*/
Workers’
Compensation Board
OPINION
ENTERED: April 28, 2017
CLAIM NO. 201401880
ORLANDO ADKINS PETITIONER
VS. APPEAL FROM HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE
AGI TRANSPORTATION INC.,
and HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART,
VACATING
IN PART, AND REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Orlando
Adkins (“Adkins”) appeals from the November 3, 2016, Opinion, Award, and Order
and the December 16, 2016, Order on Petition for Reconsideration of Hon. John B.
Coleman, Administrative Law Judge (“ALJ”). The ALJ awarded permanent partial
disability (“PPD”) benefits, temporary total disability (“TTD”) benefits, and
medical benefits for Adkins’ right shoulder injury. Adkins’ claims for income
and medical benefits for his alleged cervical spine injury, carpal tunnel, and
cubital tunnel conditions were dismissed.
On appeal, Adkins sets forth three arguments.
Adkins argues the ALJ utilized an incorrect standard in denying TTD benefits during
the period he returned to light duty work. Adkins also argues the ALJ abused
his discretion by finding his employer, AGI Transportation, Inc. (“AGI”), is
entitled to a credit for “temporary partial disability (”TPD”) benefits paid
during the time Mr. Adkins was performing light duty work.” Finally, Adkins
argues the ALJ’s conclusion he is not permanently totally disabled is not
supported by substantial evidence.
The Form 101 alleges Adkins sustained work-related injuries to his neck,
right shoulder, and upper extremities on December 8, 2014.
Adkins subsequently filed a Motion to
Amend his Form 101 to change the date of injury to December 8, 2013, which was
sustained by Hon. William J. Rudloff, Administrative Law Judge, (“ALJ Rudloff”)
by order dated December 4, 2014.
On November 17, 2014, Adkins filed a
“Motion for Interlocutory Relief or, Alternatively, Motion to Bifurcate on the
Issue of Entitlement to Medical Treatment, Including Recommended Surgery and
Temporary Total Disability” seeking payment for medical treatment for his right
shoulder and TTD benefits. In an “Interlocutory Opinion and Order” dated
January 16, 2015, ALJ Rudloff awarded medical benefits and TTD benefits
beginning on August 28, 2014, and continuing until Adkins reached maximum
medical improvement (“MMI”). ALJ Rudloff denied Adkins’ request for
bifurcation.
Adkins
filed a Petition for Reconsideration requesting ALJ Rudloff correct the award
of TTD benefits or, in the alternative, clarify the issues of rate and duration
of TTD benefits. AGI also filed a petition for reconsideration requesting ALJ
Rudloff to withdraw the award of TTD benefits and medical benefits and allow
the parties to complete proof on all issues.
In a March 2, 2015, “Interlocutory Opinion and Order on
Reconsideration,” ALJ Rudloff denied both parties’ Petitions for
Reconsideration.
The March 10, 2015, Benefit Review
Conference (“BRC”) Order and Memorandum reflects one of the stipulations is TTD
benefits were paid at the rate of $604.37 per week from January 24, 2014,
through May 24, 2014. The contested issues were as follows:
work-relatedness/causation; benefits per KRS 342.730; “injury” as defined by
the Act; TTD; and medical benefits.
Adkins was deposed on December 19,
2014, and testified extensively regarding the incident of December 8, 2013. As
to what happened following his injury, Adkins provided the following testimony:
Q:
So you were able to go ahead and finish up the delivery for that day?
A: Not really, but I made myself do it.
Q: What did you do after you finished with that
delivery?
A: I took it to Kroger’s. It took me about 30
minutes to pull into the – the backing into the dock because of my shoulder. It
was killing my shoulder. And I – the truck had a stick shift. I eventually got
it in there and I looked in the yard and it was the dispatch on there and there
was another dispatcher was there, too, and I told both of them that I screwed
my shoulder up trying to open up a frozen door. And they said, go home and put
heat on it and put ice on it and call us, tell us how you feel. I said, okay.
So I did all of that and it felt pretty good. They
called me. They said you feel good? I think I can do it. So for a whole month I
just went back to work. I thought it was a strain. They thought it was a
sprain, too until it started getting worse.
Q: So you kept working, but the shoulder was still
bothering you –
A:
Yeah.
Q:
- over that period of time.
. . .
Q: Did you kind of keep working part-time or light
duty until may [sic] or late – late May 2014?
A: June the 3rd.
Q: June the 3rd. And Doctor Moskal took
you off work at that point in time?
A: No, he just put me on real light duty.
Q: They weren’t able to accommodate that?
A: No, sir.
Q: Have you worked since June of 2014?
A: No, sir.
At the September 29, 2016, hearing, Adkins
testified regarding his post-injury return to light duty work:
Q: Now, you did, you were off for a period of time,
just a short period of time per the emergency room?
A: Yes.
Q: Then did you go back to driving for a period of
time?
A:
Yes.
Q: How were you doing when you tried to go back to
driving?
A:
I wasn’t feeling too good.
Q: What was bothering you?
A: Well, this shoulder, it was hurting a lot and I
really couldn’t drive, turn the truck like I was supposed to and back up to the
docks accurate. But I still got the job done. I kept on getting dizzy and
headaches and stuff like that and I kept on complaining to my supervisor.
Q: And then you went to the immediate care center?
A: I did, yes.
Q: And then you saw Dr. Dripchak?
A: Yes.
Q: And there was a doctor in there before Dr.
Dripchak that nobody seems to know the name of for the employer?
A: Yeah.
Q: But were you put on restricted duty?
A: Yes.
Q: Did you work restricted duty?
A: I don’t think I did. Because that’s what the
doctor said, go back to work.
Q: Pardon?
A: I went back to work after Dr. Dripchak.
. . .
Q: All right. But at some point you did go and work
restricted duty?
A: Well, once Dr. Dripchak told them that there
wasn’t nothing [sic] he could do with it, I think he scheduled me to the guy
over in Indiana.
Q: All right. Did you work okay?
A: Yeah, I was working.
Q: Were you working as a driver or were you working
in the yard and doing the restricted duty?
A: I’m not really sure when I started working in the
yard. But I complained so much that I think they decided, well, man, we can’t
keep him out there on the truck.
No, I think I went back to the emergency [sic] again
and the emergency doctor hooked me up with Dr. Hicks.
Q: Okay.
A: And I think Dr. Hicks maybe put me on
restrictions, I’m not for sure.
Q: Okay. Well, when you were placed on restrictions,
what were you doing, what kind of stuff were you doing at AGI?
. . .
A: Well, I was cleaning the yard, I was cleaning, I
was –
Q: What do you mean?
A: I was picking up papers and emptying trash and
going into the shop, sweeping, mopping break rooms and bathrooms and I was
vacuuming, well, not vacuuming, I was brushing out trucks, cleaning out trucks
and stuff like that.
Q: Now, at that time were you supposed to be
restricted to not using your right arm?
A: Yes.
Q:
Did you have to use your right arm?
A: Yes.
Q: Was it bothering you?
A: Yeah.
Q: So when you went back and you weren’t working the
driving, you were working with the restrictions?
A: Yes.
Q: You worked doing the cleaning?
A: Yes.
Q: Did you work full time or did you miss work?
A: I think I did work full time.
Q: Did you miss some work?
A: Yeah, I missed plenty of work.
Q: Why?
A: Because my shoulder kept on acting up.
Q: So although you were supposed to be working, you
weren’t able to work because of that?
A:
Well, I called them and told them I can’t make it.
Q: And why couldn’t you make it?
A: Because of damage to my shoulder.
Q: And what problems were you having with your
shoulder at that time?
A: Well, it was hurting all up in here.
Q: You’re pointing to your right shoulder?
A: Yeah, my right shoulder was hurting all up under,
on the side in my shoulder blade, pain up under my chest, you know.
Q: Did it ever get any better?
A: No.
Q: The wage records will show the period of time
when you did work and what you did work. I just want to establish during that
entire time, once you started working the restricted duty and the reduced wage
–
A: Yes.
Q: - that you were doing the cleaning in the shop
and in the yard and in the bathrooms and the offices; is that correct?
A: Yes.
Q: And you were having trouble doing that even?
A: Yes.
Q: There was, apparently, once incident April 30 of
2014 when you were cleaning the floor. Do you remember that?
A: I think I was, we was [sic] brushing down the
shop floor.
Q: And what were you doing?
A: So they was [sic] throwing water and stuff on it
and I was sweeping at first to get the oil stains and stuff off. Then I got the
squeegees and we squeegeed it. Once I got the squeegee, I felt a sharp pain in
my neck and I told him and he told me just to go on over there and sit down. I
was like, okay.
. . .
Q: Was that similar to the pain you had had since
the injury?
A: Yeah.
Q: Basically the same pain, it was just you had it
when you were trying to do the push squeegee?
A: Yes.
Q: When you were working the restricted duty doing
the cleaning, your pay was reduced to $8 an hour; is that what you understand?
A: I think so, yes.
Q: There was, toward the end of when you worked
restricted duty, did you do some security work?
A: Yes, that’s almost at the end.
Q: About how long did you do that?
A:
I think that’s when I told them about my neck. They said, well, we’ll put you
on security and you just walk around the place. I said okay.
Q: How long did you do that?
A: Not long. That’s when I went to that doctor in
Indiana and he put me on permanent so I couldn’t pick up nothing [sic] over ten
pounds, so they said they didn’t have nothing [sic] for me and they let me go.
Q: So that was, you last worked June 3 of 2014; does
that sound right?
A: Yes.
As to whether he could return to the work
he performed when injured, Adkins testified:
Q: Could you go back to doing the work at AGI that
you did before?
A: No.
Q: Could you go back and do any of the driving work,
because you’re been a driver, you’ve worked for a lot of different trucking
companies, could you go back to driving an 18-wheeler?
A: No.
Q: What about a garbage truck?
A: Definitely no.
Q: Why?
A: I can’t handle that kind of work anymore with
this arm. I can’t even hold on the back of the truck anymore.
Q: If you hadn’t injured your right shoulder, would
you still be working today?
A:
Yes.
Q: How do you feel about not being able to work?
A:
Don’t [sic] feel good to be a man. You’ve got to work.
Adkins
introduced the March 9, 2016, Independent Medical Evaluation report of Dr.
Warren Bilkey. Dr. Bilkey diagnosed: “12/8/13 work injury, right shoulder strain,
aggravation of rotator cuff tear.” Dr. Bilkey opined Adkins was at MMI and
assessed a 17% impairment rating attributable to the right shoulder injury. Dr.
Bilkey imposed the following restrictions: “not lift, push or pull over 10 lbs
occasional right upper limb.” He further opined: “These restrictions are due to
the 12/8/13 work injury and preclude Mr. Adkins from being able to return to
the full scope of the usual work duties successfully performed prior to
12/8/13.”
In the
September 6, 2016, BRC Order, the following contested issues are listed:
benefits per KRS 342.730; work-relatedness/causation; unpaid or contested
medical expenses; and TTD.
On
September 30, 2016, Adkins filed a “Motion to Withdraw From Stipulation” moving
to withdraw stipulation five contained in the March 10, 2015, BRC Order
asserting:
Stipulation
number 5 of the March 10, 2015 Benefit Review Conference Order provides
temporary total disability was paid at the rate of $604.37 per week from
January 24, 2014 to May 24, 2014 for a total of $6,547.74. Temporary total
disability benefit were not paid at the rate of $604.37 as evidenced by
documents produced by the Defendant-Employer. Plaintiff concurrently files an
itemization of indemnity benefits paid to Mr. Adkins from January 24, 2014 to
May 24, 2014, with supporting documentation.
Adkins’ motion was sustained by order
dated October 24, 2016.
Adkins filed his weekly wage records for the
period of time he worked light duty following the injury. The records span from
the week ending January 25, 2014, through the week ending July 19, 2014.
In the
November 3, 2016, Opinion, Award, and Order, the ALJ set forth, in relevant
part, the following “Analysis and Conclusion” concerning Adkins’ alleged work
injuries:
. . .
Causation,
Work-relatedness and Injury as defined by the Act?
. . .
In this instance, ALJ Rudloff determined
the plaintiff's right shoulder condition was indeed work related in the earlier
Interlocutory Opinion and Award. He also determined the right shoulder
arthroscopy to be compensable and began temporary total disability benefits on
the date of the surgery. After a review of the entirety of the evidence, the
undersigned ALJ agrees the plaintiff's right shoulder injury involved the
arousal of pre-existing degenerative changes in the plaintiff's right shoulder
which were otherwise dormant and nondisabling as opined by Dr. Bilkey in his
medical reports. While the defendant argues the reverse right shoulder
arthroplasty was necessitated by pre-existing changes rather than the effects
of the work injury, the evidence indicates the plaintiff had only a dormant and
nondisabling condition prior to the work event and said condition has never
returned to the pre-existing state. Therefore, the plaintiff's right shoulder
condition which led to the second shoulder surgery is also compensable as the
effects of the arousal of the preexisting dormant condition. Therefore, I find
the right shoulder condition and the medical expenses related thereto,
including the surgeries, to be compensable work injuries.
The plaintiff also alleged injuries to the
cervical spine and bilateral upper extremities in the form of carpal and
cubital tunnel syndromes. He underwent surgery for the carpal and cubital
tunnel syndromes, but has not presented convincing evidence these conditions
are related to his work injury. In fact, Dr. Bilkey did not even relate these
conditions to the plaintiff's work injury. The plaintiff bears the burden of
proof and risk of non-persuasion to convince the trier of fact as to each and
every element of his claim. Snawder v. Stice, 576 S.W.2d 276 (Ky. App.,
1979). In this instance, the plaintiff has failed to convince the trier fact
these conditions are related to his work injury of December 8, 2013 or even to
the subsequent alleged event on April 30, 2014. As such, his claim for medical
and income benefits for conditions other than the right shoulder must be
DISMISSED.
In
finding Adkins is not permanently totally disabled, the ALJ provided the following:
The claimant herein argues he has been rendered
permanently and totally disabled as a result of his work related injury. In City
of Ashland v. Stumbo, 461 SW3d 392 (Ky. 2015), the Kentucky Supreme
Court laid out a five-step analysis which the ALJ must utilize in determining
entitlement to permanent total disability. Initially, the ALJ must determine if
the claimant suffered a work related injury. Next, the ALJ must determine what,
if any, impairment rating the claimant has. Third, the ALJ must determine what
permanent disability rating the claimant has. Then, the ALJ must make a
determination the claimant is unable to perform any type of work. (In making
this determination, the ALJ must state with some specificity the factors which
were utilized in making the conclusion the claimant is permanently and totally
disabled). Finally, the ALJ must determine the total disability is the result
of the work injury.
Here, I find the plaintiff did sustain a
work related injury to his right shoulder and that he has impairment for that
condition. I am convinced by the opinion of Dr. Bilkey the plaintiff is
restricted from lifting, pushing or pulling over 10 pounds occasionally with
his right upper limb. These restrictions would prevent the plaintiff from performing
his job duties at the time of the injury or even his warehouse work. I note the
plaintiff has other conditions which are not related to this work injury which
may affect his ability to work but I am limited, as noted above, from
considering the effects of the other conditions in determining whether the
plaintiff is permanently and totally disabled. Given the restrictions upon the
plaintiff resulting from his work injury alone, I am not convinced the plaintiff
is permanently and totally restricted from performing any type of work. In
fact, I am convinced the plaintiff could return to the security or yard work he
performed while on light duty restrictions prior to his initial surgery. As
such, I cannot find the plaintiff to be permanently and totally disabled.
The ALJ accepted Dr. Bilkey’s 17%
impairment rating for the right shoulder injury. The ALJ also determined “Adkins lacks the
physical capacity to return to the job he was performing at the time of his
injury” and enhanced his income benefits by the multipliers set forth in KRS
342.730(1)(c)1 and 3.
Concerning Adkins’ entitlement to TTD benefits, the ALJ concluded:
Temporary total disability is defined in
KRS 342.0011(11)(a) as the condition of an employee who has not reached maximum
medical improvement from an injury and has not reached a level of improvement
which would permit a return to employment. It is a two-part test. Magellan
Health v. Helms, 140 SW 2d 579 (Ky. App. 2004). The [sic] Court has
noted it would not be reasonable to terminate temporary total disability
benefits for a claimant when he is released to perform minimal work, but not
the type of work that was customary or that he was performing at the time of
his injury. Central Kentucky Steel v. Wise, 19 S.W. 3d 657 (Ky. 2000).
The ALJ must look to see if work performed during a claimed period of temporary
disability bore a reasonable relationship to the work performed at the time of
the injury. See Livingood v. Transfreight, LLC., 467 SW3d 249 (Ky.
2015). In Trane Commercial Systems v. Tipton, 481 SW3d 800 (Ky. 2016),
the [sic] Court clarified that in order to award temporary total disability
benefits to a claimant who has not reached maximum medical improvement, but is
working, the ALJ must articulate extraordinary circumstances based on specific
evidence-based reasons why an award of TTD benefits in addition to the
employee’s wages would forward the purpose of paying income benefits.
Here, following the injury, the plaintiff
continued working at light duty earning less pay. In fact, the plaintiff
continued working for the defendant until his increasing restrictions could no
longer be accommodated after June 2, 2014. The plaintiff argues entitlement to
temporary total disability benefits during this period of time when the
plaintiff was performing work on restricted duty in the truck yard. The
plaintiff's work included cleaning the yard, picking up papers, emptying trash,
cleaning trucks and moving trucks around the yard. He also performed some
security functions as well. Given the fact the plaintiff was able to continue
working, earning an income on a full-time basis, I am not convinced that an
award of temporary total disability during this period of time would be appropriate
as the plaintiff is entitled to permanent partial disability benefits which
began on the date of his injury. However, beginning on June 3, 2014, the plaintiff's
restrictions were no longer accommodated. He then underwent two separate
surgeries and was not placed at maximum medical improvement following the
second surgery until February 15, 2016. He is entitled to temporary total
disability benefits during this period of time in the weekly amount of $604.37
per week.
The award reads, in relevant part, as
follows:
The
plaintiff, Orlando Adkins shall, beginning on December 8, 2013, recover from
the defendant-employer, AGI Transportation, Inc., and/or its insurance carrier,
permanent partial disability benefits in the amount of $307.10 per week for a
period not to exceed 425 weeks for his 17% permanent partial disability
increased by a factor of 3.2X pursuant to the provisions of KRS 342.730(1)1 and
3. This period of permanent partial disability benefits beginning on June 3,
2014 and continuing through February 15, 2016 in the weekly amount of $604.37.
The benefits are payable together with interest at the rate of 12% per annum on
all due and unpaid installments of such compensation and are subject to the
limitations set forth at KRS 342.730(4), (5), (6) and (7). The defendant-employer
is given credit [sic] benefits heretofore paid against past-due benefits
awarded herein.
. . .
The
plaintiff’s claim for medical and income benefits for the alleged cervical,
carpal tunnel and cubital tunnel conditions must be and is DISMISSED.
In his petition for reconsideration,
Adkins requested a finding he is entitled to TTD benefits from January 19,
2014, through May 24, 2014. Adkins asserted AGI is not entitled to a credit for
“temporary partial disability benefits paid;” rather, the only credit should be
for the TTD benefits paid. Adkins also requested a finding he is permanently
totally disabled.
In the December 16, 2016, Order denying Adkins’
petition for reconsideration, the ALJ determined as follows:
. . .
1. The
plaintiff's first request involves a request for temporary total disability
benefits from June 24, 2014 until June 2, 204. During this period of time, the
plaintiff was given light duty work along with income benefits to make up the
difference in the plaintiff's pre-injury wages. Given the fact the plaintiff
was afforded work and a partial benefit was given to serve the purpose of the
act, this portion of the petition is denied.
2. The plaintiff
next argues against the credit awarded for those partial benefits against past-due
benefits awarded pursuant to decision. As the plaintiff was found to be
partially disabled during the period of time he was working light duty, the
defendant is clearly entitled to credit for the disability benefits paid to the
plaintiff during that period of time. Therefore, this portion of the petition
is also denied.
3. The plaintiff
next asks for additional findings regarding the diagnosis for which medical
benefits were awarded for the right shoulder. The defendant points out that
medical benefits were awarded for the right shoulder and it is unnecessary to
include a diagnosis of pain which is simply a symptom of the right shoulder
injury. Therefore, this portion of the petition is likewise denied.
4. Finally, the
plaintiff again argues for an award of permanent total disability benefits. The
ALJ reviewed the entirety of the evidence and found the plaintiff to be
entitled to an award of permanent partial disability benefits in the original
decision. The reasons for finding the plaintiff to be entitled to an award of
permanent partial disability rather than permanent total disability were set
forth in that decision and the petition herein simply re-argues the evidence.
As such, this portion of the petition is likewise denied.
Adkins contends the ALJ misconstrued the controlling
case law in finding he is not entitled to TTD benefits during the time period he
returned to AGI following his injury performing light duty work - i.e. January
24, 2014, through June 2, 2014. We vacate that portion of the opinion, award,
and order denying TTD benefits during this time period.
KRS 342.0011(11)(a) defines temporary
total disability as follows:
‘Temporary total disability’
means 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.
The above definition has been
determined by our courts of justice to be a codification of the principles
originally espoused in W.L. Harper Construction Company v. Baker, 858
S.W.2d 202 (Ky. App. 1993), wherein the Court of Appeals stated generally:
TTD is payable until the medical evidence
establishes the recovery process, including any treatment reasonably rendered
in an effort to improve the claimant's condition, is over, or the underlying
condition has stabilized such that the claimant is capable of returning to his
job, or some other employment, of which he is capable, which is available in
the local labor market. Moreover, . . . the question presented is one of fact
no matter how TTD is defined.
Id. at 205.
In Central Kentucky Steel v. Wise,
19 S.W.3d 657 (Ky. 2000), the Kentucky Supreme Court further explained that
“[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 that is customary or that
he was performing at the time of his injury.” Id. at 659. In other
words, where a claimant has not reached MMI, TTD benefits are payable
until such time as the claimant’s level of improvement permits a return to the
type of work he was customarily performing at the time of the traumatic
event.
In Magellan Behavioral Health v.
Helms, 140 S.W.3d 579 (Ky. App. 2004), the Court of Appeals instructed that
until MMI is achieved, an employee is entitled to a continuation of TTD
benefits so long as he or she remains disabled from his or her 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 Kentucky 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.
More recently, in Livingood v.
Transfreight, LLC, et, al., 467 S.W.3d 249 (Ky. 2015), the Kentucky Supreme Court declined to hold a
claimant is entitled to TTD benefits so long as he or she is unable to perform
the work performed at the time of the injury.
The Court stated, “... we reiterate today, Wise does not
‘stand for the principle that workers who are unable to perform their customary
work after an injury are always entitled to TTD.’” Id. at 254.
Finally, in Trane Commercial Systems v.
Tipton, 481 S.W.3d 800 (Ky. 2016), the Kentucky Supreme
Court clarified when TTD benefits
are appropriate in cases where the employee returns to modified duty. The Court stated as follows:
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 TDD 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 TDD 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 TDD
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 TDD benefits in addition to the
employee's wages would forward that purpose.
Id. at 807.
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.
At the September 29, 2016, hearing, regarding the income benefits paid during
the time Adkins performed light duty work, the ALJ stated:
So the parties did enter
into stipulations back prior to the interlocutory opinion and award.
. . .
They entered into a
stipulation as to TTD at that time. The Plaintiff has requested to withdraw and
I’ve allowed the Plaintiff to withdraw from the stipulation in regards to the
rate of temporary total disability that was paid and have given the parties two
additional weeks from today to enter into a stipulation as to updated temporary
total disability.[1]
The ALJ also noted the parties entered
into a stipulation at the hearing concerning Adkins’ average weekly wage
($906.55).
Adkins attached as Exhibit 1 to the
hearing transcript an “Indemnity Itemization” which reflects he received the
following payments from AGI:
Date Pay Date Amount
1/24/14-1/29/14 3/11/14 $517.99
2/9/14-2/15/14 3/11/14 $420.37
2/16/14-2/22/14 3/11/14 $391.03
2/23/14-3/1/14
3/20/14 $459.03
3/2/14-3/15/14 3/28/14 $856.74
3/16/14-3/22/14 4/8/14 $417.70
3/23/14-3/29/14 3/28/14 $428.37
3/30/14-4/5/14 4/4/14 $428.37
3/23/14-4/5/14 4/17/14 $18.63
4/6/14-4/12/14 4/22/14 $391.00
4/6/14-4/12/14 5/5/14 $173.36
4/13/14-4/19/14 5/5/14 $90.00
4/20/14-4/19/14 5/9/14 $391.03
4/27/14-5/3/14 5/16/14 $391.03
5/4/14-5/10/14 5/23/14 $391.03
5/11/14-5/17/14 5/30/14 $391.03
5/18/14-5/24/14 6/13/14 $391.03
Total:
$6,547.74
Attached
payment records indicate these payments were labeled as “TTD” or “TPD.”
In
Adkins’ brief to the ALJ, he addressed the TTD benefits AGI voluntarily paid:
Temporary Total Disability benefits were
paid by the Defendant-Employer at various weekly rates from January 24, 2014
through January 29, 2014; February 9, 2014 through May 24, 2014; August 28,
2014 through April 22, 2014 and July 28, 2015 through February 11, 2016 for a
total amount of $44,012.31.
Accordingly, Mr. Adkins requests an award
of TTD benefits paid from January 24, 2014 through February 15, 2016 at a rate
of $604.37 per week with credit to the Employer for TTD benefits paid with
interest on past due benefits as follows:
1/24/14-3/9/16 (110.85
weeks)
$604.37 x 110.85 weeks =
$66,994.41-$44.012.31(paid) = $22,982.10+ Interest
In AGI’s
brief to the ALJ, it represented TTD benefits were paid “from January 24, 2014
through January 29, 2014 at what appears to be the appropriate rate, plus or
minus a few cents.” AGI then stated it paid Adkins “temporary partial benefits at varying rates from
February 9, 2014 through May 24, 2014, while claimant worked light duty.”
(emphasis in original). AGI further represented Adkins again received TTD
benefits at the “appropriate rate” from August 28, 2014, through April 22,
2015, “followed by TTD benefits from July 28, 2015 through February 11, 2016 at
the appropriate rate, plus or minus a few cents.”
In the
November 3, 2016, Opinion, Award, and Order and the December 16, 2016, Order on
Petition for Reconsideration, the ALJ failed to set forth a complete analysis
of Adkins’ entitlement to TTD benefits during the time he was working on
restricted duty following his injury. In the November 3, 2016, Opinion, Award,
and Order, the ALJ set forth the relevant statutory and case law pertaining to
TTD benefits. The ALJ described the type of work Adkins performed after returning
to work following the injury, and reached the following conclusion:
Given the fact the plaintiff
was able to continue working, earning an income on a full-time basis, I am not
convinced that an award of temporary total disability during this period of
time would be appropriate as the plaintiff is entitled to permanent partial
disability benefits which began on the date of his injury.
This
conclusion was reiterated in the December 16, 2016, Order on Petition for
Reconsideration.
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.
Adkins next argues the ALJ erred in
finding AGI was entitled to a credit for “temporary partial disability
benefits…paid during the time Mr. Adkins was performing light duty work.” We
disagree.
KRS 342.730(5) and (6) permit the
employer’s liability to pay temporary total or permanent total disability
benefits to be offset by unemployment insurance benefits paid during the period
of temporary total or permanent total disability, and by payments made under
exclusive employer funded disability or sickness and accident plan for the same
disability covered except where that plan contains an internal offset provision
for worker’s compensation benefits, respectively.
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.
In Osborn v. Cougar Coal Company,
2002-CA-001204-WC, rendered July 11, 2003, Designated Not To Be Published,
Osborn did not work during the period from January 29, 1999, to March 15, 1999,
but Cougar paid him salary continuation during this period. The ALJ awarded TTD benefits during this
period followed by PPD benefits. The ALJ
also awarded Cougar a credit for the salary continuation paid to Osborn. This Board affirmed, and in affirming the
Board, the Court of Appeals stated:
We agree with the Board's conclusion that in light of the
parties having stipulated that Cougar
paid Osborn his salary from
January 29, 1999, through March 15, 1999, and since no TTD benefits were paid
during this period and since in the stipulation the salary continuation
information was placed on the line referencing TTD benefits, the ALJ correctly
allowed Cougar credit for the
salary continuation payments against the TTD benefits owed to Osborn for this same time period.
This area of the law
has caused confusion for years. Prior to the adoption of KRS 342.730(6)
in 1996, there was no statute addressing such a credit; but to encourage
employers to voluntarily pay TTD benefits, the Board had applied the equitable
rule that any compensation the employer had previously voluntarily paid
to the employee would be credited against any compensation that it was ordered
to pay. Unfortunately, such a simple concept got distorted and caused a great
deal of litigation.
Slip
Op. at 2.
Here, without question, the temporary
partial disability benefits were workers’ compensation benefits. We believe Osborn,
supra, is dispositive of this issue as there appears to be no dispute the
voluntary temporary partial disability benefit payments were a result of AGI’s
generosity or largess. Stated another way, they were intended to have the same
effect as voluntary payments of TTD benefits. To hold otherwise would produce
an untenable and absurd result. Notably, Adkins characterizes these voluntarily
paid benefits as temporary disability benefits, albeit partial. We also note in
his Motion to Withdraw Stipulation, Adkins characterized the temporary partial
disability benefits as indemnity benefits. Likewise, Exhibit 1 introduced by
Adkins at the hearing is entitled “Indemnity Itemization.” Here, Adkins seeks
TTD benefits during periods he actually worked earning wages and also to keep
income benefits AGI voluntarily paid to him without AGI receiving a credit for
these benefits. As Adkins admits the voluntary payments are temporary partial disability
benefits, he cannot be heard to say AGI is not entitled to a credit for those
payments.
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.
Finally, Adkins asserts the ALJ’s
finding he is not permanently totally disabled is not supported by substantial
evidence. We vacate the ALJ’s finding on this issue and remand for additional
findings.
Permanent total disability is defined
in KRS 342.0011(11)(c) as the condition of an employee who, due to an injury,
has a permanent disability rating and has a complete and permanent inability to
perform any type of work as a result of the injury. KRS 342.0011(11)(c). In determining whether a worker is totally
disabled, the ALJ must consider several factors including
the workers’ age, educational level, vocational skills, medical restrictions,
and the likelihood he can resume some type of work under normal employment
conditions. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48
(Ky. 2000). In Ira A. Watson, supra, the Supreme Court instructed
as to the analysis required in determining whether a claimant is totally
disabled:
An analysis of the factors
set forth in KRS 342.0011 (11)(b), (11)(c), and (34) clearly requires an
individualized determination of what the worker is and is not able to do after
recovering from the work injury. Consistent with Osborne v. Johnson, supra, it
necessarily includes a consideration of factors such as the worker's
post-injury physical, emotional, intellectual, and vocational status and how
those factors interact. It also includes a consideration of the likelihood that
the particular worker would be able to find work consistently under normal
employment conditions. A worker's ability to do so is affected by factors such
as whether the individual will be able to work dependably and whether the
worker's physical restrictions will interfere with vocational capabilities. The
definition of “work” clearly contemplates that a worker is not required to be
homebound in order to be found to be totally occupationally -29- disabled. See Osborne
v. Johnson, supra, at 803.
Id. at 52.
While the ALJ enjoys wide ranging
discretion in granting or denying an award of permanent total disability
benefits, the ALJ must set forth sufficient findings informing the parties of
the basis of his decision. Colwell v. Dresser Instrument Div., 217
S.W.3d 213 (Ky. 2006).
In the November 3, 2016, Opinion,
Award, and Order, the ALJ devoted one paragraph of his two-paragraph analysis
of permanent total disability to a recitation of the applicable law. In the
second paragraph, the ALJ only considered the restrictions imposed by Dr.
Bilkey in reaching the conclusion Adkins is not “permanently and totally
restricted from performing any type of work.” As support for his conclusion
that Adkins was not permanently totally disabled, the ALJ stated that given
Adkins’ restrictions he was not convinced Adkins was permanently and totally
restricted from performing any type of work. However, the ALJ did not identify
the specific restrictions he found persuasive. The ALJ also stated he was
convinced Adkins could return to “the security or yard work he performed while
on light duty restrictions,” a finding seemingly incongruous with Adkins’ testimony
that the security guard job was not performed long and the yard work was performed
on a sporadic and irregular basis. Thus,
on remand, the ALJ must engage in the analysis set forth herein in determining
whether Adkins is totally disabled and provide additional findings so the
parties and this Board are apprised of the basis for any such determination. We
express no opinion as to the outcome on remand.
The ALJ’s analysis is insufficient as
a matter of law, and it was not rehabilitated in the December 16, 2016, Order
on Petition for Reconsideration. On remand, the ALJ must determine if Adkins is
incapable of performing any type of work after considering the full range of
factors (i.e. age; education; etc.) as set forth in the applicable case
law. See
Ira A. Watson, supra.
Accordingly, to the extent the ALJ
determined Adkins is not entitled to TTD benefits from January 24, 2014,
through June 2, 2014, and that Adkins is not permanently totally disabled, the
November 3, 2016, Opinion, Award, and Order and the December 16, 2016, Order on
Petition for Reconsideration are VACATED.
However, the ALJ’s determination that AGI is entitled to an offset for the voluntary
payments characterized by the parties as temporary partial disability benefits
is AFFIRMED. The claim is REMANDED to the ALJ for additional
findings and entry of an amended decision in conformity with the views
expressed herein.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON TAMARA TODD COTTON
640 S FOURTH ST STE 400
LOUISVILLE KY 40202
COUNSEL FOR RESPONDENT:
HON DOUGLAS U’SELLIS
600 E MAIN ST STE 100
LOUISVILLE KY 40202
ADMINISTRATIVE LAW JUDGE:
HON JOHN B COLEMAN
657 CHAMBERLIN AVE
FRANKFORT KY 40601
[1] We were unable to find any
formal stipulation regarding the amount and duration of voluntary TTD benefits
paid to Adkins.
