Cheryl Blaine v. Downtown Redevelopment Authority, Inc. ( 2017 )

RENDERED: AUGUST 24, 2017
TO BE PUBLISHED
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2016-SC-000081-WC
CHERYL BLAINE APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2015-CA-000267-WC
WORKERS' COMPENSATION BOARD
NO. 11-WC-01057
DOWNTOWN REDEVELOPMENT APPELLEES
AUTHORITY, INC.; HON. J. LANDON
OVERFIELD, FORMER CHIEF
ADMINISTRATIVE LAW JUDGE; HON.
ROBERT L. SWISHER, CURRENT CHIEF
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
Appellant Cheryl Blaine suffered a work-related injury on June 26,
2007, returned to work after approximately seven months with
accommodations and then suffered a second work-related injury on April 28,
2011. The second injury resulted in Blaine being found permanently totally
disabled and that decision was not appealed. The matter before the Court
concerns the proper disposition of Blaine's claim for benefits following her first
injury. The Workers' Compensation Board remanded the matter to the
Administrative Law Judge (AW) because he erroneously concluded that Blaine
had not claimed entitlement to permanent total disability (PTD) benefits
following the first injury. She had so claimed and the AW was instructed to
address that issue first on remand. If Blaine was not entitled to PTD benefits
following the first injury, then the AW was required to determine the
appropriate permanent partial disability (PPD) benefits pursuant to ·Kentucky
Revised Statute (KRS) 342.730 and Fawbush v. Gwinn, 103 S.W.3d 5 (Ky.
2003). On Blaine's appeal, the Court of Appeals affirmed the Board's decision
and we now, after careful review, likewise affirm.·
RELEVANT FA,CTS
As the Court of Appeals aptly noted, this has been a contentious case
that has produced a voluminous record. A detailed discussion of the
underlying facts and procedural issues is unnecessary to our disposition of the
matter given the limited issues before us. Finding the Court of Appeals'
statement of relevant facts and procedural steps prior to the case's arrival in
that Court to be accurate and admirably succinct, we adopt it as our own,
discussing any additional facts only as relevant to our analysis.
Blaine, a fifty-four-year-old resident of Bowling Green,
Kentucky, began working for the Downtown Redevelopment
Authority, Inc. ("the Authority") in September of 1995. Ultimately,
she became the Authority's Executive Director. On June 26, 2007,
Blaine was working for the Authority when she injured her low
back picking up a suitcase during an overnight conference. Blaine
eventually had surgery on her back. Following her surgery, she
returned to work for the Authority on January 28, 2008. In
December of 2009, Blaine filed a Form 101 Application for
Resolution of Injury Claim with the Department of Workers' Claims
("Department") seeking benefits as a result of her 2007 injury.
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Blaine's claim was placed in abeyance pending additional
treatment and settlement discussions.
On April 28, 2011, while Blaine's first claim was still
pending, Blaine again injured her back at work while picking up
trash from a farmer's employee's office. Blaine underwent surgery
for this injury as well. She did not return to work after this injury.
Blaine filed a claim with the Department as related to this second
injury. Blaine's two claims were consolidated so that they could be
heard together before the CAW. Following an extensive discovery
period, the CAW conducted a benefit review conference ("BRC"),
which was followed by a final hearing.
In an Opinion, Order and Award, rendered May 27, 2014,
the CAW determined that Blaine was entitled to permanent partial
disability benefits for the June 26, 2007, work-related injury
payable in the amount of $166.17 per week. This amount
represented the CAW's finding that the first injury resulted in
Blaine having a 26% functional impairment to the body as a whole.
The CAW. did not award any multipliers for the first injury. The
CAW determined that the second injury rendered Blaine totally
and permanently occupationally disabled, and awarded her
benefits accordingly.
Blaine filed a petition to reconsider, which the CAW denied.
Blaine then appealed to the Board. The Board affirmed in part,
vacated in part, and remanded the claim to the CAW for further
findings. Specifically, the Board concluded that the CAW failed to
address whether Blaine's first injury rendered her totally and
permanently disabled. Additionally, the Board concluded that the
CAW failed to conduct a proper analysis under Fawbush v. Gwinn,
supra.
The Board remanded.Blaine's claim to the CAW as follows:
This claim is REMANDED for entry of an amended
opinion and award determining Blaine's entitlement
to PTD benefits 'due to the June 26, 2007, injury.
Should the CAW or AW as designated by the CAW
determine Blaine is not entitled to PTD benefits as a
result of the June 26, 2007, injury, the CAW or AW
must then conduct an appropriate analysis of the
third prong of the Fawbush analysis (sic) in conformity
with the views expressed herein.
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The Court of Appeals rejected Blaine's argument that if she did not
receive PTD benefits following the first injury, she was entitled to PPD benefits
pursuant to KRS 342.730(1)(c)l which allows a multiplier of three when the
employee does not retain the physical capacity to return to the type of work
that she performed at the time of injury. In short, Blaine argued that a
Fawbush analysis was unnecessary on remand because she was entitled either
to PTD benefits or to PPD benefits enhanced by a multiple of three. The Court
of Appeals concluded that the AW correctly found that either KRS
342.730(1)(c)l or (c)2 could apply and then correctly proceeded to a Fawbush
analysis but, as the Board found; erred in the third step of that analysis.
Thus, the appellate court affirmed the Board's disposition of the case and its
directions to the AW on remand. As noted, we agree with both the Board and
th~ Court of Appeals regarding disposition of the issues on appeal.
ANALYSIS
Blaine raises three issues on appeal, the first two of which are purely
legal arguments and are closely related. Initially, Blaine urges this Court to
revisit Fawbush and limit its analytical framework to those circumstances
where the injured employee returns to work and is competitive with non-
injured employees without any job modifications or accommodations. Second
. .
and relatedly, Blaine contends that the reference in KRS 342.730(1)(c)2 to an
employee returning to work at a wage equal to or greater than the pre-injury
wage means the employee must be working without any modifications,
concessions or accommodations by the employer. Blaine's third argument is
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that the AW erred in concluding_ that after the first iajury Blaine continued to
earn a wage equal to or greater than her pre-injury wage and :would do so for
the indefinite future. We begin our analysis with the applicable statute and
Fawbush
KRS 342.730 addresses income benefits for disability. If Blaine's
entitlement to PTO benefits is rejected by the AW on remand, the
determination of her PPD benefits is controlled by KRS 342.730(1)(c) 1 and (c)2,
as the AW recognized in his initial orders.
That portion of the statute states:
(c) 1. 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 sub-
section, but this provision shall not be
construed so as to extend the duration of
payments; or
2. 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.
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In Fawbush, this Court opined that by inserting "or" between sections
(c)l and (c)2, the legislature intended for only one of the sections to apply. 103
S.W.3d at 12. However, the Court recognized there could be permanent partial
disability cases where either (c) 1 or (c)2 could apply so it held that:
an AW is authorized to determine which provision is more
appropriate on the facts. If the evidence indicates that 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, the
application of paragraph (c) 1 [the benefit enhanced by a multiplier
of three] is appropriate.
Id.
Blaine's first two arguments, both of which focus on the meaning of
"work," rely on the following KRS 342.0011(34) definition: "'Work' means
providing services to another in return for remuneration on a regular and
sustained basis in a competitive economy." From this statutory definition,
Blaine maintains that an employee has not truly returned to "work" as that
term is used in KRS 342.730(l)(c)2 and applied in Fawbush unless the
employee "is fully competitive with non-injured employees without
modifications and accommodations of the employee's disability." There is
simply no basis for this construction of "work" in the language of the KRS
342.0011(34) definition.
In construing a statute, "our goal, of course, is to give effect to the intent
of the General Assembly. We derive that intent, if at all possible, from the
language the General Assembly chose, either as defined by the General
A:-sembly or as generally understood in the context of the matter under
consideration." Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542,551
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(Ky. 2011). Looking at the KRS Chapter 342 definition of"work," it simply
requires that a person provide services and receive remuneration on a regular
and sustained basis in a competitive economy. Presumably, Blaine reads
"competitive" as a springboard for her new definition but that adjective modifies
"economy" .and has nothing to say about the "services" that the individual
worker has to offer. To read this definition as supporting the idea that "work"
means performing a service without any sort of accommodation by the
employer requires supplying words that the legislature did not include,
something we cannot do under the guise of statutory construction. "A
reviewing court cannot amend [a statute] by means of a so-called interpretation
contrary to the plain meaning." Lewis v. Jackson Energy Co-op Corp., 189
S.W.3d 87, 94 (Ky. 2005).
Blaine maintains that Ira A. Watson Dep't Store v. Hamilton, 34 S.W.3d
48 (Ky. 2000), aids her contention because therein this Court concluded that in
determining whether a worker's disability was partial or total an individual
assessment is required. "An analysis of the factors set forth in KRS
342.0011(1 l)(b) [permanent partial disability], (1 l)(c) [permanent total
disabilityj, and (34) [work] clearly requires an individualized determination of
what the worker is ·and is not able to do after recovering from the work injury."
Id. at 51. This observation about the individualized assessment necessary to
determining whether a worker is totally or partially disabled is well-taken.
However, the need for an individualized assessment in that context does not
affect the statutory language at issue here. "Work" as noted, has a very
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straightforward definition. Similarly, KRS 342.730(1)(c)2 is plain and to the
.point: "If an employee returns to work at a weekly wage equal to or greater
· than the average weekly wage at the time of the· irtjury . . . ." The phrase
"returns to work" has no modifiers and using the statutory definition in KRS
342.0011(34) simply requires that the worker go back into the workforce and
receive remuneration for services at a wage equal to or greater than she
received pre-injury. To the extent Blaine is requesting that we employ Ira A.
Watson to superimpose an individualized reading of "work" onto the statute -
"returns to work doing everything she did before in the same way she did
before" without any accommodation or job modification - we decline. There is
no language in the statute that would support that construction. Moreover, it
seems clear that if KRS 342. 730(l)(c)2 were read in that way it would
undermine the concept of a partial disability.
Turning to the record in this case, Blaine returned to work approximately
seven months after her first injury and was allowed to work from home, at first
part-time and later full-time. She needed this accommodation because she
was unable to climb the stairs to the Authority's second-floor offices. After the
offices were moved in November 2009, she returned to working on-site, with
the same job title and a higher salary. However, Blaine could not perform all of
the duties she had previously performed including set-up, oversight and clean-
up of various community events sponsored by the Authority.
On this evidence, the AW found that Blaine lacked the physical capacity
to return to the type of work she was performing at the time of the injury. That
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finding has not been disputed. These facts also led the AW to conclude that
either KRS 342. 730(l)(c) 1 or (c)2 could apply, the former providing for a triple
benefit due to her inability to return to the type of work she was performing
and the latter providing an unenhanced benefit due to her return to work at il-
weekly wage equal to or greater than the average weekly wage she was making
at the time of the injury. The AW opted for the latter. Understandably, Blaine
would like for us to adopt a new reading of what it means to return to work in
KRS 342.730(l)(c)2 because that would render that part of the statute (and a
Fawbush analysis) inapplicable to her and assure a triple benefit under (c)l.
As noted above, we find no sound basis for her proposed new reading of a
statute that has never been so construed since its adoption in 2000. Blaine
clearly returned to work approximately seven months after her first injury so
we turn next to her contention that the AW erred in concluding for purposes of
KRS 342.730(l)(c)2 that she made a weekly wage equal to or greater thaq her
pre-injury average weekly wage.
The AW found as follows with respect to Blaine's return to work:
The record is clear and it is stipulated that, following the
first injury, Plaintiff returned to work at a wage equal to or greater
than her average weekly wage at the time of the injury. The record
is also clear her return to work was to a job in which the physical
requirements were modified. However,-she worked in her same job
title at a wage equal to or greater than her average weekly wage at
the time of the injury 'until her unfortunate second injury of April
11, 2008.
Blaine contests the wage finding both as to what the record reflects and
as to the stipulations. The exact wage stipulations to which Blaine agreed,
Stipulations 7 and 8, state:
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7. Plaintiffs average weekly wage on June 26, 2007 was
$1,202.80 and on April 28, 2011 was $1,287.50
8. Plaintiff returned to work after the June 26, 2007 work-
related injury on January 28, 2008, at a wage equal to or greater
than her average weekly wage and worked through April 28, 2011.
Plaintiff has not worked since April 28, 2011.
As we recently held in Hale u. CDR Operations, Inc., 474 S.W.3d 129, 139-40
(Ky. 2015), stipulated facts are binding on the AW and-neither the AW nor the
Board (or Courts, for that matter) are free to set aside a valid stipulation sua
sponte. Thus, to the extent the above stipulations address a factual issue, they
are binding.
On their face, Stipulations 7 and 8 can be plainly read to establish that
Blaine did in fact return to work at a wage equal to or greater than her pre-
injury average weekly wage. Blaine wishes to parse the meaning of these
stipulations now by stating that they do not reflect the fact that at some point
after January 2008, but before the April 2011 second injury, her wages
dropped below her pre-injury average wage, i.e., she did not continuously work
.for a wage equal to or greater than her pre-injury average wage. This may well
be the case but KRS 342.730(1)(c)2 simply looks at the wage at which the
employee returns to work, and the stipulations,. particularly No. 8, conclusively
establish that she returned to work in January 2008 at a wage equal to or
greater than her pre-injury wages. The AW was not required to and, indeed,
'
not authorized to look beyond this stipulation by the parties but had he done
so, it would not change the fact that Blaine's compensation was "equal to or
greater" at the time of her January 2008 return to work.
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As noted above, in deciding whether KRS 342.730(1)(c)l or (c)2 is most
/ ·!
appropriate, the AW must consider 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. This is the part of the
analysis that the Board concluded the AW performed deficiently:
The CAW's analysis of whether Blaine would have continued
working at an equal or greater wage for the indefinite future
following the June 26, 2007, injury is deficient as a matter of law.
While the CAW stated the "restrictions placed on Plaintiff by Dr.
Schoettle would allow Plaintiff to continue working for an indefinite
period barring significant change in her physical condition," the
CAW failed to discuss and analyze these· restrictions with any
amount of specificity in his "Discussion and Analysis" section.
[Footnote omitted]. The CAW's comment on Blaine's "work ethic"
and DRA's "employment practices" in the March 27, 2014,
Opinion, Award, and Order, speaks more to Blaine's ability to
continue in her current job, only one of many factors the CAW
should have considered. See Fawbush; Adkins [v. Pike County Bd.
of Educ., 141 S.W.3d 387,390 (Ky. App. 2004)].
The Board instructed the AW to determine on remand whether it was likely
Blaine would have continued earning equal or greater wages indefinitely had
the second injury not occurred given the factors to be considered. Ultimately,
as the Court of Appeals concluded, an award pursuant to KRS 342.730(1)(c)l- .
•
a triple benefit - may be "permissible depending on the AW's findings, [but] it is
not required as Blaine argues on appeal." (Emphasis in original).
CONCLUSION
For the foregoing reasons, we affirm the Court of Appeals' opinion
affirming the decision of the Workers' Compensation Board which remanded
this case to the AW with specific instructions to first determine Blaine's
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entitlement to permanent total disability benefits and, if she is not entitled to·
'
such benefits, to then determine her permanent partial disability benefits using
a proper Fawbush analysis.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Norman E. Harned
KERRICK BACHERT PSC
COUNSEL FOR APPELLEE,
DOWNTOWN REDEVELOPMENT
AUTHORITY, INC.
Richard Hartsock
FOGLE KELLER PURDY, PLLC
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