Color Craft Painting v. Baker, 032621 KYWC, 201781434

• Case Date: March 26, 2021
• Court: Kentucky

COLOR CRAFT PAINTING PETITIONER v. JOHN BAKER and HON. PETER J. NAAKE, ADMINISTRATIVE LAW JUDGE RESPONDENTS No. 201781434 Kentucky Workers Compensation Commonwealth of Kentucky Workers’ Compensation Board March 26, 2021          APPEAL FROM HON. PETER J. NAAKE, ADMINISTRATIVE LAW JUDGE.           COUNSEL FOR PETITIONER: HON IAN GODFREY LMS           COUNSEL FOR RESPONDENT: HON WAYNE C DAUB LMS           BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.          OPINION AFFIRMING           STIVERS, Member.          Color Craft Painting (“Color Craft”) seeks review of the October 30, 2020, Opinion, Award, and Order of Hon. Peter J. Naake, Administrative Law Judge (“ALJ”) finding John Baker (“Baker”) sustained a May 16, 2017, left leg and ankle injury resulting in total occupational disability. The ALJ awarded income and medical benefits. Color Craft also appeals from the November 27, 2020, Order overruling its Petition for Reconsideration.          On appeal, Color Craft argues the finding of permanent total disability is not supported by substantial evidence.          BACKGROUND          Baker was injured on May 16, 2017, when he fell from a barn roof severely fracturing his left leg and ankle. Baker was transported to Baptist Hospital in Louisville where surgery was performed that evening by Dr. Madhusudhan R. Yakkanti. The procedure performed was an “ankle external fixator application using a Stryker external fixator and the close reduction of the pilon fracture.” The postoperative diagnosis was “left ankle Pilon tibia fibula fracture, closed, comminuted.” On May 26, 2016, Dr. John S. Lewis, Jr.,1 performed a second surgery consisting of the following: 1) Open reduction internal fixation, left pilon fracture; 2) Open reduction internal fixation, left tibial diaphyseal fracture; 3) Open reduction internal fixation, left medial malleolus fracture; 4) Open reduction internal fixation, left fibular fracture; and 5) Removal of external fixator, left ankle. Dr. Lewis’ diagnosis was severe left tibial pilon/diaphyseal fracture with associated fibular fracture. On July 27, 2018, Dr. Lewis performed a third surgery consisting of the following: 1) Left open ankle arthrodesis; 2) Removal of hardware, left ankle; 3) Calcaneal bone graft, large, separate incision; and 4) Bone marrow aspiration, left pelvis. Dr. Lewis’ May 2, 2019, letter reveals he assessed a 4% impairment rating pursuant to the 5^th Edition of the American Medical Association, Guides to Evaluation of Permanent Impairment. Dr. Lewis released Baker from his care on an as-needed basis on April 24, 2019, at which point he was considered to be at maximum medical improvement “following left ankle arthrodesis following severe intra-articular fracture of the left ankle and distal tibia.”          Baker introduced the medical records of Dr. Jeffrey Sharpe who treated infection at the surgical site after the first surgery. He also introduced the December 17 2019, Independent Medical Evaluation report of Dr. Michael Heilig who assessed an 18% impairment rating as a result of the injury. Dr. Heilig opined Baker, “was a painter of 32 years and obviously cannot do that ever again due to his ankle fusion with persistent pain.”          Baker testified at a November 25, 2019, deposition and at the September 1, 2020, hearing. His deposition testimony establishes Baker, born October 21, 1962, is a high school graduate with a high school certificate in welding. However, he has not worked as a welder. He has no other vocational training and has been a painter most of his life. Baker testified he received no specialized training as a painter. Of the 30 years working as a painter, Baker estimated 90% involved painting inside and outside of a residence. Baker had also engaged in “Wallpaper hanging, drywall, that sort of thing.” He denied having any prior injuries.          Baker was last employed by Color Craft in 2018 working only a couple of months. Although he occasionally climbed the bottom steps of a ladder, his return to work involved very little use of a ladder. He did not engage in any wallpapering or drywalling. Dr. Lewis limited the number of hours he painted from three to five hours a day. Baker testified he painted no more than five hours a day. He explained why he quit:

Q: Okay. What happened at the end of the two-month period or the period that you were there? Why did you quit working for them?

A: I didn’t feel comfortable doing what I was doing.

Q: What exactly did you not feel comfortable about?

A: Just my surroundings. I didn’t – I didn’t feel safe with my – with my, you know, ability what I could do and my – you know, what my injury and such.

Q: Did you quit?

A: Yes, pretty – yes, I did.

         Baker did not apply for unemployment benefits nor attempt to work somewhere else. However, he painted for family and friends for which he was paid cash. Those jobs entailed painting the interior of residences. Due to a lack of income, Baker moved to his parents’ home. His last painting job was for the parents of his sister-in-law approximately one month before his deposition. The job spanned approximately two or three days and he was paid close to $500.00. He obtained jobs by word of mouth, as he told his family he was willing to perform these type of jobs.          Baker had worked for Color Craft for approximately two months earning almost $18.00 an hour when he was injured. Before that, he worked for Highland Contracting from October 2016 to February 2017 primarily engaging in commercial painting. He quit because he wanted to return to residential painting. Prior to that, he worked for Chuck Rader Painting as a foreman from September 2012 to sometime in 2015 which almost exclusively entailed painting residences. Between the time he was employed by Highland Contracting and Chuck Rader Painting, he was self-employed as a residential painter. Prior to working for Chuck Rader Painting, he worked for Cruise House Construction as a painter and drywaller for approximately seven or eight years.          When he last saw Dr. Lewis a couple of months prior to his deposition, he was restricted from using ladders and going upon roofs. Baker testified whenever he uses a ladder, he only uses the first step. Baker’s home activities include watching TV and helping his mother with household activities such as doing the laundry, dusting, and vacuuming. He had no scheduled painting jobs. He is able to drive a vehicle.          The August 12, 2020, Benefit Review Conference Order and Memorandum reflects the parties stipulated Baker sustained a May 16, 2017, work injury and Color Craft received due and timely notice. Temporary total disability benefits were paid from May 17, 2017, through April 25, 2019, totaling $29,855.42 and medical expenses of $138,932.73 were paid. Although the average weekly wage (“AWW”) was listed as a contested issue, the parties later stipulated Baker’s AWW is $532.47.          At the hearing, Baker testified he had painted for 36 years. Prior to that, he had worked a short time in a factory and at “sheet metal iron work.” He has primarily worked as a “painter and paper hanger.” He estimated that 10% of his painting career entailed commercial painting and the rest involved residential painting. He estimated that of the time spent painting residences, 70% was spent inside and 30% spent outside. Concerning the frequency of his wallpaper hanging activities, Baker testified as follows:

Q: Now, the other thing that you mentioned was the wallpaper hanging?

A: Yes, sir.

Q: How frequent was that?

A: Back in the day probably 40 percent of the time. That’s been years ago, though.

Q: Over the last 20 years, have you done any wallpapering?

A: Hanging some wall murals for U.S.A. Image, but that’s – it’s been a while. It’s been – I haven’t hung any wallpaper in many years, so ….

         Baker described his job at Color Craft:

Q: -- can you just tell us in a nutshell, what did that involve?

A: It was all basic painting from prep work to spray painting to brush work to interior and exterior.

Q: Was it all residential?

A: Yes, sir.

Q: What’s the heaviest thing that you might lift on a residential job, excluding ladders?

A: Thirty, 40 pounds.

Q: And what do some of the ladders weigh?

A: It would vary. There again, depending on the size, but no more than probably, again, 30 or 40 pounds, you know, about 30 pounds.

         Concerning his current physical problems, Baker testified as follows:

Q: Tell me at what

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