No. 00-00201 (2002). Taco Bell v. Aguilar.

• Case Date: March 27, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 00-00201 (2002). Taco Bell v. Aguilar TACO BELL PETITIONER VS. DIANNE AGUILAR and HON. LLOYD R. EDENS, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: March 27, 2002CLAIM NO. 00-00201APPEAL FROM HON. LLOYD R. EDENS, ADMINISTRATIVE LAW JUDGE AFFIRMING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.STANLEY, Member. Taco Bell appeals from an opinion, order and award rendered December 3, 2001, by Hon. Lloyd R. Edens, Administrative Law Judge ("ALJ"), granting the respondent, Dianne Aguilar ("Aguilar"), permanent partial disability benefits based upon a 6% disability rating and enhanced by a factor of 1.5 pursuant to KRS 342.730(1)(c)1. On appeal, Taco Bell raises two issues. First, Taco Bell argues it was error for the ALJ to rely upon an AMA impairment rating and testimony regarding causation from Dr. James C. Owen, who never actually examined Aguilar but rather, reached his conclusions based solely upon a review of medical records. In light of this fact, Taco Bell contends Dr. Owen's testimony "simply does not rise to even a most minimal level" of substantial evidence. Taco Bell also argues the ALJ erred by failing to apply the .5 reduction modifier contained in KRS 342.730(1)(c)2. According to Taco Bell, Aguilar has returned to work at a higher hourly wage than at the time of her original injury. However, Taco Bell acknowledges that Aguilar is working fewer hours per week due to administrative restrictions placed upon her total earnings by Social Security. After having thoroughly reviewed the evidence of record and applicable law, we find no merit in either of these arguments. We, therefore, affirm the decision of the ALJ. Aguilar was born on February 16, 1961, and is a resident of Lexington, Fayette County, Kentucky. She has a twelfth grade education with no vocational or specialized job training. Past relevant work experience consists of a variety of different types of employment, including a patient aide in a mental hospital, a security guard, a factory worker, an assistant manager at a restaurant, a housekeeper at a retirement home and hospital, and a cashier. Aguilar entered the employ of Taco Bell in February 1995. She testified her job with Taco Bell involved operating a cash register, preparing food, and cleaning. Aguilar suffered a work-related injury on February 26, 1998. On that occasion, while mopping in front of a soft drink machine, she slipped on water and fell, catching herself with her right hand. She was treated at Urgent Treatment Care where she was informed she had fractured her right wrist. She was placed in a brace. No surgery was performed. At present, she complains of pain in her affected upper extremity and hand...