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January 6, 2017 201360755

Commonwealth of Kentucky 

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.