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Workers’
Compensation Board
OPINION
ENTERED: April 1, 2016
CLAIM NO. 201464029
MARK POWERS, SR. PETITIONER
VS. APPEAL FROM HON. STEPHANIE KINNEY,
ADMINISTRATIVE LAW JUDGE
LOUISVILLE METRO GOVERNMENT
HON. STEPHANIE KINNEY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Mark
Powers, Sr. (“Powers”) appeals from the October 13, 2015 Opinion, Award and
Order and the December 1, 2015 Order on Petition for Reconsideration rendered
by Hon. Stephanie Kinney, Administrative Law Judge (“ALJ”). The sole question on appeal is whether the
ALJ erred in finding Powers is not entitled to a period of temporary total
disability (“TTD”) during the time he worked on restricted duty prior to
reaching maximum medical improvement (“MMI”).
We affirm.
The facts relevant to this appeal are
undisputed. Powers was employed by
Louisville Metro Government as an equipment operator. He injured his shoulder as a result of a work
accident on September 17, 2014. He
returned to work the next day on light duty as a flagger, and continued working
at the same wages until he went off work for surgery performed October 21,
2014. Prior to the injury, Powers
periodically performed work as a flagger as a part of his employment. Although flagging was frequently assigned as
alternative work for those with restrictions, it was a necessary position. Following surgery, Powers initially returned
to work picking up trash. This work was
not part of his regular employment.
Powers returned to flagging after three weeks and eventually returned to
regular duty.
The
ALJ determined Powers was paid his same rate of pay and the work he performed
as a flagger from September 17, 2014 through October 20, 2014 was a customary
job duty. Therefore, Powers was not
entitled to TTD benefits for that period.
The ALJ determined the post-operative work picking up trash was not part
of Powers’ pre-injury job duties and awarded TTD benefits for that period.
Powers
filed a petition for reconsideration arguing his work prior to the injury
primarily involved strenuous physical work and flagging was only a very limited
pre-injury job function. Thus, the work
as a flagger should not be viewed as his customary work and an award of TTD
benefits for the period from September 17, 2014 through October 20, 2014 is
warranted. In her order dated December
1, 2015, the ALJ reiterated that she found flagging was a customary job duty
performed at the time of the work injury.
The ALJ further noted flagging work was performed by all members of the
crew.
On
appeal, Powers again argues flagging should not be considered “customary
employment” because it constituted only a minimal portion of his pre-injury
work. The overwhelming majority of his
duties consisted of intense physical labor, from which he was restricted during
the period in question. Citing Livingood v. Transfreight, LLC, 467 S.W.3d 249
(Ky. 2015), Powers notes an ALJ has discretion to evaluate the work performed
and determine whether or not it constitutes a return to the claimant’s
“customary” work duties.
The
Supreme Court recently clarified when TTD benefits may be awarded in cases
where an employee returns to modified duty prior to reaching MMI. In Trane Commercial Systems v. Tipton,
--- S.W.3d --- 2016 WL 671170 (Ky. 2016), the Court explained as follows:
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.
Applying the
preceding to this case, we must agree with the ALJ that Tipton was not entitled
to TTD during the period in question.
Tipton's physician released her to perform light and sedentary work,
which Trane provided for her. Additionally, although Tipton had not previously
assembled circuit boards, she had assembled the air conditioning units and had
tested them. Furthermore, she did not produce any evidence that assembling
circuit boards required significant additional training or that it was beyond
her intellectual abilities. In fact, it
appears that Tipton was certainly capable of and wanted to perform the circuit
board assembly job because she bid on and was awarded the job after her release
to full-duty work. Thus, there was ample
evidence of substance to support the ALJ's denial of Tipton's request for
additional TTD benefits, and we reverse the Court of Appeals.
Here,
Powers was not at MMI from the work injury prior to his surgery. He was released to light duty and the
flagging work was within his restrictions.
Powers did not have a loss in earnings.
Powers had previously performed flagging duties, although it was not his
primary duty. Flagging was not a “make
work” job duty, though no prior training was necessary. Substantial evidence supports the ALJ’s
conclusion that the flagging work from September 17, 2014 through October 20,
2014 constitutes “customary” employment.
Further, Powers identifies no “extraordinary circumstances” that would
justify an award of TTD benefits while he was engaged in the customary
employment from September 17, 2014 through October 20, 2014. Thus, Powers is not entitled to TTD benefits
for that period. The ALJ’s decision
comports with the holding in Trane Commercial Systems v. Tipton, supra. We are therefore without authority to
direct a different result. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
Accordingly,
the October 13, 2015 Opinion, Award and Order and the December 1, 2015 Order on
Petition for Reconsideration rendered by Hon. Stephanie Kinney, Administrative
Law Judge, are hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON CHED JENNINGS
401 WEST MAIN ST #1910
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON PETER GLAUBER
400 W MARKET ST #2300
LOUISVILLE, KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON STEPHANIE KINNEY
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
