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Brooklawn Youth Services v. Haneberg11/18/2005
AFFIRMING
BEFORE: BARBER, MINTON, AND TAYLOR, JUDGES.
Appellee, Melissa Haneberg (Haneberg), began working for Appellant, Brooklawn Youth Services (Brooklawn), in July 1999 as a residential counselor for boys, ages eight to fourteen. The boys were placed in the facility as a result of emotional, physical, or sexual abuse. Haneberg has a bachelor's degree in psychology and is working on a master's degree in social work.
Haneberg's first injury occurred October 5, 1999, when she was restraining a twelve-year-old boy who refused to go to his room. The boy, who weighed between 100 to 110 pounds, was placed in a "kneeling cradle" position by Haneberg. Haneberg stood behind the boy and locked her arms around his waist. At the same time, a co-worker restrained the boy's legs. During this incident, Haneberg suffered an onset of severe low back pain. Haneberg was able to complete her shift but went to the immediate care center the following day. The physician at the immediate care center diagnosed Haneberg with a lumbar strain and released her to return to work with restrictions of no lifting over 100 pounds.
Haneberg continued to work until February 8, 2000, when she sustained a second low back injury while restraining a resident in a chair. Following this incident, she remained off work from February 14, 2000 until June 19, 2000. Haneberg received temporary total disability benefits. While off work, Haneberg was seen by Dr. Joseph Werner, an orthopedic surgeon, on May 30, 2001.
Haneberg then worked from June 20, 2000 to December 13, 2000. While working, her condition continued to worsen. As a result, Dr. Werner performed fusion surgery on Haneberg December 14, 2000. He performed an anterior discectomy at L5-S1 and fusion of L5-S1 with insertion of titanium cages and bone grafts. Haneberg received temporary total disability benefits from December 13, 2000 until October 23, 2001. Haneberg then filed her workers' compensation claim December 21, 2001.
Dr. Werner performed a repeat fusion surgery on October 8, 2002 because Haneberg was still experiencing pain. The L5-S1 fusion consisted of instrumentalities and a left iliac crest bone graft. Haneberg received temporary total disability benefits from October 8, 2002 through December 16, 2003. Haneberg did not return to work following her second surgery.
During the discovery portion of Haneberg's claim, independent medical examinations (IME) were performed by Dr. Bart J. Goldman, Dr. Robert F. Baker, and Dr. Tinsley Stewart. A deposition of Dr. Baker was also taken on April 22, 2002. In addition to the above, medical records from Haneberg's treating physician, Dr. Werner, as well as his August 8, 2002 deposition were submitted into the record. Following discovery, a final hearing on her claim was held on May 4, 2004 before Hon. Marcel Smith, Administrative Law Judge (ALJ).
In her June 28, 2004 Opinion and Award, the ALJ assigned an impairment rating of 30% to Haneberg based upon KRS 342.730(1)(b) and the medical evidence provided by Dr. Baker.
The ALJ also found that Haneberg retained the physical capacity to return to the type of work she performed at the time of her injury based upon Dr. Baker's findings and thus was not entitled to the 1.5 multiplier contained in KRS 342.730(1)(c)(1). In support of her decision regarding the multiplier, the ALJ cited Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206 (Ky. 2003), and Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003). The ALJ ruled that Haneberg was entitled to temporary total disability benefits for October 23, 2001 through October 8, 2002 based on the statements of Dr. Werner. The ALJ also held th
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