Fei Installation, Inc. v. Williams, 2006-SC-0261-WC.

• Decision Date: 22 February 2007
• Docket Number: No. 2006-SC-0261-WC.,2006-SC-0261-WC.
• Parties: FEI INSTALLATION, INC., Appellant, v. Richard WILLIAMS; Honorable R. Scott Borders, Administrative Law Judge; and Workers' Compensation Board, Appellees.
• Court: United States State Supreme Court — District of Kentucky

214 S.W.3d 313

FEI INSTALLATION, INC., Appellant, v. Richard WILLIAMS; Honorable R. Scott Borders, Administrative Law Judge; and Workers' Compensation Board, Appellees.

No. 2006-SC-0261-WC.

Supreme Court of Kentucky.

February 22, 2007.

Kimberly D. Newman, Kim Van Der Heiden, Allen, Kopet & Associates, PLLC, Lexington, Counsel for Appellant, FEI Installation, Inc.

Ched Jennings, Jennings Law Office, Louisville, Counsel for Appellee, Richard Williams.

OPINION OF THE COURT

An Administrative Law Judge (ALJ) determined that the claimant was not entitled to temporary total disability (TTD) benefits until the date of the surgery following his injury, that he did not sustain a permanent partial disability, and that he was not entitled to future medical benefits. Although the Workers' Compensation Board affirmed in all respects, the Court of Appeals reversed and remanded regarding TTD and medical benefits. Appealing, the employer asserts that the finding regarding TTD should not have been disturbed because there was substantial evidence that the claimant was able to perform his customary work until the surgery. The employer also asserts that the claimant was not entitled to future medical benefits under KRS 342.020(1) because the injury did not result in a permanent partial disability.

The claimant was a trained millwright. He began working for the defendant-employer in June, 2003, installing overhead conveyors during a shutdown at the Ford plant. He testified that he had worked as both a general foreman and foreman. As a general foreman he would read blueprints assign workers into crews, and do the installation. He would tell the foremen what to do and assure that supplies and materials were available to keep the work progressing. He stated that he worked as a general foreman "when they got in a bind" and "couldn't handle all the different spots." After most of the job had been completed, they worked only on weekends and he became a foreman. He explained at the hearing that the conveyors had been installed at that point and they were correcting things that were not up to Ford's specifications. As the "working foreman" of a small crew, he directed the other members but would also change out bolts; lift and carry on his shoulder angles that weighed up to 120 pounds; and use his hands to push and pull, grasp and grip, climb, perform various over-the-shoulder activities, and bring supplies to the crew. He acknowledged that the employer did not require foremen to wear a tool belt but stated that they were required to wear a safety harness.

On August 24, 2003, the claimant was using a ratchet to remove a bolt when he lost his footing and fell, striking his right elbow on a steel beam. He stated that he experienced immediate numbness on his entire right side and severe pain in both his right elbow and the outer three fingers of his right hand. The injury was reported to the superintendent, Scott Brown, and the claimant was taken to Prompt Care. After being x-rayed, he was referred to Dr. Kilambi, an orthopedist.

The claimant testified that he saw Dr. Kilambi a few days after the injury. For five or six weeks, Dr. Kilambi prescribed physical therapy and placed the arm in a sling. After electrodiagnostic testing to investigate persistent numbness in the outer three fingers of the right hand, he recommended surgery. On November 17, 2003, he performed a submuscular ulnar nerve transposition, which was followed by additional physical therapy. Feeling returned to the claimant's fingers after the surgery. Although the soreness in his elbow decreased, it remained tender.

The claimant testified that from the injury until the surgery Dr. Kilambi restricted him to light-duty work that required minimal use of his right hand. He notified the employer of his restrictions and tried several times to get light-duty work. He stated that he had waited until the Friday before Labor Day for a call and then went camping. He also testified that he took a form to Mr. Brown after each doctor visit and was told that he could not work because he was on medication. Brown eventually advised him to collect unemployment benefits and stated that he was laid off. He applied for the benefits, but his claim was denied.

At the hearing, the claimant submitted a return to work assessment from Dr. Kilambi dated October 16, 2003. It was the only pre-surgical release in evidence and indicated that he was able to perform light duty but restricted primarily to left-handed work. The record indicates that he primarily uses his right hand.

Mr. Brown became superintendent of the Ford project shortly before the claimant was injured. He testified that the claimant worked as the foreman of a four or five-man crew, under the direction of a general foreman. He stated that millwrights work primarily when a plant is not operating and that their hours vary. During the period between the injury and surgery (i.e., August 24 to November 17, 2003), they worked on weekends only. No work was available during November. Brown asserted that the claimant's absences from work through the end of October were not due to the injury or the unavailability of work within his restrictions. He explained that he never knew whether he would need zero or 50 workers for a particular weekend until late afternoon on the preceding Thursday. He stated that he had work for the claimant on three or four weekends after the injury. Before Labor Day weekend, the general foreman had left a message with the claimant's wife. On another occasion, the claimant said that he would work but didn't report. Brown acknowledged that he advised the claimant to apply for unemployment benefits while awaiting workers' compensation benefits and stated that he didn't know the significance of the two types of claims. He explained that he needed only a few workers at the time and could not be certain that the claimant would report if called. Brown stated that the foreman of four to six workers spent most of the time planning and that the job wasn't physical unless the foreman chose to help the crew. They were not required to wear a tool belt or use tools. He acknowledged, however that all of the foremen "would jump in and help out with their men." He stated that the doctor's note limited the claimant to light duty and that his job as a foreman was light duty.

It is undisputed that the employer paid TTD benefits voluntarily from the date of the surgery until March 1, 2004, when the claimant was released to return to regular-duty work. By that time, the contract with Ford had ended. The claimant testified that he attempted to work setting up commercial tents but that it aggravated his elbow pain. He continued to have shoulder and elbow pain that was helped "quite a bit" by taking Vioxx, and had been unable to find other work. He stated that he would take work as a millwright "in a heartbeat" if it became available.

It was the claimant's burden to prove that he was entitled to TTD from the date of his injury until the surgery. KRS 342.285 provides that an ALJ's decision is "conclusive and binding as to all questions of fact" and that the Board "shall not substitute its judgment for that of the [ALJ] as to the weight of evidence on questions of fact." KRS 342.290 limits the scope of review by the Court of Appeals to that of the Board and also to errors of law arising before the Board. Thus, the court explained in Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky.1985), and Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky.1977), that an ALJ has the sole discretion to determine the quality, character, and substance of evidence and that an ALJ 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. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky.1986), further explained that where the party with the burden of proof is not successful before the ALJ, the issue on appeal is whether the decision was unreasonable because the overwhelming evidence favored that party.

Under Central Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky.2000), a worker who has been released to return to work with restrictions that preclude the individual's customary type of work is entitled to receive TTD benefits, but they terminate at maximum medical improvement (MMI). Because there was conflicting evidence regarding the claimant's ability to work as a foreman during period between the injury and the surgery, it was for the ALJ to judge the credibility of the witnesses and to weigh their testimonies regarding the physical demands of the job and of the claimant's ability to perform them despite his injury. Convinced that the ALJ's decision to deny TTD from the date of the claimant's injury until his surgery was "grossly unjust," the Court of Appeals directed the ALJ to enter an award in the claimant's favor.

It was undisputed that during the relevant period Dr. Kilambi restricted the claimant to light-duty work. The only documentary evidence also indicates that he also restricted the claimant from more than minimal use of his right hand. The claimant was right-handed. Although Mr. Brown testified that the foreman's job did not require more than light-duty work, he also testified that all of the...