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Blaine v. Downtown Redevelopment Authority, Inc.

Supreme Court of Kentucky

August 24, 2017

CHERYL BLAINE APPELLANT
v.
DOWNTOWN REDEVELOPMENT AUTHORITY, INC.; HON. J. LANDON OVERFIELD, FORMER CHIEF ADMINISTRATIVE LAW JUDGE; HON. ROBERT L. SWISHER, CURRENT CHIEF ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

         ON APPEAL FROM COURT OF APPEALS CASE NO. 2015-CA-000267-WC WORKERS' COMPENSATION BOARD NO. 11-WC-01057

          COUNSEL FOR APPELLANT: Norman E. Harned KERRICK BACHERT PSC

          COUNSEL FOR APPELLEE, DOWNTOWN REDEVELOPMENT AUTHORITY, INC. Richard Hartsock FOGLE KELLER PURDY, PLLC

          OPINION

          HUGHES JUSTICE.

         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 (ALJ) 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 ALJ was instructed to address that issue first on remand. If Blaine was not entitled to PTD benefits following the first injury, then the ALJ 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 FACTS

         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. 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 former'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 CALJ. Following an extensive discovery period, the CALJ conducted a benefit review conference ("BRC"), which was followed by a final hearing.
In an Opinion, Order and Award, rendered May 27, 2014, the CALJ 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 CALJ's finding that the first injury resulted in Blaine having a 26% functional impairment to the body as a whole. The CALJ did not award any multipliers for the first injury. The CALJ 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 CALJ denied. Blaine then appealed to the Board. The Board affirmed in part, vacated in part, and remanded the claim to the CALJ for further findings. Specifically, the Board concluded that the CALJ failed to address whether Blaine's first injury rendered her totally and permanently disabled. Additionally, the Board concluded that the CALJ failed to conduct a proper analysis under Fawbush v. Gwinn, supra.

         The Board remanded Blaine's claim to the CALJ 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 CALJ or ALJ as designated by the CALJ determine Blaine is not entitled to PTD benefits as a result of the June 26, 2007, injury, the CALJ or ALJ must then conduct an appropriate analysis of the third prong of the Fawbush analysis (sic) in conformity with the views expressed herein.

         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 ALJ 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 ...


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