Workers’
Compensation Board
OPINION
ENTERED: February 5, 2016
CLAIM NO. 201283372
PENNY BERRY PETITIONER
VS. APPEAL FROM HON.
WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE
CEDAR LAKE PARK PLACE and
HON. WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Penny Berry (“Berry”) appeals from the Amended
Opinion and Order on Remand rendered September 4, 2015 by Hon. William J. Rudloff, Administrative Law Judge (“ALJ”) awarding
temporary total disability (“TTD”) benefits, permanent partial disability
(“PPD”) benefits, and medical benefits for her occupational disease claim for
which she alleged a last injurious exposure of April 29, 2012 while working for
Cedar Lake Park Place (“Cedar Lake”).
Berry also appeals from the October 21, 2015 Opinion and Order on
Reconsideration finding she is not permanently totally disabled from the
effects of her January 26, 2012 work injury.
On
appeal, Berry argues the ALJ erred in denying her motion seeking relief
pursuant to CR 60.02. She also alleges
the ALJ erred in failing to award an enhancement of benefits pursuant to KRS
342.730(1)(c)2 on remand. We find the ALJ did not err in finding CR
60.02 inapplicable to this proceeding.
We also find the ALJ complied with the directives of this Board in our
prior decision entered November 13, 2013; the Kentucky Court of Appeals in its
decision rendered August 4, 2014; and, the Kentucky Supreme Court in its
decision rendered June 11, 2015, and therefore we affirm.
Berry
filed a Form 102 on November 26, 2012 alleging she developed pulmonary problems
due to sick building syndrome in the course of her employment with Cedar Lake
in New Castle, Henry County, Kentucky.
She began working for Cedar Lake in September 2010 and developed lung
and/or allergic problems within one week of employment. She sought medical treatment with her primary
care physician who eventually referred her to an allergist and a
pulmonologist. Berry indicated she
returned to work for another employer subsequent to November 26, 2012, but
never returned to work for Cedar Lake.
The
evidence introduced during the claim was previously summarized in a decision
rendered by this Board on November 13, 2013 and will not be reviewed
again. In a decision rendered June 27,
2013, the ALJ awarded TTD, PPD enhanced by the multiplier contained in KRS
342.730(1)(c)1, and medical benefits. Cedar Lake filed a petition for
reconsideration arguing the ALJ erred in enhancing the award of PPD benefits by
the multiplier. The petition for reconsideration
was denied in an order issued July 23, 2013.
In
the November 13, 2013 opinion rendered by this Board, we found the ALJ’s
determination regarding the duration of TTD benefits was supported by
substantial evidence, and we affirmed.
However, regarding the ALJ’s analysis pursuant to Fawbush
v. Gwinn, 103 S.W.3d 5 (Ky. 2003), and application of the multiplier
contained in KRS 342.730(1)(c)1, we found as follows:
In its petition for reconsideration, Cedar
Lake argued the ALJ could not enhance Berry’s PPD benefits by
the three multiplier based on his findings in the opinion, order, and
award. However, the ALJ reaffirmed his
decision regarding the applicability of the three multiplier
in his order overruling Cedar Lake’s petition for reconsideration.
Without question an analysis pursuant to Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003) is only
necessary in cases in which the two and three multipliers are both potentially
applicable. See Adkins v. Pike County Bd. of Educ., 141
S.W.3d 387 (Ky. App. 2004). Here, the ALJ specifically found Berry
"can return to the type of work which she performed at the time of her
occupational disease and injury in accordance with KRS 342.730(1)(c)1." Thus, the three multiplier
is not applicable. Additionally, the ALJ determined Berry "has not
returned to work as a nurse earning the same or greater average weekly wage
than she earned at the time of [sic] occupational disease and injury per KRS
342.730(1)(c)2." Thus, the two
multiplier is not applicable. For the ALJ to continue with the Fawbush analysis and resolve the third prong in favor of the three multiplier defies the applicable law. As
the ALJ initially found both
multipliers were not applicable, the enhancement of Berry’s PPD benefits by the three multiplier must be reversed. In the case sub judice, the award of PPD benefits cannot be enhanced by a
multiplier.
Berry
appealed our November 13, 2013 decision to the Kentucky Court of Appeals. In Penny Berry v. Cedar Lake Park Place,
2013-CA-002093-WC, rendered August 1, 2014, the Court of Appeals stated the
following:
The sole issue on appeal is whether the
Board erred by reversing the ALJ’s determination that Berry was entitled to the
three multiplier in KRS 342.730(1)(c)1.
The statute provides that the three multiplier is applicable if the claimant is
physically unable to resume the type of work performed at the time of the
injury. KRS 342.730(1)(c)1. The statute alternatively provides that a
claimant who returns to work earning a wage equal to or greater than the
pre-injury wage is entitled to an enhanced benefit of a two multiplier for
benefits paid during any cessation of that post-injury employment. KRS 342.730(1)(c)2.
. . .
After careful review, we agree with the
Board that the ALJ plainly made factual findings requiring a conclusion that
Berry was not eligible for enhanced benefits under either KRS 342.730(1)(c)1 or 2. The Board
properly applied the controlling law by reversing the portion of the ALJ’s
opinion that awarded enhanced PPD benefits and remanding the claim for entry of
an amended order awarding benefits without enhancement.
Berry
next appealed to the Kentucky Supreme Court.
In Penny Berry v. Cedar Lake Park Place, et al.,
2014-SC-00476-WC, rendered June 11, 2015, the Court stated as follows:
Berry argues that the Board erred by
reversing the application of the three multiplier to her PPD award. Berry contends that while Dr. Cavallazzi’s university evaluation stated she could return
to work as a nurse, she could only do so as long as she was not exposed to
mold. Effectively Berry argues that she
is eligible for the three multiplier because of her
inability to work as a nurse at Cedar Lake due to the mold in its
facility. We disagree.
As stated above, to be eligible for the three multiplier, the claimant must not retain the
physical capacity to perform the type of work she performed at the time of her
occupational disease and injury. KRS
342.730(1)(c)1.
The three multiplier can be awarded if the
claimant cannot physically complete all the individual tasks required as a part
of the job performed when the work-related occupation disease and injury
occurred. Ford Motor Co. v. Forman, 142 S.W.3d 141
(Ky. 2003). But a claimant is not
eligible to receive the three multiplier just because
she cannot return to work at a particular employer due to a work-related
injury. In this matter, Dr. Cavallazzi clearly stated in his university evaluation that
Berry retained the capacity to work as a nurse.
The ALJ adopted the doctor’s opinion in his original decision and
declined to amend his findings on a petition for reconsideration. His finding that Berry can return to work as
a nurse is supported not only by Dr. Cavallazzi’s
opinion, but also by her own testimony.
Thus, Berry is not eligible to have her PPD benefits enhanced by the three multiplier and the Board did not err by
reversing that portion the ALJ’s opinion, order and award.
Berry alternatively argues that that Board
erred by failing to remand this matter for the ALJ to determine the
applicability of the two multiplier. But
to receive the two multiplier the claimant must return to work at a weekly wage
equal to or greater than her average weekly wage at the time of the
occupational disease and injury. KRS
342.730(1)(c)2.
The ALJ found that Berry was not earning an equal to or greater average
weekly wage, and based on that finding she is ineligible to receive the two
multiplier. This factual finding was not
challenged in her petition for reconsideration and is the law of the case. Berry is not eligible for her PPD benefits to
be enhanced by a multiplier as provided by KRS 342.730 (1)(c)1
or 2.
On
remand, the ALJ found as follows:
In its Opinion, the Supreme Court noted
that I had determined that the plaintiff could return to work as a nurse as per
her testimony and the medical evidence from Dr. Cavallazzi,
the university evaluator. The Supreme
Court then stated that the plaintiff is not eligible to have her permanent
partial disability benefits enhanced by the 3 multiplier and that the Workers’
Compensation Board did not err by reversing that determination in my original
Opinion, Order and Award. The Supreme
Court further noted that the plaintiff alternatively argues that the Board
erred in failing to remand this case to me to determine whether the 2
multiplier was applicable. The Supreme
Court stated that since I found that the plaintiff was not earning a wage equal
to or greater than her average weekly wage, she is, therefore, ineligible to
receive the 2 multiplier. The Supreme
Court noted that that determination was not challenged in the plaintiff’s
Petition for Reconsideration and is, therefore, the law of the case.
Based upon the relevant evidence and the
ruling case law, I make the determination under KRS 342.730(1)(b)
that the plaintiff is entitled to recover permanent partial disability benefits
based upon Dr. Cavallazzi’s permanent impairment
rating of 25% to the body as a whole under the AMA Guides, Fifth
Edition, subject to the 1 multiplier.
Both attorneys did a very good job in this
case and both attorneys wrote erudite briefs on the issue of whether CR 60.02
applies to this case.
The defendant cites the decision of the
Kentucky Supreme Court in Burroughs v. Martco, 339 S.W.3d 461 (Ky. 2011), where the high court
stated that an Administrative Law Judge did not err in refusing to consider the
plaintiff’s Motion under CR 60.02. The
high court stated that CR 60.02 has not been adopted in the Workers’
Compensation Regulations and therefore the Judge is not even permitted to
consider a CR 60.02 Motion filed by the plaintiff. I make the determination that the
defendant’s argument on this point is valid.
The defendant also argues that the
plaintiff did not raise in her Petition for
Reconsideration addressed to the original Opinion and Order the issues now
raised in her CR 60.02 Motion and, thereby, waived same. I note that the Supreme Court in the case at
bar stated that the plaintiff did not file a Petition for Reconsideration in
regard to the 2 multiplier and that that is the law of the case. I, therefore, make the determination that the
plaintiff waived said argument.
Plaintiff’s Motion is denied.
On
remand, the ALJ rendered an amended decision in accordance with the direction
of this Board, the Kentucky Court of Appeals, and the Kentucky Supreme
Court. Therefore, we affirm the finding
Berry is entitled to no enhancement of her award of PPD benefits by the
multipliers contained in either KRS 342.730(1)(c) 1 or
2.
Likewise,
we determine the ALJ did not err in denying Berry’s motion requesting relief
pursuant to CR 60.02. As noted by Cedar
Lake, the request pursuant to CR 60.02 is improper. The Kentucky Supreme Court held in Burroughs
by Martco, 339 S.W.3d 461 (Ky. 2011), relief
pursuant to such motion is not provided for in Kentucky workers’ compensation
claims. In that case, the Court stated
as follows:
The ALJ did not err by refusing to consider
the claimant's motion to reopen based on CR 60.01 and CR 60.02. The Kentucky
Rules of Civil Procedure "govern procedure and practice in all actions of
a civil nature in the Court of Justice" [6] but apply to proceedings
before an administrative agency only to the extent provided by statute or
regulation. Although the regulations that govern workers' compensation
proceedings have adopted several of the Rules of Civil Procedure, they have not
adopted CR 60.01 or CR 60.02. KRS 342.125(1) states the only grounds for
reopening a final workers' compensation award. The court acknowledged as much
in Wheatley v. Bryant Auto Service when noting that KRS 342.125 provided
a statutory remedy to correct the ALJ's mistake of law, "just as could
have been done under CR 60.02 had it been a civil proceeding."
Id.
at 465.
Therefore
the ALJ did not err in denying Berry’s motion and we affirm.
Accordingly, the September
4, 2015 Amended Opinion and Order on Remand, and the October 21, 2015 Opinion
and Order on Reconsideration issued by Hon. William J. Rudloff,
Administrative Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON ANDI BRENT CAMDEN
455 SOUTH 4TH ST, STE 1500
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON WAYNE C DAUB
600 WEST MAIN ST, STE 300
LOUISVILLE, KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON DOUGLAS W GOTT
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601