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RENDERED: JANUARY 21, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0684-WC
HAYATTE KLEIER APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. NO. 2018-CA-1460
WORKERS’ COMPENSATION BOARD NO. 16-WC-85226
MACY’S #526; JOHN H. MCCRACKEN, APPELLEES
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Hayatte Kleier sustained a work-related injury on January 31, 2016,
when a heavy cosmetics drawer closed on her thumb. She initiated a claim for
benefits pursuant to Kentucky Revised Statutes (KRS) Chapter 342, the
Workers’ Compensation chapter. After reviewing the evidence, an
Administrative Law Judge (ALJ) granted permanent partial disability (PPD)
benefits and some temporary total disability (TTD) benefits to Kleier but denied
TTD benefits for certain other dates. Kleier appealed the ALJ’s denial of TTD
benefits to the Workers’ Compensation Board (the Board).1 The Board affirmed
1Kleier argued additional issues to the Board but did not persist in those
arguments to this Court. As such, we will only discuss the procedural history and
background facts as necessary for the issue before us.
the ALJ. Kleier next appealed to the Court of Appeals, which affirmed the
Board’s decision. Kleier now appeals to this Court as a matter of right. See
Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795, 798 (Ky. 1990); KY.
CONST. § 115.
I. BACKGROUND
Hayatte Kleier was born in France on August 18, 1966, and moved to
Louisville, Kentucky in 2007. After arriving in Kentucky, she worked as a
cafeteria worker. She then began working as a nanny for Dr. Luz Fernandez,
providing full-time care to two children. Once those children began school, her
responsibilities only entailed picking them up from school, bringing them to the
library and helping them with their homework, and driving them home.
Thereafter, she began also working a part-time job at Macy’s, working Friday
evenings, Saturdays, and Sundays as a beauty advisor. As a beauty advisor,
her job duties included customer service, applying makeup, advising customers
on skin care, and cleaning and organizing. She was required to lift boxes
containing product, but she was uncertain of the weight.
On January 31, 2016, Kleier sustained a work-related injury at Macy’s
when her right thumb became trapped in a heavy drawer as she was closing it.
She first received medical treatment for her thumb on February 2, 2016, at
Norton Immediate Care Center. At that time, she was authorized to return to
work with restrictions including no right thumb or wrist activity, and she was
given a splint to wear on her right thumb. Throughout February and March
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2016, Kleier received treatment multiple times, and each time was permitted to
return to work with restrictions, including no use of her right hand.
On April 15, 2016, Kleier was released from the restriction allowing her
to only use her left hand and instead was authorized to work with light-duty
restrictions. She was not permitted to lift more than twenty pounds or ten
pounds with frequent lifting or carrying using both hands. She was to wear a
brace as needed at work. Light-duty restrictions were continued until June 10,
2016, when Kleier was released to work with medium-duty restrictions. This
allowed her to lift a maximum of twenty to fifty pounds but restricted her to ten
to twenty-five pounds with frequent lifting or carrying using both hands. Her
medium-duty work restrictions continued until she had surgery on her thumb
on September 27, 2016.
After Kleier’s injury and at least until the hearing date in front of the
ALJ, Kleier continued to work as a tutor for Dr. Fernandez’s children on the
weekdays. She also returned to work at Macy’s for a period of time after the
injury, following her treatment providers’ restrictions. While working under
those restrictions, she continued to greet customers and advise them on
makeup and skin care. She would also make phone calls, try to book
appointments, and make customers aware of events. She would sometimes still
apply makeup but, according to her deposition testimony, did so with difficulty.
Kleier quit her job at Macy’s on May 29, 2016. She testified that she
used all of her paid time off before quitting, but it is unclear from the record
how much time that was. She testified that she stopped working at Macy’s
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because of the pain from her injury, but she wrote a letter to Macy’s stating she
had another full-time job and was having difficulty combining it with the part-
time work at Macy’s. On the day she quit, she was offered another job with
Randstad performing the exact same job duties but working in shorter shifts.
She accepted that job but only worked for Randstad for a short period of time.
Kleier argues to this Court that the ALJ erred in failing to award her TTD
benefits from May 29, 2016, the day she quit Macy’s, until September 26,
2016, the day before she underwent surgery on her thumb.2 Both the Board
and the Court of Appeals affirmed the ALJ’s decision. After a thorough review of
the record and the arguments of the parties, we likewise affirm.
II. STANDARD OF REVIEW
Review by this Court of workers’ compensation cases is limited “to
address[ing] new or novel questions of statutory construction, or to
reconsider[ing] precedent when such appears necessary, or to review[ing] a
question of constitutional magnitude.” W. Baptist Hosp. v. Kelly, 827 S.W.2d
685, 688 (Ky. 1992). In a workers’ compensation case, the claimant, in this
case, Kleier, has the burden of proving every element of her claim. Gibbs v.
Premier Scale Co./Ind. Scale Co., 50 S.W.3d 754, 763 (Ky. 2001). The ALJ has
the sole discretion to determine the quality, character, and substance of the
evidence and may reject any testimony and believe or disbelieve various parts
of the evidence regardless of whether it comes from the same witness or the
2 The ALJ awarded Kleier TTD benefits from the date of surgery until she
reached maximum medical improvement.
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same party’s total proof. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418,
419 (Ky. 1985). On appellate review, the issue is whether substantial evidence
of probative value supports the ALJ’s findings. Whittaker v. Rowland, 998
S.W.2d 479, 481 (Ky. 1999). “[T]he ALJ’s findings of fact are entitled to
considerable deference and will not be set aside unless the evidence compels a
contrary finding.” Finley v. DBM Technologies, 217 S.W.3d 261, 264 (Ky. App.
2007).
Because the ALJ found against Kleier with respect to the issue in this
appeal, and because she carried the burden of proof, Kleier must establish on
appeal that the favorable evidence was so overwhelming as to compel a finding
in her favor. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
“Evidence that would have supported but not compelled a different decision is
an inadequate basis for reversal on appeal.” Gaines Gentry
Thoroughbreds/Fayette Farms v. Mandujano, 366 S.W.3d 456, 461 (Ky. 2012)
(citing McCloud v. Beth–Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974)).
III. ANALYSIS
Kleier asserts the ALJ erred in denying TTD benefits from May 29, 2016,
to September 26, 2016. She supports her argument by relying on the fact her
treatment provider placed her on one-handed duty in March 2016 and kept her
on light or medium-duty work restriction until after her surgery.
KRS 342.0011(11)(a) defines temporary total disability as “the condition
of an employee who has not reached maximum medical improvement from an
injury and has not reached a level of improvement that would permit a return
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to employment.” In this case, there is no dispute that during the time frame at
issue Kleier had not yet reached maximum medical improvement. There is,
however, disagreement between the parties as to whether she had “reached a
level of improvement that would permit a return to employment.”
In determining whether a claimant has “reached the level of improvement
that would permit a return to employment,” this Court has made clear that “[i]t
would not be reasonable to terminate the benefits of an employee when he is
released to perform minimal work but not the type [of work] that is customary
or that he was performing at the time of his injury.” Cent. Ky. Steel v. Wise, 19
S.W.3d 657, 659 (Ky. 2000). However, more recently this Court has also stated,
“it is also not reasonable, and it does not further the purpose for paying income
benefits, to pay TTD benefits to an injured employee who has returned to
employment simply because the work differs from what she performed at the
time of injury.” Trane Commercial Sys. v. Tipton, 481 S.W.3d 800, 807 (Ky.
2016). We went on to explain, “absent extraordinary circumstances, an award
of TTD benefits is inappropriate if an injured employee has been released to
return to customary employment, i.e. work within her physical restrictions and
for which she has the experience, training, and education; and the employee
has actually returned to employment.” Id. (Emphasis in original).
Applying the above to this case, the ALJ’s finding that Kleier was not
entitled to TTD benefits during the time period at issue was supported by
substantial evidence, and Kleier’s contrary evidence was not so overwhelming
as to compel a finding in her favor. After her injury, Kleier returned to her job
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at Macy’s. Although she did not continue performing all the same job duties,
she did continue many of the same duties. She continued to greet customers
and advise them on makeup and skin care. She would also sometimes apply
makeup. The fact that Kleier also made phone calls and perhaps did not lift as
much product as she once had does not mean she did not return to her
customary employment. The job duties she performed upon returning to work
after her injury were “within her physical restrictions and for which she [had]
the experience, training, and education.” See id.
Kleier stated in her deposition that she quit working at Macy’s because of
the pain she was experiencing. However, she wrote a letter to Macy’s stating
that she could not balance her full-time employment with her part-time
employment at Macy’s. She did not advise Macy’s in that letter that she was
unable to perform her job duties because of the pain she was experiencing, and
there is no evidence that she requested any additional accommodations from
Macy’s. Further, even after quitting her job at Macy’s, Kleier accepted a
position and worked for a short period of time for Randstad doing the same job
she had been doing at Macy’s. Finally, during the time period in question,
Kleier’s treatment providers eased her work restrictions, from light-duty to
medium-duty.
Based on the above facts, there was sufficient evidence of probative value
to support the ALJ’s denial of Kleier’s request for additional TTD benefits.
Although evidence existed that may have supported a different decision by the
ALJ, that evidence was not so overwhelming as to compel a finding in her favor.
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IV. CONCLUSION
For the above stated reasons, we affirm the Court of Appeals.
All sitting. All concur.
COUNSEL FOR APPELLANT, HAYATTE KLEIER:
Wayne Charles Daub
COUNSEL FOR APPELLEE, MACY’S #562:
James Gordon Fogle
Fogle Keller Walker, PLLC
ADMINISTRATIVE LAW JUDGE:
John Hampton McCracken
WORKERS’ COMPENSATION BOARD:
Michael Wayne Alvey, Chairman
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