Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: September 26, 2014
CLAIM NO. 201285293
TOYOTA MOTOR MANUFACTURING PETITIONER
KENTUCKY, INC.
VS. APPEAL FROM HON. STEPHEN G. BOLTON,
ADMINISTRATIVE LAW JUDGE
JASON TUDOR
and
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER, Member. Toyota Motor Manufacturing Kentucky, Inc. (“Toyota”) appeals from the March 28, 2014 Opinion, Award and Order and the May 20, 2014 Order rendered by Hon. Stephen G. Bolton, Administrative Law Judge (“ALJ”), awarding Jason Tudor (“Tudor”) permanent partial disability benefits, temporary total disability (“TTD”) benefits, and medical benefits. Toyota argues the claim is barred by the statute of limitations, the ALJ erred in awarding TTD benefits from May 12, 2010 to September 15, 2010, and erred in enhancing the permanent partial disability benefits by the three multiplier. We disagree and affirm.
Tudor filed his claim on May 18, 2012
alleging he sustained a low back injury on March 23, 2010 as a result of
cumulative trauma. He also alleged a
sudden onset of low back pain on December 23, 2010, and continued back pain and
repeated cumulative trauma with onset on April 16, 2012. Tudor alleged the injuries produced disc
herniations at L4-5 and L5-S1.
Tudor testified by deposition on July
6, 2012 and at the hearing held January 28, 2014. At the time of his March 2010 injury, Tudor
was working on the Trim II A1-220 “process” which involved various jobs,
including installing brakes, gas pedals, and master cylinders, and attaching
brake lines and wiring. On March 23,
2010, Tudor was pulling and routing wires when he felt a strain, pulling and
tightness in his back. He reported the
incident to his group leader who completed a report of injury and sent him to
Internal Health Services (“IHS”). IHS
placed him on restrictions, ordered physical therapy at the plant, took him off
the line at work, and sent him to a chiropractor. In his deposition, Tudor indicated he did not
perform any actual work for more than two weeks following this injury. He had to report for work, but mainly just
“stood around” while he was on restricted duty.
At the hearing, Tudor indicated he would report to Mickey Payne for his
daily assignment. He did not have a
regular assignment. At times, he would
be placed at the end of the line to check brake tubes, pull pieces of plastic
off cars, or be placed in a pit to check for leaks. Tudor stated there was no similarity between
the production line work he performed at the time of injury and the work he was
assigned while on restricted duty. This
period of restricted duty lasted until Dr. Maria M. Reyes released Tudor to
return to work without restrictions on September 28, 2010.
Tudor reinjured his back on December
23, 2010, when his back “locked up” while performing the master cylinder
job. He reported the injury and was sent
to IHS. Tudor was placed on
restrictions, sent home, and directed to see his chiropractor. The factory was on shutdown the following
week. When he returned to work following
the shutdown, Tudor was on 100% restricted duty. He was paid his full wages for showing up and
doing assignments from January through April or May 2011. Dr. Steven P. Kiefer and IHS placed him on
the I.P. line because he could not perform his previous tasks. This line is a stand-up job involving routing
wires and “shooting” nuts, bolts and screws.
Tudor testified he was never informed by Toyota’s medical personnel that
he had disc herniations. Instead, he was
told he had some disc bulging.
Jennifer Lyons, senior claims
representative at Mitsui Sumitomo Marine Management (“MSMM”), testified by
deposition on May 1, 2013. MSMM is the
third party administrator for Toyota, which is self-insured. Lyons indicated she did not initially see
Tudor’s file because he did not miss work and his case was processed as a
medical-only file. A first report of
injury is filed if an employee misses two or more days of work. Lyons did not believe she was required to
file a first report in instances where a worker shows up and is paid wages,
even though he or she is not at maximum medical improvement and unable to
perform the type of work done at the time of injury. Therefore, because Tudor reported no lost
time, no first report was filed.
Lyons further testified the March 23,
2010 claim was denied as barred by the statute of limitations. The December 23, 2010 claim was denied as not
work-related. The April 16, 2012 claim
was denied and a first report of injury was filed for that injury because it
could not be determined that work was the proximate cause of Tudor’s
complaints. Lyons acknowledged Tudor initiallymissed
a few days, and later a week and a half due to the 2012 injury, but no first
report of injury was filed.
The bulk of the medical evidence
consisted of IHS records. Tudor was
initially treated at the Toyota clinic on May 12, 2010 for low back pain. Dr. Reyes diagnosed sprain/strain of the
back. She assigned restrictions of no
bending greater than thirty degrees or repetitive twisting at the waist, and no
lifting, pushing or tugging greater than ten pounds. These restrictions remained unchanged until
August 30, 2010. X-rays taken on June
11, 2010 revealed minimal disc space narrowing at L4-5 and L5-S1. In July 2010, Dr. Reyes obtained MRI results,
which revealed disc herniations at L4-5 with mild abutment of the descending L5
nerve roots and a disc protrusion at L5-S1.
Dr. Reyes did not change the diagnosis of back sprain/strain, and there
is no indication Tudor was informed of the herniations. Tudor was released to return to regular duty
on September 14, 2010.
Following the December 23, 2010
injury, Tudor was placed on restrictions of no lifting, pushing or tugging
greater than two pounds, no line paced activity, and sit/stand as needed. On March 3, 2011, Dr. Jessa Peace assigned
indefinite restrictions of no repetitive getting in and out of cars with
twisting at the waist. Tudor was
released for regular duty on August 29, 2011 and returned to restricted duty on
November 1, 2011 through January 6, 2012.
Tudor was taken off work for several days in April, 2012. On April 27, 2012, Tudor was directed to work
one hour of regular duty followed by one hour of restricted duty for one week
then return to regular duty.
Tudor submitted the July 8, 2010 MRI
report of Lexington Diagnostic Center & Open MRI revealing disc herniations
at L4-5 and L5-S1.
Dr. Steven P. Kiefer treated Tudor on
August 13, 2010 on referral from Dr. Reyes.
Dr. Kiefer stated an MRI revealed a central annular tear and some disc
bulging. He diagnosed degenerative disc
disease which may have flared up in the heavy work setting. He saw Tudor again on January 7, 2011 and
placed him on light duty. On February
18, 2011, Dr. Kiefer recommended Tudor be moved to a different line or activity
to allow him to heal.
Dr. John J. Guarnaschelli performed an
independent medical evaluation (“IME”) on August 13, 2012. He indicated Tudor had “a painful lumbar disk
entity” and mechanical low back pain with clinical and radiographic evidence of
multilevel lumbar spondylosis and degenerative changes. The initial MRI revealed lumbar disc
abnormalities at L4-5 and L5-S1. He
opined the initial onset of symptoms beginning on March 23, 2010 represented an
exacerbation of a pre-existing dormant condition with subsequent re-injury. He found no pre-existing active condition. He advised Tudor to avoid extremes of heavy
lifting, repetitive bending, or overhead work.
Dr. Guarnaschelli assigned a 5% impairment pursuant to the American
Medical Association Guides to the Evaluation of Permanent Impairment, 5th
Edition (“AMA Guides”).
After a thorough recitation of the
evidence and the arguments of the parties, the ALJ found Tudor had relied upon
the representations of the in-house medical system and was apparently
misinformed as to the true nature of his injury. As a result, he was not compelled to
aggressively seek outside opinions. The
ALJ indicated he believed this case is governed by Toyota Motor
Manufacturing Inc. v. Czarnecki, 41 S.W.3d 868 (Ky. App. 2001) wherein the
Court of Appeals held the statute of limitations was tolled where IHS had
informed the employee his condition had resolved. The ALJ noted that here, unlike in Czarnecki,
Tudor had not been informed his condition had resolved. Rather, Tudor was not informed that he
suffered from two possibly herniated discs, a condition Toyota was aware of in
July, 2010. The ALJ observed that, had
Tudor received a timely referral and other appropriate medical treatment, he
may not have suffered the subsequent exacerbations of the condition. Based upon the failure of the IHS physicians
to disclose to Tudor the full extent of his injury, the provision of full
employment tailored to his restrictions, and continous treatment by Dr. Reyes
and temporary chiropractic relief, the ALJ determined Tudor was lulled into
believing he was improving. The ALJ
noted Tudor was not informed he might be eligible for workers’ compensation
benefits. Rather, he was informed his
symptoms were not work-related.
The ALJ also found Tudor performed
minimal activities while under restrictions from Dr. Reyes following the March
2010 injury. Tudor’s testimony was
uncontradicted that Toyota never hired workers in the competitive labor market
to perform these activities. The ALJ
determined Tudor was temporarily totally disabled as defined in KRS
342.0011(1)(a), yet Toyota failed to file reports with the Department of
Workers’ Claims as required by KRS 342.040(1).
Accordingly, the ALJ ruled the failure to file the reports tolled the
statute of limitations.
The ALJ further determined Tudor sustained
an injury as defined by the Act on March 23, 2010, with subsequent cumulative
exacerbations caused by his work. He
awarded permanent partial disability benefits enhanced by the three multiplier
pursuant to KRS 342.730(1)(c)1. Finally,
the ALJ determined Tudor was entitled to TTD benefits from May 12, 2010 through
September 15, 2010, and from December 24, 2010 until April 1, 2011. The ALJ determined Tudor was not engaged in
“legitimate employment” for these periods.
Toyota’s petition for reconsideration raising essentially the same
arguments it makes on appeal was denied by order dated May 20, 2014.
On appeal, Toyota first argues Tudor’s
claim is barred by the statute of limitations.
Toyota argues it had no obligation to file a first report of injury
because Tudor did not miss more than one day of work prior to the expiration of
the two year statute of limitation.
Although he had periods of flare-ups, he was placed on restricted duty
and continued to work on a regular and sustained basis. Toyota also takes issue with the ALJ’s
factual determination that Tudor was misinformed about his diagnosis by
physicians at IHS. It argues this
determination is erroneous, and not a proper basis to equitably toll the
statute of limitations.
Next, Toyota argues the ALJ
erroneously awarded TTD benefits from May 12, 2010 to September 15, 2010, and
from December 24, 2010 until April 1, 2011.
It notes the purpose of TTD benefits is to replace lost wages during the
healing process. Because Tudor had no
lost wages during the periods in question and was engaged in suitable
employment for which he had training, he is not entitled to TTD benefits. Because the TTD
and statute of limitations issues are intertwined, we will first address the
TTD issue. 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 (Ky. 2000), the Supreme Court of Kentucky
established how the statutory definition is to be interpreted and applied in
determining the duration of any appropriate award of TTD benefits. In Wise,
the employer argued KRS 342.0011(11)(a) required termination of TTD benefits as
soon as an injured worker is released to perform any type of work. Relying upon
the plain language of KRS 342.0011(11)(a), the Supreme Court 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 that is customary or that he was
performing at the time of his injury.” Id. at 659.
Thus, a release “to perform minimal work” does not constitute a “return
to work” for purposes of KRS 342.0011(11)(a).
Following the March 23, 2010 injury,
Tudor was not performing his usual or customary employment. He had no actual position but rather
performed whatever tasks his supervisor could come up with for several weeks. He clearly was incapable of performing the
type of work he was doing when he was injured.
Substantial evidence supports the ALJ’s conclusion Tudor was entitled to
TTD benefits from May 12, 2010 through September 15, 2010.
Toyota is correct that Tudor was not
absent from work and thus the reporting requirement of KRS 342.038 was not
triggered. However, this case turns upon
the reporting requirements of KRS 342.040.
That provision requires an employer who fails to make TTD payments when
due to notify the Commissioner. Toyota believes
the reporting requirements of KRS 342.040 are not triggered and it is not
required to file a first report of injury if it chooses to keep an employee on
restricted duty and pay wages in excess of the TTD benefit amount. The statute refers to benefits being payable
when disability exceeds seven days.
Certainly the absence from work as a result of an injury is evidence of
disability. However, an individual who
has not reached a level of improvement that permits a return to his customary
or usual employment is under a disability.
If that disability extends for more than seven days, TTD benefits are
payable, triggering the employer’s responsibility to notify the commissioner
pursuant to KRS 342.040(1). Toyota’s
failure to notify the commissioner of its refusal to pay TTD benefits resulted
in Tudor not receiving notice of his right to prosecute his claim. The ALJ correctly determined the statute of
limitations is tolled by the failure to notify the Department TTD benefits were
not being paid.
The ALJ also believed the statute of
limitations should be tolled for equitable reasons, a conclusion which Toyota
also challenges. In Czarnecki,
the claimant was told by the employer’s in-house physician that her “injuries
had resolved” prior to the 1996 injury which was the basis of her claim. Id. at 872. Under those limited facts, the Kentucky Court
of Appeals determined that an employer “is bound by the statements of the physicians it employs to tend its
workers, and that [the claimant] was
entitled to rely on the judgment of the [in-house] physicians when she elected
not to file a claim prior to the 1996 injury.”
Id. Because the
in-house physician employed by Toyota was involved in advising the claimant
that she was “fully healed,” the Court held, as a matter of equity, that the
applicable statute of limitations under KRS 342.185 was tolled. Id.
In this case, IHS staff led Tudor to
believe he had bulging discs resulting from non-work-related causes. Despite possession of the MRI results indicating
disc herniations, there is no evidence Tudor was properly informed by the IHS
staff of his true condition. The facts
of the present case are sufficient for the ALJ to find the equitable remedy of
tolling the statute of limitations was warranted. Even if we were to conclude the ALJ drew
improper inferences from the evidence regarding Tudor being lulled into
thinking he did not need to file a claim or that the misdiagnosis resulted in
his not seeking outside treatment, such would constitute harmless error since
the violation of KRS 342.040 reporting requirements alone was a sufficient
basis to toll the statute of limitations.
For
its final argument, Toyota contends the ALJ erroneously awarded the three
multiplier and failed to perform an appropriate analysis pursuant to Fawbush
v. Gwinn, 103 S.W.3d 5 (Ky. 2003).
We do not believe a Fawbush analysis is required in this
instance, and ALJ Bolton’s application of the three multiplier found in KRS
342.730(1)(c)1 was not in error. The
record contained substantial evidence that Tudor was not capable of performing
the type of work he performed at the time of the injury. Here, the wage information does not establish
a return to work at an average weekly wage equal to that earned at the time of
Tudor’s injury. At the time of the
hearing, Tudor was earning a greater hourly wage than that earned at the time
of the injury. However, there is
insufficient evidence to establish he was earning the same or greater average
weekly wage. Significantly, the average
weekly wages stipulated for the December 2010 and April, 2012 injuries are less
than the average weekly wage at the time of the March 2010 injury. A Fawbush analysis
is only required where the facts establish both KRS 342.730(1)(c)1 and 2 could
apply. In this instance, a Fawbush
analysis was not required, and the determination of the application of the
three multiplier will not be disturbed.
Accordingly, the March 28, 2014 Opinion, Award and Order and the May 20, 2014 Order rendered by Hon. Stephen G. Bolton, Administrative Law Judge, are AFFIRMED.
STIVERS,
MEMBER, CONCURS.
ALVEY, CHAIRMAN, CONCURS AND FILES A
SEPARATE OPINION.
ALVEY, CHAIRMAN. I agree
with the majority decision regarding the statute of limitation being tolled by
Toyota’s actions pursuant to Toyota Motor Manufacturing v. Czarnecki, 41
S.W.3d 868 (Ky. App. 2001). I also agree
the subsequent determination of entitlement to TTD benefits tolls the
applicable statute of limitations.
Likewise, I agree the KRS 342.038 reporting requirement was not
triggered. Therefore, the reporting
requirement of KRS 342.040 was likewise not triggered.
However, merely because it is subsequently determined an injured
worker is entitled to TTD benefits, such determination cannot be
retrospectively applied to determine the employer violated the reporting
requirements of a statute. While I agree
with the result in this case, I disagree with the retrospective inference
Toyota violated the reporting requirements of the statute. In all other respects, I concur.
COUNSEL
FOR PETITIONER:
HON KENNETH J DIETZ
1511 CAVALRY LN STE 201
FLORENCE, KY 41042
COUNSEL
FOR RESPONDENT:
HON BENNETT CLARK
851 CORPORATE DR STE 310
LEXINGTON, KY 40503
ADMINISTRATIVE
LAW JUDGE:
HON STEPHEN G BOLTON
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601