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May 18, 2018 201300665

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  May 18, 2018

 

 

CLAIM NO. 201300665

 

 

FORD MOTOR COMPANY                             PETITIONER

 

 

 

VS.       APPEAL FROM HON. CHRISTINA D. HAJJAR,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

ANNETTE SHARP-NAYYAR

and HON. CHRISTINA D. HAJJAR,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

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

 

STIVERS, Member. Ford Motor Company (“Ford”) seeks review of the December 23, 2017, Opinion, Award, and Order of Hon. Christina D. Hajjar, Administrative Law Judge (“ALJ”) finding Annette Sharp-Nayyar (“Nayyar”) sustained work-related injuries on February 1, 2013, to her left hip and thigh, and also developed situational depression and post-traumatic stress disorder (“PTSD”) as a result of the February 1, 2013, injury. The ALJ concluded the hip injury and PTSD did not merit an impairment rating. However, temporary total disability (“TTD”) benefits spanning the period from February 2, 2013, through September 30, 2013, were awarded. Although the ALJ found Nayyar did not have an impairment rating as a result of the hip injury, the ALJ concluded Nayyar continues to experience pain due to the injury which may require treatment. Consequently, the ALJ awarded medical benefits for treatment of Nayyar’s left hip and thigh injury.

          On appeal, Ford challenges the award of TTD benefits asserting the findings of fact concerning the award are unreasonable and clearly erroneous. In a related argument, Ford asserts the ALJ’s award of TTD benefits is erroneous as a matter of law because the findings of fact upon which it is based are arbitrary and capricious.

          Relying upon the opinions of Dr. Thomas Loeb, Nayyar’s treating physician, the ALJ found Nayyar sustained a severe sprain of the adductors and hamstring in the left hip as a result of the February 1, 2013, injury. The ALJ also found Nayyar reached maximum medical improvement (“MMI”) on January 30, 2014, based on Dr. Loeb’s opinion. The ALJ noted Dr. Loeb stated Nayyar could have pain for two years or longer from the injury and recommended permanent restrictions of no climbing, bending, or stooping. However, Dr. Loeb did not believe the injury rose to the level of meriting an impairment rating. The ALJ found credible Dr. Loeb’s statement Nayyar would continue to have pain for two years or possibly longer. The ALJ also concluded Nayyar’s complaints of pain in the left hip and thigh were consistent and her testimony was credible concerning her complaints of pain.

         The ALJ also concluded Nayyar developed situational depression and PTSD due to the injury, as she believed Nayyar developed significant stress and anxiety while attempting to work within her restrictions and in dealing with Ford’s attempt to return her to work within those restrictions. The ALJ noted Nayyar testified she was tortured and harassed by supervisors and co-workers about returning to work. As a result, Nayyar underwent partial hospitalization and psychiatric treatment in April and May 2013 due to this aggravation of her anxiety and depression. The ALJ relied upon Dr. Warren Bilkey’s report in resolving the issue of the cause of the PTSD. However, she rejected Dr. Bilkey’s assessment of a 1% impairment rating since it was assessed prior to Nayyar reaching MMI. The ALJ was convinced there was no evidence of a permanent impairment or continuing stress as a result of the injury. She noted Nayyar testified at the hearing she was not taking medication for PTSD, anxiety, or depression related to the work injury. Thus, she concluded when Nayyar stopped working at Ford on March 30, 2013, the aggravating factors were relieved and Nayyar no longer needed treatment beyond that date for PTSD, anxiety, or depression.

          The ALJ provided the following findings of facts and conclusions of law in support of the award of TTD benefits from February 2, 2013, through September 30, 2013:  

     . . .

     In this case, the ALJ relies upon the report of Dr. Loeb to find that Plaintiff did not reach maximum medical improvement until January 30, 2014. Prior to that time, Plaintiff had been undergoing physical therapy and was under various restrictions from her treating doctors. She was not released to return to work with permanent restrictions until January 30, 2014, of no climbing, bending or stooping. Those restrictions were clarified on February 7, 2014 to include sit down duty if needed, and she was to avoid repetitive twisting, bending and minimum climbing stairs and ladders. Dr. Loeb stated that Plaintiff could continue the work she had been performing, which at that time, was the position in the paint room. However, Plaintiff has never been in a position that she could return to the work she was performing at Ford at the time of her injury.

     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). However, the court has made it clear that Wise does not stand for the principle that workers who were unable to perform their customary work after an injury are always entitled to temporary total disability. Livinggood v. Transfreight, 467 SW3d 249 (Ky. 2015). In Trane Commercial Systems v. Tipton, 467 SW3d 249 (Ky. 2016) the court clarified that in order to award temporary total disability benefits to a claimant who has not reached MMI 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.

     The ALJ finds that this is an exceptional circumstance in which Plaintiff is entitled to temporary total disability benefits from February 2, 2013 until she returned to work in the paint room on or about October 1, 2013, [footnote omitted] despite the fact that she worked in various capacities during some of this time period. Plaintiff testified that she worked on one of the assembly lines in a dark room wiping sealant off the car with an alcohol wipe as part of the painting process. She was making $16.66, plus shift differential, never more than 40 hours per week. The ALJ finds that she would not be entitled to TTD benefits after October 1, 2013, because she was at that point, working full-time, and performing real work at Ford within her restrictions.  

     However, the ALJ finds that from February 2, 2017, [sic] through October 1, 2013, Plaintiff had difficulty returning to work within her restrictions and she had repeated conversations with her supervisors, doctors, and union representatives concerning Ford’s efforts to have her continue working in some capacity. Plaintiff was either off work or working in a light duty capacity during this time period. Plaintiff testified that one of the jobs she performed during this time period was busy, full-in [sic] work. She testified that at some point she was just sitting at a picnic table all day until they moved her to the union office. She testified that it was not a job, but it was just to be there for ten hours. She was also on work unavailable status for several months and she received Unicare benefits.

     Plaintiff’s testimony is credible that she was returned to work following her injury on February 1, 2013, but that she continued to have pain, even while working sit-down duty. Although their efforts to place injured workers back to work are commended, in this particular situation, Plaintiff requested that she be permitted to stay off work due to her restrictions, but she felt like she was threatened with her job and harassed due to her inability to come back to work. In fact, she received psychiatric treatment due to this stress.

     Plaintiff also testified that she went to medical and they returned her back to her job on sit-down duty only the same night. She stated that Ford decided to overwrite [sic] medical’s restrictions and put her on a job that she was standing, bending and sitting. So, she went back to medical because she was in pain. Plaintiff testified they returned her to work where she sat on a metal chair, but she had to bend, twist and turn. She told them they were not following the restrictions and begged them to let her go home because she was in pain. They gave her a cushion and then she went back to a different job where she was sitting all the time.

     Plaintiff testified that she never told them that she was ready to go back to work. She testified that Ford supervisors told her that she should no longer have restrictions, and they threatened her job if she did not do what they wanted her to do. She testified that because she was [sic] went to her own doctor, the Ford medical doctors called her back and told [sic] they were taking her physical therapy and restrictions away. At the time of her first deposition, Plaintiff testified that she last worked at Ford on April 10, 2013. Plaintiff was eventually placed off work based upon her doctor’s restrictions and she was on work unavailable status for several months. She testified that when they finally worked out an agreement to allow her to return to work within her restrictions, she was just performing busy work until she started working in the paint room in September or October 2014 [sic]. For these reasons, the ALJ finds that this is an exceptional circumstance in which TTD benefits are due from February 2, 2013 through October 1, 2013 (the approximately return to work date in the paint job).

          The ALJ awarded TTD benefits for the period in question plus interest and medical benefits for the treatment of the injury to her left hip and thigh. The remainder of Nayyar’s claim was dismissed.

          Ford filed a petition for reconsideration challenging the award of TTD benefits making the same arguments it makes on appeal.

          In the February 2, 2018, Order, the ALJ overruled Ford’s petition for reconsideration as an impermissible re-argument of the merits. However, the ALJ provided the following additional reasoning regarding her award of TTD benefits:

Additionally, there are several issues with the Petition filed by Defendant. Defendant writes that the records from the Brooke Hopspital [sic] show that she she [sic] was admitted as a partial hospitalization patient from April 2013 to May 2013, and this is not a result of the work injury. However, the ALJ specifically found that her situational depresson [sic] and PTSD symptoms were work-related for a temporary time period, including during this hospitalization. Further, there is insufficient evidence that Plaintiff's personal health issues were the cause of her inability to work during this temporary total disability period. Rather, the ALJ found that her inability to work was due to the work injury and restrictions. Although Defendant argues that Plaintiff should not receive TTD benefits while performing the wipe off job, the ALJ agrees and found that the wipe-off job was a real job and that she should not receive TTD benefits while performing it. However, the ALJ found that it did not start until October 1, 2013, which was the reason the TTD benefits end on this date. Finally, Defendant argues that Plaintiff received UniCare benefits and received personal leave for several months. However, receipt of either personal leave or short-term disabillity [sic] benefts [sic] has no effect on the period of TTD, other than the fact that Defendant could argue for a credit. However, no such credit was requested or preserved as an issue.

          Ford argues the ALJ’s award of TTD benefits is erroneous as the findings of fact are unreasonable and clearly erroneous since Nayyar’s testimony is insufficient to support the award of TTD benefits. Further, the findings of fact do not demonstrate a thorough and accurate understanding of the evidence and the award is contradicted by “all other evidence.”

          Ford cites to Nayyar’s testimony that she continued working earning the same wages from the date of the injury until April 2013. It contends that from April 10, 2013, through May 23, 2013, Nayyar was admitted on an outpatient basis at The Brook Hospital-Dupont (“The Brook”) due to stress and was off work due to pre-existing mental health issues. Ford notes thereafter Nayyar returned to work on May 28, 2013, earning the same wages working in the union office. Ford maintains that although Nayyar testified the job in the union office was a made up job she never described what that job entailed so there was no way for the ALJ to properly assess this self-serving assertion. It represents Nayyar testified that at some point after May 28, 2013, she was put on no work available and returned to work in the paint department in September or October. Ford contends that based on these facts the ALJ’s award of TTD benefits cannot stand.

          Ford argues the only reliable evidence as to when Nayyar worked are the records submitted into evidence by it which reveal Nayyar worked from February 1, 2013, through April 10, 2013, and returned to work on May 26, 2013, working “until some unknown unproven time.” Based on these facts, Ford argues the award of TTD benefits is unreasonable.

          In Ford’s view, a gross injustice has occurred since the ALJ’s ruling impermissibly placed the burden on Ford to prove when Nayyar worked and when she was placed off work for personal health issues. Ford contends its records concerning Nayyar’s work activities are the only reliable evidence. Based on the uncontradicted records, Ford requests the ALJ’s award be reversed.

          In a related argument, Ford contends the award is erroneous since the findings of fact are arbitrary and capricious. In support of this argument, Ford asserts the ALJ relied upon vague non-specific testimony from Nayyar as to when she did and did not work which is contrary to Ford’s records. Ford asserts Nayyar was a very confused witness who gave no specifics regarding her work history. Thus, the award is unsupported and arbitrary. We disagree and affirm.

          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 Const. Co., Inc. v. Baker, 858 S.W.2d 202, 205 (Ky. App. 1993), wherein the Kentucky 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. 

          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 or she 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 or she was performing at the time of the injury.  The court in 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), the Supreme Court further elaborated with regard to the standard for awarding TTD 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 employ-ment. 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.

     In Trane Commercial Systems v. Tipton, 481 S.W.3d 800, 807 (Ky. 2016), the Supreme Court provided the following clarification regarding the standard to be applied in determining when an employee has not reached a level of improvement that would permit “a return to employment”:

     We take this opportunity to further delineate our holding in Livingood, and to clarify what standards the ALJs should apply to determine if an employee "has not reached a level of improvement that would permit a return to employment." KRS 342.0011(11)(a). Initially, we reiterate that "[t]he purpose for awarding income benefits such as TTD is to compensate workers for income that is lost due to an injury, thereby enabling them to provide the necessities of life for themselves and their dependents." Double L Const., Inc., 182 S.W.3d at 514. Next, we note that, once an injured employee reaches MMI that employee is no longer entitled to TTD benefits. Therefore, the following only applies to those employees who have not reached MMI but who have reached a level of improvement sufficient to permit a return to employment.

     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 ALA must take into consideration the purpose for paying income benefits and set forth specific evidence-based reasons why an award of TTD benefits in addition to the employee's wages would forward that purpose.

          We begin by noting Nayyar satisfied the first prong of the two-prong test, as she was not at MMI during the period TTD benefits were awarded. The ALJ relied upon Dr. Loeb’s assessment of January 30, 2014, as the date of MMI. Thus, the sole issue on appeal is whether Nayyar reached a level of improvement permitting a return to work as defined by the case law.

          During her deposition of June 12, 2013, Nayyar testified that after her hip injury she was sent to the medical department where she was treated and restricted to sit down duty only. However, when she returned to work that same day, in spite of the restrictions, she was assigned a job entailing standing, bending, and sitting. Nayyar returned to the medical department because she was in pain. She informed the medical staff that her restrictions were not being followed and begged to go home because she was crying due to the pain. She was given a cushion and sent back to the plant where she performed a different job sitting all the time. The next day, she was placed on regular duty which violated the restrictions of the medical department. Nayyar denied telling Ford she was ready to return to work explaining as follows:

A: No, I’ve never been on my regular job without restrictions. Other, let me rephrase that. When Ford supervisors decided that I should no longer have restrictions they put me on regular jobs, threatening my job if I did not do what they wanted me to do so I would continuously go back to medical to make them do what they were supposed to do.

     I did not know I was allowed to do that so a lot of times I would try to conform to what the supervisors were saying because I felt my job was in jeopardy, so, and I did not understand my rights, so until I had a upgrader tell me what my rights were, I was doing what my supervisor said to do which was violating my rights as far as doing, being able to do the job. I could not do the job, I was crying every single day.

          Nayyar testified that because she did not understand her rights, she begged to see a doctor outside the plant. After almost two months, she was finally allowed to see an outside physician, who she characterized as Ford’s physician, Dr. Gregory Rennirt.[1] Nayyar testified Ford’s medical staff told her she was not allowed to see her personal doctor. Further, she was not to be treated by the Ford plant as well as an outside doctor.

          Nayyar believed Dr. Rennirt initially restricted her to part-time sit and stand work. However, Ford changed her restrictions. Nayyar acknowledged she was also seen by Dr. Kris Abeln while she was being treated by Dr. Rennirt. She explained Dr. Abeln was an independent doctor. She terminated her treatment with Dr. Rennirt because he yelled at her informing her nine weeks had elapsed and she should be well. She explained that at a previous visit, Dr. Rennirt told her it would take four to six months for her hip to heal.

          Nayyar testified when she asked Ford if she could see her own doctor she was informed she could. Later, Ford personnel called her and told her she would no longer go to physical therapy and they would no longer honor her restrictions if she continued to see Dr. Abeln. She would be returned to her normal job. Nayyar continued to see Dr. Abeln. Nayyar testified she last worked on the night of April 10, 2013.

          On April 11, 2013, Nayyar sought treatment at The Brook for psychological problems which she attributed singularly to the stress caused by her treatment at Ford. She was seen on an outpatient basis at The Brook and started on medication. Nayyar testified she returned to work at Ford on May 28, 2013, working in the Ford union office. At the union office, she earned the same wages working 40 hours. She characterized this job as a “made up job.” She could not earn over-time at this job. Nayyar described the job she performed after the injury up until the time she sought treatment at The Brook as follows:

A: I mean, that’s part of it. The deal was since day one of this accident they had put me out on the line, Ford, on different lines in front of my peers to sit for ten hours in front of my peers where I have been humiliated, I have been harassed, I have been called names, I have been –

Q: By your fellow –

A: By my fellow hourly workers as well as my bosses.

Q: So, I mean, were you not doing a job when you were out there?

A: No.

Q: I thought, I thought you were doing a job.

A: No, they put me on sit down duty.

Q: Well, that’s a job, you were doing something, what were you doing?

A: Sitting at a picnic table for ten hours?

Q: Okay. Doing nothing?

A: Nothing.

          At her September 2, 2014, deposition, Nayyar testified she returned to work in the paint department in September or October and worked there until May 30, 2014, when she quit work at Ford. The job in the paint department entailed working in a dark room wiping off half of a car after the sealant had been applied. She explained someone else performed the same task on the other side of the car.

          Nayyar characterized her work prior to moving to the paint department as fill in or busy work:

Q: What caused you to go from the job that you were doing back when you testified in June of last year to the paint department? Was that just a voluntary switch to a different job, or –-

A: What I was doing during the last deposition was –- if I remember correctly, was just fill in, busy work. You know, they’d have me stamping something or cutting out cardboard, or –- you know, it wasn’t a job. It was just to be there for ten hours. It was not a job, quote job. Then they took me off work and put me on work unavailable for several months.

          Nayyar provided the following testimony as to the period of time she was off work on no job available status:

Q: So you worked for a period of time rarely in the job you just talked about, after this deposition you gave in June of last year. And then at some point they took you off from that job, no job available within your restrictions?

A: Yes.

Q: Do you remember when that was?

A: No, I don’t remember the date, no.

Q: And during the time that you were off from work, no jobs available, I’m going to assume that you were paid the Unicare benefits?

A: Yes.

Q: And you think you remained in that status for a couple of months?

A: I believe so.

Q: All right. And –-

A: I believe it was from July through September.

          Nayyar testified at the end of September she began working in the paint department working less than 40 hours a week.

     In her last deposition of September 20, 2017, Nayyar testified when she returned to work in September 2013, she worked in the dark room wiping cars coming through the line. She testified she considers the treatment she received by Ford as torture. She testified she had been humiliated, spat on, hit, and harassed and, as a result, developed emotional problems. She testified Ford sent her for outpatient psychological treatment. Nayyar acknowledged she has not seen anyone for PTSD and is not on medication for PTSD.

     At the hearing, Nayyar reiterated much of her deposition testimony concerning her treatment by Ford and its refusal to accommodate her restrictions. She characterized her work from February through April when she sought treatment at The Brook as follows:

Q: From February through – but you were getting your full wages though from February through April.

A: When I was working I got paid.

Q: Right.

A: When I wasn’t, when I was – how do I say this? When I was there at the Ford and they had me sitting at the picnic table, a supervisor refused and there was a big argument, they actually had to have a meeting where a supervisor re [sic] -– he said unless you do something, I’m not paying you.

          The records of Dr. Abeln reveal he first saw Nayyar on March 18, 2013. Nayyar had suffered a left hip injury while working at Ford on February 1, 2013. She had bruising and ecchymosis along the left thigh and had been on and off certain work restrictions since that time. She had pain in the left lower extremity mainly in the buttock and lateral aspect of the hip. There was no numbness or tingling. Nayyar walked with a limp favoring the lower extremity. His impression was left proximal hamstring injury.

          Dr. Abeln saw Nayyar again on April 15, 2013. At that time, Nayyar continued to suffer pain and burning in the left proximal thigh area. She had to take herself off work. His impression was left proximal hamstring injury. Dr. Abeln recommended musculoskeletal ultrasound and to keep Nayyar off work, if possible. A note dated April 15, 2013, indicates Nayyar was to remain off work until the next office visit. Nayyar was seen by Dr. Abeln again on May 16, 2013, and he noted she had been off work. He recommended physical therapy. Her range of motion demonstrated pain in the hamstring area. A “Return to Work/School Capabilities” dated May 16, 2013, indicates Nayyar was unable to return to work until June 17, 2013. Dr. Abeln directed Nayyar remain off work, and anticipated a return to work on June 17, 2013. Dr. Abeln saw her again on June 13, 2013, and indicated she had excellent relief from physical therapy in the last month. Nayyar had been on sit down duty.[2] Nayyar had a mild limp on the left lower extremity and demonstrated mild pain in the hip abductor hamstring. Dr. Abeln noted she had two more weeks of sit down duty and he would give her a note to return to work without restrictions on July 15, 2013.

          Dr. Loeb’s records reveal Nayyar was not seen again for her hip injury until August 20, 2013, when he first saw her for this injury.[3] Dr. Loeb noted she had a severe sprain in the adductors and hamstring in the left area in February. She had persistent pain though not as severe as it was at the onset. Dr. Loeb indicated the injury had not healed enough to return Nayyar to her prior work duties. Dr. Loeb recommended switching therapists to get a different perspective as to whether they could get her to the point where she could return to work. When Dr. Loeb saw Nayyar on September 19, 2013, she was positive for adductor and hamstring pain on the left. Dr. Loeb diagnosed “severe sprain with partial tearing at least of the adductors and hamstring origin on the left with chronic painful scarring.” He indicated he would like to get Nayyar to a proper therapist “when and if work comp gives us allowance.”

          Dr. Loeb saw her again on October 17, 2013, and noted Nayyar had finally gotten clearance to be sent back to physical therapy. He noted she had been on restrictions “which Ford is not happy with though she can certainly do a sit down job if available.” Nayyar was positive for pain in the left hip adductors and gluteus area. Dr. Loeb’s impression was chronic adductor and gluteus sprain, left hip. Dr. Loeb saw Nayyar again on December 5, 2013, and noted she was slowly improving. He stated at this point her therapy had worked beautifully, and she still had some mild residual tenderness at the origin of the hamstring. Nayyar was positive for pain at the proximal hamstring area. His impression was healing of the left proximal hamstring and adductor musculature on the left. She had made excellent progress. Dr. Loeb thought she should still be on a restricted job with no climbing with the ability to sit down if needed.

          Dr. Loeb’s note of January 30, 2014, indicates Nayyar was at MMI. She told him she was on the job and could perform full duty, but there was talk of moving her to a job which would be difficult for her to do. Nayyar still had mild pain. Dr. Loeb believed she should have permanent restrictions of no climbing, bending, or stooping. Dr. Loeb’s February 4, 2014, note states it is not inconceivable that this injury could cause symptoms for up to two to three years or maybe even longer. If Nayyar is still having pain within three months, he would consider cortisone injections. Dr. Loeb changed her restrictions with return to work on February 7, 2014. She was to have sit-down duty if needed and to avoid repetitive bending and limit twisting to a minimum. There should be minimum climbing of stairs and ladders. Dr. Loeb believed Nayyar should stay on her current job as she was functioning very well in that capacity.

          Substantial evidence, in the form of Nayyar’s testimony and records of Drs. Abeln and Loeb, supports a finding Nayyar had met the second prong of the analysis, i.e., she had not reached a level of improvement that would permit a return to employment. KRS 342.0011(11)(a). As is her prerogative, the ALJ accepted Nayyar’s testimony the job she performed up until the time she was admitted into The Brook for psychological treatment for work-related PTSD were outside her restrictions or was made up work. The restrictions of Dr. Loeb establish Nayyar had ongoing hip problems and was limited in her work capacity. Notably, in August and September, Dr. Loeb believed Nayyar needed additional physical therapy.

          The Brook’s records firmly support the finding Nayyar did not work from April 11, 2013, through May 14, 2014, as a result of work-related PTSD. Thus, we find Ford’s argument Nayyar was admitted for reasons unrelated to her work injury fails miserably. The Discharge Summary states Nayyar presented upon referral by Ford “due to depressed mood, decreased sleep with delay and fragmentation, positive nightmares, positive psychovegetation, anhedonia, positive hyperphagia with weight gain, some hopelessness, some helplessness.” In addition, her symptoms progressively worsened since the injury at work resulting in a decreased occupational function and medical restrictions. The Discharge Summary notes Nayyar was angry with Ford as she felt management did not follow her medical restrictions and sent her back to work too soon. Her major stressors were the injury, occupation/employment, and relationship with her spouse. Nayyar’s mood was depressed and anxious. She was prescribed Cymbalta.

          The Discharge Summary also reflects Nayyar attended a total of 20 psychiatric partial hospitalization programs. The recommendation of the staff was for Nayyar to follow up with a pain management physician to help manage her pain symptoms. Nayyar stated her mood was improved from the time she was first admitted. She was diagnosed in part with major depressive disorder, recurrent, moderate, PTSD, pain disorder with mixed features, right shoulder and right hip injury.

          The above-cited records establish Nayyar was off work and being treated for psychological problems due to problems at work. Thus, we find no error in the ALJ’s award of TTD benefits during the period Nayyar was treated by The Brook and was not working at Ford. Additionally, Nayyar’s testimony establishes she returned to work on May 28, 2013, for a very short period and was then off work from July through September 30, 2013, when she returned to work in the paint department. Consistent with her testimony, the ALJ chose to terminate Nayyar’s TTD benefits on October 1, 2013, when she returned to work. We note the wage records, upon which Ford so strongly relies, do not establish Nayyar worked any time after the short period in May. Although not alluded to by the ALJ or Ford, attached to a Notice of Filing Wage Records filed July 11, 2013, is a printout reflecting the dates and hours worked by Nayyar before and after her injury. The printout reflects Nayyar worked from February 3, 2013, through April 14, 2013. She returned to work for one week in May 2013. The printout reveals Nayyar was paid on May 26, 2013, and provides the total amount earned. The printout does not reflect Nayyar worked after that date.

          Based on Nayyar’s testimony and the records of Dr. Loeb, the ALJ could reasonably infer Nayyar was not at MMI and had not reached a level of improvement that would permit her to return to employment from February 2, 2013, through September 30, 2013. Nayyar specifically testified she was off work from July through September.[4] Nayyar’s uncontradicted testimony was that when she returned to work following her treatment at The Brook, she was performing made up work. Moreover, Dr. Abeln’s April and May records reflect Nayyar was to remain off work until June 17, 2013. Moreover, there is no question Nayyar was off work July, August, and September which the ALJ could reasonably infer was at the direction of Drs. Abeln and Loeb.

          The ALJ specifically addressed the standard to be applied as required by Trane, supra, in resolving whether an award of TTD benefits is appropriate during a period when the injured employee has returned to employment. She concluded there were extraordinary circumstances justifying the award of TTD benefits during the period Nayyar worked for Ford from February through April 10, 2013. Significantly, we note the printout reflects Nayyar did not work a full week for many weeks during the period from February 1, 2013, through April 14, 2013.[5] The ALJ relied upon Nayyar’s testimony that she continued to work because she was threatened with her job and Ford would not honor her work restrictions if she did not comply with Ford’s request. The ALJ also found Nayyar’s testimony credible that Ford did not adhere to the physical restrictions imposed by its own medical staff. This finding is supported by Dr. Abeln’s records indicating he recommended Nayyar remain off work. Ford did not honor his request. Since Nayyar’s testimony and the medical records of Drs. Abeln and Loeb constitute substantial evidence supporting the ALJ’s determination that exceptional circumstances justified an award of TTD benefits from February 2, 2013, through October 1, 2013, her decision may not be disturbed.

          Accordingly, concerning the issue raised by Ford on appeal, the December 23, 2017, Opinion, Award, and Order and the February 2, 2018, Order overruling Ford’s petition for reconsideration are AFFIRMED.

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON ELIZABETH M HAHN

HON PRISCILLA C PAGE

401 S FOURTH ST STE 2200

LOUISVILLE KY 40202

 

COUNSEL FOR RESPONDENT:

HON WAYNE C DAUB

600 W MAIN ST STE 300

LOUISVILLE KY 40202

ADMINISTRATIVE LAW JUDGE:

HON CHRISTINA D HAJJAR

657 CHAMBERLIN AVE

FRANKFORT KY 40601



[1] In Nayyar’s deposition, Dr. Rennirt’s name is incorrectly spelled Dr. Reinert.

 

 

[2] We note Dr. Abeln did not state how long she had been on sit down duty.

[3] Apparently, Dr. Abeln left Dr. Loeb’s office.

[4] The printout shows Nayyar earned $66.76 as of May 26, 2013.

 

[5] The printout reflects April 14, 2013, is the date Nayyar was last paid in April.