TRACTOR SUPPLY COMPANY PETITIONER
v.
PATRICIA WELLS AND HON. STEPHANIE L. KINNEY, ADMINISTRATIVE LAW JUDGE RESPONDENTS
No. 201988426
Kentucky Workers Compensation
Commonwealth of Kentucky Workers’ Compensation Board
February 12, 2021
APPEAL
FROM HON. STEPHANIE L. KINNEY, ADMINISTRATIVE LAW JUDGE
COUNSEL FOR PETITIONER: LMS HON WALTER E. HARDING
COUNSEL FOR RESPONDENT: LMS HON MICHAEL LINDSEY
BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.
OPINION
AFFIRMING
BORDERS, Member.
Tractor
Supply Company (“Tractor Supply”) appeals from
the October 20, 2020 Opinion, Award, and Order and the
November 13, 2020 Orders on Petitions for Reconsideration
rendered by Hon. Stephanie Kinney, Administrative Law Judge
(“ALJ”). The ALJ determined Patricia Wells
(“Wells”) suffered work-related right shoulder
and cervical spine injuries due to the August 16, 2018 work
incident. The ALJ awarded permanent partial disability
(“PPD”) benefits based on a 15% impairment
rating, enhanced by the 3.2 multiplier, temporary total
disability (“TTD”) benefits, and medical
benefits.
Tractor
Supply argues the ALJ erred in determining Wells was entitled
to the application of the 3.2 multiplier due to Wells being
terminated from her employment for falsifying an accident
report. Tractor Supply argues the application of this
multiplier is contrary to public policy and the holding in
the case of Livingood v. Transport, 467 S.W.3d 249
(Ky. 2015). Wells responded to this appeal, seeking KRS
342.310 sanctions against Tractor Supply for failure to pay
the unchallenged portion of the PPD award and for prosecuting
a frivolous appeal. For reasons set forth herein, we affirm.
Wells
testified by deposition on February 6, 2020 and at the
hearing held August 25, 2020. Wells began working for Tractor
Supply in the receiving/ sorting department on October 25,
2017. Her job duties required her to lift up to 75-100
pounds, unload trucks, and sort pallets. However, she could
ask for assistance to lift items weighing approximately 100
pounds. Wells testified she sustained neck and right shoulder
injuries on August 16, 2018 while unloading boxes of trailer
hitches that weighed approximately 60 pounds. She later
experienced right arm pain with "paralysis" and
pinching between her neck and shoulder. The paralysis
eventually resolved, but her right arm continued cramping.
She reported her injury the following day and then sought
treatment. She was placed on light-duty work. Wells then
returned to work at the same hourly rate but earned less per
week because she worked fewer hours.
Wells
testified she was terminated after she reported a subsequent
trip and fall. She was told she was terminated because she
had lied on company documents. Wells denied falsifying any
documents. Wells is not currently working and continues to
suffer from neck and shoulder issues. She is unable to turn
her head while driving and experiences finger numbness when
raising her arm. She cannot look up or down for extended
periods of time. She stated she cannot return to work with
Tractor Supply because lifting with her right arm causes pain
in her arm and shoulder.
Allison
McCaffrey (“McCaffrey”), who works in human
resources for Tractor Supply, testified by deposition on July
21, 2020. She stated Wells worked as a material handler in
the receiving department. She removed products from trailers,
sorted them, put them on other pallets and assigned them to
the right area. She also picked up store supplies and UPS
orders and prepared them for shipment. McCaffrey estimated
Wells lifted up to 50 to 75 pounds about 20 percent of the
time. Other team members assisted with lifting heavier items.
She stated that with restrictions of no overhead lifting of
10 to 20 pounds, Wells would still be able to work at Tractor
Supply at a comparable wage. Wells continued working in a
light-duty capacity through January 28, 2019. McCaffrey
stated Wells was terminated for providing false information
in an investigation. She stated that if Wells had not
falsified that report, she would still be working at Tractor
Supply earning the same wage she earned at the time of her
injury, but working fewer hours.
Dr.
Abigail DeBusk began treating Wells on August 23, 2018. Wells
complained of neck, right shoulder, and right arm pain after
lifting boxes at work on
August
16, 2018. She also reported a right elbow injury occurring on
May 9, 2018. Dr. DeBusk reviewed cervical X-rays that showed
mild straightening of the cervical lordosis and C6-7 anterior
spurring. Right shoulder X-rays were negative. Dr. DeBusk
diagnosed right elbow/arm pain and trapezius muscle spasm. On
September 10, 2018, Dr. DeBusk reviewed a right elbow MRI and
suspected elbow or lateral epicondylitis. She noted the EMG
results were normal but she planned to obtain a repeat study.
She diagnosed right side neck pain, right arm pain, and
trapezius muscle spasm. On October 31, 2018, Dr. DeBusk
reviewed a repeat EMG, which showed right C7 radiculopathy.
The studies seemed to correlate with polyneuropathy involving
sensory and motor nerves in the right upper extremity. Dr.
DeBusk reviewed a cervical MRI, which showed mild
mid-cervical disc desiccation and minimal disc bulges with no
focal disc herniation or extrusion. Dr. DeBusk returned Wells
to work with restrictions of no overhead lifting and no right
arm lifting over 10 pounds.
Dr.
Rasesh Desai reviewed Wells’ cervical MRI and EMG
results on November 13, 2018. He felt...
