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Court of Appeals of Kentucky.

FORD MOTOR COMPANY, Appellant, v. Jennifer LYNN, Workers' Compensation Board, and Hon. Roger D. Riggs, Appellees.

No. 2003-CA-000969-WC.

Decided: December 12, 2003

Before BUCKINGHAM, COMBS, and TACKETT, Judges. Wesley G. Gatlin, Louisville, KY, for Appellant. Brentley P. Smith, Louisville, KY, for Appellee, Jennifer Lynn.


Ford Motor Company petitions for review of an opinion by the Workers' Compensation Board (Board) reversing and remanding an opinion and award by an administrative law judge (ALJ). The issue in this case involves whether the income benefits which Jennifer Lynn was awarded should have been enhanced pursuant to statute. We agree with the Board's opinion that the ALJ erred in not enhancing Lynn's benefits, and we thus affirm.

Lynn was an “assembler” on a tailgate assembly line at a Ford plant when she suffered a shoulder injury on January 3, 2000. Her job required the manipulation of parts at head level. Following recovery from her injury, Lynn returned to the assembly line and performed the same job she had been performing at the time she was injured. However, while Lynn was recovering from her injury, Ford changed the design of the assembly line so that no employee had to work above shoulder level.

The ALJ awarded benefits based upon an eight percent impairment rating. However, the ALJ refused to enhance the benefits in accordance with KRS 1 342.730(1)(c)1. Lynn appealed to the Board, and the Board reversed the ALJ and held as a matter of law that the 1.5 multiplier of the statute in effect at that time should have been applied. Ford's petition for review to this court followed.

The statute in effect at the time of Lynn's injury stated as follows:

If, due to an injury, an employee does not retain the physical capacity to return to the type of work that the employee performed at the time of injury, the benefit for permanent partial disability shall be one and one-half (11/212) times the amount otherwise determined under paragraph (b) of this subsection, but this provision shall not be construed so as to extend the duration of payments.

KRS 342.730(1)(c)1. Ford argues that because Lynn returned to work as an assembler and was assigned to the same job, then her “permanent partial disability does not prevent her from engaging in the same type of work she performed at the time of her injury, namely that of a vehicle assembly technician on the assembly line of the Ford Motor vehicle assembly plant.” While it recognizes that Lynn now has limitations on her work activities which would prohibit her from doing the job in the manner in which she did it at the time of her injury, Ford maintains that she can do the job since the physical requirements of doing it have changed. Thus, it maintains that Lynn has the physical capacity to do the same “type of work” and is not entitled to have her benefits enhanced under the statute. On the other hand, Lynn argues that due to permanent restrictions that prohibit her from doing overhead work and lifting, “[s]he can thus no longer do the job she was doing at the time of her injury.”

Citing Carte v. Loretto Motherhouse Infirmary, Ky.App., 19 S.W.3d 122 (2000), Ford argues that the issue of Lynn's physical capacity to return to the same type of work and the application of the statute was a question of fact to be determined by the ALJ. Assuming that the issue is one of fact based on the evidence, then Ford argues that Lynn must show there was no substantial evidence of probative value to support the ALJ's decision in order to prevail before the Board. We disagree. Rather, the issue before this court concerns how narrowly the phrase “type of work” as employed in the statute should be interpreted. The construction and application of a statute is a matter of law, and this court's review is de novo. Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth, Transportation Cabinet, Ky., 983 S.W.2d 488, 491 (1998).

The Board stated that Lynn's return to the same job classification was not dispositive of the issue. The Board phrased the issue as “whether, after her injury and in consideration of any restrictions resulting from her injury, the claimant retains the physical capacity to perform the myriad of tasks reflected in that job description.” Because Lynn does not have the physical capacity to perform her job as it existed at the time of her injury, the Board held that the 1.5 multiplier should have been applied so as to enhance her benefits. Further, the Board noted that Lynn was no longer able to participate in the job rotation that remains available to other assemblers on her line and that she is no longer able to work additional overtime hours.

Because we agree with the Board's analysis of the case, we affirm its opinion.