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