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April 28, 2017 201401880

Commonwealth of Kentucky 

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.