R&L Carriers v. Gregory, No. 2006-CA-002013-WC (Ky. App. 4/13/2007)
| Decision Date | 13 April 2007 |
| Docket Number | No. 2006-CA-002179-WC.,No. 2006-CA-002013-WC.,2006-CA-002013-WC.,2006-CA-002179-WC. |
| Parties | R&L CARRIERS, Appellant v. Donald E. GREGORY, Jr.; Howard Fraiser, Administrative Law Judge; Workers' Compensation Board, Appellees, and Donald E. Gregory, Cross-Appellant v. R & L Carriers; Howard Fraiser, Administrative Law Judge; Workers' Compensation Board, Cross-Appellees. |
| Court | Kentucky Court of Appeals |
David D. Black, Dinsmore & Shohl LLP, Cincinnati, Ohio, Brief for Appellant.
Stuart E. Alexander, Kathleen M.W. Schoen, Tilford, Dobbins, Alexander, Buckaway & Black, LLP, Louisville, Kentucky, Brief for Appellee.
Before: WINE, Judge; BUCKINGHAM and HENRY, Senior Judges.1
R & L Carriers petitions and Donald E. Gregory cross-petitions from an opinion of the Workers' Compensation Board (Board) affirming in part and reversing and remanding in part an order of an administrative law judge (ALJ). The Board upheld the ALJ's findings of fact, conclusions of law, and award of worker's compensation benefits, except that it reversed the ALJ's denial of the multipliers contained in Kentucky Revised Statute (KRS) 342.730(1)(c)1 and KRS 342.730(1)(c)3 for the psychological impairment associated with Gregory's work-related accident, and remanded for a recalculation of benefits to include application of the multipliers to the psychological impairment. For the reasons stated below, we affirm.
Gregory was hired by R & L in October 2001 as a part-time laborer. Two or three months later, he was assigned to the position of forklift driver. On July 12, 2002, while turning the forklift, the vehicle flipped and landed on his right foot, severely injuring it. Eventually, the majority of Gregory's right foot was amputated. There followed a period of unsuccessful attempts to fit a functional prosthesis to Gregory's foot, which, ultimately, was successfully resolved.
On April 14, 2004, Gregory filed a Form 101 seeking workers' compensation benefits pursuant to KRS Chapter 342. On October 11, 2004, the ALJ entered an Opinion and Award awarding Gregory temporary total disability (TTD) benefits "until such time as [Gregory] has been fitted with a workable prosthesis and reaches MMI [maximum medical improvement]." On August 1, 2005, after retaining new counsel, Gregory attempted to amend his complaint to include the allegation of safety violations by R & L which, if established, would entitle Gregory to a 30% benefit enhancement pursuant to KRS 342.165. However, the ALJ denied the amendment as untimely.
Following discovery and a hearing the ALJ entered an Opinion and Award awarding Gregory permanent partial disability benefits at the rate of $150.87 per week for a period of 425 weeks. The award did not apply the multipliers contained in KRS 342.730(1)(c)1 and KRS 342.730(1)(c)3 for the psychological impairment associated with the accident. R & L appealed and Gregory cross-appealed to the Board.
On August 25, 2006, the Board entered an opinion upholding the ALJ's findings of fact, conclusions of law, and award of worker's compensation benefits, except that it reversed the ALJ's denial of the multipliers contained in KRS 342.730(1)(c)1 and KRS 342.730(1)(c)3 for the psychological impairment associated with the work-related accident, and remanded for a recalculation of benefits to include application of the multipliers to the psychological impairment. These petitions for review followed.
We begin by noting our standard of review. First, we give broad deference to the ALJ's factual findings. "The ALJ, as the finder of fact, and not the reviewing court, has the sole authority to determine the quality, character, and substance of the evidence." Square D Co. v.. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). Similarly, the ALJ has the sole authority to judge the weight and inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329, 331 (Ky. 1997). The ALJ, as fact-finder, may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party's total proof. Magic Coal v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). Mere evidence contrary to the ALJ's decision is not adequate to require reversal on appeal. Whittaker v. Rowland, 998 S.W.2d 479, 482 (Ky. 1999). And, as always, our review of questions of law is de novo. Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth, Transportation Cabinet, 983 S.W.2d 488, 490 (Ky. 1998)
Our function in reviewing the Board's decision "is to correct the Board only where the [] 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).
We first consider the issues raised by R&L Carriers in its petition for review.
The ALJ determined that Gregory had an 18% physical disability rating and a 10% psychiatric disability rating. Based upon the 18% disability impairment alone, the ALJ determined that Gregory did not have the capacity to return to his job as a forklift operator. The ALJ further determined, however, that the psychiatric impairment alone would not prevent Gregory from returning to his former job. Based upon this, the ALJ applied the 3x multiplier contained in KRS 342.730(1)(c)1 and 1.2x multiplier enhancement contained in KRS 342.730(1)(c)3 to the benefits associated with the foot impairment, but not the psychological impairment. The ALJ explained his reasoning as follows:
In regard to the application of [the] three multiplier, the undersigned finds that the Plaintiff has not provided any medical or psychological evidence that he lacks the physical capacity to return to his prior position as a result of his psychiatric impairment, particularly since he now has a workable prosthesis. The undersigned finds the opinion of Dr. Granacher to be more credible that the Plaintiff's psychological impairment does not impact his ability to perform his prior job. While the undersigned understands why an individual would not want to operate a forklift again after having part of his foot amputated, no medical professional has opined that Mr. Gregory cannot physically perform such a position as a result of his psychological impairment.
In summary, the ALJ concluded that the 3x multiplier contained in KRS 342.730(1)(c)(1) should not be applied to the benefits attributable to Gregory's psychological impairment because that impairment, standing alone, would not have prevented Gregory from returning to his job as a forklift operator. The Board disagreed with the ALJ's interpretation of KRS 342.730(1)(c)(1) and remanded for application of the multiplier to the psychological impairment as well.
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;
KRS 342.0011(1) defines "injury" as follows:
"Injury" means any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings. . . .. "Injury" . . . . shall not include a psychological, psychiatric, or stress-related change in the human organism, unless it is a direct result of a physical injury.
Thus, the term "injury" refers to the traumatic event or series of events that causes a harmful change rather than to the harmful change itself. Lexington-Fayette Urban County Government v. West, 52 S.W.3d 564, 566 (Ky. 2001). Therefore, for purposes of the 1996 version of KRS 342.0011(1), a "physical injury" is an event that involves physical trauma and proximately causes a harmful change in the human organism that is evidenced by objective medical findings. Id. An event that involves physical trauma may be viewed as a "physical injury" without regard to whether the harmful change that directly and proximately results is physical, psychological, psychiatric, or stress-related. Id. But in instances where the harmful change is psychological, psychiatric, or stress-related, it must directly result from the physically traumatic event. Id. As further discussed elsewhere in this opinion, the ALJ determined that Gregory's psychological injury was directly related to his physical injury, and we affirm this finding herein. Thus, his psychological injury is on equal basis with his foot injury for all relevant purposes.
Because Gregory's psychiatric impairment was a direct result of his physical injury, the "harmful change" in the present case was both the foot impairment and the psychiatric impairment. Therefore, the "injury" in the present case, as defined in KRS 342.0011(1), is both the foot impairment and the psychiatric impairment. The plain language of KRS 342.730(1)(c)(1) provides that the multiplier is to be applied to the "injury." Hence, we agree with the Board that the multiplier should be applied to the psychological trauma associated with the work-related injury. In addition, we adopt the following discussion by the Board:
The Act defines "permanent disability rating" as the "permanent impairment rating selected by an administrative law judge times the factor set forth in the table that appears at KRS 342.730(1)(b)" and defines "permanent impairment rating" as the "percentage of whole body...
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