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May 11, 2018 201401880

Commonwealth of Kentucky 

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