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Voith Industrial Services, Inc. v. Gray

Court of Appeals of Kentucky

March 24, 2017

VOITH INDUSTRIAL SERVICES, INC. APPELLANT
v.
ASTIN GRAY; HON. STEPHANIE L. KINNEY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

         PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-13-86934'

          BRIEF FOR APPELLANT: David D. Black Louisville, Kentucky

          BRIEF FOR APPELLEE: Christopher P. Evensen Louisville, Kentucky

          BEFORE: COMBS, DIXON, AND NICKELL, JUDGES.

          OPINION AFFIRMING

          DIXON, JUDGE:

         Voith Industrial Services, Inc., seeks review of a decision of the Workers' Compensation Board, which affirmed in part, vacated in part, and remanded an Administrative Law Judge's award of permanent partial disability benefits to Astin Gray. Finding no error, we affirm.

          Gray was born in 1966 and has a 9th grade education. He moved to the United States from Jamaica in December 2007. Gray began working as a janitor for Voith in May 2012, and he was assigned to clean the paint shop facility at an automobile manufacturing plant in Louisville. Gray's job duties included cleaning the paint room and railing below the paint robots, as well as mopping and cleaning offices. On April 4 and April 6, 2013, while cleaning the paint room, Gray inhaled chemical fumes from Purge solvent, which was used to clean the paint robots. After inhaling Purge, Gray experienced dizziness, burning in his throat, and chest tightness. Gray sought treatment at Baptistworx and was diagnosed with GERD symptoms and cough possibly related to inhalation injury. Gray returned to work and subsequently sought treatment with his primary care physician, Dr. Miriam Reyes. Pulmonary functional testing indicated moderately severe restriction, and Dr. Reyes referred Gray to Dr. Scott Kellie, a pulmonologist, for further assessment. Dr. Kellie diagnosed asthma and reactive airway dysfunction syndrome (RADS). Dr. Kellie prescribed an inhaler and took Gray off work for two weeks. Gray's symptoms improved while off work, and Dr. Kellie subsequently recommended that Gray return to work but avoid exposure to the paint room chemicals. Gray also underwent a sleep study, which revealed sleep apnea with oxygen deficit. Gray returned to work for Voith and was relocated to the main building in the plant to avoid exposure to Purge solvent in the paint room. In January 2015, Gray filed a claim for workers' compensation benefits, alleging the inhalation of Purge solvent in April 2013, caused Gray's asthma, RADS, and sleep apnea.

         At the final hearing, Gray testified he experiences shortness of breath and chest pain if he inhales dust while sweeping. He asserted that he is capable of performing his janitorial duties in the main building, but he believes he could not resume working in the paint room because of the chemical fumes. According to Gray, he never experienced any breathing problems or sleep problems prior to April 2013. Gray submitted the IME report of Dr. Warren Bilkey. Dr. Bilkey reviewed Gray's history of exposure to the Purge solvent. Dr. Bilkey determined Gray developed RADS, asthma, and sleep apnea as a result of inhaling the Purge solvent in April 2013. Dr. Bilkey assessed a whole person impairment of 22%.

         Voith submitted the treatment records and deposition of Dr. Douglas Lotz, an allergist and immunologist. Dr. Lotz diagnosed allergic rhinitis and moderate persistent occupational asthma as a result of Gray's exposure to Purge solvent. Dr. Lotz opined Gray was capable of returning to his customary work, but recommended minimizing any exposure to chemicals. Dr. Lotz assessed a 10% whole person impairment for occupational asthma. Dr. Lotz disagreed with Dr. Bilkey's diagnosis of RADS and contended Gray's sleep apnea was not causally related to the exposure to Purge solvent. Dr. Lotz believed Gray had not yet reached maximum medical improvement.

         The ALJ concluded Gray developed occupational asthma, RADS, and sleep apnea as a result of the work injury on April 4, 2013. The ALJ found Gray had no history of breathing problems or sleep apnea prior to his exposure to Purge. The ALJ noted Gray's current work restrictions required him to work in a building where he was not exposed to Purge. The ALJ also found, although Gray had received a pay cut when he transferred to the main building, he was currently earning his pre-injury wage. The ALJ awarded Gray permanent partial disability benefits based on a 13% impairment rating.[1] The ALJ also found Gray was entitled to an enhanced benefit pursuant to the three multiplier in KRS 342.730(1)(c)1 because Gray was unable to perform the essential job duties that he performed pre-injury. Voith filed a petition for reconsideration requesting additional findings to support the application of the statutory three multiplier. The ALJ issued an order on reconsideration setting forth additional findings to support the enhanced award, noting Gray's ongoing pulmonary limitations made it unlikely he could continue earning a wage equal to or greater than his pre-injury wage for the indefinite future. Voith appealed the ALJ's decision to the Board. In its opinion, the Board affirmed the ALJ's findings regarding the application of the three multiplier pursuant to KRS 342.730(1)(c)1. The Board concluded the ALJ failed to properly analyze the issue of temporary total disability; consequently the Board vacated the opinion as to that issue and remanded the case to the ALJ. This petition for review followed.

         The findings of an ALJ in favor of an injured worker will not be disturbed on appeal where the decision is supported by substantial evidence. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984). When this Court reviews a workers' compensation decision, our function is to correct the Board only where we believe "the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).

         KRS 342.730(1)(c)1 provides that an injured worker may receive three times the amount of his calculated permanent partial disability benefit if he "does not retain the physical capacity to return to the type of work . . . performed at the time of injury[.]" In contrast, a worker who returns to employment earning an equal or greater weekly wage than his pre-injury weekly wage is entitled to a double income benefit for any time period his employment ceases at that wage level. KRS 342.730(1)(c)2. In Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003), the Kentucky Supreme Court addressed the application of KRS 342.730(1)(c)1 and (c)2. The Court concluded that, in circumstances where both subsections apply, the ALJ has the authority to choose which benefit is most appropriate under the facts of the case. Id. at 12. Specifically, the Court noted, "[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." Id.

         Voith contends the Board erred by affirming the ALJ's application of the three multiplier. Specifically, Voith asserts Gray returned to his pre-injury work and retained the capacity to earn his pre-injury wage for the indefinite future.

         Voith's arguments attack the sufficiency of the evidence relied upon by the ALJ. It is well settled the ALJ, "as the finder of fact, and not the reviewing court, has the authority to determine the quality, character and substance of the evidence[.]" Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Likewise, the ALJ is free "to believe part of the evidence and disbelieve other parts of the evidence whether it came from the same witness or the ...


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