         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    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
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                                                 RENDERED: MARCH 17, 2016
                                                     NOT TO BE PUBLISHED

                    uprrittr (gaud iif retrrfu riFi           kk
                              2015-SC-000376-WC


FORD MOTOR COMPANY (LAP)                                             APPELLANT



                     ON APPEAL FROM COURT OF APPEALS
V.                      CASE NO. 2015-CA-000254-WC
                    WORKERS' COMPENSATION NO. 14-00422



ROSS A. BURT;
HONORABLE STEVEN G. BOLTON,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                         APPELLEES



                    MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Appellant, Ford Motor Company (LAP), appeals a Court of Appeals

decision which affirmed a workers' compensation award entered in Appellee,

Ross A. Burt's favor. Ford argues that the Administrative Law Judge ("AI.0")

erred by assigning Burt a 19% impairment rating for work-related injuries to

his upper extremities and that there was not substantial evidence to support a

finding that Burt was entitled to have his benefits enhanced by the three

multiplier. KRS 342.730(1)(c)1. For the below stated reasons, we affirm the

Court of Appeals.

      Burt has been employed by Ford since 1995. In December 2001, he was

assigned to a position called the right-handed speaker job. This job required
Burt to install a plastic cover over a metal piece on a right passenger door. To

ensure the cover was properly seated, he had to hit it with his left hand. Burt

began to develop problems with his left index and pinky finger around March

or April 2012. He visited Ford's medical clinic who told him that his pain was

not work-related. Burt's condition continued to worsen and he began to

develop problems with his right upper extremity. Burt continued to work in

the right-handed speaker job until July 2012, when he transferred to a

different position.

       On August 23, 2012, Burt was examined by Dr. Christopher Shields. Dr.

Shields informed Burt that his pain was caused by his employment at Ford.

Ultimately, Burt underwent surgery on his upper right extremity on October 9,

2012, and was placed off of work until January 15, 2013. Burt filed for

workers' compensation.

       Burt testified in a deposition that, although he is better, he continues to

experience numbness in his right pinky finger. He also continues to have pain

' in his left hand and wrist. Burt is able to perform the job tasks in his current

position with Ford, but does not believe he maintains the physical ability to

work in the right-handed speaker job again.

       Burt submitted medical records from the Ford Clinic, Norton Immediate

Care Center, Dr. Shields, Dr. Vasudeva Iyer, Dr. James McKiernan, and Dr.

Todd Shanks in support of his claim. He also submitted a report dated

January 6, 2014, from Dr. Warren Bilkey. Dr. Bilkey diagnosed Burt with

bilateral ulnar neuropathy injuries at the elbow, ulnar decompressive surgery



                                         2
on the right, and residual neuropathy of both extremities. Dr. Bilkey believed

all of Burt's symptoms were work-related and found that Burt is unable to

carry out the full range of his pre-injury work duties. He believed that Burt

reached maximum medical improvement ("MMI") and assessed a 19%

impairment rating pursuant to the AMA Guides, 5th Edition.

      Ford introduced multiple medical records showing Burt's prior history of

medical problems. Ford also introduced a report by Dr. Richard DuBou, who

evaluated Burt at its request on June 19, 2014. Dr. DuBou diagnosed Burt as

status post ulnar nerve release and sub muscular transposition, and left

cubital tunnel syndrome - severe electrically, mild on clinical examination. Dr.

DuBou did not believe Burt had a specific work injury or an impairment rating

due to a work-related condition. A later supplemental report by Dr. DuBou

assessed Burt with a 5% impairment rating pursuant to the AMA Guides for

conditions that are not work-related.

      After a review of the evidence, the ALJ found that Burt suffered a work-

related injury which manifested itself on August 23, 2012, when Dr. Shields

informed him that his pain was work-related. The ALJ found Dr. Bilkey's

opinion more persuasive than Dr. DuBou's opinion and assigned Burt a 19%

impairment. He also awarded Burt the three multiplier. However, the ALJ did

not conduct a Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003) analysis because he

did not believe the two multiplier was applicable since Burt did not return to

the same or higher rate of pay after his work-related injury. Ford filed a




                                        3
petition for reconsideration which was denied. The Board and Court of Appeals

affirmed, and 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

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). For the below

stated reasons, we affirm the Court of Appeals.

      Ford first argues that the A1.0 erred by relying on Dr. Bilkey's opinion to

find that Burt had a 19% impairment for his upper extremities. Ford argues

that the ALJ should have used Dr. DuBou's evaluation because it was

performed about six months after Dr. Bilkey's evaluation.. Since Dr. DuBou's

evaluation is newer, Ford contends it reflects medical improvement that Burt

has made. Thus, Ford believes Dr. DuBou's opinion is more indicative as to

Burt's current impairment and that since Burt has returned to work, Dr.

DuBou's assessed impairment rating of 5% more accurately reflects Burt's



                                         4
current level of functioning. Ford also states that it believes Dr. Bilkey erred by

providing an impairment rating for decreased range of motion.

      The ALJ did not abuse his discretion by choosing to rely on the

impairment rating assessed by Dr. Bilkey. Dr. Bilkey provided sufficient

evidence and analysis to support the 19% impairment rating he assigned Burt.

While Ford contends that Dr. Bilkey did not properly use the AMA Guides, it

did not cross examine him as to how he arrived at the 19% impairment rating.

Further, the fact that Dr. DuBou performed his examination after Dr. Bilkey,

does not discredit Dr. Bilkey's findings. We also note that Dr. DuBou's

impairment rating was for a condition that he found to be not work-related.

The ALJ reasonably relied on the impairment rating assessed by Dr. Bilkey,

and his decision will not be disturbed.

      Ford's second argument is that the ALJ erred by applying the triple

multiplier to Burt's award. Ford argues that the record shows that Burt can

return to the right-handed speaker job but instead voluntarily chose to transfer

to a different department. Ford also contends that since Burt earns a greater

hourly rate now than before his injury, the two multiplier could be applied and

thus a Fawbush analysis should have been performed. We disagree.

      The ALJ's determination that Burt cannot return to his pre-injury job is

supported by substantial evidence. Burt suffers from impairments to his right

and left arms which reasonably would prevent him from performing some of

the tasks required in the right-handed speaker job. Specifically, there is

evidence that Burt should not engage in work that requires him to repetitively



                                          5
    extend and flex his elbow. The evidence in the record indicates that the right-

    handed speaker job requires frequent elbow' and upper extremity movement.

Additionally, Dr. Bilkey found that Burt could not perform his pre-injury work

    tasks. The ALJ's finding that Burt is eligible for the three multiplier is

    supported by substantial evidence.

          Further, the ALJ's finding that the two multiplier is not applicable is also

supported by the record. As stated by the Board in this matter:

          In Ball v. Big Elk Creek Coal Co., Inc., 25 S.W.3d 115, 117-118 (Ky.
          2000), the Supreme Court of Kentucky explained, for purposes of
          KRS 342.730(1)(c)2, an employee's post-injury AWW is subject to
          calculation under KRS 342.140, using the same method employed
          to determine a claimant's pre-injury AWW. Therefore, the analysis
          must focus on the worker's AWW, not simply his hourly pay rate.
          Id. at 117. This reaffirms the previous holding in Whittaker v.
          Robinson, 981 S.W.2d 118 (Ky. 1998), where the Court 'rejected
          the argument that the worker's pre-injury and post-injury hourly
          pay rate should be compared and concluded that the legislature
          intended for a comparison of the pre- and post-injury average
          weekly wage." Id.

          Therefore, for an employee who is paid hourly, as Burt, his post-
          injury AWW must be calculated pursuant to KRS 342.140(1)(d) to
          determine whether there has been a return to work at a higher
          wage. This calculation requires an analysis of Burt's earnings over
          a fifty-two week period, and identification of his 'best' quarter. We
          are satisfied the ALJ conducted the appropriate analysis required
          by Ball [] and reached a result supported by substantial evidence
          in determining that Burt had not returned to the same or higher
          wages. Therefore, the ALJ's application of the three multiplier will
          not be disturbed.




1   We note that a doctor working for Ford observed Burt working in the right handed
     speaker job and found that it did not require frequent left elbow movement.
     However, she did not comment on how much right elbow movement was required.
      For the above stated reasons, we affirm the decision of the Court of

Appeals.

      All sitting. All   concur.




COUNSEL FOR APPELLANT,
FORD MOTOR COMPANY (LAP):

George T. Kitchen, III


COUNSEL FOR APPELLEE,
ROSS A. BURT:

Derek Patrick O'Bryan




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