*/
Workers’
Compensation Board
OPINION
ENTERED: June 22, 2018
CLAIM NO. 201701122
NORTHKEY COMMUNITY CARE PETITIONER
VS. APPEAL FROM HON. W.
GREG HARVEY,
ADMINISTRATIVE LAW JUDGE
LISA SMITH AND
HON. W. GREG HARVEY
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART,
VACATING
IN PART,
AND
REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman.
Northkey
Community Care (“Northkey”) appeals from the January 26, 2018 Opinion, Award
and Order rendered by Hon. Greg Harvey, Administrative Law Judge (“ALJ”),
awarding temporary total disability (“TTD”) benefits, permanent partial
disability (“PPD”) benefits, and medical benefits to Lisa Smith (“Smith”). The ALJ determined Smith sustained a work-related
right hand injury when a patient bit her on March 7, 2015 while working for
Northkey. The ALJ dismissed Smith’s
allegation of a cubital condition allegedly caused by repetitive trauma. Northkey also appeals from the February 23,
2018 order in its petition for reconsideration.
On appeal, Northkey
argues the ALJ erred by awarding benefits for an injury date which Smith did
not allege in her application for benefits, and which she waived as a matter of
law by the merger doctrine. It also
argues the ALJ erred in concluding the statute of limitations was tolled for
the alleged March 7, 2015 injury on the basis TTD benefits were not paid when
due. Finally, Northkey argues the ALJ
erred in finding Smith entitled to TTD benefits without supporting medical
documentation in the record. We affirm
the ALJ’s dismissal of Smith’s claim for cubital tunnel syndrome she allegedly
sustained on December 9, 2015, and in essentially finding the March 7, 2015
right hand injury was tried by consent. We
also affirm the ALJ’s determination regarding the applicable statute of
limitations. We vacate, in part, the
ALJ’s determination regarding the award of TTD benefits, and we remand for
additional determinations.
Smith filed a Form 101 on June 27, 2017 alleging injuries to multiple
body parts caused by repetitive motion, manifesting on December 9, 2015. She asserted she provided immediate notice to
Northkey. She also noted she had
concurrent employment with the Kenton County Board of Education (“Kenton
County”).
Smith testified by deposition on September 19, 2017, and at the
hearing held November 28, 2017. Smith, a
resident of Independence, Kentucky, was born on December 21, 1971. She holds a bachelor’s degree in health and
human services, and a master’s degree in special education. Her work history includes working as a
pharmaceutical sales representative and with the autism unit at an alternative
school. On March 7, 2015, Smith’s
primary employment was as an EBD (emotionally behavioral disorders) teacher
with Kenton County, but she worked part-time for Northkey. Prior to March 7, 2015, she was on the
restraint team, working with students who possibly needed restraining. She worked as a mental health technician for
Northkey beginning in December 2013.
This required a lot of typing and charting.
Smith testified at her deposition that she had difficulty working
after the March 7, 2015 injury. She
stated she injured her right hand on March 7, 2015, when she was bitten as she
was assisting with the restraint of a 16-year old boy. She drove herself to the St. Elizabeth
Hospital in Edgewood. Her wound was
cleaned and shots were administered. She was then referred to Dr. Thomas Due
for treatment. Dr. Due performed right
hand surgery on June 10, 2015. She
underwent physical therapy for the right hand for several months after the
surgery. She testified she continues to
have difficulty opening jars or bottles, and she drops items with her right
hand.
Smith began developing elbow problems in October or November
2015. An EMG in January 2016 did not
show any abnormalities, and Dr. Due referred her to Dr. Robert Rhodes. He recommended an MRI and a splint. Those recommendations were denied by
Northkey’s insurer. She ultimately
underwent right anterior transposition surgery by Dr. Samuel Koo, which she
stated improved her numbness and tingling, but she still experiences elbow
pain. She stated she has difficulty with
pulling weeds, gripping, and mowing.
Northkey’s workers’ compensation insurer paid for the right hand surgery
and treatment; however, the elbow surgery was paid for by her health
insurance.
Smith’s testimony regarding when she worked after the bite incident is
somewhat confusing. At her deposition,
Smith testified Northkey removed her from its work schedule after the bite
incident, and she only worked on July 17, 2015. She later testified that she
worked from the date of the bite incident until the June 10, 2015 surgery
date. She missed no time from her job at
Kenton County because the surgery was performed during the summer break. She testified she has missed no work from her
primary employment with Kenton County.
Smith supported her
claim with the June 15, 2017 report prepared by Dr. Franke Burke, an orthopedic
surgeon. He noted a psychiatric patient
bit Smith on the right hand during a restraint on March 7, 2015. Smith initially treated for the injury at an
emergency room. Dr. Due eventually
performed reconstructive surgery for a traumatic laceration on June 10,
2015. Afterward, Smith underwent a
course of physical therapy. Dr. Burke
noted Smith complained of right hand stiffness and poor grip. She stated this interferes with her job as a
behavioral counselor. Dr. Burke assessed
a 16% impairment rating pursuant to the 5th Edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment
(“AMA Guides”). Dr. Burke
attributed 4% of the 16% impairment rating to Smith’s right hand injury, and
the remaining 12% to the cubital tunnel syndrome.
Smith later filed Dr.
Due’s treatment records from March 12, 2015 through July 15, 2016. Dr. Due’s records reflect treatment including
splinting, and eventual surgery on June 10, 2015. Subsequent to the surgery, Dr. Due
recommended strengthening and range of motion exercises.
Dr. Rhodes’ June 6,
2016 note reflects Smith complained of tenderness and tingling along the
cubital tunnel. He noted her carpal
tunnel findings were equivocal. No obvious
median nerve compression was noted on the EMG.
He recommended a more comprehensive EMG, and advised her to use a
night-time splint.
Smith also filed the
records of Dr. Koo who treated her for right elbow complaints. He diagnosed Smith with right cubital tunnel
syndrome. On April 14, 2017, he
performed a right cubital tunnel release with anterior subcutaneous
transposition. Dr. Koo’s records reflect
he continued to recommend range of motion and strengthening exercises. Through his course of treatment, Dr. Koo
noted Smith’s continued complaints of finger numbness and tingling.
Smith additionally
filed records from St. Elizabeth Physical Therapy reflecting the progress after
the right hand surgery. On October 5,
2015, the therapist noted Smith’s range of motion was close to normal, but she
was still concerned with strength and coordination. On December 9, 2015, Smith reported her
numbness and tingling was increasing, and her endurance was affected. The therapist noted Smith may possibly have
lateral epicondylitis, and she may have cumulative issues including cubital
tunnel syndrome.
Northkey filed a
September 27, 2017 note completed by Dr. Due.
He noted Smith’s cubital tunnel complaints are not work-related. He also stated her subjective complaints are
out of line with her objective findings.
He additionally noted Smith has no impairment stemming from her right
hand injury.
Dr. Ellen Ballard
evaluated Smith at Northkey’s request on March 30, 2017. She noted the March 7, 2015 bite injury, and
the surgery Dr. Due performed on June 10, 2015.
She diagnosed Smith with tendon repair and hand dysesthesia. She noted Smith’s normal EMG, and she found
no evidence of cubital tunnel syndrome.
Dr. Ballard assessed a 2% impairment rating pursuant to the AMA Guides
for the right hand injury.
In a supplemental note
dated October 5, 2017, Dr. Ballard noted she had reviewed additional medical
records. She again stated there is no
evidence Smith has cubital tunnel syndrome.
She cited to the normal EMG study.
She also noted Smith’s work injury was to her right hand, not her
elbow. She stated that if Smith has
cubital tunnel syndrome, it is unrelated to her work injury. She stated the surgery Dr. Koo performed was
not reasonable or necessary for Smith’s symptoms. She specifically disagreed with Dr. Burke’s
assessment of maximum medical improvement (“MMI”), impairment, and methodology.
Northkey filed a
Special Answer on August 1, 2017 alleging Smith’s claim was barred by the
applicable statute of limitations. It
also filed a Form 111 on that same date.
In the Form 111, it listed statute of limitations as a bar to Smith’s
claim, and specifically checked the block indicating it was asserting a Special
Answer.
A Benefit Review
Conference (“BRC”) was held on November 15, 2017. The BRC Order and Memorandum lists multiple
contested issues. The order reflects
that Northkey did not employ Smith on December 9, 2015, the date alleged in the
Form 101. Whether Smith sustained a
cumulative trauma injury was also contested.
The injury dates were listed as contested, and the dates of “12/9/2015;
3/7/2015” were noted. The order also
states that no TTD benefits were paid, but Northkey had paid medical bills in
the amount of $15,435.77. Other issues
included calculation of Smith’s average weekly wage, employment relationship,
date of injury, due and timely notice, wages upon return to work, current
wages, physical capacity to return to the type of work performed on the date of
injury, permanent income benefits per KRS 342.730 including multipliers, and
statute of limitations. It is noted that
at no point prior to the BRC had Smith alleged the March 7, 2015 injury
date. Smith did not file a motion to
amend or include the March 7, 2015 date, although it is referenced in the
medical evidence she filed in support of her claim. In her notice of disclosure filed August 16,
2017, she alleged December 9, 2015 as the injury date. However, we also note the medical evidence
filed by Northkey addresses the March 7, 2015 bite incident.
The ALJ rendered a
decision on January 26, 2018 awarding TTD benefits, PPD benefits and medical
benefits for the March 7, 2015 right hand injury. He dismissed the December 9, 2015 cubital
tunnel claim. Regarding the statute of
limitations defense, the ALJ determined Northkey did not comply with KRS
342.040(1) by notifying the Department of Workers’ Claims that it was not
paying TTD benefits. Therefore, he
determined it could not avail itself to this defense pursuant to the holdings
in Akers v. Pike County Bd. Of Educ., 171 S.W.3d 740 (Ky. 2005). He cited to specific language from that case,
which states that in the absence of “extraordinary circumstances … employer’s
failure to strictly comply with KRS 342.040(1) estops it from raising a
limitations defense …” Id. at
743.
The ALJ also noted that
Northkey had never paid any TTD benefits.
He referenced the holding in Patrick v. Christopher E. Health Care,
142 S.W.3d 149 (Ky. 2004), where the Court held that the statute of limitations
pursuant to KRS 342.185 runs the period of time to file a claim two years from
the date of the accident, or the employer’s last payment of voluntary income
benefits. The Court in that case held
that there was no evidence the claimant was lulled into a false sense of
security regarding the time to file her claim.
The ALJ specifically
determined as follows:
The
question before the undersigned is whether there was ever an obligation on the
part of the Defendant to comply with KRS 342.040. The record indicates Smith
was bitten on March 7, 2015. She did not miss work immediately and continued to
come to work in a sling. She then had surgery on June 10, 2015 to repair a
tendon in her right hand. Following that date, she was taken off the schedule
by Northkey and told they could not accommodate her restrictions. She was off
work until July 17, 2015 when she returned and worked one day and then called
and told her position was terminated. A letter was put into evidence dated
January 5, 2016 from Sun Behavioral Health, an entity that acquired Northkey,
informing Smith that she had resigned effective January 15, 2016 because she
had not worked since June 23, 2015—thirteen days after her surgery.
Plaintiff’s
testimony is that she missed work from June 10, 2015, the date of the surgery
until July 17, 2015 when she returned for one day and was terminated. KRS
342.040(1) requires TTD benefits to be paid no later than the 15th day of missed work following an injury. Here,
the undersigned finds that the obligation to either pay TTD or to notify the
Department of Workers’ claims that TTD would not be paid was triggered when
Smith was off work following the initial surgery by Dr. Due to repair the
tendon in Smith’s right hand.
No
termination or denial letter is of record and for that reason the limitations
defense does not apply here. The court in Patrick, supra, noted:
[a]n
employer who fails to comply with KRS 342.040(1) is not permitted to raise a
limitations defense because its action effectively prevents the commissioner
from complying with its duty under KRS 342.040(1) to notify the worker of his [*152] right to prosecute a
claim and of the applicable period of limitations. Patrick at 151 – 152,
citing City of Frankfort v. Rogers, 765 S.W.2d 579, 589
(Ky. App. 1988).
See
also, J & V Coal Co. v. Hall, 62 S.W.3d
392 (Ky. 2001).
The ALJ stated Smith
had not satisfied her burden of proving her cubital tunnel syndrome was a
work-related injury. He therefore
dismissed her claim for that condition.
However, he awarded PPD benefits based upon the 4% impairment rating
assessed by Dr. Burke for Smith’s right hand injury and surgery. The ALJ also awarded TTD benefits from June
10, 2015 through January 20, 2016.
Northkey filed a
petition for reconsideration arguing the ALJ erred by awarding benefits for an
acute injury not alleged in the Form 101.
It also argued the ALJ must make additional findings of fact regarding
the evidentiary basis for concluding its insurer failed to pay benefits when
due. It next argued the ALJ erred in
finding Smith was entitled to TTD benefits without supporting medical
documentation in the record. It finally
argued the ALJ awarded TTD benefits at an incorrect rate, and for an incorrect
period.
In his order on
reconsideration, the ALJ held as follows:
The
first allegation of patent error is the award of benefits was premised upon a
date not alleged in the Form 101. Defendant argues Plaintiff never amended the
Form 101 to include the March 7, 2015 injury date and therefore an award based
on an injury of that date is patently erroneous. It also argues that the March
7, 2015 claim is barred by the merger doctrine in KRS 342.270(1) that requires
all causes of action against the employer be joined by the Plaintiff in her
claim or have them barred or deemed waived.
The
March 7, 2015 acute bite was known to the Defendant. It raised a defense of
statute of limitations in this case following the filing of the Form 101 on
June 27, 2017 that included an alleged injury date of December 9, 2015. On that date, while undergoing physical
therapy following surgery for the bite injury,
Plaintiff manifested new symptoms she claimed related to the therapy and the
effort of building grip strength. The Notice of Claim Denial filed on August 1,
2017 identified the statute of limitations as a bar and reflected
acknowledgement of a March 7, 2015 work event that was reported that date for
which the Defendant paid medical benefits but no TTD.
At
the BRC, the issue of injury dates was discussed and the undersigned allowed
the March 7, 2015 date to be included as an alleged date of injury. Therefore
the argument that the injury date was not alleged and barred by the merger
doctrine fails as the March 7, 2015 injury date was included in the BRC Order
and memorandum by the undersigned as an alleged injury date.
Defendant
asserts it was prejudiced by the failure of the Plaintiff to allege the March
7, 2015 injury date from the outset in the Application. It claims it was
deprived of the ability to introduce evidence that the March 7, 2015 injury was
barred by limitations. Specifically it argues the question of whether the
carrier failed to make payment of TTD benefits when due was not litigated by
the Defendant because it was not aware of its importance given the alleged
injury date of December 9, 2015. It further argues it was deprived of the
opportunity to brief the issue of whether it failed to pay TTD when due.
Once
the March 7, 2015 injury date was
included on the BRC Order and Memorandum that date and all the prima facie
elements that accompany it was before the undersigned to decide. If prejudice
existed it was not raised. Nor does the undersigned think the inclusion of an
alleged injury date that the Defendant knew of, identified in the Form 111,
identified the statute of limitations as
a defense to, paid medical
benefits for and sought second opinions regarding constitutes
prejudice. Defendant knew of Dr. Due’s June 10, 2015 surgery to repair the
extensor tendon that was damaged when Smith was bitten on March 7, 2015.
In
addition, as an affirmative defense, the entitlement to bar a claim by the
statute of limitations requires the Defendant to affirmative[sic] prove its
application. In this instance, that required the undersigned to evaluate the
Defendant’s entitlement to bar the claim. The undersigned rejects the idea that
the Defendant was prejudiced from producing evidence to sustain its burden of
an affirmative defense it raised on August 1, 2017 and as to the Defendant’s
first argument in the Petition is OVERRULED.
Defendant’s
second argument is that the undersigned committed patent error in finding Smith
entitled to TTD from the date of Dr. Due’s surgery, June 10, 2015, to January
20, 2016 when she stopped physical therapy. It argues there is no medical
documentation that supports the award of TTD and therefore patent error was
committed. In support, the Defendant states there are not restrictions or off
work slips of record to support a finding that Smith could not perform her
customary work during the period TTD was awarded. As noted on page 16 of the
Opinion, Award and Order, the record indicated Plaintiff had surgery on June
10, 2015 and was terminated from Northkey. She testified that an essential part
of her duties at Northkey was restraining patients which she was unable to do
following her injury and surgery and that was the reason she was undergoing
intensive physical therapy—to increase grip strength in her hand. She was in
physical therapy following surgery and, according to her testimony, not able to
grip such that she could have restrained patients. On that basis the
undersigned awarded TTD and does not believe any patent error was committed in
so doing in reliance upon the undisputed medical evidence of a surgery, being
off work and then terminated from her position, and being in physical therapy
to regain grip strength. Defendant’s argument as to patent error in the award
of TTD is OVERRULED.
The
third allegation of patent error is that TTD was awarded at an incorrect rate
and period. Defendant alleges that Smith’s TTD rate should only be based on her
average weekly wage from her work with Northkey and should not include her
wages from her other work at Simon-Kenton High School. On this issue the
undersigned agrees with the Defendant and its Petition is SUSTAINED as to the
rate of TTD awarded. There is no indication Plaintiff was unable to perform her
work at Simon-Kenton High School and for that reason the TTD awarded should be
based only upon the average weekly wage at Northkey. For that reason the TTD
award in paragraph 1 of the Opinion, Award and Order on pages 16 – 17 is
modified to be at the rate of $182.76 per week. The remainder of that paragraph
shall remain unchanged.
Finally,
Defendant seeks additional factual findings on the issue that the carrier
failed to pay TTD when due. In the Opinion, Award and Order and hereinabove,
the undersigned has found that the[sic] Smith had surgery on June 10, 2015, was
off work from Northkey and then terminated. The undersigned relied upon
Plaintiff’s testimony that the grip strength in her hand was not sufficient to
allow her to participate in patient restraints and therefore she was not able
to perform the essential function of her job. For that strength deficit Smith
remained in physical therapy until January 20, 2016. That is the reason for the
award of TTD.
As the claimant in a
workers’ compensation proceeding, Smith had the burden of proving each of the
essential elements of her cause of action. See
KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since she was successful in her burden, the
question on appeal is whether there was substantial evidence
of record to support the ALJ’s decision.
Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App.
1984). “Substantial
evidence” is defined as evidence of relevant consequence having the fitness to
induce conviction in the minds of reasonable persons. Smyzer v. B. F. Goodrich Chemical Co.,
474 S.W.2d 367 (Ky. 1971).
In rendering a
decision, KRS 342.285 grants an ALJ as fact-finder the sole discretion to
determine the quality, character, and substance of evidence. Square D
Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).
An ALJ may draw reasonable inferences
from the evidence, 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. Jackson
v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores,
560 S.W.2d 15 (Ky. 1977). In that
regard, an ALJ is vested with broad authority to decide questions involving
causation. Dravo
Lime Co. v. Eakins, 156 S.W.3d 283 (Ky. 2003). Although a party may note evidence that would
have supported a different outcome than that reached by an ALJ, such proof is
not an adequate basis to reverse on appeal. McCloud
v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). Rather, it
must be shown there was no evidence of substantial probative value to support
the decision. Special Fund v. Francis,
708 S.W.2d 641 (Ky. 1986).
The function of the
Board in reviewing an ALJ’s decision is limited to a determination of whether
the findings made are so unreasonable under the evidence that they must be
reversed as a matter of law. Ira A.
Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). The Board, as an appellate tribunal, may not
usurp the ALJ's role as fact-finder by superimposing its own appraisals as to
weight and credibility or by noting other conclusions or
reasonable inferences that otherwise could have been
drawn from the evidence. Whittaker v. Rowland, 998
S.W.2d 479 (Ky. 1999).
The discretion afforded to an
ALJ is not without limitation. In reaching a determination, the ALJ must provide findings sufficient
to inform the parties of the basis for the decision to allow for meaningful
review, and as noted above the determination must be based upon substantial
evidence. Kentland Elkhorn Coal Corp.
v. Yates, 743 S.W.2d 47 (Ky. App. 1988); Shields v. Pittsburgh and
Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982); Big Sandy
Community Action Program v. Chafins, 502 S.W.2d 526 (Ky. 1973).
As an initial matter, we find the ALJ
did not err in determining the March 7, 2015 injury date was properly before
him for consideration. It is
acknowledged Smith only alleged a cumulative trauma injury with a December 9,
2015 date in the Form 101. However, the
evidence submitted by both Smith and Northkey clearly discusses the original
traumatic onset date as March 7, 2015.
Northkey was aware of this date as reflected by its payment of medical
benefits, and the filing of the Special Answer.
It is also noted the BRC order reflects the March 7, 2015 date as one of
the two dates of injury alleged. It
cannot now allege it was prejudiced by the date listed in the Form 101.
Although
the ALJ did not use the precise language, he essentially found the March 7,
2015 injury date was tried by consent. We
note that if issues are not specifically raised in the pleadings, they are
nonetheless treated as if they had been raised if they were tried by the
express or implied consent of the parties.
Kroger Co. v. Jones, 125 S.W.3d 241, 246 (Ky. 2004). The Kentucky Supreme Court has taken the view
that the “theory of implied consent rest[s] on absence of actual prejudice,
i.e., the ability to present a defense.”
Id. The determination of
whether an issue was tried by consent rests within the sound discretion of the
ALJ. Nucor Corp. v. General Electric
Co., 812 S.W.2d 136, 145-46 (Ky. 1991).
As noted above, the medical evidence, the payment of medical benefits
and Smith’s testimony establish the original date of injury was March 7, 2015,
and there is no evidence Northkey was prevented or prejudiced from defending
the claim. Therefore, we do not find the
ALJ erred in finding the March 7, 2015 as the correct injury date.
Regarding the ALJ’s
determination of the statute of limitations, again we affirm. The evidence establishes Smith continued to
work for Northkey until the June 10, 2015 surgery. She was removed from the work schedule after
the surgery until her one-day attempt to return on July 17, 2015. The ALJ determined Northkey was estopped from
arguing the claim was not timely filed because it violated KRS 342.040(1) by
denying the payment of TTD benefits, or in the alternative by failing to notify
the Kentucky Department of Workers’ Claims of its refusal to do so.
Several statutes are implicated by
this appeal.
KRS 342.185(1) states as follows:
(1)
Except as provided in subsection (2) of this section, no proceeding under this
chapter for compensation for an injury or death shall be maintained unless a
notice of the accident shall have been given to the employer as soon as
practicable after the happening thereof and unless an application for
adjustment of claim for compensation with respect to the injury shall have been
made with the office within two (2) years after the date of the accident, or in
case of death, within two (2) years after the death, whether or not the claim
had been made by the employee himself for compensation. The notice and claim
may be given or made by any person claiming to be entitled to compensation or
by someone in his behalf. If payments of income benefits have been made, the
filing of an application for adjustment of claim with the office within the
period shall not be required, but shall become requisite within two (2) years
following the suspension of payments or within two (2) years of the date of the
accident, whichever is later.
KRS 342.038(1) and (3) state as
follows:
(1)
Every employer subject to this chapter shall keep a record of all injuries,
fatal or otherwise, received by his employees in the course of their
employment. Within one (1) week after the occurrence and knowledge, as provided
in KRS 342.185 to 342.200, of an injury to an employee causing his absence from
work for more than one (1) day, a report thereof shall be made to the office in
the manner directed by the executive director through administrative
regulations. An employer's insurance carrier or other party responsible for the
payment of workers' compensation benefits shall be responsible for making the
report to the Office of Workers' Claims within one week of receiving the
notification referred to in subsection (3) of this section.
...
(3)
Every employer subject to this chapter shall report to his workers'
compensation insurance carrier or the party responsible for the payment of
workers' compensation benefits any work-related injury or disease or alleged
work-related injury or disease within three (3) working days of receiving notification
of the incident or alleged incident.
KRS 342.040(1) states, in relevant
part, as follows:
(1) Except as provided in KRS 342.020, no
income benefits shall be payable for the first seven (7) days of disability
unless disability continues for a period of more than two (2) weeks, in which case
income benefits shall be allowed from the first day of disability.... In no
event shall income benefits be instituted later than the 15th day after the
employer has knowledge of the disability or death. Income benefits shall be due
and payable not less often than semimonthly. If the employer should terminate,
or fail to make payments when due, the employer shall notify the board of such
termination or failure to make payments and the board shall, in writing, advise
the employee or known dependent of right to prosecute a claim under this
chapter.
It is without question that Northkey
had notice of the March 7, 2015 bite injury.
This is evidenced by the fact its insurer paid for Smith’s medical
treatment, including the surgery performed by Dr. Due, and the subsequent physical
therapy and office visits. As noted
above, Northkey was clearly aware Dr. Due performed surgery in June 2015. She was removed from the work schedule after
the surgery, and she testified she was unable to work for a time period afterward.
The fact that Northkey paid for the
surgery, as well as removed Smith from the work schedule supports the ALJ’s
determination that it was required to institute the payment of TTD benefits, or
to report to the Commissioner of the Department of Workers’ Claims of its
refusal to do so pursuant to KRS 342.038 and KRS 342.040(1). Failure to do either tolls the two-year
statute of limitations set forth in KRS 342.185(1). See City of Frankfort v. Rogers, 765 S.W.2d 579 (Ky. App.
1988); Newberg v. Hudson, 838 S.W.2d 384 (Ky. 1992); H.E. Neumann Co.
v. Lee, 975 S.W.2d 917 (Ky. 1998).
In H.E. Neumann Co., supra,
the Supreme Court of Kentucky stated as follows:
Therefore,
once the employer herein had notice that claimant had missed more than one day
of work as the result of an alleged work-related injury, it had the duty of
filing a first report of injury with the board within one week. Moreover, when
the employer failed to make voluntary payments after claimant was absent from
work for seven days, it had the duty of notifying the board that no benefits
would be paid so that the board could notify claimant regarding the applicable
statute of limitations. The purpose of the above-referenced statutes is to
advise an injured worker, in writing, of his right to prosecute his claim, and
the time frame in which to do so, and to provide prompt resolution of asserted
work-related injury claims.
Id. at
920.
In H.E. Neumann Co., supra,
the Supreme Court ultimately determined the two-year statute of limitations in
KRS 342.185 was tolled due to the employer's failure to follow the notice
requirements as set forth in KRS 342.038 and KRS 342.040(1). As stated by the Court in Newberg v.
Hudson, supra, "KRS 342.040
guarantees that an employee will be notified of his or her right to prosecute a
claim upon the employer's termination of compensation payments or upon the
employer's failure to make those payments when due." Id. at 388. As
also stated by the Court, whether the statute of limitations was tolled by the
"employer's failure to trigger this notification scheme [under KRS 342.040(1)] when it has failed to make payments when due will
depend upon the facts and circumstances of each case." Id. Therefore, the ALJ’s determination regarding
the applicable statute of limitations is affirmed.
We additionally note Northkey’s
argument that Smith’s hand injury claim is precluded pursuant to the “merger”
doctrine contained in KRS 342.270(1). It
is noted that the primary basis for Smith’s claim is the fact that she was
bitten on the right hand by a patient on March 7, 2015. Smith’s treatment and her allegation of
cubital tunnel syndrome resulting from her treatment stem from that
incident. We do not believe Smith’s
claim is barred pursuant to this statute since it was actively defended by Northkey. We therefore determine the ALJ did not err in
awarding benefits for the injuries she sustained in that incident.
That said, we note that Northkey, in
both its petition for reconsideration and on appeal, argues there does not
appear to be medical evidence of record supporting the ALJ’s award of TTD
benefits from June 2015 through January 2016.
At her deposition, Smith testified regarding her work for Northkey after
the injury date through the first surgery.
She testified she did not work from the date of the surgery until July
17, 2015, and did not work for Northkey after that date.
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 Central Kentucky
Steel v. Wise, 19 S.W.3d 657, 659 (Ky. 2000), the Kentucky Supreme Court
explained, “[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.” Thus, a release “to perform minimal work”
does not constitute a “return to work” for purposes of KRS 342.0011(11)(a).
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 remains disabled from his 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), regarding the
standard for awarding TTD, the 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.
That said,
the award of TTD benefits is hereby vacated.
The evidence clearly establishes Smith continued to work after the date
of the injury until the June 2015 surgery.
She returned to work with Northkey for one day in July 2015. However, the date for termination of TTD
benefits is less clear. On remand, the
ALJ must determine, based upon the evidence, the exact time period to which
Smith is entitled to an award of TTD benefits based upon the medical evidence.
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). However, any determination must be supported
by the appropriate evidence, analysis and findings.
Accordingly,
the January 26, 2018 Opinion, Award, and Order, and the February 28, 2018 Order
on petition for reconsideration rendered by Hon. Greg Harvey, Administrative
Law Judge, are hereby AFFIRMED IN PART, VACATED
IN PART, and REMANDED to the
Administrative Law Judge for additional
findings and entry of an amended opinion in conformity with
the views expressed.
STIVERS,
MEMBER, CONCURS.
RECHTER, MEMBER, CONCURS IN PART, DISSENTS IN PART AND FILES A
SEPARATE OPINION.
RECHTER,
Member.
I concur with the majority’s opinion except to the issue of TTD
benefits. It states the termination date
of TTD benefits is unclear and asks the ALJ to determine a time period for TTD
benefits based on the medical evidence.
However, the ALJ very clearly terminated TTD benefits on January 20,
2016. He articulated his reliance upon
Smith’s testimony regarding her inability to restrain patients – a required and
essential function of her job - prior to this date. The ALJ also relied on physical therapy
records, which document that Smith was actively treating to improve hand
strength until January 20, 2016, when she first reported tingling in her upper
extremity which Dr. Due ultimately related to ulnar nerve pathology.
It is unclear if the
majority finds this evidence insufficient.
To the extent the majority requires the ALJ to point to medical evidence
to support the award of TTD benefits, I believe he has done so. Each physical therapy note was signed by a
physician. Furthermore, North Key only
contests the finding that Smith lacked the physical capacity to return to her
employment, not the date she attained MMI.
The Supreme Court in Arnold v. Toyota Motor Mfg. has explained
that medical evidence is not required to establish physical capacity to return
to employment for purposes of TTD:
TTD is
payable under KRS 342.0011(11)(a) during periods when a worker has not reached
MMI from the effects of an injury and has not reached a level of improvement
that would permit a return to customary employment. Both factors must be present throughout an
awarded period of TTD. Chapter 342 holds an employer liable for all
of the injurious consequences of a work-related injury that are not
attributable to an independent, intervening cause. Although causation and the date
of MMI are medical questions, a worker's testimony may provide adequate support
for a finding concerning his inability to work at a particular point in time.
375 S.W. 3d
56 (Ky. 2012)(emphasis added).
For these reasons, I concur in part and dissent in part.
COUNSEL
FOR PETITIONER:
HON MATTHEW J ZANETTI
614 WEST MAIN ST, STE 5500
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON ETHAN A BUSALD
PO BOX 6910
FLORENCE, KY 41022
ADMINISTRATIVE
LAW JUDGE:
HON W GREG HARVEY
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
