516 S.W.3d 817
Ky. Ct. App.2017Background
- Worker Astin Gray, a janitor born in 1966 with limited education, inhaled Purge solvent fumes at Voith on April 4 and 6, 2013 and developed respiratory symptoms.
- Medical testing and specialists diagnosed asthma and reactive airways dysfunction syndrome (RADS); a sleep study revealed sleep apnea.
- Gray was moved from the paint room to avoid exposure; he returned to janitorial work in a different building with some wage effects but ultimately earning his pre-injury wage.
- Gray claimed workers’ compensation benefits (Jan. 2015) for occupational asthma, RADS, and sleep apnea; competing experts assessed whole-person impairments (Dr. Bilkey 22% total; Dr. Lotz 10% for asthma; Dr. Bilkey 3% for sleep disturbance).
- The ALJ awarded permanent partial disability with a 13% impairment rating and applied the three-times multiplier under KRS 342.730(1)(c)1, finding Gray could not return to the type of work he performed at injury and was unlikely to earn equal-or-greater wages indefinitely.
- The Board affirmed the ALJ on the multiplier issue, vacated and remanded as to temporary total disability, and Voith petitioned for review.
Issues
| Issue | Gray's Argument | Voith's Argument | Held |
|---|---|---|---|
| Whether Gray "does not retain the physical capacity to return to the type of work" performed at injury (triggering 3x multiplier under KRS 342.730(1)(c)1) | Gray: Pre-injury job required paint-room exposure; he can’t tolerate Purge and can’t return to that specific work | Voith: Gray returned to janitor work and thus retained capacity to perform his job | Court: Substantial evidence supports ALJ that Gray cannot return to the specific pre-injury paint-room work, so 3x multiplier application affirmed |
| Whether Gray is "unlikely to continue earning a wage equal to or greater than the pre-injury wage for the indefinite future" (factor supporting 3x over 2x) | Gray: Ongoing pulmonary limitations (wheezing when sweeping, frequent breaks, reliance on inhalers) impair future earning capacity | Voith: Supervisor testified Gray’s performance is satisfactory and job likely to continue | Court: ALJ permissibly weighed evidence; substantial evidence supports finding Gray unlikely to indefinitely earn equal-or-greater wages |
| Causation of sleep apnea — whether work exposure caused sleep apnea | Gray: No prior sleep problems; expert (Bilkey) links sleep apnea causally to inhalation injury | Voith: Expert (Lotz) identified non-work causes (weight, meds, diet) and disputed causal link | Court: ALJ credited Bilkey and Gray’s testimony; substantial evidence supports work-related sleep apnea finding |
| Sufficiency and weight of medical evidence generally | Gray: Expert opinions and testimony support diagnoses and restrictions | Voith: Challenges sufficiency and credibility of evidence, favors Lotz’s opinions and lower impairment ratings | Court: ALJ as factfinder may credit some opinions and discredit others; appellate review finds no reversible error |
Key Cases Cited
- Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984) (substantial-evidence review of ALJ findings)
- Western Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky. 1992) (standard for appellate correction of Board decisions)
- Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985) (ALJ as factfinder determines weight of evidence)
- Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977) (ALJ may believe part and disbelieve part of testimony)
- Ford Motor Co. v. Forman, 142 S.W.3d 141 (Ky. 2004) (meaning of "type of work" for impairment awards)
- Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003) (ALJ may choose between 3x and 2x multipliers; use 3x when worker unlikely to continue earning pre-injury wage indefinitely)
- Adkins v. Pike County Bd. of Educ., 141 S.W.3d 387 (Ky. App. 2004) (ALJ must consider broad factors in assessing ability to continue earning wage)
- Adams v. NHC Healthcare, 199 S.W.3d 163 (Ky. 2006) (standard: whether injury permanently altered ability to earn income)
- George Humfleet Mobile Homes v. Christman, 125 S.W.3d 288 (Ky. 2004) (only ALJ may judge weight and credibility of conflicting evidence)