Lowe's Home Ctrs., Inc. v. Middleton
| Decision Date | 13 February 2015 |
| Docket Number | NO. 2014-CA-001136-WC,2014-CA-001136-WC |
| Parties | LOWE'S HOME CENTERS, INC. APPELLANT v. SONYA LAMB MIDDLETON; HON. WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES |
| Court | Kentucky Court of Appeals |
Middleton has been employed by Lowe's as a "project specialist for exteriors" for over twelve years. On January 9, 2012, Middleton sustained a work-related injury consisting of a ruptured disc at the C6-C7 level. Surgical treatment (an anterior cervical discectomy and fusion) provided her with a measure of relief, but she continues to experience pain that radiates into her cervical region, mid to upper back and neck area, and both shoulders. The parties agree that, due to her injury, Middleton sustained a whole person impairment rating of 27%. The overarching issue presented in this appeal is whether Middleton's January 9, 2012 injury, as it existed when the ALJ eventually awarded Middleton worker's compensation income benefits on January 15, 2014, warranted the "three" multiplier enhancement specified in KRS 342.730(1)(c)1, rather than the "two" multiplier specified in KRS 342.730(1)(c)2.
Before discussing the underlying facts in greater detail, a brief discussion of KRS 342.730, as a whole, is necessary for context. In general, KRS 342.730 governs the authority of an ALJ to enhance a claimant's award of income benefits under Kentucky's Worker's Compensation Act. If, for example, substantial evidence supports that a permanent disability prevents the claimant from performing any type of work, thus rendering the claimant "totally disabled,"1 the ALJ is authorized to substantially enhance the claimant's income benefits as setforth in KRS 342.730(1)(a).2 If, on the other hand, a claimant does not return to work, but the evidence only supports that the claimant's permanent disability is "partial" (i.e., does not prevent the claimant from performing work3) and does not prevent the claimant from indefinitely returning to the same type of work the claimant performed pre-injury, the ALJ has no authority to enhance a claimant's award of income benefits, and the claimant's award is calculated pursuant to the basic partial benefit criteria set forth in KRS 342.730(1)(b).
The parties agree Middleton is only partially disabled and is therefore fully capable of working; that she returned to work as of December, 2012; and, that she is now making a higher wage than she did pre-injury.4 As such, the mutually exclusive enhancements specified in KRS 342.730(1)(c)1 and (c)2, which fallbetween the two extremes discussed above, become relevant. In pertinent part, KRS 342.730(1)(c)1 provides:
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[.]
Next, the latter of these two multipliers, KRS 342.730(1)(c)2, provides:
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.
One qualification to these provisions, which is the primary subject of Lowe's' appeal, arises where either KRS 342.730(1)(c)1 or (c)2 could apply; that is, a situation in which substantial evidence supports that a claimant: (1) cannot return to the "type of work" performed at the time of the injury in accordance with KRS 342.730(1)(c)1; but (2) has returned to work at an average weekly wage equal to or greater than her pre-injury average weekly wage in accordance with KRS342.730(1)(c)2. In that situation, where substantial evidence also supports (3) that the claimant cannot continue to earn that level of wages into the indefinite future, the ALJ is authorized to immediately enhance the claimant's award pursuant to KRS 342.730(1)(c)1. See Fawbush v. Gwinn, 103 S.W.3d 5, 12 (Ky. 2003); Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206 (Ky. 2003).
Here, the ALJ enhanced Middleton's award by the KRS 342.730(1)(c)1 triple multiplier based upon the rule set forth in Fawbush. The upshot of Lowe's argument on appeal is that it was error for the ALJ to do so, and that the ALJ should have instead applied KRS 342.730(1)(c)2, because, in Lowes's' view, no substantial evidence of record demonstrated Middleton, post-injury, was either unable to return to the same type of work, or unlikely to be able to continue indefinitely earning a wage equaling or exceeding the wage she earned prior to her January 9, 2012. Stated differently, Lowe's argues that Middleton failed to prove the first and third elements of the above-stated Fawbush rule; the ALJ therefore lacked the authority to immediately enhance Middleton's award; and that the ALJ should have instead allowed for Middleton's award to be reopened, per KRS 342.730(1)(c)4, for an application of the KRS 342.730(1)(c)2 two-times multiplier to any benefit period during which Middleton's employment ceases in the future for a reason relating to her injury.5
"An injured worker has the burden to prove every element of a claim for benefits, one of which is the amount of AMA impairment that it caused." Lanter v. Kentucky State Police, 171 S.W.3d 45, 51 (Ky. 2005) (citing KRS 342.0011(11); KRS 342.730(1)(b); Roark v. Alva Coal Corporation, 371 S.W.2d 856 (Ky. 1963); Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979)). Accordingly because Middleton was successful before the ALJ, the task in this appeal is to determine whether Middleton presented substantial evidence supporting the first and third elements of the Fawbush rule.
Upon review of the record, it is clear that she did not.
As to the first Fawbush element, the only limit that has been placed upon Middleton's ability to work consists of a "recommendation" "that she avoid activities, such as extending her arm posteriorly and pulling . . . [because] it seemed to exacerbate her neck pain and cause radiating pain."6 Otherwise, every physician who has evaluated Middleton has released her to resume her pre-injury employment. Middleton also returned to her project specialist for exteriors position with Lowe's (i.e., the very same type of work that she performed at the time of her injury) in December, 2012, which entailed the same, pre-injury physical requirements; has continued at that position to date; and, she has received no criticism regarding her performance from her employer.
Moreover while Middleton testified that certain employment activities cause her an amount of pain, the record reflects that she has continued to perform the full array of tasks associated with her job without any accommodations from her employer. When asked if she has plans to leave her current position in the immediate future, Middleton testified:
Not currently. But I do have problems with the unloading and carrying the materials into the home. I will do this position as long as I can because but [sic] I do enjoy the position that I am in.
Likewise, Middleton's attorney asked her the following question during the hearing before the ALJ:
Do you believe, and I'm not asking what anybody else says, I'm asking you, do you believe that you'll be able to keep the pace that you currently have into the foreseeable future? Do you believe you can continue to go at this pace at the job doing what you have to do into the foreseeable future?
In response, Middleton testified:
I can see in several years down the road keeping the pace to where it's going to affect my ability to perform at home with my family like I need to. I know that while I have the ability to do at least what I'm doing and push where I'm pushing, making as much as I can, put back as much as I can because when I step down, I'm going to take a huge pay cut.
The ALJ and Board both emphasized in their respective reviews Middleton's testimony that performing the full array of her job tasks caused her enough pain to make her question how long she would be able to continue in that position. This evidence, however, was relevant to the third element of theFawbush rule; it was irrelevant for the purpose of the first element of the Fawbush rule, which mandates that both KRS 342.730(1)(c)1 and (c)2 must apply.
Likewise, citing Adkins v. Pike County Board of Education, 141 S.W.3d 387, 390 (Ky. App. 2004), Middleton urges that her ability to perform the same type of work she performed prior to her injury was merely one of many considerations that the ALJ was required to weigh and is not dispositive. The "current job" described in Adkins, however, refers to a type of work different from the pre-injury employment, which is also relevant to the third element of a Fawbush analysis. In Adkins, for example, the claimant...
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