Nancy McDonald v. Commonwealth of Kentucky ( 2015 )

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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
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RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
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RENDERED: FEBRUARY 19, 2015
NOT TO BE PUBLISHED
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2014-SC-000103-WC LI
NANCY MCDONALD ED AT E 3 — APPELTANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2012-CA-001555-WC
WORKERS' COMPENSATION NO. 06-00568
COMMONWEALTH OF KENTUCKY;
HONORABLE CHRIS DAVIS,
• ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Nancy McDonald, appeals from a Court of Appeals decision
which affirmed an Administrative Law Judge's ("ALJ") opinion that held she
was entitled to permanent partial disability ("PPD") benefits for a twenty-three
percent whole person impairment beginning on the date of her injury.
McDonald argues that the ALJ erred by holding that the PPD award should
begin on the date of her injury because she contends her disability began on a
different date. For the below stated reasons, we affirm the Court of Appeals.
McDonald suffered a work-related injury to her right hip and low back on
July 18, 2004, while employed by Hazelwood Center, a mental health facility
operated by the Commonwealth. She sought medical treatment and returned
to work at Hazelwood in a position which required less physical activity.
McDonald sought workers' compensation for her injury.
Dr. Thomas Loeb treated McDonald, but found that she did not have any
permanent disability. He assigned her a zero percent disability rating as of
September 19, 2006. However, on January 23, 2007, Dr. Loeb reevaluated
McDonald's condition and assigned her an eight percent disability rating. The
parties entered into a settlement agreement in July 2007, and McDonald was
awarded a lump-sum payment.
Despite being given less strenuous work to perform, McDonald's medical
condition worsened. She filed a motion to reopen her claim on September 30,
2010. Following a hearing, the ALJ determined that McDonald was entitled to
PPD benefits based on a twenty-three percent impairment rating. He awarded
her PPD benefits to begin on the date of her injury, July 18, 2004. The
Commonwealth would be credited for all previously paid compensation.
McDonald filed a petition for reconsideration arguing that the ALj
ordered her PPD benefits to begin on the wrong date. She contended that the
PPD benefits should have been paid from the date her disability began and not
from the date of her injury. She argued that her disability began sometime
between September 19, 2006 and January 23, 2007, based upon Dr. Loeb's
opinion regarding her impairment rating. Her petition for reconsideration was
denied by the ALJ based on Sweasy v. Wal-Mart Stores, Inc., 295 S.W.3d 835
(Ky. 2009). Sweasy stated that KRS 342.7301(1), "entitle[s] a partially disabled
worker to permanent income benefits from the date that the permanent
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impairment or disability that they compensate arises." 295 S.W.3d at 836.
Applying that language, the A1.0 believed that starting McDonald's PPD benefits
from the date of her injury was the "better and more uniform policy." The
Workers' Compensation Board affirmed the ALJ's order except on one issue
which is not relevant to this appeal.' The Court of Appeals also affirmed, and
this appeal followed.
McDonald argues that the ALJ erroneously found that her disability
arose on the date of her injury and that he set the wrong date to begin her PPD
benefits. We will review the ALJ's factual determination to see if it is supported
by substantial evidence and that it was not unreasonable as a matter of law.
Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000); Wolf
Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). The ALJ's
interpretation of Sweasy is a question of law and will be reviewed de novo.
Hutchinson v. Kentucky Unemployment Ins. Com'n, 329 S.W.3d 353, 356 (Ky.
App. 2010).
"[T]he compensable period for partial disability begins on the date that
the impairment and disability arise, without regard to the date of [maximum
medical improvement], the worker's disability rating, or the compensable
period's duration." Sweasy, 295 S.W.3d at 840. McDonald argues that the
ALJ erred by holding that her PPD benefits should begin on the date of her
1 The Board reversed the ALJ's order and remanded the matter for him to include
wording regarding McDonald's entitlement to enhancement of her benefits by the
two multiplier if her employment were to cease due to the disabling effects of the
work-related injury. KRS 342.730(1)(c)2.
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injury because her disability began sometime between September 19, 2006 and
January 23, 2007. McDonald contends that her permanent partial disability
could have only arisen between those two dates, because Dr. Loeb found she
had no impairment on September 19, 2006, but later found that impairment
existed on January 23, 2007. We disagree.
McDonald testified, as a part of her original workers' compensation
claim, that as soon as her work-related injury happened, on July 18, 2004, she
experienced pain and sought medical treatment the very next day. McDonald
also has received on-going treatment with a variety of medical professionals
from the date of her work-related accident. Thus, there is evidence to support
the ALJ's conclusion that McDonald's disability arose on the date of her
accident.
We also note that Sweasy states that the date of the onset of a disability
be determined "without regard to . . . the worker's disability rating." Szveasy,
295 S.W.3d at 840. Accordingly, the date Dr. Loeb assigned McDonald a
disability rating is irrelevant in deciding the time her PPD benefits are to begin.
The ALJ did not misapply the holding in Sweasy and there is sufficient
evidence to support his findings.
Thus, for the above stated reasons, we affirm the Court of Appeals.
Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ.,
sitting. All concur.
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COUNSEL FOR APPELLANT,
NANCY MCDONALD:
Wayne C. Daub
COUNSEL FOR APPELLEE,
COMMONWEALTH OF KENTUCKY:
Timothy Joe Walker
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