RENDERED: ' AUGUST 24, 2017
To BE PUBLISHED

Snpreine Tuurt of Benfuckg l

20 16~SC-00008 1-WC

CHERYL BLAINE

ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2015~CA-000267-WC
WORKERS’ COMPENSATION BOARD
NO. ll-WC-01057

DOWNTOWN REDEVELOPMENT
AUTHORITY, INC.; HoN. J. LANDON
ovERFIELD, FORMER cHIEF
ADMINISTRATIVE LAW JUDGE; HoN.
ROBERT L. szsHER, cURRE`NT cHIEF
ADMINISTRATIVE LAW JUDGE; AND
WoRKERs’ coMPENsATIoN BOARD

OPI~NION OF THE COURT BY JUSTICE HUGHES

AFFI RMING

APPELLANT

APPELLEES

A_ppellant 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 tire 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 Al.._l Was instructed to
address that issue first on'remand. If Blaine was not entitled to PI`D 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 vve 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
(“Departrnent”) 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 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 CALJTs 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 Clai`m 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.

'l`he 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)1 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)(0) 1 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 ALJ on remand. As noted, we agree with both the Board and
the 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. Initi'ally, 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)(0)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 ALJ erred in concluding that after the first injury 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. ‘lf Blaine’s

entitlement to PTD benefits is rejected by the ALJ on remand, the

determination of her PPf) benefits is controlled by KRS 342.730(1)(€) l and (c)2,

as the ALJ 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

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. ‘

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)l or (c)2 could apply so it held that:

an ALJ 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 tim'e 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(1)(0)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
342.00 1 1(34) definition.

ln 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_ssembly 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-calied interpretation
contrary to the plain meaning.” Lewl's v. Jackson Energy Co-op Corp., 189
s.W.sd 37, 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

342.001 1(1 1)(b) [permanent partial disability], (11)(0] [permanent total
disabilityj, and (34) [work] clearly requires an individualized determination of
what the worker is vand is not able to do after recovering from the_ work injury.”
Id. at 51. T_his 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)(¢]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'injury . . . .” 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(1](0)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 ALJ 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 ALJ to conclude that
either KRS 342.730[1)(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 _a
weekly wage equal to or greater than the average weekly wage she was making
at the time of the injury. The AI_J 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[1)(0)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 ALJ erred in concluding for purposes of
KRS 342.730(1](c)2 that she made a weekly wage equal to or greater than her
pre-injury average weekly wage.

The ALJ 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

1 1, 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:

7. Plaintiff’s 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, 201 1.

Plaintiff has not worked since April 28, 201 1. `
As we recently held in Hale v. CDR Operations, Inc., 474 S.W.3d 129, 139-40
(Ky. 2015], stipulated facts are binding on the ALJ and-neither the ALJ 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, te., 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)(0)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 ALd 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 Januaiy 2008 return to work.

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As noted above, in deciding whether KRS 342.730(1)(0)1 or (c)2 is most

f

appropriate, the ALJ 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 ALJ performed deficientl`y:
v The CALJ’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 CALJ 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

CALJ failed to discuss and analyze these-restrictions with any

amount of specificity in his “Discussion and Analysis” section.

[Footnote omitted]. The CALJ’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 CALJ

should have considered See Fawbush; Ad.kins [v. Pike County Bd.

ofEduc., 141 s.w.3d 387, 390 (Ky. App. 2004)].
The Board instructed the ALJ 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 consideredl Ultimately,
as the Court of Appeals` concluded, an award pursuant to KRS 342.730(1)(c)1- .
a triple benefit - may be “permissible depending on the ALJ’s findings, [but] it is
not required as Blaine argues on appeal.” (Empha_sis 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 ALJ with specific instructions to first determine Blaine’s

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entitlement to permanent total disability benefits and, if she is not entitled tol
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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