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Workers’
Compensation Board
OPINION
ENTERED: May 11, 2018
CLAIM NO. 201401880
AGI TRANSPORTATION INC. PETITIONER
VS. APPEAL FROM HON. JOHN
B. COLEMAN,
ADMINISTRATIVE LAW JUDGE
ORLANDO ADKINS AND
HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. AGI
Transportation, Inc. (“AGI”) appeals from the January 21, 2018 Order on Remand
issued by Hon. John B. Coleman, Administrative Law Judge (“ALJ”). The ALJ awarded temporary total disability (“TTD”)
benefits, permanent partial disability (“PPD”) benefits, and medical benefits
for a right shoulder injury Orlando Adkins (“Adkins”) sustained on December 8,
2013 while employed by AGI. AGI also
appeals from the February 19, 2018 order denying its petition for
reconsideration.
The sole issue AGI raises on appeal
is whether the ALJ erred in awarding TTD benefits from January 24, 2014 through
June 2, 2014. We determine the ALJ
performed the appropriate analysis on remand in accordance with the directions
from this Board. The ALJ based his
analysis on the holdings in Central Kentucky Steel v. Wise, 19 S.W.3d
657 (Ky. 2000); Magellan Behavioral Health v. Helms, 140 S.W.3d 579 (Ky.
App. 2004); Double L Const., Inc. v. Mitchell, 182 S.W.3d 509,
513-514 (Ky. 2005); Livingood v. Transfreight, LLC, et, al., 467
S.W.3d 249 (Ky. 2015); and Trane v. Tipton, 481 S.W.3d 600 (Ky.
2016). Because the ALJ performed the
appropriate analysis, and his decision is supported by substantial evidence, we
affirm.
In the Form 101, Adkins alleged he
sustained work-related injuries to his neck, right shoulder, and upper
extremities on December 8, 2014. He
later filed a motion to amend the claim to identify the date of injury as
December 8, 2013. This motion was
granted by Hon. William J. Rudloff, Administrative Law Judge (to whom the claim
was originally assigned), in an order dated December 4, 2014. Since the sole
issue on appeal concerns the ALJ’s determination on remand from a previous
decision of this Board vacating in part and remanding his original decision, we
will not completely outline the evidence or procedural history of the claim.
In our
decision vacating in part and remanding the claim to the ALJ, we directed him
to perform the appropriate analysis regarding whether Adkins is entitled to TTD
benefits from January 24, 2014 through June 2, 2014. Adkins worked at a different job for lower
earnings during that period. We also
directed the ALJ to perform an appropriate analysis regarding whether Adkins
was entitled to an award of PPD or permanent total disability benefits.
In our
previous decision, this Board noted as follows:
Significantly, the record
indicates AGI voluntarily paid income benefits,
at a varying rate, during the period Adkins performed light duty work following
the injury. These income benefits were in addition to the wages Adkins earned
during this period.
. . .
In all claims, the ALJ must provide a sufficient
basis to support his determination. Cornett v. Corbin Materials, Inc.,
807 S.W.2d 56 (Ky. 1991). This includes a recitation of the facts and a
thorough examination of the facts under the applicable statutory and case law.
The ALJ failed to draw the appropriate legal conclusions required for an analysis of Adkins’ entitlement to TTD benefits
from January 24, 2014, through June 2, 2014. The ALJ determined Adkins reached
MMI on February 15, 2016. The ALJ also set forth the duties Adkins performed
when he returned to work and the correct legal standard. However, in both the November
3, 2016, Opinion, Award, and Order or the December 16, 2016, Order on Petition
for Reconsideration, the ALJ failed to analyze the tasks Adkins performed under
the standard enunciated in relevant case law – i.e. was Adkins performing
“customary employment” or “work within [his] physical restrictions and for
which [he] has the experience, training, and education” when he returned to AGI
performing light duty work after his injury and before he reached MMI? Trane
at 807. It is not enough for the ALJ to conclude that because Adkins was able
to continue working, earning an income on a full-time basis, and entitled to
PPD benefits during this time period that he is not entitled to TTD benefits.
On remand, the ALJ must set forth a complete analysis of Adkins’ entitlement to
TTD benefits during the time he performed light duty work in accordance with
the standard articulated in Trane, supra. As required by Trane, supra,
since Adkins was working during the period in question, the ALJ must determine
whether extraordinary circumstances exist to justify an award of TTD benefits.
In Trane at 807, the Kentucky Supreme Court decreed:
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.
We also
determined AGI was entitled to a credit for any voluntary income benefits,
noting as follows:
In the case sub judice, AGI is not entitled to a
credit for the bona fide wages paid
to Adkins during the period in question, however it is entitled to a credit for
the indemnity benefits paid by AGI over and above the wages he earned. Those voluntary indemnity benefits are to be
offset against AGI’s obligation to pay TTD benefits or PTD benefits.
. . .
An employer may be afforded a
dollar-for-dollar credit for any voluntary payment of past-due income benefits
so long as the claimant’s future benefits are not affected. Triangle Insulation & Sheet Metal Co.,
Div. of Triangle Enter., Inc. v. Stratemeyer, 782 S.W. 2d 628 (Ky. 1990).
The ALJ’s award of credit against past-due benefits for benefits already paid
will not be disturbed.
On remand, should the ALJ
award TTD benefits during all or a portion of the period in question, the only
credit to which AGI is entitled are those payments which both parties
characterized as temporary partial disability benefits. AGI is not entitled to a credit for the wages
Adkins earned during the period.
We additionally vacated the ALJ’s
determination Adkins was partially, not totally disabled, and remanded for
additional analysis. On remand, the ALJ
conducted an analysis pursuant to City of Ashland v. Stumbo, 461 S.W.3d
392 (Ky. 2015), and Ira A. Watson Department Store v. Hamilton, 34
S.W.3d 48 (Ky. 2000). The ALJ again
awarded Adkins PPD benefits after performing the appropriate analysis. That determination has not been appealed, and
we will not discuss it further.
In his
decision on remand, the ALJ noted Adkins worked as a truck driver prior to his
injury. This entailed not only driving,
but also required some loading and unloading of goods. After the injury, Adkin’s restrictions
prevented him from performing part of his job, including the loading and
unloading of freight. The job Adkins
performed during the period in question involved only cleaning tractors, and
moving them around the yard. While the
ALJ determined those job activities bore reasonable and rational relationships
to AGI’s business, he additionally noted Adkins earned much less in doing
so. He determined that because Adkins
earned significantly less while performing those tasks, this created an
extraordinary circumstance qualifying him for the award of TTD benefits from
January 24, 2014 through June 2, 2014.
The ALJ
also noted Adkins received voluntary income benefits from AGI during this
period to bridge the difference between his actual earnings, and the TTD
benefits he was qualified to receive.
The ALJ additionally determined AGI is entitled to a credit for any
voluntary income benefits paid.
On appeal, AGI argues it is entitled to a credit for the wages paid to
Adkins during his period of light duty work.
We disagree. “An employer seeking
credit against its workers’ compensation liability has the burden to show a
proper legal basis for the request.” Millersburg Military Inst. v. Puckett,
260 S.W.3d 339, 342 (Ky. 2008). Chapter
342 provides two circumstances in which an employer can receive a credit
against its TTD obligation: for unemployment insurance benefits paid during any
period of TTD or permanent total disability, or for payments made under a
qualifying employer-funded disability or sickness and accident plan. KRS 342.730(5) and (6). Neither of those statutory circumstances
applies to Adkins’ situation.
There is no evidence
the wages Adkins received from January 24, 2104 through June 2, 2014 were
intended to replace his TTD benefits during the period of light duty. The employer advanced a similar argument in Millersburg
Military Inst. v. Puckett, supra. In that case, the claimant worked light duty
during the period he otherwise qualified for TTD benefits, and the employer
sought a credit for his earnings. The Kentucky
Supreme Court rejected the argument, explaining the employer had confused wages
and benefits. The Court specifically
stated as follows:
Wages
are paid for performing labor; income benefits are paid for work-related
disability. The claimant’s wages were
‘bona fide’ because they were paid ostensibly for labor and because the
evidence did not permit a reasonable finding that the employer intended to pay
them in lieu of workers’ compensation benefits.
Id.
at 342.
There is no evidence which establishes Adkins did not receive “bona
fide” wages for work performed. The ALJ
performed the correct analysis, and explained the basis for his
determination. AGI is not entitled to a
credit for “bona fide” wages actually earned.
However, it is entitled to credit for voluntary benefits paid, in
addition to his “bona fide” earnings, as determined by the ALJ. This is consistent with the holding
in Triangle Insulation & Sheet Metal Co., Div. of Triangle Enter., Inc.
v. Stratemeyer, 782 S.W.2d 628 (Ky. 1990), which provides that an employer
may be afforded a dollar-for-dollar credit for any voluntary payment of
past-due income benefits so long as the claimant’s future benefits are not
affected. We
find no error in either the ALJ’s analysis or award on remand. Therefore, we will not disturb his decision.
For the foregoing reasons, the January 21, 2018 Order on Remand, and
the February 19, 2018 Order on Petition for Reconsideration rendered by Hon. John
B. Coleman, Administrative Law Judge are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON DOUGLAS A U’SELLIS
600 EAST MAIN ST, STE 100
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON TAMARA TODD COTTON
640 SOUTH FOURTH ST, STE 400
LOUISVILLE, KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON JOHN B COLEMAN
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
