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July 14, 2017 201601697

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  July 14, 2017

 

 

CLAIM NO. 201601697

 

 

DAVID WITT                                     PETITIONER

 

 

 

VS.        APPEAL FROM HON. JANE RICE WILLIAMS,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

PURNELL SAUSAGE COMPANY and

HON. JANE RICE WILLIAMS,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING IN PART,

VACATING IN PART & REMANDING

 

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

ALVEY, Chairman.   David Witt (“Witt”) appeals from the Opinion, Award and Order rendered March 6, 2017 by Hon. Jane Rice Williams, Administrative Law Judge (“ALJ”).  The ALJ awarded permanent partial disability (“PPD”) benefits based upon the 6% impairment rating assessed by Dr. Phillip Corbett pursuant to the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”) for injuries to his right middle and index fingers.  She found neither the three multiplier pursuant to KRS 342.730(1)(c)1 nor the two multiplier pursuant to KRS 342.730(1)(c)2 applicable to Witt’s claim.  She also found Witt is not entitled to an award of temporary total disability (“TTD”) benefits.  Witt also seeks review of the April 7, 2017 order denying his petition for reconsideration.

          On appeal, Witt argues the ALJ erred in failing to award TTD benefits.  He also argues the ALJ abused her discretion in refusing to enhance his award of PPD benefits by the two multiplier contained in KRS 342.730(1)(c)2.    Because substantial evidence supports the ALJ’s determination regarding the application of any multiplier to the award of PPD benefits, the evidence does not compel a contrary result, and she did not abuse her discretion, we affirm in part.  Because the ALJ failed to provide additional or sufficient findings regarding Witt’s entitlement to TTD benefits, as requested in his petition for reconsideration, we vacate in part, and remand for additional analysis. 

          Witt filed a Form 101 on August 2, 2015 alleging his right middle and index fingers were lacerated on January 21, 2015 while he was skinning and hanging a hog in the course of his employment in the slaughtering department at Purnell Sausage Company (“Purnell”).  He completed the eighth grade and has no specialized or vocational training.  His work history consists of employment as a landscaping laborer, painter, concrete finisher, construction laborer, roofing and siding laborer, grocery stocker and in the slaughter department for Purnell. 

          Witt testified by deposition on September 16, 2016, and at the hearing held January 5, 2017.  He was born on October 7, 1978 and is a resident of Shelbyville, Kentucky.  He began working in the slaughter department for Purnell in November 2012.  This involved cleaning, killing, hanging and skinning hogs.  On January 21, 2015, he was assisting a co-worker in dressing a hog because they were short-handed that day.  As he was holding the hog’s feet, the co-worker inadvertently cut Witt’s right middle and index fingers with a skinning knife. 

          Witt reported the accident to his supervisor, and he was sent to Baptistworx for treatment.  When it was discovered a tendon had been severed in one of his fingers, Witt was referred to Kleinert Kutz where he had surgery.  He missed no work, and was initially released to one-handed duty.  He was later released to light duty work.  Witt subsequently developed scar tissue and additional surgery was recommended, which he declined to have.

          Witt performed various jobs while on light duty restrictions including cleaning the floor, running the hogs from the barn to chutes, and hanging hogs for processing.  He also operated a bone-cutting machine for a few days, which he complained was beyond his restrictions.  The last job he performed at Purnell was in a room where he separated boxes for sausage patties. 

          At his deposition, Witt testified he last worked for Purnell in March 2015, but at the hearing, he admitted he might have worked until April 2015.  He stated he quit working at Purnell because he felt he was mistreated, and his restrictions were not honored.  He also admitted he was in jail from April 15, 2015 through August 15, 2015 serving a sentence for a second DUI offense.  Witt also testified Purnell was not cooperative in working with him to obtain a work release so he could continue his employment while incarcerated.  He has not worked, nor has he applied for work since he left Purnell.  Witt does not believe he can perform any of his past work due to the limitations with his right hand.  Witt complained of continued pain and swelling in his right index finger into his wrist.

          Ida Guier (“Guier”) testified by deposition on November 22, 2016.  She has been the human resources manager and safety director for Purnell since 2009.  She has worked for Purnell for over thirty-three years.  She testified Witt worked in the slaughter department at Purnell from November 12, 2012 through April 7, 2015. 

          She stated Witt sustained a work-related injury on January 21, 2015 and continued to work afterward with light duty restrictions.  He was initially placed in the pens guiding hogs to chutes to begin the slaughtering process.  This job did not require the use of his right hand.  When he was released to light duty his job included hanging carcasses, which he complained was too difficult.  He was next placed in a job where he washed carcasses.  He only performed that job for approximately an hour and a half and complained it jarred his right hand too much.  He was then placed in a job in the patty room, which she stated required only one-handed activity.

          On April 2, 2015, he left at 11:00 a.m. for a court appearance, and never returned to work.  On April 7, 2015, she called to check on him after he had not returned to work, and had not called in, or in any other manner attempted to communicate with Purnell.  Witt advised he would not return to work because he had to go to jail for four months to serve a sentence for a second DUI offense.  Although he was not going to begin serving the sentence until later in the month, he advised he would not return because he had to resolve certain matters.  Witt never presented paperwork for a work release, nor did he inquire or request she assist with this process.  Guier advised she has submitted such paperwork for other employees in the past. 

          In support of his claim, Witt filed the January 21, 2016 report of Dr. Robert Byrd, a physical medicine physician.  Dr. Byrd noted Witt’s history of injury and subsequent surgery.  He diagnosed Witt with an extensor tendon laceration with restricted range of motion and nerve damage.  He assessed a 12% impairment rating pursuant to the AMA Guides.  He stated Witt is unable to perform work as a carpenter or any work requiring gripping with the right hand.  He stated Witt had reached maximum medical improvement (“MMI”).

          Witt also filed Dr. Elkin Galvis Leon’s November 30, 2015 office note.  Dr. Leon diagnosed an extensor tendon laceration of the right index finger with pain due to the work-related injury.  He recommended additional surgery.

          Purnell filed records from Kleinert Kutz for treatment administered to Witt from January 21, 2015 through October 1, 2015, along with a letter from Dr. Leon and a note from May 2, 2016.  Dr. Leon initially diagnosed Witt with an LRF extensor tendon laceration for which he performed surgical repair.  On February 3, 2015, Witt was placed on light duty for four weeks.  On March 3, 2015, Witt was doing better but continued to complain of some pain.  He was allowed to continue working light duty.  On March 24, 2015, he was restricted to primarily one-handed duty.  On April 16, 2015, Dr. Leon stated Witt’s wound had healed, and he was doing well.  An injection was administered on July 23, 2015.  On September 15, 2015, it was noted Witt complained of constant pain since the finger injection, and his fingertip was numb.  In the February 15, 2016 letter, Dr. Leon recommended additional surgery due to scar tissue.  On May 2, 2016, Dr. Leon stated Witt has a 7% impairment rating pursuant to the AMA Guides as calculated by Jaime Royalty, P.T.

          Purnell also filed the report of Dr. Corbett, an orthopedic surgeon, who evaluated Witt at its request on November 15, 2016.  Dr. Corbett noted the history of laceration to the dorsum of the right index and middle fingers from a sharp skinning knife used by a co-worker.  He noted no erythema or edema.  He diagnosed Witt as status post satisfactorily healed lacerations of the dorsum of the right index and middle fingers with a satisfactory repair of the central slip of the right index finger.  Dr. Corbett stated, “There is no evidence of disuse of the right upper extremity, including hand, as reflected by the calluses, dirt impregnation, and lack of atrophy of the forearm musculature in spite of Mr. Witt’s subjective deficit in strength testing.”  Dr. Corbett opined no additional treatment is needed.  He assessed a 6% impairment rating pursuant to the AMA Guides.  He also stated Witt could return to his previous work at Purnell.

          A benefit review conference was held on December 13, 2016.  The parties stipulated the issues were whether Witt retains the capacity to return to the type of work performed at that time of the injury, benefits pursuant to KRS 342.730, and TTD benefits.

          The ALJ rendered a decision on March 6, 2017 awarding Witt PPD benefits based upon the 6% impairment rating assessed by Dr. Corbett.  She declined to award the three multiplier pursuant to KRS 342.730(1)(c)1.  She also declined to award the two multiplier pursuant to Livingood v. Transfreight, LLC, 467 S.W.3d 249 (Ky. 2015).  The ALJ noted that although Witt continued to work after the injury, he is no longer doing so due to his own misconduct.  The ALJ also determined Witt was not entitled to TTD benefits because he returned to work the day after the surgery, and was able to continue to work until he walked away from his employment.  The ALJ specifically found as follows regarding Witt’s entitlement to TTD benefits:

Kentucky Revised Statute 342.0011(11)(a) states that: “‘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.” To qualify for TTD benefits the absence from work must be due to a work- related injury. See, e.g., Aluminum v. Carkuff, No. 2009-SC-68-WC, 2009 WL 3526558, at *3 (Ky. Oct. 29, 2009) (“Workers’ compensation benefits are paid for the effects of work- related injuries.”).

 

With respect to TTD, a claimant is entitled to sixty-six and two-thirds percent (66-2/3%) of the employee's average weekly wage but not more than one hundred percent (100%) of the state average weekly wage and not less than twenty percent (20%) of the state average weekly wage as determined in KRS 342.740 during that disability.

 

Plaintiff has not met his burden of proving he cannot do the work for Purnell, nor does he meet his burden of proving he is entitled to additional TTD. Witt presented as a candid witness and essentially admitted he did not follow up properly with his employer on why he was not returning to work. Ida Guier’s testimony is persuasive that he was fired when he did not come to work. He did not provide the employer with the opportunity to address an issue of whether he could perform the one handed work to which he was assigned. Instead, he just quit working. It does appear he had other obligations (serving his jail sentence) that kept him from working. His complaint that Guier would not cooperate with his request for work release is not persuasive. He did not handle his situation appropriately at the time to insure[sic] he could access relief to which he might be subject pursuant to the workers’ compensation act. In other words, he has not met his burden of proving he missed work due to his injury.

 

          Witt filed a petition for reconsideration requesting a finding as to whether he retains the capacity to return to the type of work performed at the time of the injury.  He additionally requested a determination as to when he reached MMI.  He also requested a finding regarding his entitlement to TTD benefits.

          The ALJ issued an order denying the petition for reconsideration on April 7, 2017, stating as follows:

This matter comes before the undersigned administrative law judge (ALJ) pursuant to the Petition for Reconsideration filed by Plaintiff requesting the ALJ reconsider the Opinion and Order rendered March 6, 2017. Plaintiff argues several issues, one being the award failed to address the multiplier. The award was calculated as a 1x multiplier as it was found he returned to work at same or greater wage. He then quit his job. Although now he states he could not do the one handed work, he admitted he just left without communicating to his employer. When the employer called, he stated he could not return because he was going to serve a 6 month prison sentence. As stated in the opinion, the employer provided persuasive testimony on these issues.

 

A question then arises as to whether, since he returned at the same or greater wage, he then qualified for the 2x pursuant to KRS 342.730(1)(c)(2) when he quit work. For guidance, a review of Livingood v. Transfreight, LLC, 467 S.W.3d 249 (2015) is beneficial. In that case the court declined to follow the holding in Chrysalis House v Tackett, 283 S.W.2d (2009) that the reason for cessation of employment had to relate to the disabling injury in order to qualify for the 2x multiplier. Still, it declined to literally interpret the statutory language “for any reason” and discussed exceptions:

 

KRS Chapter 342 evinces a legislative intent that an employee should not benefit from his own wrongdoing. KRS 342.165(2)3 bars compensation where an employee knowingly and willfully makes a false representation regarding his or her physical condition or medical history in writing at the time of entering employment. KRS 342.610(3) provides that “[l]iability for compensation shall not apply where injury, occupational disease, or death to the employee was proximately caused primarily by voluntary intoxication as defined in KRS 501.010, or by his or her willful intention to injure or kill himself, herself, or another.” In Advance Aluminum Co. v. Leslie, 869 S.W.2d 39, 40 (Ky. 1994), the Court explained that “KRS 342.610(3) encompasses situations including horseplay, intoxication, or other employee conduct shown to have been an intentional, deliberate action with a reckless disregard of the consequences either to himself or to another.”

 

An employee's conduct after an injury may also result in the termination or reduction of income benefits. KRS 342.035(3) provides that “[n]o compensation shall be payable for the ... disability of an employee ... if and insofar as his disability is aggravated, caused, or continued, by an unreasonable failure to submit to or follow any competent surgical treatment or medical aid or advice.” Where an employee refuses to submit to or obstructs an independent medical exam, KRS 342.205(3) provides that “his or her right to take or prosecute any proceedings under this chapter shall be suspended until the refusal or obstruction ceases. No compensation shall be payable for the period during which the refusal or obstruction continues.” KRS 342.710(5) provides that “[r]efusal to accept [vocational] rehabilitation pursuant to an order of an administrative law judge shall result in a fifty percent (50%) loss of compensation for each week of the period of refusal.”

 

Consistent with the foregoing, we conclude that the legislature did not intend to reward an employee's wrongdoing with a double benefit. We hold that KRS 342.730(1)(c)2 permits a double income benefit during any period that employment at the same or a greater wage ceases “for any reason, with or without cause,” except where the reason is the employee's conduct shown to have been an intentional, deliberate action with a reckless disregard of the consequences either to himself or to another.

 

Witt’s employment ceased for no apparent reason and after careful review and reconsideration of the evidence it is still found Plaintiff behaved in a completely irresponsible manner when he quit work. From the foregoing discussion in Livingood, it seems the parties must, at the least, behave in a somewhat responsible manner. To the contrary, Witt just quit without any regard to the importance of communicating with his employer. Does an employee have to perform light duty work if it is available? Maybe not. But to wait over a year when he filed his claim to notify his employer he quit because he could not do the job is far from being responsible. in[sic] the findings herein, the important factor is Plaintiff’s disregard for procedure at the time he walked off the job.

 

The November 15, 2016 opinion of Dr. Corbett was found persuasive. He found Plaintiff needed no further treatment and assigned an impairment rating. Thus, Plaintiff would have reached MMI by that time.

 

Having determined Plaintiff is able to return to his same job and that he did not qualify for the 2x multiplier as he quit work for reasons not in line with Livingood, it could be that he would qualify at some time in the future for the 2x multiplier. This, however, will be contingent on the facts at such time that the claim may be reopened.

 

 

          On appeal, Witt again argues the ALJ erred and abused her discretion in failing to award TTD benefits, and to enhance the award of PPD benefits by the two multiplier contained in KRS 342.730(1)(c)2.  As the claimant in a workers’ compensation proceeding, Witt had the burden of proving each of the essential elements of his cause of action.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Because he was unsuccessful in his burden regarding TTD benefits, and the enhancement of his award of PPD benefits, the question on appeal is whether the evidence compels a different result.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).

          Compelling evidence” is defined as evidence that is so overwhelming, no reasonable person could reach the same conclusion as the ALJ.  REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985).  The function of the Board in reviewing the ALJ’s decision is limited to a determination of whether the findings made by the ALJ are so unreasonable under the evidence they must be reversed as a matter of law.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

          As fact-finder, the ALJ has the sole authority to determine the weight, credibility and substance of the evidence.  Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).  Similarly, the ALJ has the sole authority to judge all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979).  An ALJ is vested with broad authority to decide questions involving causation.  Dravo Lime Co. v. Eakins, 156 S.W.3d 283 (Ky. 2003).  The ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof.  Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal.  Id.  In order to reverse the decision of the ALJ, it must be shown there was no substantial evidence of probative value to support his decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).

          The Board, as an appellate tribunal, may not usurp an ALJ’s role as fact-finder by superimposing its own appraisals as to the weight and credibility to be afforded the evidence or by noting reasonable inferences could otherwise have been drawn from the record.  Whittaker v. Rowland, supra.  So long as the ALJ’s ruling with regard to an issue is supported by substantial evidence, it may not be disturbed on appeal.  Special Fund v. Francis, supra.

     We find Witt’s appeal regarding the application of the 2 multiplier to be nothing more than a re-argument of the evidence before the ALJ.  After careful review, we find the ALJ accurately summarized the evidence and had a complete understanding of the issues before her.  Likewise, the ALJ’s decision falls squarely within the discretion afforded to her.

          KRS 342.730(1)(c)2 states specifically as follows:   

If an employee returns to work at a weekly wage equal to or greater than the average weekly wage at the time of injury, the weekly benefit for permanent partial disability shall be determined under paragraph (b) of this subsection for each week during which that employment is sustained.  During any period of cessation of that employment, temporary or permanent, for any reason, with or without cause, payment of weekly benefits for permanent partial disability during the period of cessation shall be two (2) times the amount otherwise payable under paragraph (b) of this subsection. (emphasis added)

 

          In Chrysalis House, Inc. v. Tackett, 283 S.W.3d 671 (Ky. 2009), the claimant was discharged from his employment at a residential substance abuse treatment center for theft from a resident.  The ALJ determined the criminal activity was irrelevant for the purposes of KRS 342.730(1)(c)2.  The Workers’ Compensation Board and the Kentucky Court of Appeals affirmed.  The Kentucky Supreme Court reversed and narrowed the applicability of KRS 342.730(1)(c)2.  The Court stated although subsection (c)2 is unambiguous, it must be considered in the context of the entire provision.  There, the Court held the section permits double benefit during a period of cessation of employment at the same or greater wage “‘for any reason, with or without cause,’ provided that the reason relates to the disabling injury.” Id. at 674; See also Hogston v. Bell South Telecommunication, 325 S.W.3d 314 (Ky. 2010). 

          Subsequently, the Kentucky Supreme Court overruled Chrysalis House, Inc. v. Tackett, supra, through its holding in Livingood v. Transfreight, LLC, et al., supra.  In Livingood, the claimant sustained a work-related shoulder injury requiring three surgeries.  He eventually returned to work without restrictions.  Upon his return to work, the claimant accidently bumped into a pole while operating a forklift without causing damage.  The employer subsequently terminated his employment in December 2010.  The claimant began subsequent employment in December 2011 earning less than he did with his previous employer.  The ALJ determined the claimant’s termination was not due to his disabling shoulder injury and declined to award the two multiplier pursuant to Chrysalis House, Inc. v. Tackett, supra.  Regarding the two multiplier, the Workers’ Compensation Board and the Kentucky Court of Appeals affirmed.  The Kentucky Supreme Court provided the following analysis in overruling Chrysalis House, Inc. v. Tackett, supra:

“It has long been established that the purpose of awarding income benefits to injured workers is to provide an ongoing stream of income to enable them to meet their essential needs and those of their dependents.” Ball v. Big Elk Creek Coal Co., 25 S.W.3d 115, 117 (Ky. 2000).

 

KRS 342.730(1) provides income benefits to replace some of the wages that workers lose due to the occupational effects of work-related injuries.

 

Consistent with the purpose of the benefit and with KRS 342.710(1)'s goal of encouraging a return to work, KRS 342.730(1)(c)2 focuses on post-injury wages ...

 

The purpose of KRS 342.730(1)(c)2 is to keep partially disabled workers in the habit of working and earning as much as they are able. It creates an incentive for them to return to work at which they will earn the same or a greater average weekly wage by permitting them to receive a basic benefit in addition to their wage but assuring them of a double benefit if the attempt proves to be unsuccessful.

 

Toy v. Coca Cola Enterprises, 274 S.W.3d 433, 434–35 (Ky. 2008). The statute also “discourages an employer from continuing to employ an injured worker at the same or a greater wage for the sole purpose of securing a finding of partial rather than total disability or a finding under KRS 342.730(1)(c)2 rather than [a triple benefit under] KRS 342.730(1)(c)1.” Chrysalis House at 675.

 

In Kentucky Mountain Coal Co. v. Witt, 358 S.W.2d 517 (Ky. 1962), the Court construed the former KRS 342.120(5)2, which provided for awards to be paid from the Subsequent Claim Fund (“SCF”) where a claimant was employed by the same employer after an injury at the same or greater wage. At issue was whether the SCF remained liable for payment of the award after the claimant's employment was terminated. There, the award commenced on September 12, 1960. The claimant was reemployed at wages equal to or exceeding his former wages. The SCF proceeded to pay the award until June 1961, when it discovered that the reemployment had ended on March 2, 1961. The then Board relieved the SCF from payment and imposed liability upon the employer for future payments during such time as the claimant was not employed at the same or greater wage. The employer appealed. The Court affirmed.

 

The obvious purpose of the statute is to encourage reemployment of injured workmen at adequate wages by relieving the employer of the requirement of paying disability compensation in addition to full wages ... But the inducement or encouragement the legislature has extended is clearly for continued reemployment. It is not conceivable that the legislature intended to relieve an employer completely of liability for compensation payments if he should reemploy the workman for only one day.

 

In construing a statute, the courts will consider the purpose which the statute is intended to accomplish. Id. at 518.

 

We conclude that the construction of KRS 342.730(1)(c)2 in Chrysalis House does not effectuate the legislative intent. Requiring that the cessation of employment at the same or greater wage must relate to the disabling injury does not promote the statute's obvious purpose of encouraging continued employment. Instead, it limits the statute's application. Moreover, such a construction does little to discourage employers from taking workers back after an injury just long enough to avoid liability for a greater award.

 

Re-examining the statute in context reinforces our conclusion. The preceding subsection, KRS 342.730(1)(c) 1 governs application of the three multiplier and provides: “If, due to an injury, an employee does not retain the physical capacity to return to the type of work that the employee performed at the time of injury, the benefit for permanent partial disability shall be multiplied by three....” By contrast, KRS 342.730 (1)(c)2, governing application of the two multiplier, does not include the language, “if due to an injury.” “[W]here the legislation includes particular language in one section of a statute, but omits it in another section of the same Act, it is generally presumed that the legislature acted intentionally and purposefully in the disparate inclusion or exclusion.” Turner v. Nelson, 342 S.W.3d 866, 873 (Ky. 2011) (citing Palmer v. Commonwealth, 3 S.W.3d 763 (Ky. App. 1999)).

 

Given our analysis, we conclude that Chrysalis House was incorrect in holding that the reason for cessation of work at the same or greater wage under KRS 342.730(1)(c)2 must relate to the disabling injury.  To that extent, Chrysalis House is overruled. Nevertheless, a literal construction of KRS 342.730(1)(c)2 would lead to an unreasonable result if an employee like the one in Chrysalis House is allowed to benefit from his own wrongdoing.

 

“General principles of statutory construction hold that a court must not be guided by a single sentence of a statute but must look to the provisions of the whole statute and its object and policy.” County of Harlan v. Appalachian Reg'l Healthcare, Inc., Ky., 85 S.W.3d 607, 611 (2002) ... In addition, “[w]e have a duty to accord to words of a statute their literal meaning unless to do so would lead to an absurd or wholly unreasonable conclusion.” Bailey v. Reeves, Ky., 662 S.W.2d 832, 834 (1984) ... The legislature's intention “shall be effectuated, even at the expense of the letter of the law.” Commonwealth v. Rosenfield Bros. & Co., 118 Ky. 374, 80 S.W. 1178, 1180 (1904).

 

We must further acknowledge that the General Assembly “intends an Act to be effective as an entirety. No rule of statutory construction has been more definitely stated or more often repeated than the cardinal rule that significance and effect shall, if possible, be accorded to every part of the Act.” George v. Scent, Ky., 346 S.W.2d 784, 789 (1961).  Cosby v. Com., 147 S.W.3d 56, 58–59 (Ky. 2004)

 

KRS Chapter 342 evinces a legislative intent that an employee should not benefit from his own wrongdoing. KRS 342.165(2) bars compensation where an employee knowingly and willfully makes a false representation regarding his or her physical condition or medical history in writing at the time of entering employment. KRS 342.610(3) provides that “[l]iability for compensation shall not apply where injury, occupational disease, or death to the employee was proximately caused primarily by voluntary intoxication as defined in KRS 501.010, or by his or her willful intention to injure or kill himself, herself, or another.” In Advance Aluminum Co. v. Leslie, 869 S.W.2d 39, 40 (Ky. 1994), the Court explained that “KRS 342.610(3) encompasses situations including horseplay, intoxication, or other employee conduct shown to have been an intentional, deliberate action with a reckless disregard of the consequences either to himself or to another.”

 

An employee's conduct after an injury may also result in the termination or reduction of income benefits. KRS 342.035(3) provides that “[n]o compensation shall be payable for the ... disability of an employee ... if and insofar as his disability is aggravated, caused, or continued, by an unreasonable failure to submit to or follow any competent surgical treatment or medical aid or advice.” Where an employee refuses to submit to or obstructs an independent medical exam, KRS 342.205(3) provides that “his or her right to take or prosecute any proceedings under this chapter shall be suspended until the refusal or obstruction ceases. No compensation shall be payable for the period during which the refusal or obstruction continues.” KRS 342.710(5) provides that “[r]efusal to accept [vocational] rehabilitation pursuant to an order of an administrative law judge shall result in a fifty percent (50%) loss of compensation for each week of the period of refusal.”

 

Consistent with the foregoing, we conclude that the legislature did not intend to reward an employee's wrongdoing with a double benefit. We hold that KRS 342.730(1)(c)2 permits a double income benefit during any period that employment at the same or a greater wage ceases “for any reason, with or without cause,” except where the reason is the employee's conduct shown to have been an intentional, deliberate action with a reckless disregard of the consequences either to himself or to another. In the instant case, the substantial evidence of record does not establish that Livingood's conduct was of that nature. Rather, the ALJ concluded that “but for the prior transgressions the pole bumping incident would not have resulted in [Livingood's] termination.” (emphasis added)

 

Id. at 256-259

 

          In Fuertes v. Ford Motor Co., 481 S.W.3d 808, 810 (Ky. 2016), the Court reiterated:

KRS 342.730(1)(c)2 permits a double income benefit during any period that employment at the same or a greater wage ceases for any reason, with or without cause,' except where the reason is the employee's conduct shown to have been an intentional, deliberate action with a reckless disregard of the consequences either to himself or to another.

 

     The Court stated the burden of proof rests with the employer to show the cessation was due to misconduct as noted in Livingood.  The Court additionally stated, “This is a high standard and basic bad behavior will not bar application of the two multiplier.  If Fuertes did not engage in such conduct, the two multiplier may be applied to his award.”  Id.

     In this case, Witt continued to work after the date of the injury.  He subsequently abandoned his employment.  Additionally, he was incarcerated for four months for an offense unrelated to his employment.  Although the testimony regarding his leaving employment with Purnell is disputed, the ALJ determined he is no longer employed there due to his own “irresponsible” behavior.  It was clearly within her discretion to make this factual determination, and her decision regarding why Witt is no longer employed by Purnell, and is not entitled to the application of the two-multiplier, is supported by the evidence, and will not be disturbed.

     Regarding Witt’s argument the ALJ erred in refusing to award TTD benefits, we vacate in part, and remand for additional findings.  Although the ALJ addressed the request for TTD benefits in the Opinion, Award and Order, Witt asked for additional findings regarding this issue in his petition for reconsideration.  The order on petition for reconsideration failed to address this request.  Upon review of the ALJ’s decision, her analysis regarding TTD benefits is deficient.

          TTD is statutorily 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 that would permit a return to employment[.]”  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 TTD benefits so long as he remains disabled from his customary work or the work he was performing at the time of the injury.  In Central Kentucky Steel v. Wise, 19 S.W.3d 657, 659 (Ky. 2000), the Kentucky Supreme Court explained, “It 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.”  Thus, a release “to perform minimal work” does not constitute a “return to work” for purposes of KRS 342.0011(11)(a).

          In Livingood v. Transfreight, LLC, et, al., supra, the 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.  Most recently in Trane Commercial Systems v. Tipton, 481 S.W.3d 800 (Ky. 2016), the Supreme Court clarified when TTD benefits are appropriate in cases where the employee returns to modified duty.  The Court stated:

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 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.

 

          Id. at 807

 

 

          Here the ALJ found Witt was not entitled to TTD benefits because he returned to light duty work, then abandoned his job.  This analysis is deficient in light of Livingood v. Transfreight, LLC, et, al., supra, and Trane Commercial Systems v. Tipton, supra.  The analysis is not simply whether Witt had been released to light duty work while not having reached MMI.  The ALJ is required to determine if Witt had been released to return to customary employment, i.e. work within his physical restrictions and for which he has the experience, training, and education; and whether he had actually returned to employment.  Trane Commercial Systems v. Tipton, 481 S.W.3d at 807.  On remand, the ALJ must determine, based upon the evidence, if Witt is entitled to TTD benefits during any period prior to his reaching MMI, pursuant to Livingood v. Transfreight, LLC, et al., supra, and Trane Commercial Systems v. Tipton, supra.  This Board may not and does not direct any particular result because we are not permitted to engage in fact-finding.  See KRS 342.285(2); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).  After performing the requisite analysis, the ALJ may still determine Witt is not entitled to an award of TTD benefits.  However, any determination must be supported by the appropriate analysis and findings.  

     Accordingly, the March 6, 2017 Opinion, Award and Order and the April 7, 2017 order on petition for reconsideration by Hon. Jane Rice Williams, Administrative Law Judge, are hereby AFFIRMED IN PART, VACATED IN PART, and REMANDED for additional determinations as set forth above.

         

          STIVERS, MEMBER, CONCURS.

 

          RECHTER, MEMBER, DISSENTS AND WILL NOT FURNISH A SEPARATE OPINION.


 

 

COUNSEL FOR PETITIONER:

 

HON PHILLIPE W RICH

1001 TREVILIAN WAY

LOUISVILLE, KY 40213

 

COUNSEL FOR RESPONDENT:

 

HON FELICIA A SNYDER

333 EAST SHORT ST, STE 110

LEXINGTON, KY 40507

 

ADMINISTRATIVE LAW JUDGE:

 

HON JANE RICE WILLIAMS

657 CHAMBERLIN AVE

FRANKFORT, KY 40601