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Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: October 30, 2015
CLAIM NO. 201286379
PRECISION MECHANICAL, INC. PETITIONER
VS. APPEAL FROM HON. CHRIS DAVIS
ADMINISTRATIVE LAW JUDGE
BRADLEY RIDDELL
HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Precision Mechanical, Inc. (“Precision”)
appeals from the May 27, 2015 Opinion, Award and Order on Remand and the June
22, 2015 Order on Reconsideration rendered by Hon. Chris Davis, Administrative
Law Judge (“ALJ”). In a prior award
dated November 24, 2014, the ALJ awarded Bradley Riddell (“Riddell”) permanent
partial disability (“PPD”) benefits enhanced by the three multiplier, temporary
total disability benefits, and medical benefits for a work-related shoulder
injury. Precision appealed the award to
this Board, and we remanded the claim to the ALJ for additional findings of
fact concerning the application of the three multiplier. On remand, the ALJ again enhanced the award
of PPD award by the three multiplier. Precision now appeals, arguing the ALJ failed
to conduct the analysis required by Fawbush v. Gwinn, 103 S.W.3d 5 (Ky.
2003) and Adkins v. Pike County Bd. of Educ., 141 S.W.3d 387 (Ky. App.
2004). For the reasons set forth herein,
we affirm.
Riddell worked as a
boiler tech and pipe fitter for Precision.
He injured his right shoulder on May 4, 2012 when a pipe fell on his
shoulder. He underwent an arthroscopy
for a right shoulder labral tear. He
underwent a course of physical therapy following surgery, but never fully
recovered. He eventually underwent a
repeat operative procedure with a right shoulder arthroscopy with biceps
tenodesis and rotator cuff repair. His
treating physician, Dr. Greg Grau assigned a permanent impairment rating of 6%
pursuant to the American Medical Association, Guides to the Evaluation of
Permanent Impairment, 5th Edition (“AMA Guides”). Dr. Grau also assigned permanent restrictions
against lifting over ten pounds, pushing and pulling more than five pounds, and
overhead use of his right arm.
Riddell testified he is no longer able to perform his work as a
pipe fitter or boiler tech because of his physical restrictions. However, Precision had accommodated his
circumstances and he continues to earn the same wages. Currently, he works in the “tool cage” as an
attendant and occasionally drives a delivery truck. Additionally, he is used as an “answer man”
or “consultant” for the supervisors.
Riddell testified he
plans to continue working at Precision as long as they are able to accommodate
his restrictions. Brandon Winkle, a
facility manager at Precision, testified the tool cage attendant position
requires lifting 15 to 20 pounds, but not overhead lifting. He also testified Precision plans to
accommodate Riddell’s restrictions indefinitely, and that the position of tool
cage attendant is a permanent position.
In the November 24,
2014 Opinion, the ALJ adopted Dr. Grau’s 6% impairment rating, and that finding
was not appealed. Thus, in the Opinion,
Award and Order on Remand, the ALJ revisited only the issue of enhanced PPD
benefits. He explained:
As
of the most recent evidence available the Plaintiff continued to earn wages
equal to or greater than on the date of injury.
As such no enhancement to his award pursuant to KRS 342.730(1)(c)2 can be made. At
most any entitlement to such an enhancement would be the appropriate subject of
a Motion to Re-Open.
Pursuant to the original Opinion, the
Plaintiff’s testimony regarding his original job duties, including the need to
lift more than ten pounds, and the restrictions assigned by Dr. Grau, i.e. not
to lift more than ten pounds, the Plaintiff lacks the capacity to return to the
type of work done on the date of injury.
This has not really been contested by the Defendant, and by that I mean
the actual employer and the Plaintiff’s supervisors. The Plaintiff has been placed into a light
duty position.
The real question is whether he can
continue to perform the duties of the tool crib attendant for the foreseeable
future. The Defendant argues that the
employer has always accommodated the Plaintiff and there is no reason to
suspect that simply when this claim is over they will not still accommodate
him. They also argue that in addition to
being the tool crib attendant that the Plaintiff is the local “answer man.”
I am unpersuaded by the “answer
man” argument and in fact find that this clearly does not constitute a
full time job and it is highly unlikely that the Defendant will continue to pay
the Plaintiff the same or greater wages for answering the stray question.
As for the tool crib attendant job it is
true that to date the employer has accommodated the Plaintiff. It is also true that the Plaintiff does not
have to take narcotics to do it.
It is true however that the Plaintiff does
this work out of necessity and a sense of dignity. My prior comments that he would continue to
do this work even in great pain were intended to reflect my findings that he
does this work under physical duress and in pain. An injured workers’ right to benefits should
not depend on being either a pill-fiend or a constant complainer.
I also note that the job description for
the tool crib attendant requires that the Plaintiff lift over ten pounds, it
requires he lift as least twenty pounds.
As such the job, as it is designed and without modifications, is beyond
his restrictions and it is reasonable to find, as I do, that he will not be
able to continue to do it for the foreseeable future.
Just as light duty and performing a
different job than on the date of injury cannot form the basis for denying TTD,
Bowerman v. Black Equipment, 297
S.W.3d 858 (Ky. App. 2009), nor should a modified job, with no guarantee of
continuation be a bar to applying KRS 342.730(1)(c)1. The employer’s future forbearance in this
matter is no more certain and just as speculative as whether or not the
Plaintiff will continue to earn these wages.
Actually it is more speculative.
The Plaintiff relies entirely on the good graces of the employer, who
has all the power of choices and timing herein.
Precision filed a
petition for reconsideration, which was summarily denied. Precision now appeals, arguing the ALJ did not
fully consider Riddell’s future earning capacity when considering the
enhancement of PPD benefits. It requests
the matter be remanded to the ALJ for further findings of fact.
In awarding PPD
benefits, KRS 342.730(1)(c)1 and 2 require the ALJ to determine whether a
claimant is able to return to the type of work performed at the time of injury,
and whether the claimant has returned to work at a wage equal to or greater
than his pre-injury wage. Here, the ALJ
concluded Riddell is physically unable to return to his work as a boiler tech
or pipe fitter. He also determined
Riddell has returned to work at an average weekly wage equal to his pre-injury
wages. On appeal, Precision does not
dispute either of these findings.
As the ALJ and
Precision correctly note, when both KRS 342.730(1)(c)1
and 2 apply, the ALJ is required to determine which provision “is more
appropriate on the facts.” Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206,
211 (Ky. 2003). As a part of this analysis, the ALJ must determine
whether "a worker is unlikely to be able to
continue earning a wage that equals or exceeds the wage at the time of injury
for the indefinite future." Fawbush, 103 S.W.3d
at 12. In
other words, is the injured worker faced with a "permanent alteration in
the … ability to earn money due to his injury." Id. If the
ALJ determines the worker is unlikely to continue earning a wage that equals or
exceeds his or her wage at the time of the injury, the three multiplier under
KRS 342.730(1)(c)1 applies.
The Fawbush Court articulated
several factors an ALJ can consider when determining whether an injured
employee is likely to be able to continue earning the same or greater wage for the indefinite future. These factors
include the claimant's lack of physical capacity to return to the type of work
that he or she performed, whether the post-injury work is done out of
necessity, whether the post-injury work is done outside of medical
restrictions, and if the post-injury work is possible only when the injured
worker takes more narcotic pain medication than prescribed. Id. The
Court in Adkins v. Pike County Bd. of Educ., directed a determination of whether
an injured employee is able to continue in his or her current job constitutes
an insufficient analysis. The Court
stated:
Thus, in
determining whether a claimant can continue to earn an equal or greater wage,
the ALJ must consider a broad range of factors, only one of which is the
ability to perform the current job.
Id. at 390.
Under the circumstances of this claim, the ALJ’s analysis was
sufficient. The ALJ determined Riddell’s
physical restrictions prohibit a return to work as a boiler tech or pipe
fitter, and Precision has not challenged that finding. The ALJ also considered the testimony of
Brandon Winkle, who explained Riddell’s current position in the tool cage
exceeds his physical restrictions due to occasional lifting between 15 and 20
pounds. For this reason, Riddell
requires assistance at times.
Additionally, the ALJ acknowledged Riddell works without medication,
though he is in pain, and is an extremely dedicated and diligent employee.
Thus, the ALJ
considered several of the factors enunciated in Fawbush. We note the Fawbush Court listed these
factors as examples of the circumstances which the ALJ “may” consider; it is
not an exhaustive list of factors which the ALJ must consider. The crux of the inquiry is whether the injury
has permanently altered Riddell’s ability to earn an income. Adkins, 141 S.W.3d
at 390.
Here, there was no dispute Riddell is unable to ever return to work as
a pipe fitter or boiler room tech, his chosen profession. He will be confined to light duty jobs with
any future employer. The ALJ
additionally acknowledged Precision has accommodated Riddell’s restrictions
thus far, but explained his doubt this arrangement could continue
indefinitely. When considered in light
of the totality of the circumstances of this claim, we conclude the ALJ has
articulated sufficient rationale for the conclusion Riddell’s permanent ability
to earn an income has been altered. Kentland
Elkhorn Coal Corp. v. Yates, 743 S.W.2d 47 (Ky. App. 1988)(parties
are entitled to findings sufficient to inform them of the basis for the ALJ’s
decision to allow for meaningful review).
For the foregoing reasons, the May 27, 2015 Opinion, Award and Order
on Remand and the June 22, 2015 Order on Reconsideration rendered by Hon. Chris
Davis, Administrative Law Judge, are hereby AFFIRMED.
ALVEY, CHAIRMAN, CONCURS.
STIVERS, MEMBER, DISSENTS WITHOUT SEPARATE
OPINION.
COUNSEL
FOR PETITIONER:
HON. GUILLERMO CARLOS
444 W SECOND ST
LEXINGTON, KY 4507
COUNSEL
FOR RESPONDENT:
HON. MCKINNLEY MORGAN
921 S MAIN ST
LONDON, KY 40741
ADMINISTRATIVE
LAW JUDGE:
HON. CHRIS DAVIS
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
