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Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: November 21, 2014
CLAIM NO. 201301650
SHERWIN WILLIAMS CO. PETITIONER
VS. APPEAL FROM HON. J. GREGORY ALLEN,
ADMINISTRATIVE LAW JUDGE
VIRGIL GARDNER AND
HON. J. GREGORY ALLEN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Sherwin
Williams Co. (“Sherwin”) appeals from the May 23, 2014 Opinion, Order and Award
and the July 1, 2014 Order on Petition for Reconsideration rendered by Hon. J.
Gregory Allen, Administrative Law Judge (“ALJ”). Sherwin argues the ALJ erred in awarding
temporary total disability (“TTD”) benefits to Virgil Gardner (“Gardner”) because
the issue of entitlement to TTD benefits was not preserved for
adjudication. Alternatively, Sherwin
argues Gardner is not entitled to TTD benefits during the period he performed
light duty work. Finding no error, we
affirm.
Gardner was employed by Sherwin as a
service technician, filling tanks with ingredients and mixing them. He injured his right leg on August 21, 2012
when he walked into a valve. He did not
miss work, but the wound developed a serious infection. He had difficulty walking, and the wound
would periodically swell and ooze. After
the incident, Gardner was placed on light duty, performing paperwork with his
leg elevated. He was released to full
duty work in January 2013, but only worked a few days before deciding to retire
because he did not feel he could perform his regular job duties.
The ALJ initially awarded TTD benefits
from August 21, 2012 through November 25, 2013, the date Dr. Arthur L. Hughes
assigned a permanent impairment rating.
Sherwin filed a petition for reconsideration arguing TTD was not
preserved as an issue. Additionally,
Sherwin argued Gardner was not entitled to TTD benefits during the period he
worked on light duty, and that the ALJ overlooked the fact Dr. John Meek had
placed Gardner at maximum medical improvement (“MMI”) in January 2013.
In his July 1, 2014 order, the ALJ
reaffirmed his ruling that the issue of entitlement to TTD benefits falls
within KRS 342.730 and was thus properly before the ALJ. The ALJ determined that, following the
injury, Gardner simply performed paperwork which clearly is not the type of
work he performed at the time of the injury.
The ALJ noted there was no evidence Sherwin intended the payment of
wages for work performed after the injury to be payment in lieu of workers’
compensation benefits. The ALJ found
Gardner had reached MMI as of January 14, 2013 and sustained the petition to
the extent the award was amended to reflect Gardner reached MMI and TTD
benefits would terminate on that date.
On appeal, Sherwin again argues the
issue of entitlement to TTD benefits was not preserved as a contested issue
because it was not specifically discussed or listed in the benefit review
conference order. Nor did Gardner argue
for TTD benefits in his brief to the ALJ.
Sherwin contends substantive evidence was not presented on the
issue. Thus, it argues the ALJ erred in
ruling entitlement to TTD benefits was contained within the issue of benefits
pursuant to KRS 342.730.
We disagree. The ALJ correctly determined entitlement to
TTD benefits is contained within the issue of benefits pursuant to KRS
342.730. KRS 342.730 addresses both TTD
benefits as well as permanent partial and permanent total disability
benefits. This Board has consistently
held questions regarding the appropriateness and duration of TTD benefits are
encompassed within the question of extent and duration.
KRS
342.0011(11)(a) defines TTD 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.
Thus,
entitlement to TTD benefits is controlled by a two-prong test. Both prongs of KRS 342.0011(11)(a) must be met before a claimant is entitled to TTD
benefits. Magellan
Behavioral Health v. Helms, 140 S.W.3d 579 (Ky. App. 2004). Here, the first prong is satisfied by the
ALJ’s determination Gardner reached MMI on January 14, 2013 and that
determination has not been appealed.
Regarding the second prong, in Central Kentucky Steel v. Wise, 19
S.W.3d 657, 659 (Ky. 2000), the Supreme Court explained 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). Until MMI is achieved, the employee is
entitled to a continuation of TTD benefits as long as he remains disabled from
his customary work or the work he was
performing at the time of injury.
We
decline to remand for additional findings regarding Gardner’s entitlement to
TTD benefits during this period, as his unrebutted testimony establishes he did
not return to his customary work or the work
he was performing when injured. Even
had the ALJ determined the post-injury light duty work was not “minimal work,” the Court of Appeals recently held a
claimant's ability to continue working for an employer in a light duty capacity
did not preclude an award of TTD benefits.
Mull v. Zappos.com, Inc., 2013-CA-001320-WC, 2014 WL 3406684,
(rendered July 11, 2014, designated not to be published and currently on appeal
to Supreme Court). The Court of Appeals
explained as follows:
The dispositive factor is always the worker's ability to perform
the pre-injury job. Finally, Williams indicates that Kentucky precedent
favors Mull's interpretation of the phrase “return to employment”: an employee
has achieved this level of improvement if, and only if, the employee can
perform the entirety of his or her pre-injury employment duties within
the confines of their post-injury medical restrictions.
We are cognizant
that this interpretation flies in the face of the plain meaning of the words
“totally disabled”; it narrowly defines otherwise broad language such as
“return to employment”; and, when applied in the context of a worker who is
capable of performing most pre-injury duties or pursuing some other employment
for equal wages and for an equal amount of hours each week, it would seem to
contradict the very purpose of awarding TTD, that 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.” Mitchell, 182 S.W.3d at 514. Be that as it
may, this interpretation is consistent with binding precedent and, whether we
agree with it or not, we are bound to follow it. It is the purview of the
Kentucky Supreme Court or the General Assembly to say otherwise.
While we do not cite unpublished
decisions as authority, we believe it wise to follow the guidance of the courts until such time as there is
final, published authority on the issue.
There being no evidence Gardner was capable of performing his pre-injury
duties during his return to work, Gardner was entitled to the award of TTD
benefits for that period.
Accordingly, the May 23, 2014 Opinion,
Order and Award and the July 1, 2014 Order on Petition for Reconsideration
rendered by Hon. J. Gregory Allen, Administrative Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON GREG RICHMOND
271 WEST SHORT STREET STE 100
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON MCKINNLEY MORGAN
921 SOUTH MAIN ST
LONDON, KY 40741
ADMINISTRATIVE
LAW JUDGE:
HON. J. GREGORY ALLEN
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
