KIM PIKE v. FAMILY DOLLAR STORE; HON. HOWARD E. FRASIER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
OCTOBER 27, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2006-CA-001414-WC
KIM PIKE
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-00-74388
v.
FAMILY DOLLAR STORE; HON. HOWARD E.
FRASIER, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; ACREE, JUDGE; KNOPF,1 SENIOR JUDGE.
ACREE, JUDGE:
Kim Pike (Pike) appeals from the June 2, 2006
opinion of the Workers’ Compensation Board (the Board),
affirming the order of Hon. Howard E. Frasier, Jr.,
Administrative Law Judge (ALJ), denying Pike’s motion to reopen
her workers’ compensation claim.
1
Senior Judge William L. Knopf 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.
Pike was working as a cashier for Family Dollar Stores
(Family Dollar) on August 28, 2001, when she cut her right
little finger and lacerated a nerve.
Joseph Kutz.
She was treated by Dr.
Pike was allowed by Dr. Kutz to return to work on
restricted duty with occasional use of her right hand.
On May
29, 2002, Dr. Kutz performed exploratory surgery on Pike’s
finger and found scar tissue around the nerve, which was
removed.
After surgery, Dr. Kutz allowed Pike to return to work
with a specific weight restriction, when lifting with the right
hand, of 15 pounds.
On July 8, 2002, Dr. Kutz returned Pike to
regular duty, but on August 13, 2002, he further limited her
right hand lifting to 5 pounds.
In November 2004, Dr. Kutz ordered a functional
capacity evaluation (FCE) for Pike.
From the FCE, Dr. Kutz
continued Pike’s 5 pound lifting restriction with her right
hand.
The ALJ rendered a decision on April 21, 2005.
He
determined from the evidence that Pike had a 4% impairment
rating and had reached maximum medical improvement (MMI) on
September 8, 2002.
He noted that while Pike was not fully
restricted from using her right hand (and could thus operate a
cash register), her duties at Family Dollar also included
stocking and unloading trucks, which was beyond her work
restrictions.
Lacking the physical capacity to return to her
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former job, the ALJ ruled Pike was entitled to the 3 multiplier
pursuant to Kentucky Revised Statute (KRS) 342.731(1)(c).
The ALJ further found that while Pike could not return
to Family Dollar, Dr. Kutz’s restrictions did not prevent her
from returning to her usual and customary work (based on her
employment history as a data entry clerk) as of October 19,
2002.
He found that no temporary total disability (TTD) was
owed after October 19, 2002 and Pike was appropriately paid TTD
from September 15, 2001 until July 14, 2002 and from August 28,
2002 until October 19, 2002.
No appeal was taken from the ALJ’s
original decision.
Dr. Kutz performed additional surgery on Pike’s finger
on August 3, 2005.
Family Dollar paid for the surgery.
filed her motion to reopen on December 14, 2005.
Pike
She alleged a
change of condition and alleged that she was more disabled than
she was at the time of the April 2005 decision, either
temporarily or permanently.
In support of her motion, Pike filed an affidavit and
two return-to-work capability statements from Dr. Kutz.
Pike’s
affidavit noted that she continued to work after the decision in
her claim and continued to have problems with her right hand.
She also stated that following surgery, Dr. Kutz had her on
restricted work and had not released her to return to work, nor
had he declared that she was at (MMI) from the surgery.
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Pike
acknowledged that Family Dollar had paid for her most recent
surgery, but noted they would not pay TTD.
The submitted return-to-work capability statements
from Dr. Kutz (dated September 14, 2005 and November 1, 2005)
indicated Pike could return to work on September 14, 2005, for
primarily one-handed work.
The form indicated Pike could use
her injured hand occasionally, but maintained her lifting
restriction of no more than 5 pounds with the right hand.
was also to use a splint.
She
The November 1, 2005 statement
indicated the same restrictions.
Family Dollar filed a response arguing that Pike
failed to make a prima facie case for a change of disability or
entitlement to additional TTD.
Family Dollar argued Pike failed
to show any change of disability by objective medical evidence
that her impairment worsened.
They also noted the restrictions
following surgery were the same or less than they were at the
time of the award.
The ALJ denied Pike’s motion to reopen.
He found Pike
failed to make a prima facie showing to support reopening her
claim.
She did not support her claim by evidence in the form of
objective medical testimony indicating a worsening of her
impairment since the previous award.
She also failed to show
that her current restrictions prevented her from returning to
her customary work as a data entry clerk.
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Pike appealed the ALJ’s decision to the Board, which
affirmed the denial of Pike’s motion to reopen.
This appeal
followed.
Prior to reviewing the Board’s refusal to reopen
Pike’s claim, we must first address Family Dollar’s argument to
dismiss this case as untimely filed pursuant to Kentucky Rules
of Civil Procedure (CR) 76.25.
CR 76.25(2) states:
Within 30 days of the date upon which the
Board enters its final decision pursuant to
KRS 342.285(3) any party aggrieved by that
decision may file a petition for review by
the Court of Appeals . . . . Failure to file
the petition within the time allowed shall
require dismissal of the petition.
The Workers’ Compensation Board’s decision was entered
on June 2, 2006.
CR 76.25(2) requires that the petition for
review of such decisions be filed in the office of the Clerk of
the Court of Appeals within thirty (30) days of the date of the
Board’s decision.
July 2 fell on a Sunday, so by operation of
CR 6.01, the petition was due on Monday, July 3, 2006.
CR 76.40(2) states that documents received via U.S.
Postal Service after the specified due date will only be filed
if they are transmitted by registered or express mail “within
the time allowed for filing.”
Family Dollar contends that
“there is no evidence that [Pike’s petition] was sent registered
or express mail.”
However, a simple look into the record
reveals that Pike properly followed CR 76.40(2) and mailed the
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petition using U.S. registered mail on July 3.
Therefore, the
petition was treated as timely tendered when received by the
clerk’s office on July 6, 2006.
Next, we turn to the real issue of this case.
The
findings of an ALJ will be reversed only if the evidence is so
overwhelming that a different decision is compelled.
Collieries v. Crum, 673 S.W.2d 735 (Ky.App. 1984).
Wolf Creek
Our review
of the Board is likewise limited and its decision will be upheld
unless it has misinterpreted or disregarded controlling law.
Daniel v. Armco Steel Company, L.P., 913 S.W.2d 797, 798
(Ky.App. 1995).
Reopening a workers’ compensation claim is
governed by KRS 342.125 which requires that the movant offer
prima facie evidence of one of the grounds listed in KRS
342.125(1).
Dingo Coal Co., Inc. v. Tolliver, 129 S.W.3d 367
(Ky. 2004).
One of those grounds is a “change of disability as
shown by objective medical evidence of a worsening or
improvement of condition caused by the injury since the date of
the award or order.”
KRS 342.125(1)(d).
“Evidence of a
worsening of impairment requires that there be a comparison of
impairment at two points in time.”
Hodges v. Sager Corp., 182
S.W. 3d 497, 501 (Ky. 2005).
We agree with the Board that Pike failed to submit
proof of a change of impairment.
Pike’s motion to reopen
alleged that she experienced a post-award change of disability.
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The medical record before the ALJ on January 23, 2006, included
two return-to-work capability forms completed by Dr. Kutz.
Both
forms indicated that as of September 14, 2005, Pike was able to
return to work with limited use of her right hand and her
lifting restriction remained at 5 pounds.
Pike submitted no
medical evidence indicating a change in functional impairment.
Pike testified to her condition, but her testimony does not
constitute “objective medical evidence” and is insufficient to
make a prima facie showing for reopening.
The assessment of an
impairment for the purpose of assessing a workers’ compensation
disability claim is a medical question that must be resolved by
a competent physician.
Kentucky River Enterprises, Inc. v.
Elkins, 107 S.W.3d 206, 210 (Ky. 2003).
Pike’s testimony is insufficient to establish a prima
facie case for reopening.
Finding no abuse of discretion in the
ALJ’s denial of Pike’s motion to reopen, we affirm the decision
of the Workers’ Compensation Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
Wayne C. Daub
Louisville, Kentucky
BRIEF FOR APPELLEE FAMILY
DOLLAR STORES:
Michael P. Neal
Louisville, Kentucky
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