Ford Motor Co. v. Jones, 2016-CA-001588-WC
| Decision Date | 24 February 2017 |
| Docket Number | NO. 2016-CA-001588-WC,2016-CA-001588-WC |
| Parties | FORD MOTOR COMPANY (LAP) APPELLANT v. GROVER JONES, HONORABLE DOUGLAS W. GOTT, ADMINISTRATIVE LAW JUDGE, AND WORKERS' COMPENSATION BOARD APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
OPINIONAFFIRMING
** ** ** ** **
BEFORE: CLAYTON, COMBS, AND TAYLOR, JUDGES.
CLAYTON, JUDGE: Ford Motor Company ("Ford") petitions this Court for review of a Worker's Compensation Board opinion affirming in part and reversing and remanding in part an Administrative Law Judge's ("ALJ") order granting Grover Jones benefits for an alleged occupational injury. Ford argues: (1) Jones was not entitled to temporary total disability ("TTD") benefits; and (2) Jones was not entitled to the "three multiplier" for his permanent partial disability ("PPD") pursuant to Kentucky Revised Statutes ("KRS") 342.730(1)(c)1. Following a recitation of the relevant background information, we address Ford's issues in turn.
Jones began working for Ford in July, 2012. As a moon roof assembler, Jones would carry a 20-pound stool and a screw gun, climb into a vehicle, and shoot four screws into the roof panel. He would then exit the vehicle and remove all of the equipment he took into the vehicle. Finally, he would go to the rear of the vehicle and place a wire on the tailgate. During a typical shift, Jones would climb in and out of vehicles approximately 75 times an hour.
On or about April of 2013, Jones claimed he began experiencing right foot pain. Prior to this time Jones had neither sought medical treatment for, nor had any previous injuries to, either foot. Jones went to Ford Medical for treatment. Because Jones is relatively short, he believed his foot had been injured while working because he had to step onto a metal rail before reaching the floor when he exited each vehicle. Ford Medical referred Jones to Commonwealth Foot and Ankle. There, Jones received a walking boot. He wore the boot until October of 2013 and was able to continue to work in the boot. He was later diagnosed with a stress fracture, and surgery was performed on his right foot on May 20, 2014.
Jones was off work for approximately six weeks after the procedure. He did not receive TTD payments from Ford during the six-week period. He did, however, receive 60 percent of his normal earnings through Unicare.
When he returned to work on July 7, 2014, Jones had restricted work duties until September of 2014. As Jones was in a walking boot and was unable to perform his previous job, he was made a "floater" by Ford and would perform different jobs as needed around the factory.
Jones continued to have troubles with his right foot and began developing problems with his left foot. He had to stop seeing his treating physician as Ford had denied that Jones's injury was compensable under worker's compensation, and Jones did not have the money to pay his outstanding medical bills at his treating physician's office. Jones obtained the services of another physician, Dr. John Sanders, who recommended surgery on his left foot. Jones had surgery on his left foot on December 24, 2014.
Jones attempted to return to work in February of 2015. He was given "no work available" status due to his restrictions. He was able to work a couple of weeks in March of 2015, but was again placed on "no work available" status on April 5, 2015. Jones then had another surgery on his right foot on April 15, 2015, which placed him out of work until June of 2015.
Jones continued to work brief periods of time between being placed on "no work available" status for the following months until his third surgery onhis right foot on September 13, 2015. Jones returned to work again on November 20, 2015. Jones remains a floater and has since this time requested that his doctor forego assigning work restrictions as he knows he will be given "no work available" status if he has restrictions. Jones's current hourly wage is greater than his previous hourly wage.
Jones testified at a hearing in March of 2016, where he noted constant pain and periodic swelling in his right foot. His foot condition prevents him from running around with his sons. He has to undergo monthly procedures where his doctor applies acid to his foot and shaves it with a razor. Jones wears custom-made orthotics, but they do not address the pain. Jones can stand for approximately two hours before he must sit due to the pain and swelling. Jones frequently has to stop work to get hot compresses on his foot. Jones stated he did not believe he could continue working at Ford due to his foot problems.
Each party also submitted evidence and reports from independent medical experts. The ALJ then issued an order finding Jones suffered work-related injuries to his feet. The ALJ awarded medical benefits, TTD benefits, and found a 4% PPD of the right foot. Ford petitioned for reconsideration, which was denied. Ford then filed a brief before the Workers' Compensation Board, raising the same issues it raises before us. The Board issued an opinion affirming the ALJ's order except for part of one TTD time period. It reversed and remanded that issue for further factual findings. Ford then filed a petition for review in this Court.
The burden of proof in a workers' compensation case lies on the claimant; he or she must prove to the ALJ every element of the claim. Martin County Coal Co. v. Goble, 449 S.W.3d 362, 366 (Ky. 2014) (). Pursuant to KRS 342.285, the ALJ as fact-finder has the sole discretion to determine the quality, character, and substance of the evidence. Hornback v. Hardin Memorial Hosp., 411 S.W.3d 220, 224 (Ky. 2013). While performing its fact-finding role, the 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 party's total proof." James T. English Trucking v. Beeler, 375 S.W.3d 67, 70 (Ky. 2012) (citing Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977)).
"When a claimant successfully carries [his or her] burden, the question on appeal is whether substantial evidence of record supports the ALJ's decision." Miller v. Go Hire Employment Development, Inc., 473 S.W3d 621, 628-29 (Ky. App. 2015) (citing Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984)). "Substantial evidence is defined as 'evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.'" Hornback, 411 S.W.3d at 224 (quoting Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971)). When the partyappealing the ALJ's decision was not the party who carried the burden of proof below, to prevail on appeal the appealing party must "show that no substantial evidence supported the finding, i.e., that it was unreasonable under the evidence." Kroger v. Ligon, 338 S.W.3d 269, 273 (Ky. 2011) (footnote and citations omitted). On the other hand, the party who failed to meet his or her burden before the ALJ "must show on appeal that the unfavorable finding was clearly erroneous because overwhelming evidence compelled a favorable finding, i.e., that no reasonable person could have failed to be persuaded by the favorable evidence." Id. Under either circumstance, if the evidence simply would have supported but not compelled a different decision, we cannot reverse the decision on appeal. Id.
Ford, the party that did not carry the burden of proof below, raises two issues, each of which concern what it claims is a lack of substantial evidence. First, Ford claims some of the TTD time periods are not supported by substantial evidence. Second, Ford claims the lower adjudicative bodies erred by awarding Jones the three multiplier pursuant to KRS 342.730(1)(c)1. To prevail on these two claims, Ford must show that no substantial evidence supported the factual findings - that the ALJ's findings were unreasonable under the evidence. Kroger, supra. We address Ford's claims in turn.
Ford first claims there is no substantial evidence in the record to support TTD benefits for three periods of time. TTD is defined as "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[.]" KRS 342.0011(11)(a). Thus, two requirements must be proven to receive TTD benefits: (1) the worker must not have reached maximum medical improvement ("MMI"); and (2) the worker must not have reached a level of improvement that permits him or her to return to work. Double L Const., Inc. v. Mitchell, 182 S.W.3d 509, 513 (Ky. 2005).
We note that Ford voluntarily paid for TTD benefits between December 8, 2014 and April 2, 2015, which coincided with Jones's surgery on his left foot, and for July 12 and 13 of 2015, which coincided in part with Jones's second surgery on his right foot. Ford contests TTD benefits between three time periods, each corresponding to the three surgeries Jones had on his right foot: May 20, 2014, through July 6, 2014 (first surgery on right foot); April 15, 2015, through June 15, 2015 (second surgery on right foot); and September 13, 2015, through December 16, 2015 (third surgery on right foot). As analysis of each period is fact-specific, we will examine each in turn.
Regarding this period, the ALJ found:
Jones' first surgery was May 20, 2014. His testimony that he was released to return to work on July 7, 2014, is supported by Dr. Pederson's note of July 26, 2014. (See Dr. Fadel summary, page 5). Jones is therefore entitled to TTD from May 20, 2014 through July 6, 2014.
The Board affirmed this finding:
To continue reading
Request your trial