IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: APRIL 29, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0490-WC
BLUEGRASS OAKWOOD, INC. APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NO. 2019-CA-0423
WORKERS’ COMPENSATION BOARD NO. 14-WC-91253
HEATHER MORGAN, HON. JONATHAN R. APPELLEES
WEATHERBY, ADMINISTRATIVE LAW
JUDGE AND WORKERS’ COMPENSATION
BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
In workers’ compensation cases, an Administrative Law Judge is tasked
with making findings of fact, which are binding on reviewing courts so long as
the evidence is not so overwhelming as to have compelled a different finding.
The issue in this case is whether the facts supported the ALJ’s determination
that Heather Morgan’s workplace injury appropriately entitled her to the two
times multiplier of her permanent partial disability benefit under KRS
342.730(1)(c)2. After reviewing the record, we hold that the ALJ erred in
applying his facts to the law and not awarding Morgan the three times
multiplier under KRS 342.730(1)(c)1. We therefore affirm the Court of Appeals
opinion and remand this matter to the ALJ for calculation of the correct
benefit.
I. BACKGROUND
Appellee, Heather Morgan, has a high school diploma and is halfway
through her studies to obtain an associate degree. She is licensed to work as a
certified nursing assistant and has no other specialized training. Morgan
worked as a residential assistant for Appellant, Bluegrass Oakwood, Inc.,
earning around $14/hour.
(Bluegrass) provides housing and other services for individuals with
physical and intellectual disabilities. In addition to providing direct resident
care requiring her to lift residents, transfer residents, push wheelchairs, and
otherwise assist residents in carrying out the activities of daily life, Morgan had
housecleaning duties. The job description filed in the record by (Bluegrass)
requires lifting in excess of fifty pounds as an essential element of the job.
Some of the residents of Bluegrass have behavior disorders and are
known to hit, kick, bite, and headbutt their caregivers on occasion. (Bluegrass)
assigned Morgan to work with residents with such behavioral issues who
became violent with her from time to time. Morgan sustained at least three
work-related neck injuries from violent encounters with residents during her
tenure at (Bluegrass). During the first of these encounters, a resident
significantly larger than Morgan hit her in the back of the neck. An MRI after
this injury showed a herniation in Morgan’s cervical spine at the C6-C7 level.
Later, Morgan was hit in the back of the neck yet again by another resident,
2
who was also substantially larger than her 112-pound frame. After the second
injury, Morgan had a discectomy in which the surgeon removed her herniated
disc and replaced it with an artificial vertebra. Morgan returned to work after
surgery until she was injured a third time. In this incident, a female resident
pulled Morgan’s head back by her hair to bite her, jerking Morgan’s neck and
causing pain and numbness radiating down her arm to her fingers. Morgan
has not returned to any form of employment since her third neck injury at
Bluegrass.
When Morgan reached maximum medical improvement, Bluegrass
stopped paying her temporary total disability benefits and she filed a claim
with the Department of Workers’ Compensation seeking disability payments.1
The ALJ found that Morgan was entitled to the “two multiplier” pursuant to
Kentucky Revised Statutes (KRS) 342.730(1)(c)2. Ultimately, the Workers’
Compensation Board affirmed the ALJ’s findings and Morgan appealed to the
Court of Appeals. The Court of Appeals reversed, holding the ALJ should have
applied the “three multiplier” pursuant to KRS 342.730(1)(c)1. Bluegrass
appealed to this Court and we now affirm.
II. ANALYSIS
When a Kentucky worker is injured, he or she may recover under the
workers’ compensation system found in KRS Chapter 342. In certain
1 Morgan also raised the issue of additional total temporary disability payments
before the ALJ, but that issue was not appealed.
3
circumstances, an employee’s benefit may be tripled or doubled pursuant to
KRS 342.730(1)(c). That subsection provides, in pertinent part:
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, 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.
Herein, the ALJ found that Morgan both could not return to the type of
employment that she had at the time of her injury (pursuant to (c)1) and that
she had returned to work at a greater average weekly wage and could have
continued earning this wage into the foreseeable future (pursuant to (c)2). We
have held that when both the triple and double multipliers apply, “an ALJ is
authorized to determine which provision is more appropriate on the facts.”
Fawbush v. Gwinn, 103 S.W.3d 5, 12 (Ky. 2003). The ALJ found the two
multiplier more appropriate in Morgan’s case. The applicability of the
multiplier is the sole issue before this Court.
4
A. Standard of Review
In workers’ compensation claims, our standards of review differ
depending on whether we review questions of law or questions of fact. “As a
reviewing court, we are bound neither by an ALJ’s decisions on questions of
law [n]or an ALJ’s interpretation and application of the law to the facts. In
either case, our standard of review is de novo.” Bowerman v. Black Equip. Co.,
297 S.W.3d 858, 866 (Ky. App. 2009).
As to questions of fact, “[t]he ALJ as fact finder has the sole authority to
judge the weight, credibility, substance, and inferences to be drawn from the
evidence.” LKLP CAC Inc. v. Fleming, 520 S.W.3d 382, 386 (Ky. 2017) (citing
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985)).
Furthermore,
[a]s factfinder, an ALJ may reject any testimony and believe or
disbelieve various parts of the evidence, regardless of whether it
comes from the same witness or the same party’s total proof. KRS
342.285(2) and KRS 342.290 limit administrative and judicial
review of an ALJ’s decision to determining whether the ALJ “acted
without or in excess of his powers;” whether the decision “was
procured by fraud;” or whether the decision was erroneous as a
matter of law. Legal errors would include whether the ALJ
misapplied Chapter 342 to the facts; made a clearly erroneous
finding of fact; rendered an arbitrary or capricious decision; or
committed an abuse of discretion.
Abel Verdon Const. v. Rivera, 348 S.W.3d 749, 753-54 (Ky. 2011) (footnotes
omitted).
Under this Court’s precedent, “[i]f the fact finder finds against the person
with the burden of proof” the “burden on appeal is infinitely greater.” Special
Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). “It is of no avail in such a
5
case to show that there was some evidence of substance which have justified a
finding in [her] favor.” Id. “[T]he question before the court is whether the
evidence was so overwhelming, upon consideration of the entire record, as to
have compelled a finding in [her] favor. Wolf Creek Collieries v. Crum, 673
S.W.2d 735, 736 (Ky. App. 1984)
B. The ALJ Erred in Finding That Morgan Could Return to the Same or
Greater Average Weekly Wage.
1. Restrictions
In the present case, the ALJ based his findings on the opinions of Drs.
Bilkey and El Kalliny and Morgan’s testimony. Dr. Bilkey had performed an
independent medical evaluation on Morgan’s behalf prior to the hearing. Dr. El
Kalliny was Morgan’s treating neurosurgeon and performed her discectomy and
artificial vertebrae placement surgery. Dr. El Kalliny restricted Morgan to
lifting, pushing, and pulling no more than twenty pounds and alternating
between sitting and standing every thirty minutes. Dr. Bilkey agreed with the
limitations put in place by Dr. El Kalliny. Morgan testified a Bluegrass
employee told her the company had no jobs in which it could provide those
accommodations.
Morgan went back to work without restrictions three times: first, after
her injury; then, after neck surgery; and, finally, after her second injury.
Before Morgan experienced her third work-related neck trauma, Morgan was
making a few more cents on the hour and, therefore, a slightly higher average
weekly wage than she had been at the time of her first injury; however, Morgan
testified she could not do all the tasks assigned her when she returned to work
6
at any point after her first injury and had to elicit help from her co-workers.
Dr. El Kalliny testified he had wanted to impose restrictions on Morgan after
her first injury, but she told him her job would not accommodate her and she
had to work to support her child. Dr. El Kalliny testified that had he imposed
the work restrictions after Morgan’s first injury, she would not have sustained
the other injuries.
In Fawbush, 103 S.W.3d at 12, we held the triple multiplier is applicable
when an injured employee
was able to earn more money than at the time of his injury, his
unrebutted testimony indicated that the post-injury work was done
out of necessity, was outside his medical restrictions, and was
possible only when he took more narcotic pain medication than
prescribed. It is apparent, therefore, that he was not likely to be able
to maintain the employment indefinitely.
Id. The same is true for Morgan. She was able to return to work for short
periods of time between her work-related neck trauma and even earned slightly
more money during those brief periods of employment. However, like
Fawbush, Morgan declined to follow her doctor’s recommended restrictions
initially, as she knew her employer could not or would not provide the
accommodations. Just as Fawbush, Morgan testified she experienced greater
levels of pain the more she worked. After her third injury and the imposition of
Dr. El Kalliny’s restrictions, Morgan never returned to work in any capacity—
for Bluegrass or otherwise.
While some of the doctors presented by Bluegrass opined that Morgan
could return to her job without restriction, the ALJ made it clear he based his
findings on the opinions of Drs. Bilkey and El Kalliny. Specifically, the ALJ
7
found “both doctors have opined that [Morgan] does not retain the ability to
return to the same type of work. This opinion has convinced the ALJ.” The
ALJ also found Morgan “has sustained 28% whole person impairment and that
she does not retain the ability to return to the same type of work.” However,
the ALJ went on to find Morgan, “despite not retaining the ability to return to
the same type of work, did return at the same or greater wages and then
ultimately had to stop due to the work injuries suffered herein.”
2. Proceedings below
Morgan filed a motion asking the ALJ to reconsider his order regarding
the two multiplier. Issuing an order in response to Morgan’s motion, the ALJ
stated:
After an additional review of the evidence, the facts found to
be credible by the ALJ support the award of the “2” multiplier. The
ALJ specifically finds that [Morgan’s] credible testimony supports
the issuance of the “2” multiplier.
[Morgan] testified that she returned at the same wages but
had to stop working due to the residual effects of her prior injuries.
There is no credible evidence of any additional impairment suffered
or of more significant restrictions issued that would constitute any
change in her condition such that the “3” multiplier could be
justified.
Morgan then appealed the ALJ’s order to the Workers’ Compensation
Board, seeking, among other things, for the ALJ to perform the analysis
required by Fawbush. The Board remanded the case to the ALJ to perform
that analysis, stating:
[i]n the case sub judice, the ALJ failed to determine, pursuant to
Fawbush, whether Morgan is unlikely to be able to continue earning
a wage that equals the wage at the time of the injury for the indefinite
future based on the factors set forth in Adams [v. NHC Healthcare,
8
199 S.W.3d 163, 165 (Ky. 2006)]. Thus, enhancement of the award
by the two multiplier must be vacated.
The Workers’ Compensation Board remanded for the ALJ to
perform that analysis and make a determination of whether to enhance
the permanent partial disability award by the two multiplier or the three
multiplier. On remand, the ALJ acknowledged the three findings an ALJ
must make pursuant to Fawbush, namely:
First, the ALJ must determine whether a claimant can return to
the type of work performed at the time of the injury. Second, the
ALJ must also determine whether the claimant has returned to
work at an [average weekly wage] equal to or greater than her pre-
injury wage. Third, the ALJ must determine whether the claimant
can continue to earn that level of wages for the indefinite future.
The ALJ found Morgan “was ultimately able to return to work in the
same job for a significant amount of time and that she stopped working with no
increased impairment, restrictions, or disability.” The ALJ stated Morgan “said
she felt uneasy about returning due to the nature of the work in that particular
location.” The ALJ also found Morgan “did not return due to her fear of the
working conditions in that particular location but that she is not prevented
from working and earning that same level of income. The ALJ finds that she
could provide those same services to another employer or in another location
for the same employer.” Based on those findings, the ALJ determined the “two”
multiplier was appropriate, as Morgan had returned to work at an equal or
greater average weekly wage.
9
3. No evidence exists Morgan could make the same or greater average
weekly wage.
Because the question before us represents a factual finding, we must
determine if the ALJ based his findings on substantial evidence. See
Whittaker, 998 S.W.2d at 481. Here, the ALJ failed to identify any evidence in
the record showing a job Morgan could work within her accommodations
earning the same or greater wages. In fact, the ALJ stated he based his
findings on Morgan’s testimony and the medical opinions of Drs. Bilkey and El
Kalliny. Morgan testified there were no positions available at Bluegrass within
her restrictions—much less jobs earning the same or greater average weekly
wage. The only specialized training Morgan had was as a certified nursing
assistant and she was a year shy of obtaining her associate degree. While the
ALJ blanketly states Morgan could obtain another position doing the same
work in a different location, he does not relate this back to Morgan’s work
restrictions or point to any evidence of the existence of jobs.
The ALJ found Morgan was unable to return to her previous type of
work—and that finding is undisputed by the evidence relied upon by the ALJ.
However, there is no evidence of any jobs which are available within her
restrictions or the wages of such jobs. This Court has made it clear “[i]f 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 is appropriate.” Fawbush, 103
S.W.3d at 12. As such, the three-multiplier pursuant to KRS 342.730(1)(c)1 is
applicable to Morgan’s claim.
10
This case is similar to our recent decision in Bryant v. Jessamine Car
Care, 2018-SC-000265-WC, 2019 WL 1173003, at *6 (Ky. Feb. 14, 2019). As
in the present case, the ALJ in Bryant “specifically made a finding that Bryant
lacked the ‘physical capacity to return to his job . . ..’” Id. Further, in both
cases, “[t]his finding is supported by [the workers’] testimony, as well as the
testimony of his [and her] treating doctors.” Id. In that case, we held the ALJ
“erred . . . in attempting to determine Bryant’s potential ability to work . . . for
the same or greater wages.” Id. In both Morgan’s case and Bryant’s, “there
was no evidence in the record of what [a person employed in another position]
may make.” Id.
In summary, the ALJ found that Morgan lacked the physical capacity to
perform the type of work she was doing in her job at Bluegrass, but then
speculated that she could work in some other type of position for an equal or
greater wage to support the application of the two multiplier award. There is
no evidence to support such a speculation, therefore we find that there is
compelling evidence to reverse as no reasonable person could justify the
application of the two multiplier under the facts. The three multiplier must be
applied since Morgan cannot return to her preinjury employment and there is
no evidence that she could continue to make her post-injury wages with her
medical accommodation.
11
III. CONCLUSION
For the foregoing reasons, we affirm the Court of Appeals and remand
this matter to the ALJ for recalculation of Morgan’s benefits using the three
multiplier.
Minton, C.J.; Conley, Hughes, Keller, Lambert and VanMeter, J.J.;
sitting. Nickell, J. not sitting. All Concur.
COUNSEL FOR APPELLANT:
Robert Frank Ferreri
Christopher Mills Mayer
Ferreri Partners, PLLC
COUNSEL FOR APPELLEE, HEATHER MORGAN:
Mark Douglas Knight
COUNSEL FOR APPELLEE, JONATHAN R. WEATHERBY:
Jonathan Robert Weatherby, Jr.
Administrative Law Judge
COUNSEL FOR APPELLEE, WORKERS’ COMPENSATION BOARD:
Michael Wayne Alvey
12