Workers’
Compensation Board
OPINION
ENTERED: January 6, 2017
CLAIM NO. 201360755
RANDAL HOLBROOK PETITIONER
VS. APPEAL FROM HON. STEVEN
BOLTON,
ADMINISTRATIVE LAW JUDGE
FOOLS GOLD ENERGY CORP
and HON. STEVEN BOLTON
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART, VACATING IN PART,
AND
REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Randal Holbrook (“Holbrook”) appeals from the
May 31, 2016 Opinion and Order of Hon. Steven Bolton, Administrative Law Judge
("ALJ Bolton") and the July 28, 2016, Order denying his Petition for
Reconsideration by Hon. Jane Rice Williams, Administrative Law Judge ("ALJ
Williams").[1]
In the Opinion and Order, ALJ Bolton dismissed Holbrook's claim for failure to
prove he sustained injuries as defined by KRS 342.0011(1) of the Workers’
Compensation Act.
On appeal, in his October 11, 2016,
"Amended Petitioner's Brief," Holbrook asserts the ALJ erred by
failing to award future medical benefits. Holbrook also argues his right to
procedural due process and equal protection under the Fourteenth Amendment was
violated because he did not receive a transcript of the final hearing.
The Form 101 alleged Holbrook, while
in the employ of Fools Gold Energy Corp ("Fools Gold”), sustained a
work-related injury to his neck on June 27, 2013, in the following manner:
"Plaintiff was operating [sic] mantrip car and it hit the rib of [sic]
Mine causing injury to his neck." Holbrook also alleged that: "During
the course and scope of claimant's employment he sustained work-related
cumulative trauma to his neck, back, knees, wrists, and joints which manifested
in October of 2013." At the time of his alleged injuries, Holbrook was
working as an underground mine foreman. The Form 104 attached to the Form 101
indicates Holbrook worked at Fools Gold from 2007 through 2013.
The March 9, 2016, Benefit Review
Conference ("BRC") order lists the following contested issues:
benefits per KRS 342.730; work-relatedness/causation; injury as defined by the
ACT; and exclusion for pre-existing disability/impairment. Under
"other" is the following: "extent & duration w/multipliers;
manifestation date." The parties stipulated temporary total disability
("TTD") benefits were paid from October 28, 2013 through March 26,
2014, for a total of $16,129.07.[2]
They also stipulated medical benefits were paid in the amount of $8,858.05.[3]
The May 22, 2015, Orthopedic
Examination report of Dr. Daniel Primm was introduced by Fools Gold. After
performing an examination, Dr. Primm set forth the following
"Impression": "1) Cervical spine injuries culminating in
cervical discectomy and fusions; 2) lumbar strain by history; 3) right-elbow
strain by history, resolved by objective examination; 4) right-shoulder strain
by history; 5) degenerative arthritis, right knee."
Dr. Primm set forth the following:
Mr. Holbrook's orthopaedic diagnoses are as
above, i.e., he sustained three distinct injuries to his cervical spine. The
first two injuries resulted in cervical discectomies and subsequent disk
fusion. The most recent injury appears to simply be a further aggravation of
his chronic, preexisting active neck condition, that being status post a
cervical discectomy and fusion with posttraumatic degenerative changes. His
other orthopaedic injuries consist of a history of one isolated lumbar strain,
with his objective examination being normal or unremarkable; a resolved right-elbow
strain; and a resolved right shoulder strain. I could not identify any specific
injury to his right knee, since he indicated he simply noted his right knee
popped when he stood up from a sitting position. He has no mechanical symptoms
suggesting meniscal tears.
Dr. Primm opined Holbrook has a
diagnosis resulting from the event occurring on June 27, 2013:
Yes, his cervical spine diagnosis did result
from the specific as noted above, as did his right elbow and shoulder injury. I
am not sure regarding his right-knee injury. I could not find any medical
records confirming any type of right-knee injury. I could not find any medical
records confirming any type of right-knee injury or other trauma to that knee.
Dr. Primm opined Holbrook does not have
a diagnosis that is causally related to cumulative trauma:
I do not believe that this man has a
diagnosis of cumulative trauma. I say that because he described specific
injuries rather than simply a gradual onset of pain. Also, even though he
reports pain in his right knee, his left knee is asymptomatic, and objective
examination of both knees is the same. I have to say the same holds true for
his elbows, wrists, hands, hips, ankles, and feet. If this man suffered from
cumulative trauma due to the general activities of his work, then this would
not affect only certain joints, but would affect his musculoskeletal system in
a diffuse and symmetrical manner.
In response to a question concerning
whether Holbrook has either exacerbated symptoms or a harmful change in the
human organism, Dr. Primm stated as follows: "The only exacerbation I find
in this case is his description of a third cervical spine injury which occurred
in 2013. I do not think his general work and other physical activities produced
a harmful change to the human organism."
As to when maximum medical improvement
(“MMI”) was attained, Dr. Primm opined as follows: “Yes, I feel he has reached
maximum medical improvement. I feel he should have reached maximum medical
improvement approximately six months after his last injury of striking his head
on the seat of the mantrip.”
Regarding an impairment rating, Dr.
Primm opined as follows:
This man would have an active impairment regarding the cervical
spine on the basis of the cervical spine fusion. The AMA Guides to the
Evaluation of Permanent Impairment, Fifth Edition, places him in Cervical Spine
Table 15-3, DRE Category IV, for a 25% to 28% impairment. However, I feel all
this is a preexisting active impairment.
Dr. Primm was deposed on September 11,
2015. Dr. Primm testified he would assign a 25% impairment rating for the
fusion surgery on Holbrook’s cervical spine. When asked what type of injuries,
if any, Holbrook sustained on June 27, 2013, Dr. Primm testified as follows:
A: Well, I think in terms of medical
probability I think he probably did have at least a transient aggravation of
those chronic degenerative changes that may have increased his pain.
Q: Is there any evidence on your examination
or what you have with you that the prior C5-6 fusion that he had I think back
in '98 was in any way -- that particular area of his neck would get aggravated,
exacerbated in any way because of the work-related injuries he had in 2013?
A: Well, as I say, symptomatically I think
because of those diffuse degenerative changes that could aggravate those
changes, yes. I mean, he didn't have any acute injuries, like fractures or
sometimes you can fracture an osteophyte, but none of the reports indicated
that had happened. But subjectively he told me his neck pain got worse, and so
you would --
Q: So prior to the June 2013 accident he
already -- I think you said he had an active impairment rating, I think you
said it's appropriately under the 25, 28 percent DRE Category IV, prior to the
June '13 accident?
A: Yes.
Q: So when he did have the accident in June
2013, would that have increased in any way the active impairment?
A: It wouldn't increase the active impairment, no. I mean, the
only impairment I think he possibly could have would be like just a Chapter 18
three percent impairment just because he told me that subjectively his pain --
his chronic pain symptoms increased, but that's the only type of impairment
rating I could really see.
Fools Gold introduced the July 7,
2015, Independent Medical Evaluation ("IME") report of Dr. Russell
Travis. After performing an examination, Dr. Travis opined as follows regarding
Holbrook's diagnosis:
His 'orthopedic' diagnosis would be that of a
right elbow sprain and strain which has resolved, perhaps a right shoulder
sprain and strain, although there is nothing documented in the medical record
for that, which has resolved. Likewise, he claimed some pain to the right knee,
but there is no evidence of effusion or limitation of motion of the right knee.
On evaluation today, that has also resolved.
As to a neurosurgical problem, he has had two anterior cervical
diskectomies, the first at C6-7, the second appears to be at C5-6, since he has
a fusion there.
Dr. Travis was asked to express an
opinion as to whether Holbrook has a diagnosis that results from his specific
trauma:
All of his diagnoses would appear to relate to a specific
traumatic event. By his history, he had two traumatic events to the cervical
spine, both of which resulted in anterior cervical diskectomies and probable
fusion on the second operative procedure. The specific incidents as listed in
the narrative history involves an injury to the right knee at work, which
resolved, an injury to the right elbow at work, which resolved, a nonspecific,
nonwork-related injury to the right shoulder, which has no specific residual at
this time.
Dr. Travis opined Holbrook has no
indications and no diagnoses that are in any way related to cumulative trauma.
When asked whether Holbrook's work either exacerbated symptoms or caused a
harmful change to the human organism, Dr. Travis opined as follows:
There is no evidence in Mr. Holbrook [sic] that his work per se
caused a harmful change in the human organism. He did have two specific effects
which apparently resulted in a cervical disk [sic] and he underwent anterior
cervical diskectomy. However, this is not 'the work,' this is a specific
incident in the work and has no relationship to cumulative trauma. The last
incident of the cervical strain and sprain which happened in June of 2013 was
apparently acute cervical flexion/extension injury, which aggravated his neck.
However, by my review of the cervical MRI taken after that injury which was
acquired on 8/15/2013, there was nothing on the cervical MRI that can relate to
that injury or one could incriminate as the cause of an ongoing problem. It
shows degenerative changes, but remarkably not one would anticipate for a man
who has had a two-level anterior cervical diskectomy and probable fusion. As to
the elbow strain, the shoulder sprain, and the right knee sprain, there is no
evidence of residual problems.
Regarding an impairment rating, Dr.
Travis opined as follows:
However, since he had a two level anterior
cervical disk [sic] and I do not know if he had a fusion, except the second
operation C5-C6 apparently was a fusion, I would award him the DRE Category IV
for a higher impairment rating of 28%. The DRE Category Cervical are on page
392 and for a DRE Cervical Category IV, alternation of motion segment integrity
or bilateral multilevel radiculopathy. Since I know he has a fusion at C5-C6,
and apparently at C6-C7 was a discectomy without fusion, I would award him a
27% whole person impairment. Accordingly, his impairment rating in my opinion
should be a DRE Cervical Category IV, 27% whole person impairment.
This is not related to cumulative injury or cumulative trauma,
but it is related to two specific cervical injuries at work. I am not sure at
which mine he was working when this occurred.
Dr. Travis believed Holbrook had
reached MMI.
The October 6, 2015, supplemental
report of Dr. Travis was introduced in which he assessed a 0% impairment rating
for a lumbar spine condition pursuant to the 5th Edition of the
American Medical Association, Guides to the Evaluation of Permanent
Impairment (“AMA Guides”).
Holbrook was deposed on April 13, 2015,
and testified that after the alleged June 27, 2013, work incident, he returned
to work as a foreman until he quit in October 2013: “I went to work until the
day I quit, yeah. I don’t even know if I even missed a full shift or not
because of that.” Regarding the ability to perform his regular job duties,
Holbrook testified as follows:
Q: Did you continue your regular job duties
as a foreman up until October of 2013?
A: There was [sic] some things I wasn’t able
to do any longer.
Q: What was that?
A: I was pretty good about taking care of all the rock dusting
and the things of that nature. And it just got to where I’d have to bend over
and be in a strain trying to pick it up, why, my head felt like I just
couldn’t, you know, just sharp pains that would - - you know, I don’t know how
to tell you this. You can actually - - what happened to my neck, I can hear it
as it starts to - - it sounds like a gun goes off, pow, and that pain lasts for
about a second and a half, but it’s pow, and it’s that quick. I wasn’t able to
lift what I used to, would normally be able to do. Things I could do, seems
like it was taking a lot longer to get it done.
His weekly earnings and numbers of
hours worked remained the same.
When asked why he stopped working in
October 2013, Holbrook testified as follows:
Just got so physically unable to do it. I mean I was just in so
much pain, I just couldn’t get the job done. I was getting - - probably being
pressured not being able to do what I was trying to do to get it done. But the
pain never did, it just never did leave me and I just got so wore down with it,
I just couldn’t go on any longer.
Holbrook’s first neck surgery occurred
in 1991 after sustaining an injury while working for Little Bear Mining.
Holbrook’s second neck surgery occurred in 1998 after sustaining an injury
while working for Faith Coal Company.
Holbrook also testified at the March
29, 2016, hearing. He confirmed his last day of work at Fools Gold was in
October 2013: “Uh-huh (yes), toward the end of the month too. I don’t remember
hat [sic] day it was.”
Regarding his return to work, Holbrook
testified as follows:
Q: And after the accident were you off work for
some period of time?
A: I'm sure I missed a day or two and I may
have not have even missed none [sic]. Maybe I only missed two or three half
days.
Q: And you came back to work?
A: Yeah.
Q: Okay.
A: Yeah.
Q: And then when you came...
A: This wasn't - this wasn't a continuous pain. Just when I get
in that position. Like say if I be [sic] down on my hands and knees crawling
and say a Shuttle Car Man was to holler at me or scream out and I'd make that
motion turning to the right, yeah...
He explained why he stopped working in
October 2013:
Q: Okay then. And did a doctor put you off
work?
A: Dr. Rivera did.
Q: How long did he put you off for?
A: He wouldn’t release me to go back.
Q: An indefinite… [sic]
A: Yes.
Q: And when you were placed off work in
October of 2013 what - other than your neck and your head what other types of
injuries or pain were you suffering from?
A: I know when we were in low coal I couldn't
crawl.
Q: Uh-huh.
A: My right elbow would swell up. Every time - when you're
crawling you've got to - just like a horse my hand would go back and pain is
[sic] my shoulder. It was all in the right side and it got to where I just
simply wouldn't hold my head up. But when I was explaining all of this to Dr.
Rivera and he was going all the way back through - he just thought it was best
that I go ahead and quit.
In the May 31, 2016, Opinion and
Order, ALJ Bolton set forth, in relevant part, the following Analysis:
With regard to the claim for a cumulative
trauma type of injury to the back, neck, wrists, knees, and joints, the medical
evidence in determinative.
Mr. Collins [sic] was employed as an
underground coal miner for around 44 years, primarily as a Foreman, but as
testified to by him, a 'working foreman', who had to, and did, perform all of
the jobs that his fellow miners performed. This included many days of heavy
lifting, contorting of the body and having to work in very difficult
conditions.
He testified to having many work-related
injuries during his entire mining career from 1969 through 2013. However, most
of these injuries were very specific as to the how and why of their physical
impact. Many were also compensable and Mr. Holbrook filed claims and received
awards for the most serious. These types of events, as described by Dr. Primm,
cannot be used to establish 'cumulative trauma.' As correctly characterized by
Dr. Primm, cumulative trauma is a long series of minor traumatic injuries, most
of which are not even noticed by the worker, but which act cumulatively to
create a permanent injury that manifests itself at a specific point in time.
Dr. Primm did not believe that Mr. Holbrook
has a diagnosis of cumulative trauma. He explained that Mr. Holbrook described
specific injuries rather than simply a gradual onset of pain. Although he
reported pain in the right knee, his left knee was asymptomatic and objective
examination of both knees was the same. The same held true for his elbows,
wrists, hands, hips [sic] ankles [sic] and feet. Dr. Primm opined that if Mr. Holbrook
suffered from cumulative trauma due to the general activities of his work, then
this would not affect only certain joints, but would affect his musculoskeletal
system in a diffuse and symmetrical manner. The contested issue as to the
Plaintiff's claimed cumulative trauma then is the extent of impairment due to
injury.
The expert medical evidence consisted solely
of some medical records, but mostly reports from Dr. Primm and Dr. Travis for
the Defendant and Dr. Nadar for the Plaintiff.
I find Dr. Primm's medical opinion to be the
most complete and consistent medical evidence in the record with regard to the
Plaintiff's claim that he has suffered a 'cumulative trauma' injury. As such, I
further find that the Plaintiff does not suffer from a ratable cumulative
injury and is not entitled to an award of benefits for same. He has failed to
carry his burden of proof that he suffers from the effects of cumulative
trauma.
'The claimant bears the burden of proving
every element of a workers' compensation claim.' Lane v. S&S Tire, Inc.,
No. 15, 182 S.W.3d 501, 505 (Ky. 2005). Here, with the single exception of
Dr. Nadar's opinion, there is absolutely no evidence in the record, to include
most of Plaintiff's history as given to the IME physicians, to indicate that
his musculoskeletal problems are anything other than age related degenerative
disc and joint disease.
The injuries of note to Mr. Holbrook are the
three injuries sustained by him to his cervical spine. Of course, the two
previous injuries resulted in conditions that required surgery by Dr. Mortara
and for which compensation has been paid. They constitute active, pre-existing
conditions for which both Dr. Primm and Dr. Travis assigned a WPI rating.
Unfortunately for Mr. Holbrook, none of either of those ratings was assigned
for permanent injury arising out of the 6/27/2013 accident that both of them
characterized as resulting in a short term exacerbation of the original
injuries that have now resolved.
Mr. Holbrook has an extensive written medical
history that reflects his history of the natural aging process and some work
related trauma to his body such as various sprains and strains. However, as
observed by Dr. Primm and Dr. Travis, there is nothing in his history that goes
to ongoing, longstanding micro-traumas assaulting his person over the years.
The physician who actually operated on him did not make
observations about traumatic injury. In fact, other than by surgical report,
Dr. Mortara was not a witness in this claim. Thus, as to Plaintiff's
application for an award of income and medical benefits as the result of an
alleged cumulative trauma injury, I do not find that he has proven that he has
suffered an injury as defined by the ACT. KRS 342.0011(1).
As to the cervical injury of 6/27/2013, there
is no evidence to support a finding that he suffered a permanent injury. Dr.
Nadar's medical report failed Mr. Holbrook in that regard, because Dr. Nadar
either did not know or chose to disregard Mr. Holbrook's prior, active,
pre-existing and ratable cervical injuries. His 28% rating of the cervical
spine was consistent with the ratings of Dr. Primm and Dr. Travis (although
some higher), but Dr. Nadar did not make any distinction between the prior two
events and the event of 6/27/2013. Thus, his rating is tainted by the fact that
he failed to determine or opine as to whether the event of 6/27/2013 added an
additional percentage of disability or was simply an exacerbation of the
original injuries. I therefore find his report not to be persuasive and those
of Dr. Primm and Dr. Travis to be persuasive.
Holbrook made the same arguments in
his June 16, 2016, petition for reconsideration as he does on appeal. In the
July 28, 2016, Order ruling on Holbrook's petition for reconsideration, ALJ
Williams ruled as follows on the two issues now on appeal:
1. The final order fails to address
Plaintiff's award of future medical benefits.
ALJ Bolton relied on the medical opinions of
Dr. Travis and Dr. Primm to determined [sic] there was no permanent injury. He relied
on these physicians to determine there was no harmful change as a result of the
work injuries alleged. Neither expert found a treatable condition related to
the alleged work injuries.
...
3. Plaintiff's right to procedural due
process, as protected by the 14th Amendment to the U.S. Constitution, was
violated.
Plaintiff argues, among other things, that
because he did not receive a hearing transcript, his ability to file his brief
resulted in the ALJ relying on the argument of counsel. A review of the record
reveals the ALJ relied on the evidence of record and not on the argument of
Defense [sic] counsel in making his decision. That being said, Constitutional
challenges are not within the purview of this administrative process and are
not properly before an ALJ.
Holbrook first argues ALJ Bolton erred
by not addressing the issue of future medical benefits for his cervical spine
in the May 31, 2016 Opinion and Order. We vacate the complete dismissal of
Holbrook’s claim and remand for additional findings.
In the May 31, 2016 Opinion and
Order, ALJ Bolton unequivocally relied upon the opinions of Drs. Primm and
Travis in determining the nature of the alleged June 27, 2013, injury to
Holbrook's cervical spine. In his May 22, 2015, report, Dr. Primm opined that
Holbrook sustained specific trauma injuries to his neck, right elbow, and right
shoulder. Regarding Holbrook's neck, Dr. Primm opined the June 27, 2013, injury
"appears to simply be a further aggravation of his chronic preexisting
active neck condition, that being status post a cervical discectomy and fusion
with posttraumatic degenerative changes." Dr.
Travis diagnosed a temporary cervical strain and resolved right shoulder and
elbow strain. Yet, there is no discussion of entitlement to medical benefits in
the May 31, 2016, Opinion and Order.
Additionally, Holbrook's request for an
award of future medical benefits was denied by ALJ Williams in the July 28,
2016, Order not only using an improper standard, but also with an inaccurate
understanding of the record. In the July 28, 2016, Order, ALJ Williams stated
that Drs. Travis or Primm determined "there was no harmful change as a
result of the work injuries alleged." However, the record clearly
indicates both physicians opined that a harmful change indeed occurred on June
27, 2013. Dr. Travis opined "[t]he last incident of the cervical strain
and sprain which happened in June of 2013 was apparently [sic] acute cervical
flexion/extension injury, which aggravated his neck." Dr. Primm opined
that "[t]he most recent injury appears to simply be a further aggravation
of his chronic, preexisting active neck condition, that being status post a
cervical discectomy and fusion with posttraumatic degenerative changes."
Additionally, the legal standard cited
by ALJ Williams in the July 28, 2016, Order is incorrect when it pertains to
future medical benefits. ALJ Williams states as follows: "Neither expert
found a treatable condition related to the alleged injuries. As such, an award
of medical benefits is not supported by the evidence."
“Injury” is defined at
KRS 342.0011(1) as:
[A]ny
work-related traumatic event or series of traumatic events, including
cumulative trauma, arising out of and in the course of employment which is the
proximate cause producing a harmful change in the human organism evidenced by
objective medical findings.
The above definition does not require
the claimant to have permanent injury and/or disability to be eligible for
medical benefits. “Permanent disability”
is defined at KRS 342.0011(11)(c). For
permanent disability, the claimant must have a permanent impairment
rating. Temporary disabling conditions
are compensable under KRS 342.0011(a), which provides that an employee who has
not reached MMI from an injury and has not reached the level of improvement
that would permit the return to employment may be entitled to benefits of a
temporary nature. See Central
Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky. 2000). Furthermore, workers suffering temporary
injuries may be entitled to medical benefits pursuant to KRS 342.020. An injured worker is entitled to an award of
medical benefits “at the time of injury and thereafter during disability” in
the absence of a permanent injury or disability. KRS 342.020(1); Combs v.
Kentucky River District Health Dept., 194 S.W.3d 823 (Ky. App. 2006).
In Robertson v. United Parcel
Service, 64 S.W.3d 284, 286 (Ky. 2001), the Kentucky Supreme Court stated:
In other words,
the ALJ concluded that the claimant suffered a work-related injury but that its
effect was only transient. It resulted in no permanent disability or change in
the claimant's pre-existing spondylolisthesis. Thus, the claimant was not
entitled to income benefits for permanent, partial disability or entitled to
future medical expenses, but he was entitled to be compensated for the medical
expenses that were incurred in treating the temporary flare-up of symptoms that
resulted from the incident.
Since the rendition of Robertson,
this Board has consistently held that it is possible for an injured worker to
establish a temporary injury for which only TTD benefits and temporary medical
benefits may be paid, but yet fail in the burden of proving a permanent harmful
change to the human organism for which permanent benefits are authorized. In contrast, we acknowledge the Kentucky
Court of Appeals, in Combs v. Kentucky River District Health Dept., supra,
has also recognized there may be instances when a workers’ compensation
claimant is entitled to an award of future medical benefits
after reaching MMI, even in the absence of a finding of a permanent disability
and resulting permanent functional impairment rating. In FEI Installation,
Inc. v. Williams, supra, the Supreme Court instructed that KRS
342.020(1) does not require proof of an impairment rating to obtain future medical benefits, and the absence of a functional
impairment rating does not necessarily preclude such an award.
As the finder of fact, while it is
certainly within the ALJ's discretion not to award future medical benefits, the
ALJ must first undertake an analysis utilizing the correct legal standard and
with a correct understanding of the record. Since Drs. Primm and Travis
diagnosed distinct cervical injuries due to the June 27, 2013, event, the complete
dismissal of Holbrook’s claim and denial of his request for future medical
benefits, without any discussion, is vacated and this claim is remanded for a
determination of his entitlement to medical benefits, including future medical
benefits.
As an afterthought at the end of his argument
regarding future medical benefits, Holbrook asserts he is entitled to
"income benefits" from June 27, 2013, until December 27, 2013,
asserting "Dr. Primm's own report, which was so highly praised by ALJ
Bolton, clearly states that an injury did occur and that the Petitioner would
not be at MMI until December 27, 2013." Even though Holbrook fails to
articulate a clear and complete argument concerning this issue, we also remand
for findings regarding Holbrook's entitlement to TTD benefits. Since the medical
evidence firmly established Holbrook sustained a temporary cervical injury, his
entitlement to TTD benefits must be addressed.
Temporary
total disability is “the condition of an employee who has not reached maximum
medical improvement from an injury and has not reached a level of improvement
that would permit a return to employment[.]” KRS 342.0011(11)(a). In Central Kentucky Steel v. Wise, 19 S.W.3d
657, 659 (Ky. 2000), the Kentucky Supreme Court explained: “It
would not be reasonable to terminate the benefits of an employee when he is
released to perform minimal work
but not the type that is customary or that he was performing
at the time of his injury.” Thus, a
release “to perform minimal work” does not constitute a “return to work” for
purposes of KRS 342.0011(11)(a).
More recently, in Magellan
Behavioral Health v. Helms, supra, the Court of Appeals instructed
that until MMI is achieved, an employee is entitled to a continuation of TTD
benefits so long as he remains disabled from his customary work or the work he
was performing at the time of the injury.
The court in Magellan Behavioral Health v. Helms, supra,
stated:
In order to be entitled to temporary total
disability benefits, the claimant must not have reached maximum medical improvement
and not have improved enough to return to work.
. . .
The second prong of KRS 342.0011(11)(a) operates to deny
eligibility to TTD to individuals who, though not at maximum medical
improvement, have improved enough following an injury that they can return to
work despite not yet being fully recovered.
In Central Kentucky Steel v. Wise, [footnote omitted] the
statutory phrase ‘return to employment’ was interpreted to mean a return to the
type of work which is customary for the injured employee or that which the
employee had been performing prior to being injured.
Id. at
580-581.
In Double
L Const., Inc. v. Mitchell, 182 S.W.3d 509, 513-514 (Ky. 2005), with
regard to the standard for awarding TTD, the Supreme Court elaborated as
follows:
As defined by KRS
342.0011(11)(a), there are two requirements for TTD: 1.) that the worker must
not have reached MMI; and 2.) that the worker must not have reached a level of
improvement that would permit a return to employment. See Magellan Behavioral Health v. Helms, 140 S.W.3d 579,
581 (Ky. App. 2004). In the present case, the employer has made an ‘all or
nothing’ argument that is based entirely on the second requirement. Yet,
implicit in the Central Kentucky
Steel v. Wise, supra,
decision is that, unlike the definition of permanent total disability, the
definition of TTD does not require a temporary inability to perform ‘any type
of work.’ See KRS 342.0011(11)(c).
. . .
Central Kentucky Steel v. Wise, supra, stands for the principle
that if a worker has not reached MMI, a release to perform minimal work rather than ‘the type that is customary or that he was performing at the time of his injury’
does not constitute ‘a level of improvement that would permit a return to employment’ for the purposes of KRS 342.0011(11)(a).
19 S.W.3d at 659.
Recently, in Trane
Commercial Systems v. Tipton, 481 S.W.3d 800, 807 (Ky. 2016) the Kentucky
Supreme Court further explained the analysis required concerning entitlement to
TTD benefits during a period of light duty work:
As we have
previously held, “[i]t would not be reasonable to terminate the benefits of an
employee when he is released to perform minimal work but not the type [of work]
that is customary or that he was performing at the time of his injury.” Central
Kentucky Steel v. Wise, 19 S.W.3d at 659. However, it is also not reasonable, and it does not further the
purpose for paying income benefits, to pay TTD benefits to an injured employee
who has returned to employment simply because the work differs from what she
performed at the time of injury. Therefore, absent extraordinary circumstances,
an award of TTD benefits is inappropriate if an injured employee has been
released to return to customary employment, i.e. work within her
physical restrictions and for which she has the experience, training, and
education; and the employee has actually returned to employment. We do
not attempt to foresee what extraordinary circumstances might justify an award
of TTD benefits to an employee who has returned to employment under those
circumstances; however, in making any such award, an ALJ must take into
consideration the purpose for paying income benefits and set forth specific
evidence-based reasons why an award of TTD benefits in addition to the
employee's wages would forward that purpose.
The March 9, 2016, BRC Order indicates
voluntary TTD benefits were paid from October 28, 2013, through March 24, 2014,
for his traumatic injury claim.[4] However,
ALJ Bolton, in the May 31, 2016, Opinion and Order, failed to analyze
Holbrook's entitlement to any TTD benefits or even determine the date Holbrook
reached MMI following the June 27, 2013, work incident. Dr. Primm, in his May
22, 2015, report, opined Holbrook would have reached MMI for the aggravation of
his preexisting active cervical condition sustained on June 27, 2013,
"approximately six months after his last injury of striking his head on
the seat of the mantrip" or December 27, 2013. Dr. Travis, in his July 7,
2015, IME report, opined that Holbrook had reached MMI, presumably by the date
of his report. Additionally, Holbrook's testimony indicates that while he
returned to work as a foreman following the June 27, 2013, work incident, he
was unable to perform certain tasks.
While we direct no particular result,
on remand, the ALJ must undertake an analysis pursuant to the relevant
statutory and case law regarding Holbrook's entitlement to TTD benefits and
enter an appropriate award. Should the ALJ, on remand, determine Holbrook is only
entitled to TTD benefits already paid, the ALJ must set forth the necessary rationale
and award TTD benefits for the period TTD benefits were paid.
Finally, Holbrook asserts that his
right to procedural due process and equal protection under the Fourteenth
Amendment of the United States Constitution was violated because he never
received the final hearing transcript prior to ALJ Bolton rendering the May 31,
2016, Opinion and Order; thus, Holbrook asserts he was unable “to complete and
submit [a] persuasive brief." He asserts, in part, as follows:
The Petitioner filed a Motion for Extension of Time to file such
brief, due to the state's failure to disclose the final transcript, on two
separate occasions; the first Motion being granted by the ALJ; the second
having never being [sic] ruled upon. Instead of granting Petitioner's second
Motion to Extend Time, the Administrative Law Judge issued a Final Order
wherein he stated that the Defendant/Employer's persuasive brief was compelling
and that parts of it were used and incorporated into the final decision. This
is a clear protection of the Equal Protection clause and procedural due process
of the 14th Amendment, U.S. Constitution, see also Kentucky Revised Statutes
Chapter 13b, (Albert Jones Act 1994) sections .080, .090, and .130.
We are satisfied Holbrook was not
denied procedural due process. In Bentley v. Aero Energy, Inc., 903
S.W.2d 912 (Ky. App. 1995), the Court discussed the components of procedural
due process in the context of administrative proceedings. Citing Kentucky Alcoholic Beverage Control
Board v. Jacobs, 269 S.W.2d 189, 192 (Ky. 1954), the Bentley Court stated
as follows:
In order that the requirements of due process of law be
satisfied, the litigant must be afforded procedural due process as well as
substantive due process.
This includes a hearing, the taking and weighing of evidence, if such is
offered, a finding of fact based upon consideration of the evidence, the making
of an order supported by substantial evidence, and, where the party’s
constitutional rights are involved, a judicial review of the administrative
action. Id. at 913. (Citations omitted.)
The Bentley Court also stated
it was “[E]vident that the
requisites of due process focus upon the appraisal and evaluation of evidence
supplied the decision-maker….” Id.
In the case sub judice, it is apparent ALJ Bolton satisfied the requirements of
administrative due process as set forth in Bentley. While we appreciate
the inconvenience experienced by Holbrook at not having the final hearing
transcript in his possession at the time briefs were due to be filed, this does
not rise to the level of a violation of procedural due process in the context
of administrative proceedings.
Accordingly, the May 31, 2016 Opinion
and Order and the July 28, 2016, Order denying Holbrook's Petition for
Reconsideration are VACATED to the
extent each failed to address Holbrook's entitlement to medical benefits and
TTD benefits for his temporary traumatic injury of June 27, 2013. This claim is
REMANDED to the ALJ for additional
findings consistent with the views set forth herein and the appropriate award
of medical and TTD benefits for the temporary work injuries Holbrook sustained.
Concerning Holbrook's argument regarding an alleged violation of procedural due
process, all other portions of the May 31, 2016, Opinion and Order and the July
28, 2016, Order are AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON JUSTIN C HAMILTON
P O BOX 1335
PIKEVILLE KY 41502
COUNSEL
FOR RESPONDENT:
HON TERRI SMITH WALTERS
P O BOX 1167
PIKEVILLE KY 41502
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
657 CHAMBERLIN AVE
FRANKFORT KY 40601
[1] By order dated July 25, 2016, Hon. Robert
Swisher, Chief Administrative Law Judge, transferred this claim from ALJ Bolton
to ALJ Williams.
[2] Written in parentheticals by the total
amount of TTD benefits paid is "NO CT" which we assume means TTD
benefits were not paid for Holbrook's alleged cumulative trauma claim.
[3] Again, written in parentheticals by the total
amount of medical benefits paid is "NO CT."
[4] This Board is unable to conclude what
determined the date of cessation for voluntary TTD benefits.