RENDERED: OCTOBER 16, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0623-WC
GENERAL MOTORS CORPORATION APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-18-84353
MECA DUNN; HON. GRANT S.
ROARK, ADMINISTRATIVE LAW
JUDGE; AND WORKERS’
COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
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BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.
ACREE, JUDGE: General Motors Corporation (“GM”) appeals the Workers’
Compensation Board’s April 2, 2020 opinion affirming the Administrative Law
Judge’s (“ALJ”) order awarding Meca Dunn permanent partial disability benefits.
GM’s only issue on appeal is whether Dunn’s benefits should have been enhanced
by the 3x multiplier pursuant to KRS1 342.730(1)(c)1. Upon careful review, we
affirm.
BACKGROUND
The facts in this appeal are not in dispute. Dunn worked as a carpet
installer at GM’s Corvette plant. The job required her to secure carpet to the
floorboards of cars that came across the assembly line using a torque gun. Dunn’s
specific job at the time of her injury was installing carpet on the passenger
floorboards of cars, which could only be performed by using the torque gun with
her left hand. On January 18, 2018, she sustained a work-related injury to her left
wrist while operating the torque gun.
The parties stipulated that Dunn sustained a work-related injury to her
left wrist and that her average weekly wage was $677.17. The parties even agreed
that her injury warranted a 5% impairment rating. The only point of contention
before the ALJ was whether Dunn’s permanent partial disability benefits should be
enhanced by the 3x multiplier. The ALJ found that the carpet installation position
held by Dunn at the time of her injury was on the passenger side of the cars, which
could only be performed by operating a torque gun with her left hand. He also
found credible the testimony from three doctors, each of whom concluded Dunn
“should be restricted from using the kind of torque gun she was using at the time of
1
Kentucky Revised Statutes.
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the injury due to her left wrist.” Based on this, the ALJ concluded that Dunn did
not retain the physical capacity to return to the type of work she performed at the
time of her injury. Accordingly, the ALJ awarded Dunn permanent partial
disability and enhanced it by three times.
GM filed a petition for reconsideration, which was denied. It then
appealed to the Workers’ Compensation Board, asserting Dunn could use the
torque gun with her right hand and simply perform her job on the driver’s side of
cars on the assembly line. The ALJ’s order was affirmed. This appeal followed.
STANDARD OF REVIEW
Our review of an opinion of the Workers’ Compensation Board is
limited. We only reverse the Board’s opinion when “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.” W. Baptist Hospital v. Kelly,
827 S.W.2d 685, 687-88 (Ky. 1992). In reviewing the Board’s opinion, we look to
the ALJ’s opinion. The ALJ’s findings of fact will not be disturbed if supported by
substantial evidence. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky.
App. 1984). And, the ALJ, as fact-finder, possesses the discretion to judge the
credibility of testimony and weight of evidence. Paramount Foods, Inc. v.
Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Our review proceeds accordingly.
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ANALYSIS
GM’s only contention is that Dunn is not entitled to the 3x multiplier.
Specifically, it challenges the ALJ’s factual finding that Dunn did not retain the
ability to return to the “type of work” she performed at the time of her injury. We
find substantial evidence supports the ALJ’s finding.
Pursuant to KRS 342.730(1)(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 subsection . . . .
KRS 342.730(1)(c)1. “When used in the context of an award that is based upon an
objectively determined functional impairment, ‘the type of work that the employee
performed at the time of injury’ was most likely intended by the legislature to refer
to the actual jobs that the individual performed.” Voith Indus. Servs., Inc. v. Gray,
516 S.W.3d 817, 821 (Ky. App. 2017) (emphasis added) (quoting Ford Motor Co.
v. Forman, 142 S.W.3d 141, 145 (Ky. 2004)).
GM concedes that Dunn is unable to complete carpet installation on
the passenger side of cars because she cannot physically operate a torque gun with
her left hand. However, it contends, “her ‘type of work’ at GM is that of assembly
line worker, not a ‘torque gun on the passenger door associate.’” It argues there
are no restrictions prohibiting her from performing other jobs at GM, including the
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installation of carpet on the driver’s side, which would require the use of a torque
gun with her right hand. And Dunn concedes she could operate a torque gun with
her right hand.
We cannot agree with GM’s contention that because Dunn retained
the ability to perform different assembly line jobs at the plant the 3x multiplier was
inappropriate. KRS 342.730(1)(c)1. requires the ALJ to determine whether Dunn
could return to the “type of work” being “performed at the time of injury.” As GM
is aware, assembly lines consist of a multitude of jobs, some requiring more
strenuous physical or mental capabilities than others. The ALJ was not required to
analyze whether Dunn retained the physical capability to perform jobs that
required different day-to-day functions. See Lowe’s No. 0507 v. Greathouse, 182
S.W.3d 524, 527 (Ky. 2006) (“KRS 342.730(1)(c)1 provides a triple benefit for a
loss of the physical capacity to perform ‘the type of work that the employee
performed at the time of injury.’ It does not refer to the capacity to perform other
types of work.”).
However, GM’s argument that Dunn retained the physical capacity to
return to her “type of work” because she could perform carpet installation on the
driver’s side of cars is well-taken. At first glance, this seems to fall within the
category of the “type of work” Dunn was performing at the time she was injured.
In fact, it is the identical job merely being performed on the opposite side of the
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car. The problem, however, is the Kentucky Supreme Court has defined “type of
work” as “the actual jobs that the individual performed.” Ford Motor Co., 142
S.W.3d at 145 (emphasis added). Here, the ALJ found that the actual job Dunn
was performing at the time of her injury was carpet installation on the passenger
side of cars, which could only be performed with her left hand. GM does not
challenge that this was Dunn’s day-to-day job. The ALJ also found credible the
testimony of three separate doctors, each of whom determined she was unable to
operate a torque gun with her left hand. Additionally, Dunn herself testified she
was unable to install carpet on the passenger side of cars due to her injury.
We conclude this is substantial evidence supporting the ALJ’s finding
that Dunn did not retain the physical capacity to return to the “type of work” she
was performing at the time of her injury – installing carpet on the passenger side of
cars.
GM also argues the ALJ misapplied the law. Specifically, it argues
the ALJ should have considered Dunn’s ability to perform “comparable work” that
earns the same or similar income as her pre-injury employment. It relies on
Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003), and its progeny. GM does not
include in its brief where this issue was preserved for appeal. And, it was not
addressed in the Workers’ Compensation Board’s opinion. Nonetheless, we are
not persuaded by this argument.
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The Fawbush line of cases deals with the interrelationship between
KRS 342.730(1)(c)1. and (1)(c)2. and is only applicable where the injured
employee has returned to employment, either with the same employer or for a
different employer, and is earning a weekly wage equal to or greater than the
average weekly wage at the time of injury. GM contends Dunn currently works as
a manager at the hat store “Lids” and earns “basically the same” hourly wage as
she did at GM. GM provides no citation to the record supporting this contention.
The only evidence before this Court comes from Dunn’s brief, which directs us to
her deposition where she testified to earning $13.88 per hour, substantially less
than her salary at GM. Accordingly, GM has failed to put forth sufficient evidence
to support its claim.
CONCLUSION
Based on the foregoing, the Workers’ Compensation Board’s April 2,
2020 opinion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE MECA
DUNN:
Walter E. Harding
Louisville, Kentucky Joseph V. McReynolds
Bowling Green, Kentucky
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