Opinion
NO. 2012-CA-000398-WC
07-19-2013
STELLA KAVANAUGH APPELLANT v. JEFFERSON COUNTY BOARD OF EDUCATION; HON. JOHN B. COLEMAN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Wayne C. Daub Louisville, Kentucky BRIEF FOR APPELLEE: Timothy P. O'Mara Louisville, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-06-01390
OPINION
AFFIRMING
BEFORE: CLAYTON, MAZE, AND TAYLOR, JUDGES. TAYLOR, JUDGE: This workers' compensation appeal involves a case in which an Administrative Law Judge (ALJ) ordered Stella Kavanaugh's employer, the Jefferson County Public Schools (JCPS), to pay her a double income benefit under Kentucky Revised Statutes (KRS) 342.730(1)(c)2. The Workers' Compensation Board (Board) reversed this decision after concluding that the reason for Kavanaugh's cessation of her employment as a preferred substitute teacher was unrelated to the disabling injury for which she sought double benefits. Kavanaugh now challenges this reversal. Kavanaugh also argues that both the ALJ and the Board erred in determining that she was not entitled to a triple income benefit under KRS 342.730(1)(c)1. For reasons that follow, we affirm the decision of the Board as to both issues.
Pre-claim Background
Kavanaugh had been working as a preferred substitute teacher for JCPS for seven years when she injured her left elbow on November 2, 2005. Kavanaugh also suffered injuries to her back, legs, right elbow, hip, and left thigh. The injuries occurred when a student or students ran into Kavanaugh and caused her to fall while she was standing near a gymnasium preparing students for dismissal. Kavanaugh sought treatment at a local emergency room and was released to work with restrictions, but she continued to experience pain in her left elbow, shoulder, and back.
Although many of her complaints were resolved through physical therapy, Kavanaugh continued to experience significant pain in her left elbow. She was subsequently diagnosed with lateral epicondylitis and treated conservatively with anti-inflammatory medications and localized injections. When those treatments failed to provide consistent relief, Kavanaugh underwent surgery on the elbow on September 1, 2006. However, after surgery, she continued to have pain in the elbow that radiated down her left arm and affected her daily activities. Kavanaugh filed a workers' compensation claim against JCPS on October 24, 2006.
Post-claim Background
After a period of modified duty, Kavanaugh was released to return to regular duty work in January 2007. On February 1, 2007, Kavanaugh's orthopedic surgeon assessed a 5 percent whole-body impairment rating under the AMA Guides due to weakness of the left upper extremity secondary to the work injury and subsequent surgery. Kavanaugh continued to experience problems with the elbow and received localized injections on multiple occasions to relieve her pain.
While her claim was pending, Kavanaugh left her job as a preferred substitute teacher and obtained a full-time job as a school clerk for the JCPS in October 2007. Her job duties included data entry, answering the phone, and performing other clerical duties. The reason for Kavanaugh's career change is the ultimate focus of this appeal. When asked during her deposition why she left her job as a substitute teacher to become a school clerk, Kavanaugh testified as follows:
Q: And then from October of 07 to now, you have worked at what school?
A: Myers Middle as a clerk - - a school clerk.
Q: And that's a full-time job?
A: Yes, sir.
Q: Summers also?
A: No, sir. They kept me on an extra week, but now it's - - I'm not working anywhere. . . .
. . . .
Q: And you find that work less strenuous than the work as a school teacher?
A: I feel that, I mean, it's still - I still have pain, you know, when I do it, but I feel that as a school substitute I could no longer do it because, you know, when I got hurt, I tried to get a job somewhere through the board other than with the school kids.
Q: So you didn't want daily contact with the students?
A: Yes, sir.
Q. As a teacher.
A. As a teacher; yes, sir.
Q. So it's kind of a personal preference type thing?
A: M-hm, yes, sir.
At an interlocutory hearing held on July 15, 2009, Kavanaugh further explained the motivation for her decision:
Q: You did go return to the same job, didn't you, as a ...
A: As a preferred sub - - yes, sir.
Q: And, it was your decision to change, to get better benefits and ....
A: Well that and to do - - get - - it was my choice because I did not want to be with kids anymore.
Q: But you were released to return to regular duty after your elbow surgery?
A: Yes, sir, in January.
Q: All right; and you're working now without restriction.
A: That's what they put on the whole thing - - yes, sir.
. . . .
Q: . . .Why did you choose - - why did you say that you didn't want to return to working around the children?
A: Well it's kind of like a personal thing, that - - you know, you're always going to be looking back. I'm just - - I don't know. This thing has changed my whole life. It really has - - the way I look at things. I'm just, you know, constantly - - you know, if I'm in the hallway, I just kind of look. I really - - I mean, I always wanted to be a teacher, but ever since this happened I just - - I don't know. It's just personal. I just really don't want to do it anymore.
Following the interlocutory hearing, the ALJ rendered an opinion and award finding that Kavanaugh's left elbow injury and a recommended second surgery were work related and compensable. The ALJ also reinstated temporary total disability benefits until Kavanaugh reached maximum medical improvement and placed the remainder of the claim in abeyance. Kavanaugh again underwent surgery on the elbow on December 1, 2009, and was subsequently released to return to work with a permanent lifting restriction of no more than twenty pounds. Kavanaugh's orthopedic surgeon retained his earlier opinion from 2007 that she had a 5 percent whole-body impairment rating under the AMA Guides.
At a final hearing held on June 28, 2011, Kavanaugh again explained why she chose to become a school clerk:
Q: In your deposition and at the hearing, you said that you took that because you didn't want to get into any type of confrontational situation with the students again.
A: That's correct.
Q: Is that still - -
A: That's - -
Q: - - why you've not returned - -
A: Exactly.
Q: - - to teaching?
A: I do not want to go into teaching. . . .
. . . .
Q: And, I've got your testimony here, while - - you were working as a teacher and you decided you didn't want to do that anymore, is that correct?
A: No. Yes. That's correct, sir.
Q: And it wasn't because you couldn't use your left elbow teaching, correct?
A: I just don't want to be with kids in a room. No, sir.
In an opinion and award rendered on August 12, 2011, the ALJ awarded permanent partial disability (PPD) benefits based upon the 5 percent impairment rating assessed by Kavanaugh's orthopedic surgeon. In determining whether Kavanaugh qualified for an additional multiplier under KRS 342.730(1) in calculating her PPD benefits, the ALJ concluded that Kavanaugh was not entitled to application of the "3 multiplier" set forth in KRS 342.730(1)(c)1 because the evidence reflected that she had "maintain[ed] the physical capacity to perform the job she was performing at the time of her work injury." The ALJ further concluded, however, that Kavanaugh was entitled to double income benefits under the "2 multiplier" set forth in KRS 342.730(1)(c)2 because she had "ceased that employment by reason of the work injury in that the circumstances of the work injury has led her to a path which caused her to avoid possible confrontations." The ALJ consequently ordered that Kavanaugh's benefits be doubled for each week that her post-injury wages were less than her preinjury average weekly wage. The ALJ subsequently amended this portion of his decision following a petition for reconsideration and ordered that the analysis be based on a quarter-to-quarter comparison instead of week-to-week. All other issues raised by the parties in their petitions for reconsideration were rejected. Both parties appealed the ALJ's opinion and award to the Workers' Compensation Board.
The Administrative Law Judge also determined that Kavanaugh was entitled to temporary total disability benefits for the two periods of time in which she missed work due to her elbow surgeries.
KRS 342.730(1)(c)1 provides as follows:
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[.]
KRS 342.730(l)(c)2 provides as follows:
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.
On February 3, 2012, the Workers' Compensation Board entered an opinion affirming in part and reversing in part. The Board agreed with the ALJ that the record contained substantial evidence showing that Kavanaugh had retained the physical capacity to return to her job as a preferred substitute teacher. Therefore, she was not entitled to application of the "3 multiplier" in calculating her award of benefits.
However, by a two-to-one vote, the Board reversed the ALJ's determination that Kavanaugh was entitled to application of the "2 multiplier" after concluding that her cessation of employment as a teacher was unrelated to her disabling injury. The Board explained its decision as follows:
In Chrysalis House, Inc. v. Tackett, 283 S.W.3d 671 (Ky. 2009), the Supreme Court held the reason for cessation must be related to the disabling injury in order for the double income benefit to apply.
. . . .
We do not believe the ALJ correctly awarded benefits pursuant to KRS 342.730(1)(c)2 based upon the Kentucky Supreme Court's holding in Chrysalis House, supra. In his opinion and award, the ALJ found:
The plaintiff's testimony indicates she ceased that employment by reason of the work injury in that the circumstances of the work injury has led her to a path which caused her to avoid possible confrontations.
The ALJ reiterated his finding in the order on reconsideration stating Kavanaugh's reason for changing jobs to the less paying job of clerk, avoiding confrontations following her work injury, is directly related to the disabling injury. We do not believe the ALJ's finding the reason for cessation was due to the work-related injury is supported by substantial evidence. Substantial evidence is defined as some evidence of substantial relevance and consequence, having the fitness to induce conviction in the minds of reasonable people. Smyzer v. B.G. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1977). We do not believe the ALJ's determination of the applicability of KRS 342.730(1)(c)2 is supported by any evidence, substantial or otherwise.As noted, because of this decision, the Board did not address the issue of whether Kavanaugh's entitlement to a double income benefit should be determined on a week-to-week, quarter-to-quarter, or year-to-year basis. This appeal followed.
We note Kavanaugh testified she voluntarily changed jobs from preferred substitute teacher to that of school clerk because she did not want daily contact with the students and wanted to avoid confrontational situations, not because she could no longer perform the job. Kavanaugh further explained the decision was personal and admitted her reason for cessation was not because she could not use her left elbow teaching. Kavanaugh returned to work as a preferred substitute teacher with restrictions following her injury on November 2, 2005, and eventually returned to regular duty without restrictions on November 28, 2005. Kavanaugh continued to work as a substitute teacher until the elbow surgery on September 1, 2006. Dr. Kilambi subsequently released her to return to regular work again on January 3, 2007[,] and assessed no permanent restrictions. It was not until October 2007, prior to her second surgery, Kavanaugh started her new job for JCPS as a school clerk for the reasons set forth above. Kavanaugh did not testify at any time she could no longer work as a preferred substitute teacher for reasons related to her elbow injury.
Kavanaugh's cessation of employment as a preferred substitute teacher was because she desired to avoid daily contact with the students and not due to the elbow injury for which she was awarded PPD benefits. Clearly, based upon the job description and restrictions imposed, she could continue to perform the job as a preferred substitute teacher and in fact did so on multiple occasions. It is also clear from her testimony Kavanaugh changed jobs for reasons other than the work injury.
Kavanaugh testified on more than one occasion she sought the job as clerk for JCPS because she no longer wished to be around students. She specifically testified from a physical standpoint she could continue to teach after her injuries and surgeries, but did not want to do so as a personal preference. We believe this falls short of the requirements expressed in Chrysalis House, supra. We do not believe substantial evidence supports the ALJ's determination regarding the application of the two multiplier pursuant to KRS 342.730(1)(c)2 and therefore reverse that part of his decision. While the minority has opined this decision engages in unauthorized fact-finding, we do not believe facts exist upon which the ALJ could base his decision. Because we do not believe KRS 342.730(1)(c)2 applies to this case, the issue raised by Kavanaugh regarding the weeks for which the two multiplier is payable is therefore moot.
Analysis
On appeal, Kavanaugh first argues that the ALJ erred as a matter of law by failing to apply the "3 multiplier" in calculating her PPD benefits pursuant to KRS 342.730(1)(c)1. A workers' compensation claimant bears the burden of proof and risk of non-persuasion before the ALJ with regard to every element of his claim. Burton v. Foster Wheeler Corp., 72 S.W.3d 925 (Ky. 2002). Because Kavanaugh was unsuccessful before the ALJ and the Board regarding the question of whether the KRS 342.730(1)(c)1 "3 multiplier" should have applied in her case, the question on appeal is whether the evidence compelled a different result, i.e., "the evidence in that party's favor is so compelling that no reasonable person could have failed to be persuaded by it." Carnes v. Tremco Mfg. Co., 30 S.W.3d 172, 176 (Ky. 2000) (citing Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986)); Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).
In conducting our review, we must abide by the rule that "the ALJ, as the fact finder, has sole authority to judge the weight, credibility, substance, and inferences to be drawn from the evidence." Morrison v. Home Depot, 279 S.W.3d 172, 175 (Ky. App. 2009) (citing Paramount Foods, Inc., v. Burkhardt, 695 S.W.2d 418, 418-19 (Ky. 1985)); KRS 342.285. We further note that the function of this Court in reviewing a decision of the Workers' Compensation Board 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." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
The Board agreed with the ALJ that the record contained substantial evidence showing that Kavanaugh had retained the physical capacity to return to her job as a teacher. Therefore, she was not entitled to application of the "3 multiplier" in calculating her award of benefits. The Board particularly noted that Kavanaugh was allowed to return to her work as a teacher without restrictions on multiple occasions before becoming a school clerk. The Board further observed that Kavanaugh had consistently acknowledged that her elbow injury did not physically prevent her from performing the duties of a preferred substitute teacher.
Kavanaugh contends that the decision of the Supreme Court of Kentucky in Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003), compels a different result. However, in that case the ALJ found that the claimant had suffered a "permanent alteration" in his ability to earn money due to his injury, and his lack of physical capacity to return to the type of work that he had previously performed for his employer was undisputed. Id. at 12. Since Kavanaugh admittedly retained the physical capacity to return to the type of work she performed at the time of her injury, Fawbush is inapplicable. Therefore, we agree with the Board that the ALJ's decision in this regard is supported by the record and conclude that the evidence does not compel a different result.
Kavanaugh next argues that the Board erred in reversing the ALJ's determination that she was entitled to double income benefits pursuant to the "2 multiplier" set forth in KRS 342.730(1)(c)2. Kavanaugh contends that the Board effectively - and erroneously - substituted its own findings of fact for those of the ALJ in determining that her change of employment was insufficiently related to her disabling injury to merit application of KRS 342.730(1)(c)2.
Although KRS 342.285(2) generally prohibits the Board from substituting its judgment for the ALJ's with respect to the weight of evidence on questions of fact, KRS 342.285(2)(c) and (d) give the Board the authority to determine whether the ALJ's decision conforms to the provisions of Chapter 342 and whether that decision is clearly erroneous based on the reliable, probative, and material evidence contained in the whole record. American Greetings Corp. v. Bunch, 331 S.W.3d 600, 602 (Ky. 2010). "These provisions allow the Board to determine whether the ALJ committed an error in applying the law to the facts, such as by misapplying or failing to consider an applicable statute or legal theory or by rendering a decision that the evidence does not support." Id. at 602-03. Our own review is similarly limited. Id.; see also KRS 342.290. Ultimately, a finding that favors the party with the burden of proof must be affirmed if supported by substantial evidence, i.e., if the finding was reasonable under the evidence. Special Fund, 708 S.W.2d 641; Wolf Creek, 673 S.W.2d 736.
In reversing the ALJ on this issue, the Board relied upon the opinion of the Supreme Court in Chrysalis House, Inc. v. Tackett, 283 S.W.3d 671 (Ky. 2009), in which the Court held that "KRS 342.730(1)(c)2 "permits a double income benefit during any period that employment at the same or a greater wage ceases 'for any reason, with or without cause,' provided that the reason relates to the disabling injury." Chrysalis House, 283 S.W.3d at 674 (emphasis added). In reaching this decision, the Supreme Court acknowledged that KRS 342.730(1)(c)2 "appears at first blush to provide clearly and unambiguously for a double benefit during a period of cessation of employment at the same or a greater wage 'for any reason, with or without cause.'" Id. at 674. However, the Court determined that because KRS 342.730(1)(c)2 is a subsection of KRS 342.730(1), it must be interpreted in the context of the entire provision. Since KRS 342.730(1) provides income benefits based on "disability" due to impairment from a work-related injury, the Supreme Court concluded that KRS 342.730(1)(c)2 authorizes a double income benefit only where the reason for the cessation of employment relates to the disabling injury. Id.; see also Hogston v. Bell South Telecommunications, 325 S.W.3d 314 (Ky. 2010).
In this case, the ALJ found that Kavanaugh had "ceased [her] employment by reason of the work injury in that the circumstances of the work injury [have] led her to a path which caused her to avoid possible confrontations." Thus, the ALJ concluded that KRS 342.730(1)(c)2 applied and merited an award of double benefits. However, the Board rejected this conclusion after determining that no evidence supported the application of KRS 342.730(1)(c)2 because Kavanaugh's change in employment was unrelated to the actual disabling effects of her elbow injury.
While the disabling event leading to Kavanaugh's claim perhaps can be said to have been a motivation for her change in employment, we cannot say that the change was adequately related to her disabling injury for purposes of KRS 342.730(1)(c)2. See Chrysalis House, 283 S.W.3d 671. The record reflects that Kavanaugh candidly acknowledged that her elbow injury did not prevent her from performing the duties of a preferred substitute teacher. Indeed, she continued to work in that position for nearly two years following her injury. Instead, she voluntarily changed jobs from that of a preferred substitute teacher to the position of school clerk because she no longer wanted daily contact with children or the confrontations that such contact might present. From our reading of Chrysalis House, we believe that this constitutes insufficient grounds for an award of double benefits. Chapter 342 and KRS 342.730(1), in particular, compensate workers only for disability resulting from work-related injuries. Had Kavanaugh submitted any records or other evidence supporting a medically-diagnosed psychological basis for her desire to leave her job as a substitute teacher and its relation to her disabling work injury, our decision perhaps would be different. In the absence of such, however, we are compelled to agree with the Board that the evidence simply did not support an award of double income benefits under KRS 342.730(1)(c)2. Because of our decision, we need not address the other issues raised by the parties.
Conclusion
For the foregoing reasons, the decision of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Wayne C. Daub
Louisville, Kentucky
BRIEF FOR APPELLEE: Timothy P. O'Mara
Louisville, Kentucky