.2d 373 (Ky. 1969).
See Grider Hill Dock v. Sloan, 448
In rejecting Bastin's testimony and
concluding that there was no medical evidence to support this
causation, the ALJ did not err, and neither did the Board.
For the foregoing reasons, the opinion of the Worker's
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ched Jennings
Louisville, Kentucky
Timothy P. O'Mara
Louisville, Kentucky
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