Penny Berry v. Cedar Lake Park Place ( 2015 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: JUNE 11, 2015
NOT TO BE PUBLISHED
Souintrut Court of Tcfiiiir art
2014-SC-00476-WC
ll EA_
PENNY BERRY
DA" E l t
APPELLANT
Qrvimu ■-•,--e.c' •
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2013-CA-002093-WC
WORKERS' COMPENSATION NO. 12-83372
CEDAR LAKE PARK PLACE;
HONORABLE WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Penny Berry, argues in this appeal that the Workers'
Compensation Board ("Board") erred by reversing the portion of the
Administrative Law Judge's ("ALJ") opinion, order, and award which applied
the three multiplier to her permanent partial disability ("PPD") benefits
pursuant to KRS 342.730(1)(c)1. Alternatively, Berry argues the Board should
have remanded her claim for a determination of whether the two multiplier was
appropriate to apply pursuant to KRS 342.730(1)(c)2. For the below stated
reasons, we affirm.
Berry began working as a registered nurse for Cedar Lake Park Place in
September 2010. 1 During the course of her employment there, Berry developed
breathing and lung problems. She sought medical treatment and was
diagnosed with work-related asthma attributable to mold which was found at
Cedar Lake's facility. Berry took a four month break from working at Cedar
Lake. She attempted to return to work there, but Berry's symptoms worsened
and she was forced to quit. Her last day of employment at Cedar Lake was
October 26, 2012. Berry filed a claim for workers' compensation based on
pulmonary symptoms associated with sick building syndrome.
Dr. Rodrigo Cavallazzi was named university evaluator for Berry's claim.
He performed a physical examination on Berry and diagnosed her with work-
related asthma. Dr. Cavallazzi linked the asthma to the mold located in Cedar
Lake's facility. Using the AMA Guides, Dr. Cavallazzi assigned Berry a whole
body impairment rating of 10-25%. He also found Berry retained the physical
capacity to return to employment as a nurse as long as she avoided buildings
with mold infiltration and other allergens. Consistent with Dr. Cavallazzi's
opinion, Berry testified that she believed she retained the capacity to work as a
nurse.
Cedar Lake filed the report of Dr. Bruce Broudy. He found Berry had
normal lung function and assigned her an impairment rating of 0% under the
AMA Guides.
1 Berry also maintained concurrent employment as an administrative assistant with a
different employer.
2
After a review of the evidence, the ALJ issued an opinion, order, and
award granting Berry temporary total disability ("TTD") benefits and PPD
benefits. The ALJ performed a Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003)
analysis. A Fawbush analysis determines which one of the multipliers in KRS
342.730(1)(c) should be applied to a claimant's award when the record
indicates that either of the multipliers is potentially applicable. Id. at 12. The
AL I found:
I have just read the Opinion of the Workers' Compensation
Board in Claim No. 2011-01390, Tamara Daniel, Petitioner vs. Ford
Motor Company and Hon. Grant S. Roark, Administrative Law
Judge, Respondents, which [sic] Opinion is dated June 6, 2013.
The Opinion was written by Chairman Alvey. The Opinion notes
that the Fawbush analysis requires that first the Judge must
determine, based on substantial evidence, that the plaintiff cannot
return- to the type of work performed at the time of the injury in
accordance with KRS 342.730(1)(c)1; second, that the plaintiff has
returned to work at an average weekly wage equal to or greater
than his pre-injury average weekly wage in accordance with KRS
342.730(1)(c)2; and third, whether the plaintiff can continue to
earn that level of wages into the indefinite future. .. .
Based upon the plaintiff's sworn testimony in the case at
bar, which I found to be very persuasive and convincing, and the
persuasive medical report from Dr. Cavallazzi, the university
evaluator, which I found to be credible and convincing and which
is entitled to presumptive weight . . . I make the factual
determination that the plaintiff 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. In addition, I make
the factual determination that the plaintiff has not returned to
work as a nurse earning the same or greater average weekly wage
than she earned at the time of occupational disease and injury per
KRS 342.730(1)(c)2. I also have to make the determination
whether the plaintiff is likely or unlikely to be able to continue
earning the wage that equals or exceeds the wage at the time of her
occupational disease or injury for the indefinite future. Based
upon the plaintiff's sworn testimony and the persuasive medical
report from Dr. Cavallazzi, I make the further factual
determination that under the decision of the Court of Appeals of
3
Kentucky in Adkins v. Pike County Board of Education, 141 S.W.3d
387 (Ky. App. 2004), the Fawbush analysis includes a broad range
of factors, only one of which is the plaintiff's ability to perform her
current job. Under the Adkins case the standard for the decision
is whether the plaintiffs occupational disease or injuries have
permanently altered her ability to earn an income and whether the
application of KRS 342.730(1)(c)1 is appropriate. I make the
factual determination under the plaintiff's testimony and the
medical report from Dr. Cavallazzi that it is unlikely that the
plaintiff will be able to continue for the indefinite future to do work
from which to earn such a wage. Based upon all of the above-cited
evidence, I make the factual determination that the third prong of
the Fawbush analysis applies here and that the plaintiffs injuries
and occupational disease have permanently altered her ability to
earn an income and that she is unlikely to be able to continue for
the indefinite future to do work from which to earn such a wage. I,
therefore, make the factual determination that the third prong of
the Fawbush analysis applies here and that under that application
the plaintiff is entitled to the 3 multiplier.
Berry and Cedar Lake filed petitions for reconsideration. Berry's petition
, t request review of the ALJ's finding that she had not returned to work at
!rage weekly wage equal to or greater than her pre-injury average weekly
But, her petition did make the following specific request:
The [ALJ's] Opinion may contain a typographical error. At page 10,
the [ALJ] found that the Plaintiff 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.' Counsel believes
that this is a typographical error and the [AU] meant that the
Plaintiff 'cannot' return to the type of work which she performed at
the time. The ALJ relied on Dr. Cavallazzi who felt that she could
return to the type of work that she performed at the time of her
occupational disease and injury unless it involved exposure to
mold. The Claimant's employment with the Defendant/employer
did involve exposure to mold and in fact that was the reason she
developed the work-related asthma. Accordingly, this affiant would
ask that the Award be amended at page 10 to change the word
``can' to 'cannot' to correct this typographical error.
4
The ALJ denied this request as well as the petitions for reconsideration. Cedar
Lake appealed to the Board.
The Board affirmed in part and reversed in part the ALJ's opinion, order,
and award. The Board affirmed the portion of the award which held that Berry
was entitled to certain TTD benefits. However, the Board reversed the portion
of the award granting Berry PPD benefits enhanced by the three multiplier.
The Board found application of the three multiplier was erroneous and that a
Fawbush analysis was unnecessary because the ALJ made findings indicating
neither of the multipliers was applicable. The ALJ found that Berry could
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" and that she "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 Board remanded the matter to the ALJ to enter
an award without application of the multipliers. The Court of Appeals affirmed
and this appeal followed.
The Board's review in this matter was limited to determining whether tl .)ie
evidence is sufficient to support the ALJ's findings, or if the evidence compels a
different result. Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687 (Ky.
1992). Further, the function of the Court of Appeals is to "correct the Board
only where the Court perceives the Board has overlooked or misconstrued
controlling statutes or precedent, or committed an error in assessing the
evidence so flagrant as to cause gross injustice." Id. at 687-88. Finally, review
5
by this Court "is to address new or novel questions of statutory construction,
or to reconsider precedent when such appears necessary, or to review a
question of constitutional magnitude." Keeping these standards in mind, we
affirm the Court of Appeals.
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 occupational 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
AI,J 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
6
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 of the ALJ's opinion, order; and award.
Berry alternatively argues that the 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.
For the reasons set forth above, we affirm the decision of the Court of
Appeals.
All sitting. All concur.
COUNSEL FOR APPELLANT,
PENNY BERRY:
Wayne C. Daub
COUNSEL FOR APPELLEE,
CEDAR LAKE PARK PLACE:
Andie Brent Camden
7