             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        NOT TO BE PUBLISHED OPINION          :




THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY-THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 11, 2015
                                                       NOT TO BE PUBLISHED

               S5uprrittt Court of 4fi6 tfurku
                               2014-SC-00476-WC


PENNY BERRY                                                            APPELLANT



                    ON APPEAL FROM COURT OF APPEALS
V.                     CASE NO. 2013-CA-002093-WC
                   WORKERS' COMPENSATION NO. 12-83372



CEDAR LAKE PARK PLACE;
HONORABLE WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                           APPELLEES



                   MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      Appellant, Penny Berry, argues in this appeal that the Workers'

Compensation Board ("Board") erred by reversing the portion of the

Administrative Law Judge's ("AI.0") opinion, order, and award which applied

the three multiplier to her permanent partial disability ("PPD") benefits

pursuant to KRS 342.730(1)(c)1. Alternatively, Berry argues the Board should

have remanded her claim for a determination of whether the two multiplier was

appropriate to apply pursuant to KRS 342.730(1)(c)2. For the below stated

reasons, we affirm.
         Berry began working as a registered nurse for Cedar Lake Park Place in

September 2010. 1 During the course of her employment there, Berry developed

breathing and lung problems. She sought medical treatment and was

diagnosed with work-related asthma attributable to mold which was found at

Cedar Lake's facility. Berry took a four month break from working at Cedar

Lake. She attempted to return to work there, but Berry's symptoms worsened

and she was forced to quit. Her last day of employment at Cedar Lake was

October 26, 2012. Berry filed a claim for workers' compensation based on

pulmonary symptoms associated with sick building syndrome.

         Dr. Rodrigo Cavallazzi was named university evaluator for Berry's claim.

He performed a physical examination on Berry and diagnosed her with work-

related asthma. Dr. Cavallazzi linked the asthma to the mold located in Cedar

Lake's facility. Using the AMA Guides, Dr. Cavallazzi assigned Berry a whole

body impairment rating of 10-25%. He also found Berry retained the physical

capacity to return to employment as a nurse as long as she avoided buildings

with mold infiltration and other allergens. Consistent with Dr. Cavallazzi's

opinion, Berry testified that she believed she retained the capacity to work as a

nurse.

         Cedar Lake filed the report of Dr. Bruce Broudy. He found Berry had

normal lung function and assigned her an impairment rating of 0% under the

AMA Guides.



1   Berry also maintained concurrent employment as an administrative assistant with a
     different employer.


                                            2
      After a review of the evidence, the ALJ issued an opinion, order, and

award granting Berry temporary total disability ("TTD") benefits and PPD

benefits. The AU performed a Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003)

analysis. A Fawbush analysis determines which one of the multipliers in KRS

342.730(1)(c) should be applied to a claimant's award when the record

indicates that either of the multipliers is potentially applicable. Id. at 12. The

AU found:

             I have just read the Opinion of the Workers' Compensation
      Board in Claim No. 2011 01390, Tamara Daniel, Petitioner vs. Ford
                                -



      Motor Company and Hon. Grant S. Roark, Administrative Law
      Judge, Respondents, which [sic] Opinion is dated June 6, 2013.
      The Opinion was written by Chairman Alvey. The Opinion notes
      that the Fawbush analysis requires that first the Judge must
      determine, based on substantial evidence, that the plaintiff cannot
      return to the type of work performed at the time of the injury in
      accordance with KRS 342.730(1)(c)1; second, that the plaintiff has
      returned to work at an average weekly wage equal to or greater
      than his pre-injury average weekly wage in accordance with KRS
      342.730(1)(c)2; and third, whether the plaintiff can continue to
      earn that level of wages into the indefinite future. .. .
             Based upon the plaintiff's sworn testimony in the case at
      bar, which I found to be very persuasive and convincing, and the
      persuasive medical report from Dr. Cavallazzi, the university
      evaluator, which I found to be credible and convincing and which
      is entitled to presumptive weight . . . I make the factual
      determination that the plaintiff can return to the type of work
      which she performed at the time of her occupational disease and
      injury in accordance with KRS 342.730(1)(c)1. In addition, I make
      the factual determination that the plaintiff has not returned to
      work as a nurse earning the same or greater average weekly wage
      than she earned at the time of occupational disease and injury per
      KRS 342.730(1)(c)2. I also have to make the determination
      whether the plaintiff is likely or unlikely to be able to continue
      earning the wage that equals or exceeds the wage at the time of her
      occupational disease or injury for the indefinite future. Based
      upon the plaintiff's sworn testimony and the persuasive medical
      report from Dr. Cavallazzi, I make the further factual
      determination that under the decision of the Court of Appeals of



                                         3
      Kentucky in Adkins v. Pike County Board of Education, 141 S.W.3d
      387 (Ky. App. 2004), the Fawbush analysis includes a broad range
      of factors, only one of which is the plaintiff's ability to perform her
      current job. Under the Adkins case the standard for the decision
      is whether the plaintiff's occupational disease or injuries have
      permanently altered her ability to earn an income and whether the
      application of KRS 342.730(1)(c)1 is appropriate. I make the
      factual determination under the plaintiff's testimony and the
      medical report from Dr. Cavallazzi that it is unlikely that the
      plaintiff will be able to continue for the indefinite future to do work
      from which to earn such a wage. Based upon all of the above-cited
      evidence, I make the factual determination that the third prong of
      the Fawbush analysis applies here and that the plaintiff's injuries
      and occupational disease have permanently altered her ability to
      earn an income and that she is unlikely to be able to continue for
      the indefinite future to do work from which to earn such a wage. I,
      therefore, make the factual determination that the third prong of
      the Fawbush analysis applies here and that under that application
      the plaintiff is entitled to the 3 multiplier.

      Berry and Cedar Lake filed petitions for reconsideration. Berry's petition

did not request review of the ALJ's finding that she had not returned to work at

an average weekly wage equal to or greater than her pre-injury average weekly

wage. But, her petition did make the following specific request:

      The [ALJ's] Opinion may contain a typographical error. At page 10,
      the [AL.1] found that the Plaintiff can return to the type of work
      which she performed at the time of her occupational disease and
      injury in accordance with KRS 342.730(1)(c)1.' Counsel believes
      that this is a typographical error and the [AI,J] meant that the
      Plaintiff 'cannot' return to the type of work which she performed at
      the time. The ALJ relied on Dr. Cavallazzi who felt that she could
      return to the type of work that she performed at the time of her
      occupational disease and injury unless it involved exposure to
      mold. The Claimant's employment with the Defendant/ employer
      did involve exposure to mold and in fact that was the reason she
      developed the work-related asthma. Accordingly, this affiant would
      ask that the Award be amended at page 10 to change the word
      `can' to 'cannot' to correct this typographical error.




                                         4
The ALJ denied this request as well as the petitions for reconsideration. Cedar

Lake appealed to the Board.

      The Board affirmed in part and reversed in part the ALJ's opinion, order,

and award. The Board affirmed the portion of the award which held that Berry

was entitled to certain 'ND benefits. However, the Board reversed the portion

of the award granting Berry PPD benefits enhanced by the three multiplier.

The Board found application of the three multiplier was erroneous and that a

Fawbush analysis was unnecessary because the ALJ made findings indicating

neither of the multipliers was applicable. The ALJ found that Berry could

return to "the type of work which she performed at the, time of her occupational

disease and injury in accordance with KRS 342.730(1)(c)1" and that she "has

not returned to work as a nurse earning the same or greater average weekly

wage than she earned at the time of [sic] occupational disease and injury per

KRS 342.730(1)(c)2." Thus, the Board remanded the matter to the ALJ to enter

an award without application of the multipliers. The 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. Western Baptist Hospital 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



                                         5
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." Keeping these standards in mind, we

affirm the Court of Appeals.

      Berry argues that the Board erred by reversing the application of the

three multiplier to her PPD award. Berry contends that while Dr. Cavallazzi's

university evaluation stated she could return to work as a nurse, she could

only do so as long as she was not exposed to mold. Effectively Berry argues

that she is eligible for the three multiplier because of her inability to work as a

nurse at Cedar Lake due to the mold in its facility. We disagree.

      As stated above, to be eligible for the three multiplier, the claimant must

not retain the physical capacity to perform the type of work she performed at

the time of her occupational disease and injury. KRS 342.730(1)(c)1. The

three multiplier can be awarded if the claimant cannot physically complete all

the individual tasks required as a part of the job performed when the work-

related occupational disease and injury occurred.     Ford Motor Co. v. Forman,

142 S.W.3d 141 (Ky. 2003). But a claimant is not eligible to receive the three

multiplier just because she cannot return to work at a particular employer due

to a work-related injury. In this matter, Dr. Cavallazzi clearly stated in his

university evaluation that Berry retained the capacity to work as a nurse. The

ALJ adopted the doctor's opinion in his original decision and declined to amend

his findings on a petition for reconsideration. His finding that Berry can return

to work as a nurse is supported not only by Dr. Cavallazzi's opinion, but also



                                          6
by her own testimony. Thus, Berry is not eligible to have her PPD benefits

enhanced by the three multiplier and the Board did not err by reversing that

portion of the ALJ's opinion, order; and award.

      Berry alternatively argues that the Board erred by failing to remand this

matter for the ALJ to determine the applicability of the two multiplier. But, to

receive the two multiplier the claimant must return to work at a weekly wage

equal to or greater than her average weekly wage at the time of the

occupational disease and injury. KRS 342.730(1)(c)2. The ALI found that

Berry was not earning an equal to or greater average weekly wage, and based

on that finding she is ineligible to receive the two multiplier. This factual

finding was not challenged in her petition for reconsideration and is the law of

the case. Berry is not eligible for her PPD benefits to be enhanced by a

multiplier as provided by KRS 342.730(1)(c)1 or 2.

      For the reasons set forth above, we affirm the decision of the Court of

Appeals.

      All sitting. All concur.




COUNSEL FOR APPELLANT,
PENNY BERRY:

Wayne C. Daub


COUNSEL FOR APPELLEE,
CEDAR LAKE PARK PLACE:

Andie Brent Camden


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