HEAVEN HILL DISTILLERIES, INC. VS. COMPENSATION LAWSON (BONNIE), ET AL.Annotate this Case
RENDERED: DECEMBER 5, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
HEAVEN HILL DISTILLERIES, INC.
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-05-00194
BONNIE LAWSON; HON. JAMES L.
KERR, ADMINISTRATIVE LAW
JUDGE; AND THE WORKERS'
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BEFORE: FORMTEXT COMBS, CHIEF JUDGE; DIXON AND TAYLOR,
TAYLOR, JUDGE: Heaven Hill Distilleries, Inc. (Heaven Hill) petitions this
Court to review an opinion of the Workers’ Compensation Board (Board) that
affirmed an opinion of the Administrative Law Judge (ALJ) awarding Bonnie
Lawson permanent partial disability (PPD) and temporary total disability (TTD)
benefits. We affirm.
Lawson had been employed by Heaven Hill as a quality control
inspector on a labeling line for distilled spirits. In such position, Lawson would
inspect various sized bottles, including half-pint and quart bottles, on the assembly
line and remove any non-conforming bottle.
Lawson filed a claim for workers’ compensation benefits for injuries
allegedly suffered during the performance of her job duties. In particular, she
claimed to have suffered a back injury on May 6, 2003, right shoulder and neck
injury on October 27, 2003, and injury to her palms and wrists as a result of a fall
on December 16, 2004. Additionally, Lawson claimed to have suffered a
psychological injury caused by adverse emotional effects of her work-related
By opinion entered October 5, 2007, the ALJ found that Lawson
suffered a work-related shoulder injury and psychological injury. The ALJ
determined that Lawson suffered a 10 percent PPD due to the psychological injury
and awarded income benefits enhanced by the 2 multiplier of Kentucky Revised
Statutes (KRS) 342.730(1)(c)(2). The ALJ also awarded medical benefits for the
psychological injury. As to the shoulder injury, the ALJ found that such injury
produced no permanent impairment and thus, only awarded medical benefits.
Additionally, the ALJ found that Lawson failed to demonstrate that the other
alleged injuries were compensable under the Workers’ Compensation Act and
Being unsatisfied with the ALJ’s opinion, Heaven Hill sought review
with the Board. By opinion entered May 2, 2008, the Board affirmed the ALJ’s
opinion in its entirety. Our review follows.
We shall initially set forth our standard of review. In a workers’
compensation case where the claimant prevails, an appellate court will not disturb
the ALJ’s findings of fact if supported by substantial evidence of a probative value.
Transportation Cabinet v. Doe, 69 S.W.3d 60 (Ky. 2001). And, the ALJ as factfinder has the sole authority to judge the weight and credibility of evidence. Miller
v. East Ky. Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997). It is also within
the province of the ALJ to believe a part of an expert’s opinion and to disbelieve
other parts of such opinion. Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky.
1985). On appeal, we will only reverse the Board’s opinion where it “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 (Ky. 1992).
Heaven Hill contends that the Board erroneously affirmed the
ALJ’s award of TTD benefits to Lawson. Specifically, Heaven Hill argues that
Lawson could have physically returned to her employment on lighter duty during
the time period in which TTD benefits were awarded. In support of its argument,
Heaven Hill cites to the testimony of Dr. Raymond Shea. It is undisputed that Dr.
Shea ordered Lawson not to return to work for a time period after her injuries.
Heaven Hill argues that Dr. Shea’s order was based upon the mistaken belief that a
light-duty position was not available to Lawson. Heaven Hill points to the
following testimony of Dr. Shea:
Doctor, during the whole period of time that
you’ve had [Lawson] off work, at least of this year
- or you’ve noted that [Lawson’s] been off from
January 31 of 2005 to August 29 of ’05, when you
expected her to be able to return, would [Lawson]
be able or would she have been able to have a job
involving just the lifting of the half-pints? Would
that have been okay for her?
I think, at some point during that period, [Lawson]
- she could have, but the way I understand it, that it
was not available to her.
Well, if it had been available, just hypothetically,
would she have been able to do that job, do you
think, from an orthopaedic standpoint during the
periods of time you’ve been –
- evaluating [Lawson] Okay. And in terms of
[Lawson’s] actual work, do you just have her
statement to you, or do you have anything from the
company with regard to her work duties?
I just have a statement from [Lawson].
Heaven Hill maintains that a position was made available to Lawson lifting only
half-pint bottles and that Lawson could have worked in this position during the
time periods TTD benefits were awarded. As such, Heaven Hill argues that
Lawson was not entitled to an award of TTD benefits.
The Board disagreed with Heaven Hill and determined that the ALJ
properly found Lawson to be entitled to TTD benefits. In so doing, the Board
KRS 342.0011(11)(a) provides “‘[t]emporary total
disability’ means the condition of an employee who has
not reached maximum medical improvement from an
injury and has not reached a level of improvement that
would permit a return to employment[.]” This statute
was construed by our [S]upreme [C]ourt in Central
Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky. 2000), as
imposing two conditions to qualify an injured worker to
receive TTD benefits. First, the claimant must not have
reached MMI and second, the worker must not have
improved to the point that he can return to his customary
work or the work he was performing at the time of his
Even if we were to conclude Lawson misled Dr.
Shea into believing no work she could perform was
available, the fact remains that the evidence clearly
established Lawson could not perform the work on the
half-gallon line following the October 2003 injury, nor
during the time periods she was taken off work by her
physicians. Since this was the work she was performing
at the time of her shoulder injury, we cannot say the
ALJ’s award of TTD benefits was so unreasonable under
the evidence that it must be reversed as a matter of law.
Resolution of Lawson’s entitlement to TTD benefits revolves around
interpretation of KRS 342.0011(11)(a), which reads:
“Temporary total disability” means the condition of an
employee who has not reached maximum medical
improvement from an injury and has not reached a level
of improvement that would permit a return to
Recently, our Supreme Court in Central Kentucky Steel v. Wise, 19 S.W.3d 657
(Ky. 2000) interpreted the above statute. The Supreme Court held that to be
entitled to TTD benefits: (1) claimant must not be at maximum medical
improvement,1 and (2) claimant must not have been released to perform the type of
work that was customary or that she was performing at the time of injury. Id., see
also Magellan Behavioral Health v. Helms, 140 S.W.3d 579 (Ky.App. 2004). To
identify the type of work that was customary or was being performed before the
injury, our inquiry must focus upon the precise duties claimant carried out in her
employment. See Double L Construction, Inc. v. Mitchell, 182 S.W.3d 509 (Ky.
In the case sub judice, Lawson’s pre-injury employment duties
included lifting both half-pint and quart bottles from the assembly line. Even if
Lawson were released to perform her job on a light duty by lifting only half-pint
bottles, we do not deem such restricted work as tantamount to the type of work she
performed customarily or before injury. Consequently, we conclude that the Board
properly affirmed the ALJ’s award of TTD benefits.
Heaven Hill also argues that the ALJ erred by applying the 2
multiplier of KRS 342.730(1)(c)(2) to increase Lawson’s award of income
benefits. KRS 342.730(1)(c)(2) reads:
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
It is undisputed that Bonnie Lawson had not reached maximum medical improvement at the
time she received temporary total disability benefits.
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
In determining that Lawson was entitled to the 2 multiplier of KRS
342.730(1)(c)(2), the ALJ specifically found:
As to plaintiff’s entitlement to benefits per KRS
342.730, the Administrative Law Judge has determined
that [Lawson] retained a 10% permanent impairment as a
result of her psychological problems which stem from
her shoulder injury. The shoulder injury dates clearly to
the October 27, 2003[,] injury when [Lawson’s] average
weekly wage was $578.00. Further, [Lawson] returned
to work earning the same or greater wages and is not
presently employed. Wherefore, she qualifies for the 2
multiplier per KRS 342.730(1)(c)(2).
The Board affirmed the ALJ upon application of the 2 multiplier by concluding:
Here, Lawson’s only compensable injury occurred
on October 27, 2003, and her AWW [average weekly
wage] according to the stipulation was $578.00.
Following that injury, Lawson’s AWW increased to
$639.78. Though Lawson may have experienced a
decrease in AWW following the December 16, 2004
incident, she did not sustain an “injury” to her wrist as
that term is defined by KRS Chapter 342. The stipulated
raw figures establish beyond cavil that Lawson returned
to work following her only compensable injury at an
AWW that was greater than her pre-injury AWW and
maintained that wage level until she left work. The
statute plainly provides for the potential of enhanced
benefits if an injured worker returns to work at an AWW
equal to or greater than the AWW at the time of the
injury. The only compensable injury was the October
2003 shoulder injury and Drs. Allen’s and Cooley’s
reports fairly establish that this shoulder injury was a
substantial contributing factor to Lawson’s pain and
depression, justifying the award of permanent income
benefits. The ALJ committed no error.
Heaven Hill finds error with the ALJ and the Board’s opinion and in particular,
Dr. [Christopher] Allen did not relate her psychological
disability to just her shoulder. . . .
Dr. Allen attributes her problems to all of her
accident - - accidents which happened in May and
October of 2003, and December of 2004. At no time
does Dr. Allen ascribe her injuries to just the shoulder
event. The import of his opinion is that her condition
related to a combination of all three (3) alleged
injuries. It is irrelevant as to which injury the ALJ has
chose for compensability. The opinion of Dr. Allen was
that the perception of the claimant was that she had
multiple physical injuries which then “caused” her
development of a psychological disability. Therefore the
only relevant date for determining the application of the
multiplier is the last date of her perceived injuries!
This is significant because her wage rate at the
time of the December 16, 2004[,] injury was $639.78.
Following her return to work, and as of her last day of
work, she was only earning $622.00 per week.
Therefore, she does not meet the requirement of KRS
342.730(1)(c)(2) because she never returned to work
earning equal or greater wage.
Heaven Hill’s Brief at 15-16.
We do not believe the Board erred in affirming the ALJ’s application
of the 2 multiplier found in KRS 342.730(1)(c)(2). Although Dr. Christopher
Allen attributed Lawson’s psychological injury to her lumbar, cervical, and
shoulder injuries, it was within the discretion of the ALJ as fact-finder to believe
and disbelieve parts of Dr. Allen’s testimony. Moreover, Lawson testified
regarding the ongoing pain and discomfort directly related to her shoulder injury.
Thus, the ALJ’s finding that Lawson’s psychological injury was caused by her
shoulder injury was supported by substantial evidence. Therefore, the ALJ
properly utilized the injury date of October 27, 2003, when determining Lawson’s
average weekly wage and properly determined that Lawson was entitled to the 2
multiplier of KRS 342.730(1)(c)(2).
For the foregoing reasons, the opinion of the Workers’ Compensation
Board is affirmed.
BRIEF FOR APPELLANT:
Walter E. Harding
BRIEF FOR APPELLEE BONNIE
Ben T. Haydon, Jr.