*/
Workers’
Compensation Board
OPINION
ENTERED: July 15, 2016
CLAIM NO. 201292724
CHERYL STOTTS PETITIONER
VS. APPEAL FROM HON. R. SCOTT
BORDERS,
ADMINISTRATIVE LAW JUDGE
MURAKAMI MANUFACTURING USA
DR. YORELL MANNON-MATOS,
HON. R. SCOTT BORDERS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING IN PART,
VACATING IN PART, &
REMANDING
* * * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Cheryl Stotts (“Stotts”) appeals from the Opinion
and Order on Remand rendered March 3, 2016 by Hon. R. Scott Borders,
Administrative Law Judge (“ALJ”) awarding temporary total disability (“TTD”)
benefits, permanent partial disability (“PPD”) benefits for a left upper
extremity injury, dismissal of PPD benefits for a right upper extremity injury,
and medical benefits for injuries sustained on March 5, 2012 (right upper
extremity) and June 6, 2012 (left upper extremity) while working for Murakimi
Manufacturing USA (“MMU”). Stotts also
appeals from the March 30, 2016 order sustaining MMU’s petition for
reconsideration amending the duration of her TTD benefits.
On
appeal, Stotts argues the ALJ erred in not awarding TTD benefits from October
19, 2013 to April 25, 2014. We note the
ALJ, in his opinion on remand, performed the analysis directed by the Board in
our decision entered October 21, 2015.
However, he failed to provide an analysis supporting the modification of
the award of the second period of TTD benefits in the order on reconsideration
issued March 30, 2016.
In
the March 3, 2016 decision on remand, the ALJ awarded TTD benefits from May 29,
2012 through August 1, 2012 and again from October 31, 2012 through April 25,
2014. In the order section of that
decision, he indicated the initial period of TTD was payable through August 11,
2012. In the order on remand, the ALJ
corrected this to reflect August 1, 2012 as the correct date of termination of
the first period of TTD benefits awarded.
With this we have no quarrel, and affirm. Likewise, in the order on
reconsideration, the ALJ changed the beginning date of the second period TTD
benefits from October 31, 2012 to March 1, 2013. This change was not appealed and we again
have no quarrel with the ALJ’s finding on this issue, and affirm. However, in the order on reconsideration, the
ALJ changed the ending date of the second period of TTD benefits from October
18, 2013 to April 25, 2014 without providing an analysis or reason for doing
so. He specifically made no findings
supporting this change, other than parenthetically noting she had obtained a
new job earning the same or higher rate of pay.
Therefore we must vacate in part the order on the reconsideration issued
March 30, 2016, and remand for an appropriate determination of the ending date
of the second period of TTD benefits which complies with the recent decisions
of the Kentucky Supreme Court in Livingood
v. Transfreight, LLC, et. al.,
467 S.W.3d 249 (Ky. 2015) and Trane Commercial Systems v. Delena Tipton,
481 S.W.3d 800, (Ky. 2016).
Stotts filed a Form 101 on April 1, 2013 alleging she experienced
pain, numbness and tingling in her right arm, wrist, elbow and hand manifesting
on March 5, 2012, while she was working on the assembly line at MMU. Stotts also alleged a left shoulder overuse injury on June 6, 2012 due to working while on light
duty. The evidence introduced during the claim was
previously summarized in the decision rendered by this Board on October 2, 2015
and will not be reviewed again.
In
an Opinion, Order & Award of Interlocutory Relief rendered November 13,
2013, the ALJ determined Stotts sustained a right upper extremity injury on
March 5, 2012. He also determined she
sustained a left shoulder strain and adhesive capsulitis due to the June 6,
2012 injury. The claim was placed in
abeyance, and TTD benefits were awarded subject to credit for unemployment
benefits. The ALJ also authorized the
right cubital tunnel release surgery recommended by Dr. Yorrell Manon-Matos.
In
an Opinion, Order and Award rendered May 8, 2015, the ALJ awarded TTD benefits
from May 29, 2012 through April 25, 2014.
He additionally awarded PPD benefits based upon a 5% impairment rating
for the right upper extremity, and 2% for the left upper extremity, both
assessed by Dr. Warren Bilkey. The ALJ
also determined Stotts is entitled to medical benefits for both the right and
left upper extremity injuries pursuant to KRS 342.020.
MMU
appealed the ALJ’s decision regarding the awards of both TTD and PPD
benefits. In our decision rendered
October 2, 2015, this Board determined the ALJ could rely upon the impairment
rating assessed by Dr. Bilkey for the left upper extremity condition, but not
the rating assessed for the right upper extremity because at the time he saw
her she had not undergone surgery, and had not reached maximum medical
improvement (“MMI”). This Board also
determined the ALJ’s analysis regarding entitlement to TTD benefits was
insufficient.
On
remand, the ALJ rendered an amended decision on March 3, 2016. He determined the only impairment rating for
the right upper extremity assessed subsequent to Stotts having reached MMI was the
0% by Dr. Matos. He therefore dismissed
her claim for PPD benefits for the right upper extremity injury.
The
ALJ also performed a more complete analysis regarding the award of TTD
benefits, specifically finding as follows:
In their Opinion, the Board also held that
the undersigned Administrative Law Judge’s one sentence analysis regarding the
award of TTD benefits was insufficient to advise the parties in [sic] this
Board of the basis of the remand and the ALJ must engage in the two prong
analysis outlined in the Board’s opinion during the time periods in question,
and support his ultimate conclusion of whether Stotts was able to return to the
type of work which is customary for her or which she had been performing prior
to her injuries from the evidence of record.
The Administrative Law Judge will now
engage in the two prong analysis outlined by the Board in regards to the
Plaintiff's entitlement to TTD benefits for the periods in question.
KRS 342.0011(11)(a) defines temporary total
disability as meaning, "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 the case of W. L. Harper Construction Company vs. Baker, 858 SW2d 202 (KY App.
1993), the Court held that [sic], to TTD is a question of fact. The Court said [sic]further
set forth a two prong test for establishing entitlement to TTD benefits under
this statute. The TTD benefits are payable as long as (1) maximum medical
improvement has not been reached and (2) the injury is not reached a level of
improvement that would permit a return to employment.
In Halls
Hardwood Floor Company vs. Stapleton, 165 SW 3d 327 (Ky. App. 2000), the
Court initially defined MMI is [sic] occurring when the medical evidence
establishes the recovery process, including any treatment reasonably rendered
in an effort to improve the claimant's condition, is over.
In Central
Kentucky Steel vs. Wise, 19 SW 3d 657 (KY 2000), the Supreme Court held that termination of
TTD benefits should not solely be based upon whether a physician has provided a
release to work, but rather the release must be viewed in light of the
employees’ prior work activities. The Court found that until MMI is achieved
the employee is entitled to a continuation of TTD benefits so long as he or she
remains disabled from his customary work or the work he was performing at the
time of the injury.
In this specific instance, the
Administrative Law Judge notes that the Plaintiff testified in her first
deposition that she worked light-duty through June 6, 2012, primarily sweeping
with one arm and occasionally stocking the line with parts still using only one
arm. She also testified that while working light-duty, she actually tried to
clean but then she returned to regular duty without restrictions and was taken
off the assembly line. She did admit to performing regular duty between August
of 2012 and October of 2012, but from June 2012 through August of 2012 all she
did was pick up trash.
Therefore, in this specific instance
Administrative Law Judge finds that the Plaintiff was temporarily and totally
disabled from May 29, 2012, through August 1, 2012, and then again from October
31, 2012, through April 25, 2014. In so finding, the Administrative Law Judge
believes that the Plaintiff's testimony is sufficient to indicate to him that
while she may have been working for the Defendant/Employer during the
aforementioned time periods she was doing so at light-duty work which was not
her usual and customary work therefore entitling her to TTD benefits.
AUTHORITIES
KRS 342.0011 (11)(a)
Central Kentucky Steel vs. Wise, 19 SW 3d 657 (KY 2000)
W. L. Harper Construction Company
vs. Baker, 858 SW2d
202 (KY App. 1993)
Halls Hardwood Floor Company vs.
Stapleton, 165 SW 3d
327 (Ky. App. 2000)
ORDER
IT IS HEREBY ORDERED AND ADJUDGED AS
FOLLOWS:
The Plaintiff, Cheryl Stotts[sic] claim
against the Defendant/Employer, Murakimi Manufacturing, USA, and/or their
insurance carrier for permanent partial disability benefits arising out of a
March 5, 2012, right shoulder injury, shall be and the same is hereby
DISMISSED.
The Plaintiff, Cheryl Stotts, shall recover
from the Defendant/Employer, Murakimi Manufacturing, USA, and/or their
insurance carrier, TTD benefits payable at the rate of $300.31 per week
commencing May 29, 2012, and continuing through August 11, 2012, recommencing
October 31, 2012, and continuing through April 25, 2014, together with interest
at the rate of 12% per annum on all due and unpaid installments of said
compensation, with the Defendant/ Employer taking credit for benefits
previously paid by them.
All other matters previously addressed in
the Opinion and Award of May 8, 2015, that are not inconsistent with the
findings and rulings set forth in this order, are incorporated herein by
reference.
MMU
filed a petition for reconsideration on March 14, 2016 arguing the ALJ
committed a patent error regarding the award of TTD benefits. It asserted his finding in the analysis
section of the decision was inconsistent with the order section, and requested
this error be remedied. MMU also argued
the ALJ failed to grant a credit for any overlapping period of unemployment
benefits received. MMU also argued the
ALJ erred in awarding TTD benefits from October 31, 2012 through March 1, 2013,
the date she was terminated, because she continued to earn wages during this
time period while working on light duty.
MMU requested an analysis of entitlement to TTD during this period of
time pursuant to Trane Commercial Systems v. Tipton, supra. Finally, MMU argued the ALJ erred by awarding
TTD benefits for the period from October 19, 2013 through April 25, 2014 when
she was working for another employer.
In
sustaining MMU’s Petition for Reconsideration, the ALJ amended his decision as
follows:
The Plaintiff, Cheryl Stotts, shall recover
from the Defendant/Employer, Murakami Manufacturing USA, Inc, and/or their
insurance carrier, TTD benefits payable at the rate of $300.31 per week
commencing on May 29, 2012, and continuing through August 1, 2012 (date
Plaintiff returned to work full duty for the Defendant/Employer), and then
again from March 1, 2013 (date she was terminated by the Defendant/Employer)
through October 18, 2013 (date she began working for a subsequent employer
earning same/greater wages). TTD
benefits are payable together with an interest at the rate of 12% per annum on
all due and unpaid installments [sic] of said benefits with the
Defendant/Employer taking credit for benefits credit for benefits [sic]
previously paid by them, and taking credit for any unemployment benefits that
overlap any payments of TTD herein.
Although the ALJ performed
the analysis previously directed by this Board, he did not provide findings of
fact, analysis, or explanation which allow for meaningful review of his modification
of the end date for the second period of TTD benefits in the order on reconsideration. Big Sandy Community Action Program v.
Chafins, 502 S.W.2d 526 (Ky. 1973); New Directions Housing Authority v.
Walker, 149 S.W.3d 354 (Ky. 2004).
As we noted previously,
and as cited by the ALJ in his decision on remand, 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.
In Livingood v. Transfreight, LLC, et al., supra, the
Kentucky Supreme Court addressed the ALJ’s denial of Livingood’s request for
additional TTD benefits during the period he had returned to light duty work by
stating, “Except for bathroom monitoring, Livingood had performed the other
activities before the injury; further they were not a make-work project.” The Court specifically stated as follows:
As
the Court explained in Advance Auto Parts
v. Mathis, No. 2004-SC-0146-WC, 2005 WL 119750, at (Ky. Jan. 20, 2005), and
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." Livingood
had the burden of proof on the issue. Where the ALJ finds against the party
with the burden of proof, the standard of review on appeal is whether the
evidence compelled a contrary finding. FEI
Installation, Inc. v. Williams, 214 S.W.3d 313 (Ky. 2007). The Board and
the Court of Appeals were not convinced that it did. Nor are we. "The function of further review in our Court is to
address new or novel questions of statutory construction, or to reconsider
precedent when such appears necessary, or to review a question of
constitutional magnitude." Western
Baptist v. Kelly, 827 S.W.2d 685, 688, 39 4 Ky. L. Summary 54 (Ky. 1992).
(Emphasis
added).
Id.
at 254-255.
More recently, in Trane
Commercial Systems v. Tipton, supra, the Kentucky Supreme Court
again addressed whether an employee was entitled to TTD benefits upon returning
to light duty work prior to reaching MMI.
The Court first noted:
“‘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 342.0011(11)(a).
Or, to put it positively, an employee is entitled to receive TTD benefits until
such time as she reaches maximum medical improvement (MMI) or has improved to
the point that she can return to employment. There is no dispute that Tipton
reached MMI on July 7, 2011. However, the parties dispute whether Tipton
reached the point that she could “return to employment” when she returned to
work for Trane assembling
circuit boards. The ALJ and the Board
concluded that her return to work and return to employment occurred at the same
time. As noted above, the Court of Appeals disagreed. For the reasons set forth
below, we disagree with the Court of Appeals.
Id.
at 803
The Court additionally
stated the following:
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 ALJ 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.
Id. at 807
That said,
the modification of the award of the second period of TTD benefits in the order
on reconsideration is hereby vacated.
While Stotts may have indeed began working for a different employer
after October 18, 2013, nothing in Trane
Commercial Systems v. Tipton, supra, mandates
the ALJ terminate her TTD benefits on that date. That case does not compel or mandate a
termination of TTD benefits. It merely
establishes the ALJ must perform an appropriate analysis of entitlement to such
benefits. In this instance, the ALJ’s
order on reconsideration is completely bereft of any analysis to support his
modification of the termination date of the second period of TTD benefits. On remand, the ALJ must determine, based upon
the evidence, the appropriate ending date of the second period of TTD benefits
awarded in consideration of the direction of the Kentucky Supreme Court in Livingood v. Transfreight, LLC, et al., supra, and Trane Commercial Systems v. Tipton, supra.
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 analysis and findings.
Accordingly, the Amended
Opinion and Order on Remand rendered March 3, 2016, and the March 30, 2016
Order on Reconsideration issued by Hon. R. Scott Borders, Administrative Law
Judge,
are hereby AFFIRMED IN PART, and VACATED
IN PART. This claim is REMANDED for a more detailed analysis of
Stotts’ entitlement to TTD benefits and the appropriate award in conformity
with the views expressed herein.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON WAYNE C DAUB
600 WEST MAIN ST, STE 300
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT MURAKAMI MFG:
HON JOEL W AUBREY
HON BRIAN D WIMSATT
303 NORTH HURSTBOURNE PKWY, STE 110
LOUISVILLE, KY 40222
RESPONDENT:
DR YORELL MANNON-MATOS
225 ABRAHAM FLEXNER WAY
LOUISVILLE, KY 40202
CHIEF
ADMINISTRATIVE LAW JUDGE:
HON ROBERT L SWISHER
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
