ELKHORN TRUCK PARTS AND SERVICE COMPENSATION VS. POTTER (RANDY BLAKE), ET AL.
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RENDERED: FEBRUARY 13, 2009; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001688-WC
ELKHORN TRUCK PARTS AND SERVICE
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-06-97415
RANDY BLAKE POTTER;
HON. JOHN W. THACKER, ADMINISTRATIVE
LAW JUDGE; AND WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, DIXON AND VANMETER, JUDGES.
DIXON, JUDGE: Elkhorn Truck Parts and Service (Elkhorn) petitions this Court
for review of a decision of the Workers’ Compensation Board (Board) affirming a
decision of an Administrative Law Judge (ALJ) in favor of Randy Blake Potter
(Potter). Finding no error, we affirm.
Potter was born in 1947 and has a high school education with
additional vocational training. For the majority of his occupational life, he has
worked as a heavy truck mechanic. Since 1975, he has been the co-owner and
primary mechanic at Elkhorn Truck Parts and Service in Elkhorn City, Kentucky.
On January 18, 2006, Potter and his business partner, Hoyle Styles,
were working underneath a coal truck when the truck’s suspension fell across both
men. Potter sought medical treatment for a fractured pelvis and a back injury. He
returned to light duty work at Elkhorn in May 2006, and began full duty work
without restrictions the following month.1
In an October 2007, opinion and award, the ALJ assessed a 9%
permanent partial impairment for Potter’s work injury. The ALJ also found Potter
was entitled to an enhanced benefit pursuant to the three multiplier in Kentucky
Revised Statutes (KRS) 342.730(1)(c)1. Elkhorn appealed to the Board, arguing
the ALJ did not make sufficient findings to support application of the statutory
three multiplier. In a February 2008, opinion, the Board vacated the enhanced
portion of the ALJ’s award and remanded the case for further findings on that
issue.
On April 30, 2008, the ALJ issued an order on remand that again
awarded Potter enhanced benefits pursuant to KRS 342.730(1)(c)1. Elkhorn
1
Styles never returned to work at Elkhorn after the accident.
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subsequently appealed to the Board, and the Board affirmed the ALJ’s award on
August 8, 2008. This petition for review followed.
Elkhorn contends the ALJ’s interpretation of the evidence was
erroneous and substantial evidence does not support application of the three
multiplier in KRS 342.730(1)(c)1.
KRS 342.730(1)(c) reads, in relevant part:
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.
In Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003), the Kentucky
Supreme Court addressed the application of KRS 342.730(1)(c)1 and (c)2. The
Court concluded that, in circumstances where both subsections apply, the ALJ has
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the authority to choose which benefit is most appropriate under the facts of the
case. Id. at 12. Specifically, the Court noted, “[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 application of paragraph
(c)1 is appropriate.” Id.
Elkhorn contends the evidence does not support the ALJ’s finding that
Potter cannot return to the type of work he performed before the injury. Elkhorn
further argues the evidence does not support a finding that Potter is unlikely to
continue earning an equal or greater wage for the indefinite future pursuant to
Fawbush, supra.
Elkhorn’s arguments attack the sufficiency of the evidence relied
upon by the ALJ. It is well settled the ALJ, “as the finder of fact, and not the
reviewing court, has the authority to determine the quality, character and substance
of the evidence[.]” Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419
(Ky. 1985). Likewise, the ALJ is free “to believe part of the evidence and
disbelieve other parts of the evidence whether it came from the same witness or the
same adversary party's total proof.” Caudill v. Maloney's Discount Stores, 560
S.W.2d 15, 16 (Ky. 1977). On appellate review, where, as here, “the decision of
the fact-finder favors the person with the burden of proof, his only burden on
appeal is to show that there was some evidence of substance to support the finding,
meaning evidence which would permit a fact-finder to reasonably find as it did.”
Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
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Elkhorn first contends there was no evidence Potter could not return
to the type of work he performed at the time of the injury, since he returned to his
position as a heavy truck mechanic.
“When used in the context of an award that is based upon an
objectively determined functional impairment, ‘the type of work that the employee
performed at the time of injury’ was most likely intended by the legislature to refer
to the actual jobs that the individual performed.” Ford Motor Co. v. Forman, 142
S.W.3d 141, 145 (Ky. 2004). The ALJ relied on the medical report of Dr. David
Herr, which concluded Potter was incapable of performing his pre-injury work.
The ALJ also relied on Potter’s own testimony that he could no longer lift heavy
truck parts and had hired an assistant to take care of that aspect of his job. The
ALJ also noted Potter testified that he finishes tasks more slowly and is only
capable of doing 75% of the mechanic work, rather than 90% to 95% of the
mechanic work he did prior to the accident. Elkhorn opines that all of the medical
experts, aside from Dr. Herr, found Potter able to return to his pre-injury work
without restrictions. Although Elkhorn criticizes the evidence relied on by the
ALJ, we conclude the ALJ’s decision is supported by substantial evidence. The
ALJ is free to determine the weight and credibility of the evidence, including the
testimony of the claimant. Caudill, 560 S.W.2d at 16. After reviewing the record,
we find no error on this issue.
Next, Elkhorn contends there was insufficient evidence for the ALJ to
conclude Potter was “unlikely to be able to continue earning a wage that equals or
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exceeds the wage at the time of injury for the indefinite future[.]” Fawbush, 103
S.W.3d at 12.
We are mindful that, “in determining whether a claimant can continue
to earn an equal or greater wage, the ALJ must consider a broad range of factors,
only one of which is the ability to perform the current job.” Adkins v. Pike County
Bd. of Educ., 141 S.W.3d 387, 390 (Ky. App. 2004). After reviewing the record,
we agree with the Board’s conclusion that the ALJ’s award was proper. The Board
stated, in pertinent part:
The issue . . . before the Board is whether Potter
can continue to earn the same wage earned at the time of
the injury into the indefinite future. The parties
stipulated at the benefit review conference to an average
weekly wage at the time of the injury of $625.00 per
week. The parties further stipulated at the benefit review
conference Potter earned this wage when he returned to
work for Elkhorn. What makes this case unique is the
fact Potter was not only a mechanic for Elkhorn, he was
the co-owner as well. The other owner of the business
was Hoyle Styles who was also injured in the same
accident. Potter testified Styles took care of the front end
of the business while Potter did the actual repair work.
Potter did acknowledge Styles also helped him some with
the repair work when he was not working up front.
After considering the record, substantial evidence
exists to support the ALJ’s finding. As pointed out
above, Potter lost the help of the co-owner of the
business, Styles, who was also injured in the same
accident and was unable to return to work. At the time of
the first deposition, Potter reported constant low back
pain and further stressed he could not sit on the left hip
when he tried to work. Since the injury occurred, Potter
has been doing about [75%] of the mechanic work as
opposed to doing approximately 90% to 95% of the
mechanic work prior to being hurt. As a result, Potter
has had to hire a helper to do the heavy lifting of the
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springs, rear ends and transmissions. Before the
accident, Potter testified he did all the heavy lifting.
Potter also reported he is slower in moving as far as
getting up and down from under a truck. Potter testified
his productivity is down 10% to 15%. He further
recounted if he does any heavy lifting, his back and left
hip bother him. Potter noted had it not been for the
accident, he would be taking in more jobs and doing
more work. Potter further testified it takes him 15% to
20% longer to do the job. He further testified the billing
was down approximately 15% as compared to before the
injury.
We find that, in light of the above-cited evidence and the inferences
therein, the ALJ could reasonably conclude Potter is unlikely to earn an equal or
greater wage indefinitely. Consequently, the ALJ’s award of enhanced benefits
under KRS 342.730(1)(c)1 is proper.
For the reasons stated herein, the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Carl M. Brashear
Lexington, Kentucky
G.C. Perry, III
Paintsville, Kentucky
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