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Baker v. Wal-Mart Stores6/10/2005
AFFIRMING
BEFORE: JOHNSON AND McANULTY, JUDGES; HUDDLESTON, SENIOR JUDGE.
Bernard Baker has petitioned for review of an opinion of the Workers' Compensation Board entered on August 6, 2004, which affirmed the Administrative Law Judge's award of permanent partial disability benefits for a back injury Baker sustained while working as a meat cutter for Wal-Mart Stores. Having concluded that the Board did not overlook or misconstrue controlling statutes or precedent or commit an error in assessing the evidence so flagrant as to cause a gross injustice by affirming the ALJ's refusal to enhance Baker's benefits by the multipliers contained in KRS 342.730(1)(c)1, and (1)(c)3, we affirm.
Baker, who was born on December 19, 1960, has a tenth grade education. He began working for the Wal-Mart Super Center in Shelbyville, Kentucky, in May 1998. At the time of the injury, Baker was employed in the meat department where his duties included cutting meat with saws and knives, stocking the meat cases, assisting customers, unloading trucks, lifting meat and boxes weighing up to 100 pounds, and cleaning and organizing the meat department. These tasks involved repetitive pushing, pulling and bending activities, and prolonged standing. His hourly wage at the time of his injury was $13.68, his average weekly wage was $489.33, and he worked approximately 40 hours per week.
On October 27, 2002, Baker slipped on some "ice buildup" inside a walk-in cooler as he was attempting to replace a box of frozen food and fell on his buttocks, injuring his low back. Baker's supervisor witnessed the fall and helped Baker get off the floor. Baker immediately went to the emergency room at Jewish Hospital and initially missed four days of work.
Following his emergency room visit, Baker began to receive treatment from Wal-Mart's company doctors, Dr. Waldridge and Dr. Powers. Wal-Mart referred Baker to Dr. Ellen Ballard for an independent medical examination. Due to increased pain, Baker saw Dr. Stacie Grossfield, from November 2002 until February 2003, and she performed an MRI, and ordered physical therapy and medications during this time of treatment.
Baker returned to work at Wal-Mart performing light duty tasks on December 26, 2002, but his pain continued to worsen, and he was off work for approximately six weeks. Baker began treatment with Dr. Mark Myers in April 2003. Dr. Myers reviewed Baker's MRI and found he had disk degeneration at L4-5 and L5-S1 and a bulge at the L4-5 level. Baker returned to Dr. Myers in May 2003 with complaints of severe back pain, severe leg pain, fatigue, and trouble lifting. Dr. Myers opined that Baker's pain was entirely due to his work-related injury. Baker then took leave from work on May 25, 2003, and underwent a lumbar fusion performed by Dr. Myers on May 27, 2003.
Baker saw Dr. S. Pearson Auerbach, as his own independent medical examiner, at the Medical Assessment Clinic on September 18, 2003. After reviewing Baker's medical records and prior X-rays, and conducting a physical exam, Dr. Auerbach concluded that Baker had "first-degree spondylotisthesis and had an injury, which aggravated the area and required stabilization and fusion."
When Baker returned to work at Wal-Mart on August 31, 2003, he was unable to return to his position as a meat cutter. Rather, Wal-Mart accommodated him, and he worked as a cashier in the electronics section and in the lawn and garden section of the store. As a cashier, he no longer had to perform heavy lifting or bending. Baker's wages as a cashier were $14.19 per hour, which he admitted was more money than he was earning at the time of his injury; however, he is only worki
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