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Baker v. Wal-Mart Stores6/10/2005
ng a 40-hour week as Wal-Mart does not normally allow any employees overtime. However, Baker testified that if it were offered to him, he would try to work overtime. After the injury, Baker did not return to work at his part-time job at Robertson's Country Hams.
On June 12, 2003, Baker filed an application for benefits as a result of the October 27, 2002, injury. A hearing was held before the ALJ on December 3, 2003. Baker testified that the surgery had relieved the pain in his legs, but he still had light pain, or an ache, in his back. He further testified that prolonged standing, lifting, and bending increased his symptoms. He currently takes Risperadol regularly for depression and Ultram for pain in his feet, both of which were prescribed to him prior to the injury.
Baker also introduced the report of Dr. Auerbach, who noted that Baker would not likely be able to return to any type of work that required heavy lifting or bending and was medically unable to return to his previous work as a meat cutter. Dr. Auerbach assigned Baker a 20% permanent impairment rating under the AMA Guides to the Evaluation of Permanent Impairment to the body as a whole and placed restrictions on Baker. Wal-Mart introduced the report of Dr. Ballard, who agreed with Dr. Auerbach's rating of 20% permanent impairment, and that Baker was medically unable to return to work as a meat cutter.
However, she noted that Baker could continue to work within his restrictions.
The ALJ entered his opinion and award on February 5, 2004, limiting Baker's benefits to those provided in KRS 342.730(1)(b). The ALJ found that Baker had a 20% functional impairment rating as a result of his work-related back injury and the subsequent surgery, which he found was reasonable and necessary and a direct result of the work-related injury. He awarded Baker temporary total disability benefits in the amount of $326.23 per week from October 27, 2002, until August 31, 2003, permanent partial disability benefits in the amount of $65.24 per week beginning September 1, 2003, for 425 total weeks, and payment of his medical bills. The ALJ determined that Baker lacked the physical capacity to return to the type of work he was performing at the time of his injury, but he stated that Baker could continue earning wages in the foreseeable future that exceeded the wages he was earning at the time of his injury, and refused to utilize multipliers as indicated in KRS 342.730(1)(c)1 and (1)(c)3 in setting Baker's award.
The ALJ stated as follows:
In this instance, the Administrative Law Judge is convinced the Plaintiff cannot work as a butcher, the evidence however does not indicate the Plaintiff is unlikely to be able to continue earning a wage that exceeds the wage at the time of injury for the indefinite future.
Therefore, the Administrative Law Judge is simply not convinced the Plaintiff is entitled to the 3.2 multiplier. There is simply no evidence in this claim whatsoever to show that the Plaintiff is not capable of working as a cashier for Wal Mart and will be so capable into the future.
In fact, the Plaintiff testified while he is not getting overtime hours, he stated nobody in the store gets overtime hours. He did admit, however, if they would offer it to him, he would try to perform the work, which is an indication to the Administrative Law Judge that the Plaintiff should be able to keep this job at an equal or greater wage into the foreseeable future. Baker filed a petition for reconsideration of the ALJ's award on February 9, 2004, which was denied by the ALJ by order entered on March 5, 2004. Baker then appealed the award to the Board on March 19, 2004, which affirmed th
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