         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    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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: JUNE 16, 2016
                                                        NOT TO BE PUBLISHED

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                              2015-SC-000407-WC        min      ,




                                                                    1-1(2-1--/g0daigemi4 ,„.
TWO CHICKS, LLC                                                         APPELLANT



                    ON APPEAL FROM COURT OF APPEALS
V.                     CASE NO. 2014-CA-001253-WC
                   WORKERS' COMPENSATION NO. 11-69759



JACQUELINE NOELLE LUNTE;
HONORABLE STEVEN BOLTON,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                            APPELLEES



                  MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      Appellant, Two Chicks, LLC, appeals a Court of Appeals decision which

reinstated an award of the three multiplier to Appellee, Jacqueline Lunte's

workers' compensation benefits. Two Chicks argues that the Court of Appeals

applied the wrong legal standard in reviewing the application of the three

multiplier by focusing solely on whether Lunte can do the exact task she was

performing when she sustained a work-related injury. KRS 342.730(1)(c)1. For

the below stated reasons, we affirm the Court of Appeals.

      Lunte was employed by Two Chicks as a sales clerk. Two Chicks is a

boutique store which sells gifts, jewelry, purses, silver, pewter, pillows, and

furniture. Lunte's job at Two Chicks involved straightening the store, stocking
shelves, pricing items, writing up sales tickets, assisting customers, and

helping out when needed. Lunte stated that she had to frequently use a step

stool or ladder to reach merchandise that was located above her reach. She

had concurrent employment as a teacher for two-year-olds at a local school.

      On October 29, 2011, Lunte was asked by a customer to get an

ornament located on a Christmas tree. Lunte could not reach the ornament, so

she climbed on a three-foot step stool. As she was getting off of the stool, she

fell and sustained a right tibial plateau fracture. Lunte underwent surgery

which involved placing several screws through the bone, using a six-hole

tubular plate and a four-hole laberal plate, then reducing the fractures that

had extended into the tibial plateau, and finally filling a bone-loss crack with a

bone-graft substitute. An open meniscus repair was performed with sutures,

but a torn patella tendon was non-repairable. Lunte filed for workers'

compensation. She has not returned to work at Two Chicks, but has returned

to teaching. Lunte does not believe she could return to her pre-injury job at

Two Chicks without some sort of accommodation.

      Karen Mayes, Two Chicks' owner and manager, testified that the role of a

sales clerk is to welcome and interact with customers, suggest items to

purchase, check out purchases, wrap gifts, organize and restock the store,

order items, and price inventory. She stated that climbing is not an essential

function of the sales clerk's job because the same item is usually found in

multiple locations in the store eliminating the need to retrieve one in a high

spot. While there is some merchandise which is located eight to twelve feet up



                                         2
on the wall and on top of eight foot shelves, Mayes testified that clerks were

never required to climb to retrieve items which were located above their reach.

If a customer wanted an item that was up too high or too heavy, the clerk could

either work with their co :workers to get it, have the customer retrieve it, have

the customer return later to pick it up, or call the handyman or her husband to

come in the next day to load the item. Mayes indicated that Two Chicks would

be willing to accommodate Lunte's restrictions if she wanted to return to work.

      Dr. Craig Roberts treated Lunte. He diagnosed her with a complex right

tibial plateau fracture and a right lateral meniscus tear. He found that Lunte

had an 8% whole person impairment as a result of her injuries. He stated that

as a result of the accident, Lunte is unable to climb stairs or ladders. She also

is unable to do repetitive deep knee bending, squatting, or heavy lifting.

      After a review of the evidence, the ALJ made the following findings:

            As to the issues of [b]enefits per KRS 342.730 including
     extent 86 duration w/multiplier, I rely on the medical opinion of Dr.
     Craig Roberts as being the most compelling, complete, and
     persuasive medical evidence in the record as to the issue of
     [Lunte's] percentage of whole person impairment (WPI) as the
     direct and proximate result of her work-related injury. I have
     relied on that opinion in making my decision concerning that
     issue.
            Using the AMA Guides to the Evaluation of Permanent
     Impairment, 5th Edition, Table 17-10 (Page 537), Dr. Roberts
     determined knee flexion less than 110 degrees equals 4% whole
     person impairment and flexion contracture 8 degrees equals 4%
     whole person impairment. Using the Combined Values Chart (Page
     604) he calculated these values to be summed to 8% whole person
     impairment, which is the WPI he assigned to [Lunte].
            Dr. Roberts also noted that [Lunte] will be unable to do stair
     and ladder climbing, repetitive deep knee bending, squatting or
     heavy lifting. Given the description of her job duties at [Two
     Chicks], it is clear that she does not retain the physical capacity to
     return to her employment as a retail clerk for [Two Chicks]. In


                                         3
       making that finding, I rely on the medical testimony of Dr. Roberts
       who assigns restrictions to [Lunte's] physical activities as well as
       the testimony of [Lunte] herself as to the duties she performed for
       [Two Chicks], which included squatting and reaching to obtain or
       replace merchandise on display from floor to ceiling.
              I note the testimony and personal interest of [Two Chicks]
       who are assuredly concerned for the welfare of their employee.
       However, with regard to the award of a statutory multiplier, the
       test before me is essentially whether, due to her current physical
      'condition, [Lunte] can return to the same job duties she was
       performing at the time of her work-related injury. This language
       has been construed by the Supreme Court of Kentucky as meaning
       the actual jobs the individual performed. Ford Motor Co. v.
       Forman, 142 S.W.3d 141 (Ky. 2004). The weight of the evidence
       convinces me that she cannot.
              Thus, as to the application of statutory enhancement under
      KRS 342.730 (the "3 multiplier["]), I find the testimony of Dr. Craig
      Roberts to be persuasive. [Lunte] has reached MMI and her
       surgery was by all accounts successful.
              Dr. Roberts recommended light-duty work restrictions that
      would preclude [Lunte] from returning to the job she had
      previously performed for [Two Chicks] as a retail clerk. Although
      Dr. Roberts did not specifically opine that [Lunte] was precluded
      from returning to her pre-injury work duties, the effect of his
      restrictions effectively does the same thing. [Lunte] has not
      returned to work.

Accordingly, the AL I awarded Lunte temporary total disability benefits and

permanent partial disability benefits enhanced by the three multiplier as well

as medical benefits.

      Two Chicks filed a petition for reconsideration arguing that the ALJ did

not present adequate findings to support awarding the three multiplier to

Lunte. The ALJ denied the petition and stated:

              [Two Chicks] argues that significant findings do not
      adequately support the award of a [three] multiplier to [Lunte].
      However, in its petition it points out that Dr. Roberts permanently
      restricted [Lunte] from climbing stairs or ladders and repetitive
      deep knee bending, deep knee squatting, and deep knee heavy
      lifting, all of which [Lunte] testified she was required to do in order



                                         4
      to perform her job. I believe that I so found in my Opinion, Award,
      and Order, but if I didn't then, I do now.
             As to whether she had to perform these functions, she
      adequately testified to the fact that merchandise was strung from
      floor to ceiling and in order to serve customers, she had to squat
      and climb a ladder frequently, especially during the Christmas
      season.

      Two Chicks appealed to the Workers' Compensation Board ("Board")

which vacated the portion of the ALJ's opinion and award that granted Lunte

the three multiplier. The Board found that the ALJ performed the incorrect

analysis because he did not determine whether Lunte's restrictions prevent her

from being able to perform all of the tasks of a sales clerk. Board member

Stivers dissented from the majority but did not write an opinion.

      The Court of Appeals disagreed with the Board and reinstated the

application of the three multiplier to Lunte's award. The Court of Appeals held

that the ALJ applied the correct legal standard when he found that Lunte could

no longer perform many of the tasks associated with her pre-injury job due to

her physical restrictions. Additionally, the Court of Appeals found that Lunte's

testimony indicating that she did not think she had the ability to perform many

of the tasks associated with her pre-injury job was persuasive and that the ALJ

could rely upon it. This appeal followed.

      The Board's review in this matter was limited to determining whether the

evidence is sufficient to support the ALJ's findings, or if the evidence compels a

different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).

Further, the function of the Court of Appeals is to "correct the Board only

where the Court perceives the Board has overlooked or misconstrued



                                         5
controlling statutes or precedent, or committed an error in assessing the

evidence so flagrant as to cause gross injustice." Id. at 687-88. Finally, review

by this Court "is to address new or novel questions of statutory construction,

or to reconsider precedent when such appears necessary, or to review a

question of constitutional magnitude." Id. The ALJ, as fact-finder, has the sole

discretion to judge the credibility of testimony and weight of evidence.

Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). Questions of

law are reviewed de novo. Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866

(Ky. App. 2009).

      Two Chicks argues before this Court that the ALJ and Court of Appeals

misapplied the law on the three multiplier by focusing solely on Lunte's ability

to perform the task in which she was injured. KRS 342.730(1)(c)1, the three

multiplier, states in pertinent part:

      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 .. .

As used in KRS 342.730(1)(c)1, the phrase "the type of work that the employee

performed at the time of injury" refers to the specific jobs or tasks that the

individual performed, rather than the title of the position or the job

classification. Forman, 142 S.W.3d at 145. In Forman, the claimant worked as

an assembler pre-injury. After she recovered, she returned to work as an

assembler, but was unable to perform all of the tasks in that classification due

to here injury. The AI,J in Forman did not apply the three multiplier to the




                                         6
claimant's award because she returned to the same job classification that she

had pre-injury. However, the Board reversed, finding that the ALJ erred by

using the claimant's job classification as the standard for refusing to enhance

the award. The Court of Appeals affirmed. This Court, in affirming, found that

the ALJ must analyze all of the evidence to determine what jobs the claimant

performed at the time of her injury and then find whether she retains the

physical capacity to return to those jobs. If she did not retain the physical

capacity to return to those jobs, even if she returned to the same job

classification, she would be entitled to the three multiplier.   Id.

      Several years after Forman, the Court rendered the decision of Miller v.

Square D Co., 254 S.W.3d 810 (Ky. 2008). In Miller, the ALJ found that the

claimant was not entitled to the three multiplier because he could perform the

mold technician job which he was performing when injured. However, pre-

injury the claimant also did assembly work for the same employer which he no

longer performed. The Court ultimately reversed and remanded the matter for

the ALJ to consider what the claimant's physical capacity was to do assembly

work. The Court found that "the phrase 'the type of work that the employee

performed at the time of injury' to refer broadly to the various jobs or tasks

that the worker performed for the employer at the time of injury rather than to

refer narrowly to the job or task being performed when the injury occurred."

Id. at 814.

      In this matter, applying the law from Forman and Miller leads us to the

conclusion that the ALJ did not misapply the law or abuse his discretion in



                                         7
finding that Lunte is entitled to the three multiplier. In determining whether to

apply ,the three multiplier, the ALJ must review all of the tasks that the

claimant performed at the time of her injury and then determine whether she

maintains the ability to perform those tasks. Here the ALJ found that Lunte

had to frequently climb, squat, and lift to retrieve and shelve items which he

concluded are necessary tasks of the sales clerk job. Thus, based on a detailed

review of the evidence, including Dr. Roberts's restrictions and Lunte's

testimony, the ALT found that application of the three multiplier was supported

because she no longer had the physical capacity to work as a sales clerk.

While Mayes stated that the job of being a sales clerk at Two Chicks does not

require climbing or reaching for items in high areas, Lunte's testimony rebuts

Mayes. The ALI was within his discretion to believe Lunte. We also note that

even if Lunte can perform some of the tasks of being a sales clerk, the three

multiplier has been applied when the claimant returns to the same job

classification but is precluded from performing some of the tasks associated

with it. Forman, 142 S.W.3d at 142.

      For the above stated reasons, we affirm the decision of the Court of

Appeals.

      All sitting. All concur.




                                         8
COUNSEL FOR APPELLANT,

TWO CHICKS, LLC:

Thomas L. Ferreri
Robert Frank Ferreri
Taylor Alexander Mayer


COUNSEL FOR APPELLEE,
JACQUELINE NOELLE LUNTE:

Peter J. Naake




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