Cheryl Blaine v. Downtown Redevelopment Authority, Inc.

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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