Dr Larry W. Lynn v. Dottie Ramey
This text of Dr Larry W. Lynn v. Dottie Ramey (Dr Larry W. Lynn v. Dottie Ramey) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED " PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: DECEMBER 13, 2018 NOT TO BE PUBLISHED
2017-SC-000230-WC
DR. LARRY W. LYNN APPELLANT
ON APPEAL FROM COURT OF APPEALS CASE NO. 2016-CA-001334-WC V. WORKERS’ COMPENSATION BOARD NO. 09-WC-82990
DOTTIE RAMEY; APPELLEES HON. STEVEN G. BOLTON, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
In 2010, Dottie Ramey (Ramey), was working for a dentist, Dr. Larry W.
Lynn, in Pike County, Kentucky. Her employment included various clerical
and manual labor tasks. Sometimes she helped Dr. Lynn while he treated
patients. While mopping a floor at work on January 13, 2009, Ramey began to
fall. In the process of trying to catch herself, Ramey injured both shoulders,
her back, left hip, and both knees. Ramey also alleges that she suffered
emotional and psychological injury. Ramey filed her Form 101 on July 27, 2010, wherein she described the
January 13, 2009 incident that caused her injuries. The Administrative Law
Judge (ALJ) considered testimony from Ramey and multiple physicians who
either treated or assessed Ramey after her injury. As a result, the ALJ awarded
Ramey permanent partial disability (PPD) benefits. Because the ALJ also
determined that Ramey did not retain the physical capacity to return to the
type of work that she performed prior to her injury, he enhanced her PPD
benefits by a multiple of three, pursuant to Kentucky Revised Statute (KRS)
342.730(l)(c).
Dr. Lynn appealed to the Workers’ Compensation Board (Board), which
unanimously reversed the ALJ’s decision and remanded for the ALJ to apply
the holding in Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003), which discusses
the proper application of KRS 342.730(l)(c). Dr. Lynn appealed to the Court of
Appeals, which agreed with the Board’s opinion, and thus remanded the case
to the ALJ.
On remand, the ALJ again ruled in Ramey’s favor. Dr. Lynn appealed.
The Board agreed that the order was deficient and again remanded the case for
a proper Fawbush analysis. After issuing a second order on remand in favor of
Ramey, Dr. Lynn appealed yet again. This time, the Board affirmed the ALJ,
which was also affirmed by the Court of Appeals. Dr. Lynn now appeals to this
Court. Having reviewed the record and the law, we affirm the Court of Appeals.
2 Standard of 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 Department Store v. Hamilton, 34
S.W.3d 48, 52 (Ky. 2000). This is clearly a difficult standard to satisfy.
Analysis
The only issue on appeal is whether the ALJ erred in applying KRS
342.730(l)(c) which provides, in pertinent part, as follows:
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.
As previously discussed, the ALJ determined that subsection one applies, thus
multiplying Ramey’s PPD benefits by a factor of three. By contrast, Dr. Lynn
argues that subsection two applies, thus multiplying Ramey’s PPD benefits by
a factor of two. In applying this dichotomy, the Fawbush Court stated:
[T]he ALJ based the decision to apply paragraph (c) 1 upon a finding of a permanent alteration in the claimant's ability to earn 3 money due to his injury. The claimant's lack of the physical capacity to return to the type of work that he performed for Fawbush was undisputed. Furthermore, although he 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. Under those circumstances, we are convinced that the decision to apply paragraph (c) 1 was reasonable.
Fawbush, 103 S.W.3d at 12.
We agree with the Court of Appeals that the ALJ correctly applied
Fawbush. He clearly determined that Ramey could not continue to earn
a wage that equaled or exceeded her pre-injury wage. It is also
undisputed that two physicians diagnosed Ramey with psychological
conditions that would impair her ability to function even in a sedentary
setting. In addition, Dr. Anbu Nadar diagnosed Ramey with work-related
chronic back pain and placed restrictions on her that could preclude
even sedentary activities. Ramey also testified that she was unable to
perform basic manual labor tasks such as lifting heavy objects. As noted
by the Court of Appeals, her testimony regarding the nature of her
injuries and inability to work is undisputed.
We acknowledge that Ramey did return to work for some time after
the injury during which she earned her previous wage. That issue is
aptly addressed by the ALJ in his Order Denying Petition for
Reconsideration on January 5, 2016:
Recognizing that in this somewhat unique fact situation, [Ramey] did return to work at a weekly wage equal to the average weekly 4 wage at the time of injury, I also noted that she was not performing the same job functions, but rather was being induced by the employer to stay on for an indeterminate period of time in order to take advantage of her specialized knowledge of his office and its procedures.
Like in Fawbush, it appears that Ramey performed this temporary post-
injuiy work “out of necessity . . . ” Fawbush, 103 S.W.3d at 12. We also note
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