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January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  March 3, 2017

 

 

CLAIM NO. 201573861

 

DEMETRIA RUEDEL                                PETITIONER

 

 

VS.          APPEAL FROM HON. R. ROLAND CASE,

                 ADMINISTRATIVE LAW JUDGE

 

 

FORD MOTOR CO.

HON. R. ROLAND CASE,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

VACATING AND REMANDING

IN PART

 

 

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

 

RECHTER, Member.  Demetria Ruedel (“Ruedel”) appeals from the September 6, 2016 Opinion, Award and Order and the October 17, 2016 Order on Reconsideration rendered by Hon. R. Roland Case, Administrative Law Judge (“ALJ”) denying her request for temporary total disability (“TTD”) benefits during a period she was working light duty.  For the reasons set forth herein, we vacate and remand.

          Ruedel works as an electrician for Ford Motor Company (“Ford”).  Her position requires climbing ladders, lifting up to 100 pounds, crawling, squatting, bending, and walking for prolonged periods of time.  On July 2, 2015, Ruedel was injured when she was thrown from the bed of a motorized vehicle and landed on her right leg.  She was taken by ambulance to the emergency room and eventually referred to Dr. Frank Bonnarens.  Dr. Bonnarens performed right knee surgery on August 12, 2015 and thereafter ordered physical therapy. 

          Pursuant to Dr. Bonnarens’ orders, Ruedel was placed on light duty from July 3, 2015 through August 11, 2015.  Following surgery, she returned to light duty work on August 29, 2015 through December 12, 2015, when she was released to her regular position.  During these two periods of light duty work, Ruedel testified she would report to the office that services the plant’s electricians.  She stated she would sit in the office all day but was not given any tasks to perform.  She testified she performed no work activities whatsoever.  Prior to her surgery, she would leave the office occasionally to attend physical therapy appointments on-site.  Following her surgery, physical therapy was conducted at Dr. Bonnarens’ office.

          During these light duty periods, Ruedel was paid her regular hourly wage but was not offered overtime, which reduced her overall income.  At her deposition, she explained that she “had to keep reporting to work” prior to her surgery, because she was receiving physical therapy at the plant.  However, when she was not in physical therapy, she merely sat in the office because there were no tasks for her to perform.  At the final hearing, she again explained that there was no work or tasks for her to complete in the office.  She further was questioned:

Q:   Did you say you were or were not told that you could stay home and earn TTD benefits?

 

A:   No.  I was not told I could stay home.  I was told I had to come to work, but then when I got there, they would ask me, if I wanted to go home.

 

Q:   Okay.  And – but, you didn’t go home, why not?

 

A:   No.  I mean, I wasn’t going to get paid. 

 

          The ALJ ultimately determined Ruedel is not entitled to TTD benefits during the periods she was placed on light duty work.  He reasoned:

     The plaintiff sustained an injury on July 2, 2015 and for approximately a month was working sitting in an office doing no work and receiving no overtime and during that time was not making as much money.  However, she was making more than what the temporary total rate would have been.  From August 12, 2015 to August 28, 2015 she was paid temporary total disability compensation.  After that she was then doing light work basically “sitting and doing nothing” but the defendant employer paid for cabs to bring her to work and also got her to her work station after she arrived at work.  Pursuant to Central Kentucky Steel v Wise, 19 Sw3d 657 (Ky. 2000) the plaintiff would have clearly been entitled to temporary total disability benefits until she was released to return to her regular job in December 15, 2015.  However, this case was substantially modified by the decision in Train Commercial Systems v Tipton, 481 Sw3d 800 (Ky. 2016) which requires that the ALJ takes into consideration the purpose of 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.  On the other hand in that case the Court did note that 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 if the employee has actually returned to employment.  In this case the plaintiff did return to employment but it was certainly not her customary employment.  On the other hand, the employer certainly made work available within the plaintiff’s physical restrictions.  Frankly, the ALJ thinks this claim is a very close call.  He is ultimately persuaded that the employer should not be penalized for making work available to the plaintiff and the plaintiff voluntarily accepting the employment.  In other words there was no coercion on the part of the employer forcing the plaintiff to return to work.  On the other hand the plaintiff did earn less money and had significant restrictions and the work was basically “made up” work.  Another significant factor is that the amount of wages earned was greater then what the temporary total rate would have been.  As indicated above, the ALJ in a close call will find the plaintiff is only entitled to temporary total disability from the period of August 12, 2015 through August 28, 2015.

 

     Ruedel petitioned for reconsideration, challenging the denial of TTD benefits, which was summarily denied.  On appeal, she argues the ALJ employed an incorrect standard in analyzing whether she is entitled to TTD benefits during the period she worked light duty.  She also challenges the ALJ’s finding she was not “coerced” into completing meaningless light duty work activities.

          At the outset, the ALJ correctly cited applicable case law in considering this issue.  The Kentucky Supreme Court’s holding in Train Commercial Systems v Tipton, 481 Sw3d 800 (Ky. 2016), is the most recent pronouncement concerning TTD benefits during periods of full-pay, light duty work.  The Court noted that TTD benefits are payable so long as the claimant has not reached maximum medical improvement and has not reached a level of improvement that would permit a return to employment.  Specifically analyzing what constitutes a “return to employment”, the Court explained “absent extraordinary circumstances, as 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.”  Id. at 807.  In determining whether TTD benefits are payable during a period of light duty work, the Court instructed the ALJ to “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.” Id. 

          In analyzing this issue, the ALJ acknowledged Ruedel was performing no work during her periods of light duty.  He described it as “made-up work” that did not qualify as her “customary employment.”  He likewise acknowledged that she was earning less overall income because overtime work was not available to her, though she was ultimately making more than what the TTD compensation rate would have afforded.  In characterizing the case as a “close call”, the ALJ stated he was “ultimately persuaded that the employer should not be penalized for making work available to the plaintiff and the plaintiff voluntarily accepting the employment.” He then explained Ruedel was not coerced or forced to return to work.

          We must agree with the ALJ’s characterization of this circumstance as a “close call”.  The ALJ correctly cited applicable law, and considered the factors which the Supreme Court has identified as relevant.  We likewise emphasize that it is the within the province of the ALJ, not this Board, to determine whether sufficient “extraordinary circumstances” exist to warrant an award of TTD benefits during a return to full-pay, light duty work. 

     Our hesitation in affirming this case is the ALJ’s statement that he was “ultimately persuaded” by the fact that Ford should not be penalized for making work available which Ruedel voluntarily accepted.  First, the uncontroverted evidence establishes that Ford did not make work available within Ruedel’s restrictions.  She reported to work in the office and was given no tasks or jobs to perform.  Ford presented no proof to rebut Ruedel’s description of her light duty work, which even the ALJ acknowledged was “made-up work.”

     However, more important to our analysis, is the ALJ’s conclusion that Ruedel was not “coerced” into accepting light duty work.  Ruedel testified she was never advised she could stay home and collect TTD benefits.  She testified at both the deposition and the final hearing as to her understanding that she was required to report to work, or not get paid.  Our review of the record reveals no proof challenging this testimony. 

     Of course, the ALJ was not required or obligated to lend credence to Ruedel’s testimony on this issue, simply because it went unchallenged.  Similarly, Ford argues it is irrelevant whether Ruedel was coerced to return to light duty work in lieu of TTD benefits; the only relevant fact is she received full wages during the periods in question and therefore is not entitled to TTD benefits as well.  Perhaps, under the circumstances of other claims, this would be so.  But in this claim, the ALJ specifically stated he was ultimately persuaded by the fact work was made available to her and she was not coerced to return to light duty work.  If this is, in fact, the deciding factor for the ALJ, he must identify substantial evidence upon which to base this factual conclusion in order to permit meaningful review by this Board.  Stated otherwise, this Board is unable to review whether “extraordinary circumstances” exist unless the factual circumstances as found by the ALJ are supported by substantial proof in the record.  For this reason, the claim is remanded to the ALJ with directions to provide further factual findings.

     Accordingly, that portion of the September 6, 2016 Opinion, Award and Order denying temporary total disability benefits during the periods in question and the October 17, 2016 Order on Reconsideration rendered by Hon. R. Roland Case, Administrative Law Judge, are hereby VACATED and this claim is REMANDED to the Administrative Law Judge for further findings of fact as explained herein. 

          ALL CONCUR.

 

 

 

 

 

 

COUNSEL FOR PETITIONER:

 

HON. CHED JENNINGS

401 W MAIN ST #1910

LOUISVILLE, KY 40202

 

COUNSEL FOR RESPONDENT:

 

HON JOHANNA ELLISON

300 W VINE ST #600

LEXINGTON, KY 40507

 

ADMINISTRATIVE LAW JUDGE:

 

HON R. ROLAND CASE

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601