Workers’
Compensation Board
OPINION
ENTERED: August 26, 2016
CLAIM NO. 201100713
PELLA WINDOWS DEPE PLLC PETITIONER
VS. APPEAL FROM HON. GRANT S ROARK,
ADMINISTRATIVE LAW JUDGE
JAMES UNDERWOOD
HON GRANT S ROARK,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
REVERSING
IN PART,
VACATING
IN PART,
AND
REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Pella Windows DEPE PLLC
(“Pella”) appeals from the December 28, 2015 Opinion, Order and Award and the
February 12, 2016 Order on Reconsideration rendered by Hon. Grant S. Roark,
Administrative Law Judge (“ALJ”). The
ALJ determined James Underwood (“Underwood”) was permanently partially disabled
as a result of a June 3, 2009 work injury, and permanently totally disabled as
a result of a cumulative trauma injury manifesting on April 21, 2010. On appeal, Pella argues the ALJ erred in
enhancing the permanent partial disability (“PPD”) award by three multiplier,
and erred in awarding permanent total disability (“PTD”) benefits during a
period Underwood continued to work at full wages. For the reasons set forth herein, we reverse
in part, vacate in part and remand.
Underwood worked at
Pella as a window installer. On June 3,
2009, he was attempting to climb down a ladder which was leaning against his
truck. The ladder slipped out underneath
him due to wet road conditions, and Underwood fell backwards onto the
concrete. He landed on his upper body
and was taken immediately to the emergency room. Underwood received stiches, was discharged
and returned to work the next day.
Over the following ten
months, Underwood testified his neck and head pain gradually worsened. He began to experience bouts of dizziness,
though there is no direct medical proof linking this symptom to his neck
injury. Also, the pain in his hands and
wrist which he had experienced for some years began to worsen significantly, to
the point it began to affect his job performance. Eventually, his primary care physician
referred him to Dr. Tuna Ozyurekoglu and fusion surgery was performed. Underwood continued to work until August 4,
2010.
Dr. Anthony McEldowney
evaluated Underwood and conducted a medical records review. Dr. McEldowney noted Underwood continues to
experience pain in both shoulders and arms with associated numbness and
tingling. Bilateral carpal tunnel releases
were performed to relieve Underwood’s wrist pain. Nonetheless, there is still residual pain and
weakness. Dr. McEldowney diagnosed
cervical strain/sprain, right wrist sprain with carpal ligament and TFCC tears,
and left wrist sprain with carpal and TFCC tears. He concluded all of the conditions are
work-related. He opined Underwood
reached maximum medical improvement (“MMI”) on June 12, 2011 and he does not
retain the physical capacity to return to his pre-injury job.
Dr. Richard Dubou
evaluated Underwood on August 8, 2011.
He diagnosed osteoarthritis and degenerative changes to the right and
left wrist, which are not work-related.
Likewise, Underwood’s cervical and lumbar spine conditions are not
work-related.
The ALJ relied upon Dr.
McEldowney’s opinion to conclude Underwood suffered work-related injuries to
his cervical spine on June 3, 2009, and cumulative trauma injuries to his
bilateral wrists manifesting on April 21, 2010.
Noting Underwood returned to work following the fall from the ladder,
the ALJ determined Underwood was not totally disabled “as a result of the June
3, 2009 injury alone.” However, he also
noted Underwood’s testimony he worked in pain between June, 2009 and August,
2010 and concluded he had “returned to his same job but did not, in reality,
retain the physical ability to return to that job.” As such, he enhanced the PPD benefits by the
three multiplier pursuant to KRS 342.730 (1)(c)(1). The ALJ then concluded that Underwood was
permanently totally disabled “as a result of the combined effects of his
cervical injury and his bilateral wrist conditions” which manifested on April
21, 2010. He awarded PTD benefits
beginning April 21, 2010.
Pella petitioned for
reconsideration. In his Order on
Petition for Reconsideration, the ALJ corrected the opinion to reflect that
Underwood continued to work until August 4, 2010. He added:
In fact, the record establishes [Underwood]
continued to work, performing the same duties up to August 4, 2010. However, [Underwood] testified that by April
21, 2010 and continuing until August, he could no longer lift windows with his
hand but, instead, had to use his forearms to lift windows. For these reasons, it is duly noted that
[Underwood] continued to work through August 4, 2010, but this changes nothing
in the analysis of [his] claim.
As such, the ALJ declined Pella’s request to commence PTD benefits on
August 4, 2010, Underwood’s last day of work.
Pella also petitioned
for further findings of fact regarding the application of the three multiplier
in light of the fact Underwood returned to full duty work after the June 3, 2009
accident. The ALJ explained:
Quite simply, the ALJ was persuaded
plaintiff continued to work for the several months after April, 2010 when his
neck and wrist symptoms worsened, only through extreme motivation and
will. Indeed, plaintiff’s treating
physicians, Dr. Guanaschelli and Dr. Tuna, took plaintiff off work for his
neck, left arm and bilateral wrist complaints in August, 2010. Thus, the medical record, along with
plaintiff’s testimony support the conclusion that plaintiff is not capable of
returning to the job he held at the time of his injury, which further supports
the opinion that plaintiff is not totally disabled.
On appeal, Pella first
argues it was error to commence the award of PTD benefits on April 21, 2010
because Underwood continued to work at full duty until his last day on August
4, 2010. It does not challenge the
finding Underwood is now permanently totally disabled, but argues the award
should commence on August 4, 2010.
Permanent
total disability means the condition of an employee who, due to an injury, has
a permanent disability rating and has a “complete and permanent inability to
perform any type of work” as a result of an injury. KRS
Rather,
Pella grounds its argument primarily in logic: one cannot be deemed completely
and permanently unable “to perform any type of work” when one is, in fact,
working full duty, at full wages, and in his regular position. It further highlights that no accommodations
were made for Underwood during this period.
Though Underwood testified he altered the method in which he lifted the
windows and worked in pain, he was not relieved of any specific duties and was
not provided a helper to complete his work.
Based on this reasoning, Pella urges PTD benefits must commence on
Underwood’s last day of work.
Looking
solely at the statutory language of KRS 342.0011(11), we agree with Pella that
Underwood cannot fit the definition of permanent total disability while working
his regular position. The parties have
directed our attention to a number of Kentucky appellate decisions, which we
have considered. The Kentucky Supreme
Court has stated that a return to work does not preclude a previously injured
worker from continuing to be considered permanently and totally disabled. Marcum v. Wolf Creek Collieries, 850
S.W.2d 48 (Ky. 1993) citing Yocom
v. Yates, 566 S.W.2d 796 (1978). In Yates,
the Court of Appeals concluded a totally disabled coal miner did not return to
regular employment when he took a part-time job as a school bus driver. The Court’s analysis focused on the fact that
the claimant’s ability to work as a bus driver did not reflect on his inability
to continue work in the coal industry.
Underwood
cites to Gunderson v. City of Ashland, 701 S.W.2d 135 (Ky. 1985), where
a police officer was left completely paralyzed after being shot in the line of
duty. His employer made extensive
accommodations so that he could continue to work as a police dispatcher. In analyzing whether Gunderson could be
considered totally and permanently disabled when he had in fact returned to
work, the Court first noted there was no dispute he was left a quadriplegic
and, therefore, fit the statutory definition of permanently, totally
disabled. Citing Larson’s Workers
Compensation, Vol II, Section 57.51, the Court then considered Gunderson
was only able to return to work due to the sympathy of his particular employer
who had made extreme accommodations for him.
Section 57.51 of Larson’s handbook also identifies “business boom,
temporary good luck, or the superhuman efforts of the claimant to rise above
his crippling handicaps” as factors which should not affect a determination of
the claimant’s future earning capacity.
Because
none of these cases are factually similar in all pertinent respects, we have
also considered an unpublished opinion of the Court of Appeals pursuant to CR CR 76.28(c). In Caldwell Tanks, Inc. v. Wethington, 2007 WL 2812607, the claimant
was deemed permanently totally disabled as a result of a severe fall. He was able to return to work after his
employer made “various extraordinary efforts” to accommodate him. In its petition for reconsideration, the
employer did not challenge the determination Wethington was permanently totally
disabled. Thus, it was not permitted on
appeal to argue Wethington did not fit the statutory definition of permanent
total disability.
Instead, the employer argued the award of PTD benefits
should be abated until such time as he ceases employment. The Court rejected this argument, concluding Gunderson
controlled the issue even though a different definition of permanent total
disability was then in effect. Instead,
the Court focused on the fact that the ALJ found Wethington was able to
continue working due to his sympathetic employer’s accommodations, like the
employer in Gunderson. As such,
the Court of Appeals found no basis in statute or case law to afford the
employer the “equitable relief” of abating the award of PTD benefits.
When
compared to Underwood’s situation, we can draw important factual distinctions
with all of the above cited cases. The Court’s
statement in Marcum is arguably dicta, and involved a procedural issue
concerning only coal workers’ pneumoconiosis claims. In Yocum, the claimant returned only
to part-time work in a different, less physical industry. Gunderson involved a much more
severely injured claimant, and a highly sympathetic employer who made extensive
accommodations to allow its employee to continue working. In Wethington, the ALJ determined the
claimant was able to continue working due to the sympathy of his employer who
made accommodations, and thereby Gunderson controlled the issue.
Here, no
special accommodations were made for Underwood.
Underwood worked full duty, at full wages, between April 21, 2010 and
August 4, 2010. Though he performed his
work differently due to his pain, his job tasks were not altered and he did not
require the use of a helper. The ALJ did
not conclude Pella is a “sympathetic employer.”
Instead, he cited only Underwood’s “extreme motivation and will”.
For these
reasons, we are compelled to the conclusion that, as a matter of law, a worker
cannot be considered permanently totally disabled during a period he continues
to work his regular job, with no accommodations, at full wages. As such, Underwood cannot be deemed
permanently totally disabled until he ceased working at Pella. On remand, the ALJ is directed to amend the
award to commence PTD benefits on August 4, 2010.
In its
second argument, Pella claims the ALJ erroneously enhanced the award of PPD
benefits by the three multiplier. The
award of PPD benefits is from June 3, 2009, the date of the fall, to April 21,
2010, the date which PTD benefits commence.
Underwood worked full duty and full time during this period, though he
testified he was in pain and his wrist symptoms worsened.
KRS
342.730(1)(c)(1) permits enhancement of PPD benefits where, due to an injury,
the employee does not retain the physical capacity to return to the type of
work that the employee performed at the time of the injury. Pella requested further findings of fact on
this issue in its petition for reconsideration.
The ALJ explained:
Quite
simply, the ALJ was persuaded plaintiff continued to work for the several
months after April, 2010 when his neck and wrist symptoms worsened, only
through extreme motivation and will.
Indeed, plaintiff’s treating physicians, Dr. Guanaschelli and Dr. Tuna,
took plaintiff off work for his neck, left arm and bilateral wrist complaints
in August, 2010. Thus, the medical
record, along with plaintiff’s testimony support the conclusion that plaintiff
is not capable of returning to the job he held at the time of his injury, which
further supports the opinion that plaintiff is not totally disabled.
The award
of PPD benefits concerns only Underwood’s June, 2009 work accident and, therefore,
his cervical injury. The ALJ’s analysis
does not explain why, due to the effects of the June, 2009 injury alone,
Underwood was unable to continue return to the type of work he performed at the
time of the injury. In light of the
unique circumstances of this case – specifically, that Underwood continued to
work without accommodation during this period – further analysis is
required. For this reason, we vacate the
award of enhanced PPD benefits and remand this claim to the ALJ for further
findings of fact.
For the
foregoing reasons, the December 28, 2015
Opinion, Order and Award and the February 12, 2016 Order on Reconsideration
rendered by Hon. Grant S. Roark, Administrative Law Judge, are hereby REVERSED IN PART, VACATED IN PART AND
REMANDED with directions to enter and Opinion and Award in conformity with
the views expressed herein.
STIVERS, MEMBER, CONCURS.
ALVEY,
CHAIRMAN, NOT SITTING.
COUNSEL
FOR PETITIONER:
HON ANTHONY FINALDI
610 SOUTH FOURTH STREET
SUITE 701
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON JAMES D HOWES
5438 NEW CUT RD #201
LOUISVILLE, KY 40214
ADMINISTRATIVE
LAW JUDGE:
HON GRANT S ROARK
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601