Workers’
Compensation Board
OPINION
ENTERED: October 10, 2014
CLAIM NO. 201197197
SEKISUI S-LEC, LLC PETITIONER
VS. APPEAL FROM HON. JEANIE
OWEN MILLER,
ADMINISTRATIVE LAW JUDGE
ALLIE FRANCES BENTON (now GOODWIN)
HON. JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART,
VACATING
IN PART, AND REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Sekisui
S-LEC, LLC (“Sekisui”) seeks review of the opinion, order, and award rendered June
20, 2014, by Hon. Jeanie Owen Miller, Administrative Law Judge (“ALJ”). The ALJ found Allie Frances Benton (now
Goodwin)[1] (“Goodwin”)
permanently totally disabled due to work-related injuries to her left hand,
left upper extremity, and post-traumatic stress disorder (“PTSD”) caused by a
traumatic accident occurring on January 12, 2011 when her left hand was crushed
in a machine while working for Sekisui.
The ALJ awarded
permanent total disability (“PTD”) benefits and medical benefits. The ALJ also referred Goodwin for a vocational
rehabilitation evaluation, and further ordered as follows:
Upon
receipt of the vocational evaluation report, the employee and employer or
insurance carrier shall cooperate in the implementation of services designed to
restore the employee to suitable employment.
Upon the commencement of the Plaintiff’s active participation in this ordered
vocational rehabilitation program, she shall be entitle [sic] to 80% of her
average weekly wage, that being $655.84 (six hundred fifty five dollars and
eighty four cents).
The ALJ also awarded a thirty percent enhancement of income benefits
pursuant to KRS 342.165(1) due to Sekisui’s violation of a safety
regulation. The ALJ found Goodwin did
not violate a safety rule, and therefore her benefits were not reduced pursuant
to KRS 342.165(1). No petition for
reconsideration was filed.
On appeal, Sekisui argues the award of PTD benefits should
be reversed because the totality of the evidence demonstrates Goodwin is not
permanently totally disabled. Sekisui
also argues the evidence does not support the ALJ’s determination the accident
occurred due to its failure to comply with applicable safety regulations. Finally, Sekisui argues the evidence
compelled a finding Goodwin’s injuries were caused by her own intentional
violation of a safety rule. On these
issues, we disagree and affirm. Although
we find no error in the ALJ’s referral for a vocational rehabilitation
evaluation, she erred in presumptively ordering the implementation of any
vocational training recommended without review pursuant to KRS 342.710(3). Therefore, we vacate in part and remand for a
further determination of feasibility or implementation of vocational
rehabilitation benefits upon review of any applicable recommendations.
Goodwin filed a Form
101 on October 28, 2013 alleging she dismembered her left fingers and most of
her left thumb in a de-gloving accident which occurred on January 12, 2011
while working for Sekisui. She also
claimed she injured her left hand, wrist, elbow, forearm, upper arm and
shoulder in the accident, and subsequently developed PTSD, depression and anxiety. Goodwin testified by deposition on January
29, 2014 and at the hearing held April 25, 2014.
Goodwin is a high
school graduate with no specialized vocational training. Her work history consists of employment as a
production worker, child care-giver, electronic sales manager, technician
supervisor, and co-owner of a customized sign shop. Goodwin began working as a temporary employee
at Sekisui in December 2007. After she was
there three months, she was hired on a permanent basis. She stated Sekisui manufactures a film which
goes between two pieces of glass for windshields and windows.
On January 12, 2011,
Goodwin was training a new employee on a machine. She stated she had never actually performed
the job, and had seen it done only one time.
A piece of film had fallen, and as she attempted to re-thread it through
the rollers, her glove got caught causing her left upper extremity to be pulled
into the machine to a point above her elbow.
Her supervisor and a co-worker moved her arm backward through the
rollers to release her from the machine.
She stated when she saw her left upper extremity it appeared to be
“mauled”. She stated the company should
have provided more training, and should have insured proper guards were in
place.
Subsequent to the
accident, Goodwin was treated at the University of Kentucky Medical Center
(“UKMC”) with Dr. James Liau, a plastic surgeon. She received inpatient care at the UKMC for
over two weeks. She then had
rehabilitative care at Cardinal Hill Hospital.
Sekisui eventually referred Goodwin for evaluation by Dr. Michael Best
who stated she had not reached maximum medical improvement (“MMI”) and referred
her to Dr. Joseph Kutz, a hand surgeon in Louisville. She was advised she may be a candidate for a
left hand transplant, but was later told she was not placed on the recipient
list due to her PTSD. She was told if
her PTSD improved, she may be a candidate for the procedure. She is unable to use her prosthesis because
it causes tears in her skin.
In addition to
treatment for her physical injuries, Goodwin has treated with Dr. Harry Cecil,
Ph.D. for her PTSD. Dr. Cecil provides
counseling, and has helped her cope with this condition. She stated the counseling from Dr. Cecil has
been beneficial, and she would like to continue treating with him.
Goodwin testified she
is unable to perform any of her past jobs due to her injuries. She stated Sekisui offered her one-handed
work, which she declined. She was
terminated from her employment in February 2013. She has not worked since the date of the
accident, nor has she made any attempt to return to work. She stated she is currently unable to pursue
education or re-training due to her PTSD.
If she is able to get this condition under control, she stated she may
be willing to pursue vocational retraining.
She stated she has some interest in operating her own business.
Goodwin filed the
September 24, 2013 report of Dr. Kutz with her Form 101. Dr. Kutz stated she has a 55% impairment
rating pursuant to the American Medical Association, Guides
to the Evaluation of Permanent Impairment, 5th Edition (“AMA Guides”). She additionally filed the April 24, 2012
report of Dr. Cecil who stated it is difficult for Goodwin to function due to
her PTSD, chronic pain and amputation.
He recommended additional counseling.
Goodwin filed the
report of Dr. Best who evaluated her on February 26, 2013 at Sekisui’s
request. Dr. Best noted the history of
injury and subsequent treatment which included debridement of the left arm and
hand, K-wire fixation of small fingers and thumb, and VAC replacement. He diagnosed amputation and disarticulation
of digits one through four; amputation and disarticulation of the left thumb;
crush of the left upper limb; crush injury of the axillary region; crush injury
of the left upper arm and crush injury of the left elbow and forearm. Dr. Best stated, “She is a very complicated
and complex care and management issue.”
Regarding MMI, Dr. Best stated, “Therefore, before this patient is
placed at MMI or additional recommendations made, a complete and thorough
consultation by the hand transplant team at Kleinert, Kutz and Associates Hand
Care Center must be performed.”
Goodwin next filed
additional treatment records with Dr. Cecil from June 2, 2011 through January
30, 2014. During that time, Dr. Cecil
saw Goodwin on sixty occasions for counseling for treatment of her PTSD, and
sleep difficulty. He stated these
discussions were necessary to assist in keeping her functional.
Goodwin submitted the
report of Dr. E. Paul Evensen, Ph.D., a psychologist who evaluated her on March
14, 2014. Dr. Evensen diagnosed her with
major depression, moderate with anxiety; PTSD, in partial remission; and a GAF
of 45. He assessed a 30% impairment
rating for these conditions pursuant to the 2nd and 5th Editions
of the AMA Guides. Dr. Evensen
opined Goodwin is incapable of work due to fluctuations in her mood due to her
depression.
Goodwin next filed
records from the Kentucky Labor Cabinet, Occupational Safety and Health Program. This filing was objected to by Sekisui. The ALJ permitted the filing of the records
pursuant to 803 KAR 25:010 §14(2) which allows the filing of public records. Those records reveal Sekisui received a
citation for a serious violation of 29 CFR 1910.212(a)(1) due to Goodwin’s
accident. That specific regulation
states as follows:
Types
of guarding. One or more methods of
machine guarding shall be provided to protect the operator and other employees
in the machine area from hazards such as those created by point of operation,
ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are-barrier
guards, two-hand tripping devices, electronic safety devices, etc.
The citation further stated:
On
or before January 12, 20111, an employee of Sekisui S-LEI America was severely
injured when her arm was trapped in the in-going nip point between unguarded
roller #3 and #4 on the emboss machine in the production line of the film
forming room.
The documentation further notes:
Management
officials stated they were aware the rollers were unguarded. Management stated they had a work rule and
procedures that prohibit employees from attempting to re-thread the film should
it come loose. This illustrates that
management had knowledge that the rollers were a hazard. Unfortunately these procedures did not
adequately protect employees.
Sekisui was initially fined seven thousand dollars, which was later
reduced to five thousand dollars.
Sekisui filed the
report of Dr. Thomas Gabriel, a hand surgeon, who evaluated Goodwin on March 5,
2014. Dr. Gabriel diagnosed a severe
de-gloving/crush injury to the left arm; transmetacarpal amputation of the left
hand; chronic limb pain with poor skin coverage; and status post traumatic
transmetacarpal amputation of the left upper extremity. Dr. Gabriel stated Goodwin had not reached
MMI, but he assessed a 55% impairment rating pursuant to the AMA Guides. He stated she could return to one-handed duty
only.
Sekisui filed the
report of Dr. Timothy J. Allen, a psychiatrist who evaluated Goodwin on
February 26, 2014. Dr. Allen stated she
had reached MMI, and diagnosed her with PTSD, chronic, in partial remission. He stated she can drive and perform
activities of daily living. He stated
she should continue using Cymbalta for the foreseeable future, and her PTSD had
improved.
Christopher Neal
Sellers (“Sellers”), assistant production director at Sekisui, testified at the
hearing held April 25, 2014. He stated
Sekisui produces an interlayer film for automotive windshields. According to Sellers, the Sekisui safety
policy is to stop machines if there is a problem. Safety briefings are held daily at shift
changes. He stated Goodwin assisted in
preparing instructions for operation of some equipment, and noted the
documentation instructs caution around moving conveyor belts. He admitted Sekisui received a serious
citation due to Goodwin’s accident, but there was no indication it was for
intentional conduct. He stated it was
improper for Goodwin to attempt to rethread the machine, and he is unaware of
any other attempts to manually do so. He
agreed the citation received was for lack of guarding. He was unaware of any documentation
indicating Goodwin had received any education for the proper procedure for the
machine upon which she was injured.
On appeal, Sekisui
argues the ALJ’s award of PTD benefits is not supported by the evidence, and
the award of vocational rehabilitation benefits is inconsistent with her
determination. We disagree. As the claimant in a workers’ compensation
proceeding, Goodwin had the burden of proving each of the essential elements of
her cause of action. See KRS 342.0011(1); Snawder v. Stice,
576 S.W.2d 276 (Ky. App. 1979). Since Goodwin
was successful in his burden, the question on appeal is whether substantial
evidence existed in the record supporting the ALJ’s decision. Wolf Creek Collieries v. Crum, 673
S.W.2d 735 (Ky. App. 1984). “Substantial
evidence” is defined as evidence of relevant consequence
having the fitness to induce conviction in the minds of reasonable
persons. Smyzer v. B. F. Goodrich
Chemical Co., 474 S.W.2d 367 (Ky. 1971).
As
fact-finder, the ALJ has the sole authority to determine the weight,
credibility and substance of the evidence.
Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ
has the discretion to determine all reasonable inferences to be drawn from the
evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329
(Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky.
1979). 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 adversary party’s total
proof. Magic Coal Co. v. Fox, 19
S.W.3d 88 (Ky. 2000). Although a party
may note evidence supporting a different outcome than that reached by an ALJ,
such proof is not an adequate basis to reverse on appeal. McCloud
v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).
The function of the Board in reviewing
an ALJ’s decision is limited to determining whether the findings made are so
unreasonable under the evidence they must be reversed as a matter of law. Ira A. Watson Department Store v. Hamilton,
supra. The Board, as an appellate
tribunal, may not usurp the ALJ's role as fact-finder by superimposing its own
appraisals as to weight and credibility or by noting other conclusions or
reasonable inferences that otherwise could have been drawn from the
evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). So
long as the ALJ’s ruling with regard to an issue is supported by substantial
evidence, it may not be disturbed on appeal. Special Fund v. Francis,
708 S.W.2d 641, 643 (Ky. 1986).
Here, the evidence
relied upon by the ALJ supports the award of PTD benefits. In her opinion, the ALJ specifically noted
Goodwin’s complaints of pain, the fact she sustained a significant injury, and
continues to experience PTSD. The ALJ
noted based upon both the medical evidence and Goodwin’s testimony, she is incapable
of returning to her previous employment or any full time work. The ALJ’s decision is supported by
substantial evidence, and she provided a basis for her determination. Therefore, the award of PTD benefits will not
be disturbed.
Regarding the referral
for a vocational evaluation, again the ALJ’s decision will not be
disturbed. KRS 342.710, in relevant
part, states as follows:
(1) One of the primary purposes of this chapter shall
be restoration of the injured employee to gainful employment, and preference
shall be given to returning the employee to employment with the same employer
or to the same or similar employment.
…
(3)
An employee who has suffered an injury covered by this chapter shall be
entitled to prompt medical rehabilitation services for whatever period of time
is necessary to accomplish physical rehabilitation goals which are feasible,
practical, and justifiable. When as a result of the injury he or she is unable
to perform work for which he or she has previous training or experience, he or
she shall be entitled to such vocational rehabilitation services, including
retraining and job placement, as may be reasonably necessary to restore him or
her to suitable employment. In all such instances, the administrative law judge
shall inquire whether such services have been voluntarily offered and accepted.
The administrative law judge on his or her own motion, or upon application of
any party or carrier, after affording the parties an opportunity to be heard,
may refer the employee to a qualified physician or facility for evaluation of
the practicability of, need for, and kind of service, treatment, or training
necessary and appropriate to render him or her fit for a remunerative occupation.
Here
the ALJ determined Goodwin could not return to her previous employment. Therefore, we find no error, pursuant to the
statute outlined above in referring her for a vocational evaluation, despite
the award of PTD benefits. If Goodwin at
some point in time is able to return to employment, Sekisui’s remedy lies in
KRS 342.125. We find no error in the
ALJ’s referral for an evaluation pursuant to KRS 342.710(3). However, the ALJ erred by prematurely
ordering implementation of the rehabilitation plan.
Vocational rehabilitation, as provided
in KRS 342.710(3), is a two-step process.
The first step is ordering a referral for a vocational evaluation, as
has been done. The second step is to
review the report and determine whether the recommended rehabilitation is
reasonable and feasible. Specifically, the
statute states:
Upon
receipt of such report, the administrative law judge
may order that the services and treatment recommended in the report, or such
other rehabilitation treatment or service likely to return the employee to
suitable, gainful employment, be provided at the expense of the employer or his
insurance carrier. (emphasis added)
Here, the ALJ
presumptively ordered initiation of the plan prior to its receipt which is
impermissible. Therefore, that portion
of the ALJ’s determination regarding implementation of a vocational
rehabilitation plan is vacated, and this claim is remanded for further
determination once the report has been received.
Finally, Sekisui argues
the ALJ erred in enhancing Goodwin’s benefits by thirty percent pursuant to KRS
342.165, and in failing to reduce the award by fifteen percent.
KRS
342.165(1) states as follows:
If an accident is caused in any degree by the intentional failure
of the employer to comply with any specific statute or lawful administrative
regulation made thereunder, communicated to the employer and relative to
installation or maintenance of safety appliances or methods, the compensation
for which the employer would otherwise have been liable under this chapter
shall be increased thirty percent (30%) in the amount of each payment. If an
accident is caused in any degree by the intentional failure of the employee to
use any safety appliance furnished by the employer or to obey any lawful and
reasonable order or administrative regulation of the executive director or the
employer for the safety of employees or the public, the compensation for which
the employer would otherwise have been liable under this chapter, shall be
decreased by fifteen percent (15%) in the amount of each payment.
The purpose of KRS
342.165 is to reduce the frequency of industrial accidents by penalizing those
who intentionally fail to comply with known safety regulations. Apex Mining
v. Blankenship, 918 S.W.2d 225 (Ky. 1996). The burden is on the claimant to
demonstrate an employer’s intentional violation of a safety statute or
regulation. Cabinet for Workforce Development v. Cummins, 950 S.W.2d 834
(Ky. 1997).
The application of the
safety penalty requires proof of two elements. Apex Mining v. Blankenship,
supra. First, the record must contain evidence of the existence of a
violation of a specific safety provision, whether state or federal. Second,
evidence of “intent” to violate a specific safety provision must also be
present. Enhanced benefits do not automatically flow from a showing of a
violation of a specific safety regulation followed by a compensable injury. Burton
v. Foster Wheeler Corp., 72 S.W.3d 925 (Ky. 2002). The worker also has the
burden to demonstrate the employer intentionally failed to comply with a
specific statute or lawful regulation. Intent to violate a regulation, however,
can be inferred from an employer’s failure to comply because employers are
presumed to know what state and federal regulations require. Chaney v. Dags
Branch Coal Co., 244 S.W.3d 95, 101 (Ky. 2008).
In this instance, the
ALJ reviewed the applicable evidence, including the citation received by
Sekisui for a serious violation. The ALJ
reasoned Sekisui’s violation of 29 CFR 1910.212(1)(a) contributed to Goodwin’s injuries.
This determination is supported by the citation, and Goodwin’s testimony
regarding both the lack of guarding and inadequate training. The ALJ’s determination regarding assessment
of the thirty percent safety penalty is supported by substantial evidence.
We likewise determine the ALJ did not err in refusing to assess a
fifteen percent reduction in Goodwin’s award for her failure to follow a safety
rule pursuant to KRS 342.165. Sekisui
bore the burden of proving Goodwin’s failure to comply, and a contrary result
is not compelled. “Compelling
evidence” is defined as that which is so overwhelming no reasonable person
could reach the same conclusion as the ALJ. REO
Mechanical v. Barnes, 691 S.W.2d 224 (Ky.
App. 1985). Mere evidence
contrary to the ALJ’s decision is not adequate to require reversal on appeal. In order to reverse the decision of the ALJ, it must be
shown there was no substantial evidence of probative value to support his
decision. Special Fund v. Francis, supra. Here, the ALJ relied, in part, upon Goodwin’s
testimony she received limited or inadequate training of the machine she was
operating at the time of injury. Again,
this supports the ALJ’s determination and a contrary result is not compelled.
Accordingly, the decision rendered June 20, 2014 by Hon. Jeanie
Owen Miller, Administrative Law Judge, is AFFIRMED
IN PART, VACATED IN PART, and REMANDED
for entry of a decision in conformity with the
views expressed herein.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON PATRICK J MURPHY II
3151 BEAUMONT CENTRE CIRCLE, STE 200
LEXINGTON, KY 40513
COUNSEL
FOR RESPONDENT:
HON MICHAEL F EUBANKS
225 WEST IRVING STREET
RICHMOND, KY 40476
ADMINISTRATIVE
LAW JUDGE:
HON JEANIE OWEN MILLER
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
[1] At the time of the accident, Respondent’s
last name was Benton. She subsequently
divorced her husband and changed her name to Goodwin.