IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED: MARCH 23, 2017
NOT TO BE PUBLISHED
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COMMONWEALTH OF KENTUCKY, Af'f3ELLAN'f
UNINSURED EMPLOYERS' FUND
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2016-CA-00284-WC
V. WORKERS' COMPENSATION BOARD
NO. 13-WC-01012
MORGAN CRAYNE; PIPER LOGGING; APPELLEES
HON. STEPHANIE L. KINNEY,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
In 2013, Morgan Crayne (Crayne), was working at Piper Logging (Piper),
in West Kentucky. On April 17, 2013, Crayne stepped on a copperhead snake
while he was cutting logs with a chainsaw. He jumped back, landed
awkwardly, and injured his lower back. After he gathered himself, Crayne
killed the snake and continued his work. One other Piper employee witnessed
this event.
Later that day, Crayne was transporting lumber to Cadiz, Kentucky. As
he was driving the truck downhill, the seat moved forward and caught Crayne
between the seat and the steering wheel. This intensified his lower back pain.
Crayne continued to work for Piper for a brief period thereafter but
subsequently ceased working due to his back pain.
Crayne filed his Form 101 on July 1, 2013, wherein he described the
April 17, 2013 incident that injured his back. During the course of the
administrative hearings, Crayne contended that he worked for Piper six days a
week for approximately $100 dollars a day. He was paid in cash and by check.
Piper's owner, Edward "frankie" Piper, claimed that Crayne worked only three
days per week.
The Administrative Law Judge (AW) considered testimony from Frankie
Piper, other employees, and multiple physicians who treated Crayne after his
injury. The AW discussed the testimony of Crayne's doctor, Dr. Davies, and
Dr. Best, who was the doctor selected by the Uninsured Employers' Fund
(UEF), to perform an independent medical evaluation of Crayne. Based on this
evidence, the AW specifically stated that "Dr. Best and Davies have both
indicated the work event on April 17, 2013 is what caused Plaintiffs back
condition that eventually required surgery." (Emphasis added). As a result,
the AW awarded Crayne temporary total disability (TTD) benefits, and
permanent partial disability (PPD) benefits, and medical benefits. The AW
specifically determined that Crayne worked an average of three to four days per
week and that he received $100 per day in compensation.
Unfortunately, neither Piper nor Frankie Piper was insured. As such,
UEF was ordered to pay the benefits awarded by the AW. UEF appealed
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several issues to the Workers' Compensation Board (Board), which
unanimously affirmed the ALJ's determination. UEF then appealed to the
Court of Appeals, which unanimously affirmed the Board's decision. UEF now
appeals to this Court. Having reviewed the record and the law, we affirm the
Court of Appeals.
Standard or Review
In order to reverse, we must determine that the ALJ's findings were "so
unreasonable under the evidence that it must be viewed as erroneous as a
matter of law." KRS 342.285; Ira A. Watson Dep't Store v. Hamilton, 34 S.W.3d
48, 52 (Ky. 2000). This is clearly a difficult standard to satisfy.
Analysis
UEF raises three issues on appeal: 1) Crayne failed to present
substantial evidence that Crayne experienced a work-related injury; 2) Crayne
failed to provide sufficient notice of his alleged injury to Piper or Piper's owner;
and 3) the ALJ's determination of Crayne's average weekly wage (AWW) was
based on mere speculation. Each claim will be addressed in tum.
Work-Related Injury
UEF argues that the medical testimony did not affirmatively establish
that Crayne's injury was work related. See Brown-Forman Corp. v. Upchurch,
127 S.W.3d 615, 621 (Ky. 2004) ("Medical causation must be proved to a
reasonable medical probability with expert medical testimony but [] does not
require it to be proved with objective medical findings."). UEF speculates that a
preexisting condition and other labor performed by Crayne outside of his
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employment with Piper were the true causes of his injury. UEF also takes
great issue with the fact that Crayne did not see a doctor regarding his injury
until six weeks after the injury occurred.
In contrast to the mostly speculative arguments presented by UEF, the
AW considered the depositions and evidence of record, including Crayne's
testimony and that of two other Piper employees. As previously noted, the AW
also discussed the testimony of Crayne's doctor, Dr. Davies, and Dr. Best, who
was the doctor selected by UEF to perform an independent medical evaluation
of Crayne. Also, as previously noted, the AW specifically held that "Dr. Best
and Davies have both indicated the work event on April 17, 2013 is what
caused Plaintiffs back condition that eventually required surgery." (Emphasis
added). Therefore, substantial evidence supports the AW's determination that
Crayne's injury was work-related.
Notice
KRS 342.185(1) and KRS 342.200 govern notice in workers'
compensation cases. Citing these provisions, the Court of Appeals summarized
the evidence presented to the AW as follows:
Regarding notice, medical records show that Crayne reported
having an accident on April 17, 2013. He has consistently
reported this date and the accident as having occurred on that
date. A fellow employee, Mccaslin, acknowledged the accident and
another employee, Blackburn, stated that he heard them discuss
it. And the owner was present at the site on the day of the
accident. The AW evaluated the evidence and determined that the
owner was aware of the incident and of Crayne's accident. Crayne
testified that he told Piper that day and did not return to the work
site for a few weeks.
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It is well-settled that "[t]he AW 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 same party's total proof." Toyota Motor
Mfg., Kentucky, Inc. v. Tudor, 491 S.W.3d 496, 503 (Ky. 2016). Therefore, we
agree with the Court of Appeals that substantial evidence supports the AW's
determination that Piper received proper notice of Crayne's claim.
AWW
We now turn to the issue of the AW's calculation of Crayne's average
weekly wage (AWW). The Court of Appeals succinctly summarized the relevant
facts and law as follows:
As noted by the AW, KRS 342.140(1)(d) sets forth the method for
determining a worker's AWW if the claimant's wages are fixed by
the day. It is not disputed that Crayne's wages were set in this
manner, and he was paid $100.00 per day. Furthermore, given
that the employer did not provide the required paperwork, the AW
only had the testimony of the owner, Crayne, and another
employee, Mccaslin, plus copies of Crayne's checks. Based on this
information, the AW opined that Crayne worked an average three
to four days per week in the thirteen-week quarter preceding the
work accident, and he earned $350.00 per week.
We agree with the Court of Appeals that this constitutes substantial evidence
that the AW's AWW calculation is reasonable. See Tudor, 491 S.W.3d at 503.
Conclusion
For the foregoing reasons, we hereby affirm the Court of Appeals'
decision, affirming the decisions issued by the Board and the AW.
All sitting. All concur.
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COUNSEL FOR APPELLANT:
Charles Davis Batson
Assistant Attorney General
COUNSEL FOR APPELLEE, MORGAN CRAYNE:
Mark H. Edwards
David Craig Troutman
Edwards & Kautz, PLLC
COUNSEL FOR APPELLEE, PIPER LOGGING:
Robert Bartley Frazer
Greenwell & Frazer
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