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Workers’
Compensation Board
OPINION ENTERED: August 24,
2018
CLAIM
NO. 201569014
KENTUCKYONE
HEALTH (ST. JOSEPH EAST) PETITIONER
VS. APPEAL FROM HON. JONATHAN WEATHERBY,
ADMINISTRATIVE
LAW JUDGE
LISA
GILBERT
and
HON. JONATHAN WEATHERBY,
ADMINISTRATIVE
LAW JUDGE RESPONDENTS
OPINION
VACATING IN PART & REMANDING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER,
Members.
STIVERS, Member. KentuckyOne Health (St. Joseph East) (“KentuckyOne”) appeals from the March 12, 2018, Opinion and
Order and the April 25, 2018, Order of Hon. Jonathan Weatherby, Administrative
Law Judge (“ALJ”). The ALJ awarded Lisa Gilbert (“Gilbert”) temporary total
disability (“TTD”) benefits from August 9, 2015, through July 1, 2017,
permanent partial disability benefits, and medical benefits.
On appeal, KentuckyOne
asserts the ALJ’s award of TTD is incorrect, and the award of TTD benefits from
the date of injury, August 9, 2015, through August 2016, should be vacated. It
argues the period of TTD benefits to which Gilbert is entitled should be from September
2016 through July 1, 2017.
The Form 101 alleges Gilbert
sustained a work-related injury to her “lumbar and/or sacral vertebrae” on
August 9, 2015, in the following manner: “Plaintiff was bending and twisting
making IV bags for patients. Plaintiff felt pain in her lower back.” On
September 22, 2017, Gilbert filed a motion to amend her Form 101 in order to
add a left foot and left leg injury. Gilbert’s motion was sustained by order
dated October 24, 2017.
Gilbert was deposed on October 3,
2017. Gilbert testified she has an associate’s degree in the field of medical
information technology with an emphasis on billing and coding. She was a
certified pharmacy technician but did not renew her license in 2017. Gilbert
testified regarding her employment history prior to working as a pharmacy
technician for KentuckyOne:
Q: Okay. And
prior to St. Joseph, were you working anywhere?[1]
A: I worked
at Xerox for a while.
Q: Okay. Do
you recall when you worked there?
A: It was
about – it was a month. I was working there for like a month when I was hired
at St. Joe’s, so September – it’d be August, September.
Q: of 2015?
A: Yes.
Q: And were
you working there as a customer service rep?
A: Yes.
…
Q: What
about prior to Xerox in August of 2015?
A: Let me
think. I think it would be Madison Drug in Richmond.
Q: And what
kind of work did you do there?
A: Pharmacy
tech.
Q: How long
did you work there?
A: From
March until June.
Q: 2015?
A: Yes.
Q: Okay. How
many places have you worked at prior to Madison Drug?
A: A lot.
Q: Okay.
Would you be able to summarize the kind of work that you were doing prior to
them?
A: I worked
for a while as a dialysis technician.
Q: Okay.
A: And I
have worked as an office manager and a bank teller.
Q: Do you
recall a general timeline as to when you were in those positions?
A: I worked as an office manager from
February of ’06 – or I’m sorry, August of ’06 to February of ’07. A bank teller
was from 2002 to 2006 and then again in 2007 to 2008.
Gilbert testified regarding her normal routine at KentuckyOne:
I would have
to pull the drugs, fill the medication carts that had to be delivered to the
patient floors, hourly would have to deliver any medication that had been
ordered between the time that the cart was filled and the current time, had to
make a run every hour to each patient floor.
I had to fill the AcyDose
on all of the patient floors and make IVs.
After the subject work injury, she
returned to light duty at KentuckyOne for a few days:
“There wasn’t a whole lot of light duty. I was like making labels for
medications, putting the labels on the bags. I was pulling the medications, but
I wasn’t doing anything where I had to bend or lift.” She eventually returned
to regular duty and then quit on September 17, 2015. She testified as follows
regarding why she left KentuckyOne:
Q: And why
did you stop working at St. Joseph?
A: I was a
PRN employee, but I was working 40 plus hours a week, so I got no benefits and
I got no work comp for the days that I was off with the injury, and I left
because – actually because the people were being hired
from outside and given full-time positions with benefits while I was still
considered PRN.
Q: And just
to define PRN, what does that mean?
A: As-needed.
After leaving KentuckyOne,
Gilbert returned to work for Xerox at the call center in December 2015. From
January 2016 to August 2016, Gilbert worked as a retail pharmacy technician for
Genoa Healthcare. She worked for Pearl Interactive for approximately four days.
After that, she worked for T-ROK Mobile for one day. Finally, she worked at SRG
of Kentucky, a temp agency, in May 2017, for approximately three or four days.
At the time of her deposition, she was unemployed.
She testified her back injury causes
the pain in her left leg and foot. She acknowledged nothing hit her foot, and
she did not sustain a fracture in her foot. The leg pain did not start until
December 2015.
Gilbert testified at the January 10,
2018, Hearing she quit her job at KentuckyOne
following the subject work injury: “I think that date that I actually quit was
September 17th. I had given notice, but the pain during the – the
last week that I was supposed to work, I ended up having to call in. And my
manager told me just to go ahead and quit, and that wouldn’t be held against me
in the future.” Later during the hearing, however, Gilbert provided the
following testimony regarding why she left her job:
Q: I think
earlier you testified that you were injured and that your returned to work
after, maybe, two weeks of light duty. And then you said that you gave notice.
Did you intend to quit at a certain paint? Or what was the basis for quitting?
A: Yes, I
was leaving. A lot of it had to do with the pain and a lot of it had to do with
the fact that I received no benefits, no pay for what time I had to miss. And I
was told that the reason that I wasn’t, was because I was only a PRN employee. So it really didn’t matter, because my hours were not
guaranteed.
Q: Okay. And
I think at the deposition you testified that you planned on quitting, because
you were PRN or temporary?
A: Yes.
Well, it’s an as needed position.
Q: As needed?
A: But I was needed [sic] 40-plus hours a
week.
Q: Okay.
A: It’s kind of their way around giving you
benefits.
She provided a recap of her
employment history after she quit work at KentuckyOne:
Q: Okay. I
see. And then you started another job, Xerox in, maybe –
A:
(Interrupting) In December.
Q: In
December? Okay. So you weren’t working – you were not
working in October or November, then?
A: No. I honestly was not able to work
through those months.
…
Q: Okay. And
then, I think, you started working at Genoa Healthcare?
A: Genoa.
…
Q: And how
long did you work there?
A: I worked
there from – well, I started as a temp through a temp agency in January. And I
was hired on in February full-time.
Q: Okay. So
it sounds like you were only not working during October and November for almost
a year after your injury; is that right?
A: I didn’t work in October, November. I
took the job at Xerox call center and worked in December. And then I got the
call about the pharmacy tech job, which was a lot different than hospital
pharmacy, because it was – it was retail. Well, it was clothes store retail. I
didn’t have as much lifting and pushing and stuff to do there, so, you know, I
handled it a lot better. But I still was having the pain in my left calve and
it seemed to get worse and worse every day. And I was still having days that I
couldn’t walk; so I ended up losing my job, because I
had missed so many days.
Gilbert eventually underwent back surgery
in December 2016.[2] She was unemployed at the time of the
hearing.
The following contested issues are
listed on the December 12, 2017, Benefit Review Conference Order and
Memorandum: work-related injury, date of injury, TTD benefits paid, average
weekly wage, physical capacity to return to the type of work performed at time
of injury, exclusion for pre-existing impairment, permanent income benefits per
KRS 342.730 including multipliers. Under “other contested matters” is the
following: “Compensability of treatment after December 2015.”
In the March 12, 2018, Opinion and
Order, the ALJ set forth the following findings of fact and conclusions of law concerning
the issue of TTD benefits:
19. 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…KRS
342.011(11)(a)
20. The ALJ finds that
the Plaintiff is entitled to temporary total disability benefits from August 9,
2015, until July 1, 2017.
The ALJ also concluded that, based
on Dr. Alan Roth’s opinions, Gilbert reached maximum medical improvement
(“MMI”) on July 1, 2017.
KentuckyOne
filed a petition for reconsideration asserting, in relevant part, the award of
TTD benefits from the date of the injury through August 2016 should be vacated.
The April 25, 2018, Order denying the petition for reconsideration reads as
follows:
This matter is before the ALJ upon Petition for Reconsideration filed by
the Defendant seeking a ruling on the compensability of medical expenses
incurred after December of 2015. Having reviewed the Petition, the response
thereto, and being otherwise sufficiently advised:
IT IS HEREBY ORDERED, that the Defendant's Petition is DENIED. The ALJ specifically ruled that ongoing reasonable and necessary
medical treatment shall remain compensable. The medical evidence upon whch the ALJ relied provides no basis for discontinuing
medical benefits as of December 2015.
Significantly, the ALJ did not
address KentuckyOne’s argument regarding the award of
TTD benefits.
On appeal, as in its petition for
reconsideration, KentuckyOne requests the award of
TTD benefits from the date of the injury through August 2016 be vacated, as
Gilbert was employed “[f]or the majority of, it not the entire, duration.” We
vacate the award of TTD benefits and remand for additional findings.
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 [MMI] from an injury and has
not reached a level of improvement that would permit a return to
employment.
The above definition has been determined by
our courts of justice to be a codification of the principles originally
espoused in W.L. Harper Construction Company v. Baker, 858 S.W.2d 202
(Ky. App. 1993), wherein the 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.
Id. at 205.
In Central Kentucky Steel v. Wise,
19 S.W.3d 657 (Ky. 2000), the Kentucky Supreme Court further explained that “[i]t would not be reasonable to terminate the benefits of an
employee when he is released to perform minimal work but not the type that is
customary or that he was performing at the time of his injury.” Id. at
659. In other words, where a claimant has not reached MMI, TTD benefits
are payable until such time as the claimant’s level of improvement permits a
return to the type of work he was customarily performing at the time of the
traumatic event.
In Magellan
Behavioral Health v. Helms, 140 S.W.3d 579 (Ky. App. 2004), the Court of
Appeals instructed that until MMI is achieved, an employee is entitled to a
continuation of TTD benefits so long as he or she remains disabled from his or
her customary work or the work he or she was performing at the time of the
injury. The Court in Magellan, supra,
stated:
In order to be entitled to temporary total disability benefits,
the claimant must not have reached maximum medical improvement and not have
improved enough to return to work.
. . .
The second prong of KRS 342.0011(11)(a) operates to deny
eligibility to TTD to individuals who, though not at maximum medical
improvement, have improved enough following an injury that they can return to
work despite not yet being fully recovered.
In Central Kentucky Steel v. Wise, [footnote omitted] the
statutory phrase ‘return to employment’ was interpreted to mean a return to the
type of work which is customary for the injured employee or that which the
employee had been performing prior to being injured.
Id. at 580-581.
In
Double L Const., Inc. v. Mitchell, 182 S.W.3d 509, 513-514 (Ky.
2005), with regard to the standard for awarding TTD benefits, 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.
More
recently, in Livingood v. Transfreight,
LLC, et, al., 467 S.W.3d 249 (Ky. 2015),
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.
Finally,
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
Supreme Court instructed as follows:
As we have previously held, “[i]t would not be reasonable to terminate the benefits of an
employee when he is released to perform minimal work but not the type [of work] that is customary or that he was performing at the time of his injury.” Central
Kentucky Steel v. Wise, 19 S.W.3d at 659. However, it is also not
reasonable, and it does not further the purpose for paying income benefits, to
pay TDD benefits to an injured employee who has
returned to employment simply because the work differs from
what she performed at the time of injury.
Therefore, absent extraordinary circumstances, an award of TDD benefits
is inappropriate if an injured employee has been released to return to
customary employment, i.e. work within her physical restrictions and for which
she has the experience, training, and education; and the employee has actually returned to employment. We do not attempt to
foresee what extraordinary circumstances might justify an award of TDD benefits
to an employee who has returned to employment under those circumstances;
however, in making any such award, an ALJ must take into consideration the
purpose for paying income benefits and set forth specific evidence-based
reasons why an award of TDD benefits in addition to the employee's wages would
forward that purpose.
Id. at 807.
In determining Gilbert’s entitlement to TTD
benefits, the ALJ was required to provide an adequate basis to support his
determination. Cornett v. Corbin Materials, Inc., 807 S.W.2d 56 (Ky.
1991). Parties are entitled to findings sufficient to inform
them of the basis for the ALJ’s decision to
allow for meaningful review. 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). While an ALJ is not required to engage in a
detailed discussion of the facts or set
forth the minute details of his reasoning in reaching a particular
result, he is required to adequately set forth the basic facts upon
which the ultimate conclusion was drawn so the parties are
reasonably apprised of the basis of the
decision. Big Sandy Community Action Program v. Chafins,
502 S.W.2d 526 (Ky. 1973).
Even though KentuckyOne
did not request additional findings in its petition for reconsideration on the
issue of the TTD benefits awarded, the ALJ’s analysis is deficient and fails to
provide any findings of fact and conclusions of law to reasonably apprise the
parties and this Board of his rationale for the award of TTD benefits. Clearly,
this Board cannot engage in fact-finding to support the ALJ’s decision. Indeed,
this Board is unable to determine how the ALJ arrived at his award of TTD
benefits. While we acknowledge the ALJ determined Gilbert reached MMI on July
1, 2017, the remainder of his analysis of Gilbert’s entitlement to TTD benefits
is comprised of two sentences. Thus, the requisite fact-finding necessary for
our review is absent.
Every analysis of TTD benefits must include
a four-prong discussion which addresses whether the employee has reached MMI,
whether the employee has been released to “customary employment” as defined by Trane
and the cases preceding it, whether the employee has actually returned to
customary employment, and, if so, whether “extraordinary circumstances” warrant
the payment of TTD benefits in addition to the worker’s regular wages. See Magellan; Trane at
807. Even though the ALJ is not required to set out the entire analytical
process in which he engaged, he must provide at least some of his reasoning. Outside
of determining the date Gilbert reached MMI, he has provided no basis for his
award of TTD benefits.
On remand, the ALJ must set forth a
complete and thorough analysis of Gilbert’s entitlement to TTD benefits
consistent with Trane, Livingood, et al. While this Board is cognizant of
the fact KentuckyOne is contesting only the award of
TTD benefits from the date of the injury through an unspecified day in August
2016, the analysis of TTD benefits is so lacking that it warrants additional
findings on any period of TTD
awarded. This is particularly true in light of Gilbert’s testimony that she
worked, albeit sporadically, after August 2016.
Accordingly, in the March 12, 2018, Opinion
and Order and the April 25, 2018, Order, the award of TTD benefits is VACATED. This claim is REMANDED for additional findings concerning
Gilbert’s entitlement to TTD benefits in accordance with the views set forth
herein.
ALL
CONCUR.
COUNSEL FOR PETITIONER:
HON
STEVEN L KIMBLER
3292
EAGLE VIEW LN STE 350
LEXINGTON
KY 40509
COUNSEL FOR RESPONDENT:
HON
JAMES HOWES
5438
NEW CUT RD STE 201
LOUISVILLE
KY 40214
ADMINISTRATIVE LAW
JUDGE:
HON
JONATHAN WEATHERBY
657
CHAMBERLIN AVE
FRANKFORT
KY 40601
