No. 00-77846a (2002). Brewer v. Auto Zone.

• Case Date: May 15, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 00-77846a (2002). Brewer v. Auto Zone THOMAS BREWER PETITIONER/CROSS-RESPONDENT vs. AUTO ZONE RESPONDENT/CROSS-PETITIONER AND HON. LLOYD R. EDENS, ADMINISTRATIVE LAW JUDGE RESPONDENTOPINION ENTERED: May 15, 2002CLAIM NOS. 00-77846 and 00-75624 APPEAL FROM HON. LLOYD R. EDENS, ADMINISTRATIVE LAW JUDGE AFFIRMING IN PART, REVERSING IN PART, AND REMANDING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members. STANLEY, Member. Thomas Brewer ("Brewer") appeals and Auto Zone cross-appeals from an opinion, order, and award rendered December 20, 2001, by Hon. Lloyd R. Edens, Administrative Law Judge ("ALJ"). On appeal, Brewer argues that the ALJ erred in his application of KRS 342.730(4) to the petitioner/cross-respondent's award of benefits. That statute provides that all income benefits awarded to an injured employee shall terminate as of the date the employee qualifies for normal old age Social Security retirement benefits or two years after the employee's injury or last exposure, whichever last occurs. Prior to working for Auto Zone, Brewer was a federal employee for approximately twenty-two years. During that period, Brewer was not required to pay any Social Security contribution, however, he was required to participate in the federal civil service retirement system ("CSRS"). Consequently, at present, Brewer lacks a sufficient number of required quarters to qualify for Social Security retirement benefits at age 65. Nevertheless, the ALJ deemed Brewer's civil service retirement benefits to be comparable to the payment of occupational disability age Social Security benefits for purposes of the Act. He therefore ordered Brewer's workers' compensation award to terminate early in accordance with KRS 342.730(4). Brewer now argues that the ALJ erred as a matter of law based on the plain language of that statutory provision. We agree and therefore reverse the ALJ's determination with regard to this issue. In its cross-appeal, Auto Zone raises three additional issues. First, Auto Zone argues it was error for the ALJ to determine that Brewer provided due and timely notice to the respondent/cross-petitioner of his bilateral upper extremity injuries. According to Auto Zone, Brewer failed to carry his burden of proof on this issue. Secondly, Brewer contends the ALJ erred in determining Brewer to be suffering from an 18% permanent partial impairment. According to Auto Zone, the physician who assessed the 18% impairment misapplied and misinterpreted the American Medical Association, Guides to the Evaluation of Permanent Impairment ("Guides"), and consequently, that rating was not based on reliable findings and does not constitute substantial evidence sufficient to justify the ALJ's determination. Finally, Auto Zone argues that Dr. Hockenbury's opinions and AMA assessment were not based upon objective medical findings as that phrase is defined by statute. After thoroughly reviewing the evidence of record and applicable law, we find no merit in any of Auto Zone's arguments and therefore affirm the ALJ's ruling below with regard to these issues. Brewer was born on February 20, 1937, and is a resident of Louisville, Kentucky. He has a twelfth grade education, twenty-four credit hours of college, and nine months of training in general electronics. Brewer served in the U.S. Air Force as a bombing navigation system mechanic from 1954 through 1957. After receiving an honorable discharge from the military, he subsequently went to work for approximately nine months as a clerk with the U.S. Census Bureau. In January 1960, he became a clerk for the U.S. Postal Service in Louisville, Kentucky. In January 1962, Brewer left his employment at the post office to work for the U.S. Naval Ordinance Station also located in Louisville, Kentucky. During his initial four years at Naval Ordinance, Brewer participated in a four year apprenticeship, during which time he received training in engineering drawing, English, public speaking, physics, chemistry, and trade theory of electroplating. After completing his apprenticeship, Brewer remained an employee of Naval Ordinance, working as a journeyman, electroplater, lead electroplater, and foreman electroplater. He retired from Naval Ordinance after twenty-two years of employment. Since that time, Brewer has been paid $2,500.00 a month in federal retirement benefits. Brewer testified that because he was an employee of the federal government, he was covered under the CSRS and not by Social Security. Consequently, because he was employed by Naval Ordinance from 1962 until 1994, he paid no Social Security contributions on his earnings. He testified that in order to receive Social Security retirement, he has been informed by the Social Security Administration that he needs to obtain forty credits. A maximum of four credits can be earned within one calendar year. The amount of money required to be earned each quarter to obtain one credit increases annually based upon wage inflation. Brewer stated it was his intention, upon retiring from Naval Ordinance, to work in the private sector through 2004 or until such time as he earned enough Social Security credits to qualify for additional retirement benefits. At present, however, Brewer stated that he does not qualify for Social Security in any form. Brewer entered the employ of Auto Zone in October 1994 as a part-time sales clerk. In August 1998, he became a full-time employee. In March 1999, he was transferred to the night crew where he was responsible for unloading part trucks and stocking shelves. On January 24, 1999, Brewer suffered his first work-related injury while working for Auto Zone. On that occasion, he and a co-worker were loading a bin of exchanged auto parts when the wheels of the pallet jack they were using became stuck between the tailgate and truck bed. As he pushed on the bin, he experienced pain in both heels of his feet. He informed his shift supervisor and the following day an accident report was completed by the store manager, Eddie Stillwell. After completing the accident report, Auto Zone instructed Brewer to seek medical attention. He reported to the emergency room at Caritas Hospital in Louisville, Kentucky. Thereafter, he was referred to Dr. Todd Hockenbury, an orthopedic surgeon, for treatment. Initially, Dr. Hockenbury treated Brewer with pain medication. However, in September 1999, he underwent a medical procedure that involved an injection directly into his left heel. Thereafter, home therapy was recommended and special shoe inserts were prescribed. Dr. Hockenbury later imposed permanent work restrictions that included no standing or walking in excess of thirty minutes per hour and only occasional climbing. Brewer testified he sustained a second work-related injury while at Auto Zone on June 4, 2000. On that occasion, he was placing trash into a dumpster. As he picked up a garbage can with his left hand, he experienced a pulling sensation resulting in immediate severe pain involving his left arm and shoulder. Brewer testified that at the time, he believed the injury was merely a temporary strain. Initially, there was some improvement but at the end of a three week period, he began to notice muscles "knotting up" in his left arm. He was scheduled for an annual physical with Dr. Nathan Zimmerman, his family physician, during this period. He told Dr. Zimmerman about the accident and was again referred to Dr. Hockenbury for follow-up treatment. After seeing Dr. Hockenbury on July 11, 2000, Brewer testified he notified Auto Zone of the accident and completed an accident report on that same day. Dr. Hockenbury recommended conservative treatment. Shortly thereafter, Brewer stated he began experiencing the similar symptoms involving his right biceps and shoulder whenever placing parts on shelves or lifting anything overhead. Within a few weeks, he began to notice problems involving his wrists and was ultimately diagnosed as suffering from carpal tunnel syndrome, Brewer stated that he also informed his employer of the additional problems he had developed involving his right shoulder, arm, and both wrists...