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March 3, 2017 201463884

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  March 3, 2017

 

 

CLAIM NO. 201463884

 

 

ABF FREIGHT SYSTEM, INC.                       PETITIONER

 

 

 

VS.          APPEAL FROM HON. R. ROLAND CASE,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

DAVID R. MAHAN

and HON. R. ROLAND CASE,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING IN PART, VACATING IN PART,

AND REMANDING

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

STIVERS, Member. ABF Freight System, Inc. (“ABF”) appeals from the September 6, 2016, Opinion, Award, and Order and the October 17, 2016, Order overruling ABF’s Petition for Reconsideration of Hon. Roland Case, Administrative Law Judge (“ALJ”). In the September 6, 2016, Opinion, Award, and Order, the ALJ awarded David Mahan (“Mahan”) temporary total disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits, and medical benefits.

On appeal, ABF asserts the award of TTD benefits should be reversed. We affirm in part, vacate in part, and remand for additional findings.

The Form 101 alleged on October 7, 2014, Mahan sustained work-related injuries to his right shoulder and right upper extremity while “tying up a rope.”

On March 14, 2016, Mahan filed a “Motion to Amend Form 101” seeking to amend the Form 101 to include an additional injury date of November 13, 2014, as a second injury to his right shoulder and right upper extremity. Mahan’s motion was sustained by order dated March 28, 2016.[1]

Mahan testified at a March 7, 2016, deposition. At that time, he was still working for ABF.  On October 7, 2014, Mahan’s job duties included loading freight. He testified as follows:

Q: Okay. And physically, what do you have to do? Do you have to lift stuff?

 

A: Yeah. Yeah, lift it.

 

Q: Do you use a pallet jack or - -

A: A forklift, boxes, mattresses, dock plates, decking bars, tables. Yeah, just basic dock stuff.

 

Q: Okay. What’s the heaviest thing you have to lift for that job that you were injured at in October of 2014?

 

A: Oh, I’d say it was - - it was just, like, not really lifting, but, I mean, a crate tied to the wall. It was a sign. It was expensive, so they tie all of their freight up. They don’t - - so it’s stable.

 

Q: Yeah. Do you ever have to lift 80 pounds?

 

A: Yeah. Yeah. Yeah. Uh-huh. Yes.

 

Q: What’s the heaviest thing you’d have to lift?

 

A: It depends. I mean, if you have to lift anything more than that, I can put it on the forklift, you know, pretty much-

 

                  

After the injury, Mahan returned to light duty work. Mahan believed he underwent surgery on December 3, 2014:[2]  He testified that after his surgery, he was “off for a month” and then released to light duty work.

Mahan was deposed again on June 9, 2016, and testified that after the October 7, 2014, injury, he returned to restricted duty work the next day:

Q: And then - - now, did you come back to work at full duty or modified duty, or were you off for some time?

 

A: Well, what happened was when I got hurt that day, they sent me to the - - that night, I got hurt; and so then they sent me to the White Castle - - there’s a clinic over by White Castle. They’re a workers’ comp doctor.

 

Then they sent me back to work - - I would call it restricted duty - -

 

Q: Okay.

 

A: - - or something like that, where I just painted with my left hand for - - until they got all the administrative things done to set me up to get an MRI, which was a few weeks with the things they have to do to do that.

 

Q: Okay.

 

A: Like, I was on light duty for, like, a month; and they sent me to get an MRI.

 

And then Dr. Bonnarens sent me - - oh, yeah. What it was, they sent me to Dr. Bonnarens, and he sent me to get an MRI. And then after I got the MRI, they had to, you know, do the scheduling process for the surgery.

And I was just painting with my left hand. And then I had surgery, and I was off for, like - - I guess it would be four weeks. And then he sent me back to modified duty again.

. . .

 

Q: After the surgery?

 

A: No, after, like - - well, I had had the surgery, I think, in December.

 

Q: Okay.

 

A: And then I had to wait, like, a week - - a month before him, and then I had to go to physical therapy for, like, two months. It was, like, 10 weeks they sent me to physical therapy over at Baptist East on Fern Valley.

 

And then he cleared me because I was on light duty for probably four and a half months.

 

Q: Okay. So you said you were just panting [sic] - -

 

A: Yes, sir.

 

Q: - - with your left arm?

 

A: Yes, sir.

 

Q: Were you doing anything else?

 

A: Uh-uh.

 

Q: No? Okay.

 

A: Well, whatever I could do with, you know - - he would let me with the restrictions I had.

 

Q: Was there anything else, like doing paperwork or filing or - -

A: Oh, yeah. Yeah. But, I mean, I really didn’t consider that like being a truck driver or a dock worker. I don’t really consider that, you know.

 

Q: Right.

 

A: Yeah. They had me answering the phone and filing and painting and, you know, picking up trash with one of those little bitty - - what do you call those - - the little gripper things.

 

Q:  Yeah.

 

A: Yeah.

 

Q: Okay. Did you do any vehicle inspections or any other kind of inspections?

 

A: No.

 

Q: Did you do any - - when you were on modified duty there just after - - immediately after the work injury, did you do any of your pre-injury job duties at all?

 

A: No. They went out right away and bought paint, and just - - well, because Dr. Bonnarens’ restrictions were a little stricter than the OPS people.

 

. . .

Q: Gotcha. Okay. Now, correct me if I’m wrong. Is there some kind of union contract that requires ABF Freight to provide you with this light duty work?

 

A: Yeah. Yeah.

 

Q: And I’m not asking you to be an expert on the contract, but is your understanding that they would pay you 85 percent of your regular wages for a 40-hour workweek during that light duty?

 

A: Yeah, something like that. Yeah.

Q: Okay. And to the best of your knowledge, did they do that?

 

A: Yeah.

 

          Mahan explained what occurred when he attempted to return to work following surgery:

Q: Okay. After the surgery, do you know when you came back to work on modified duty?

 

A: Yeah, I do. Well, I tried to go back the day before Christmas, and Robby wouldn’t let me work because he kind of has a little thing against me.

 

So I went back the day after the holiday, and that’s when I had been on my - - what do you call it - - modified duty. Yeah, modified duty.

 

Q: Okay. You said it was after the holiday or after - -

 

A: Right after the holiday, yeah.

 

Q: After Christmas or after January 1st?

 

A: After Christmas.

 

Q: After Christmas. Okay.

 

Mahan also testified at the July 8, 2016, hearing. He began working for ABF on April 1, 2014, on the outbound dock. Mahan recounted his job duties at the time of the October 7, 2014, injury:

A: Forklift, pushing and pulling on freight, loading the trucks high and tight, carrying the freight and making the cut times before they have to leave the city. Pretty much just heavy, manual labor.

 

Q: Basically, you are filling the tractor trailers - -

 

A: Yes. Uh-huh. (Yes)

 

Q: - - before the trucks can - - I mean, they come in and take them and pull them out - -

 

A: Uh-huh (Yes)

 

Q: - - from the warehouse. Do the work activities require you to do any lifting above the shoulders?

 

A: Yes. Yes.

 

Q: And, does it require at times repetitive work?

 

A: Yes. Yes.

 

Q: And, you said it’s hard, manual work.

 

A: Yes. Heavy manual labor. Yes

 

Q: Okay. All right. What weights would you be expected to be able to lift?

 

A: Anywhere from 50 to 200 pounds.

 

Q: And, I visualize this, at the same time you’re inside the trailer, you’re trying to balance the trailer for load purposes?

A: Yes. Yes. Uh-huh. (Yes)

 

Q: And, so that’s a part of your work as well?

 

A: Yes. Uh-huh. (Yes)

Q: Okay. And, you have to tie down the freight?

 

A: Yes.

 

Q: All right. Does this require being on your feet?

 

A: Yes.

 

Q: And, most of the day you’re working either walking or standing?

 

A: Yes.

 

Q: Do you have to do any climbing on the freight?

 

A: No.

 

Q: Do you have to climb any - - any ladders or anything like that?

 

A: They have a little stool, but, you know, we don’t use it.

 

Q: Okay. All right. Is that a fair and accurate description of your work activities - -

 

A: Yes.

 

Q: - - on the outbound dock?

 

A: Yes.

 

          Concerning the medical treatment he received and the work he performed after the October 7, 2014, injury, Mahan testified:

Q: Okay. Let’s - - let me talk about the medical here a little bit. They originally sent you and required you to go to OPS, the company doctors.

A: Yes.

 

Q: Occupational Physician Services. And, they - - they put you on light duty, or what they - - I believe Mr. Owen called AWP, alternative work, I don’t know [sic] the P stands for, or is it alternative work duty?

 

A: Alternative work program.

 

Q: Program.

 

A: Yeah.

 

Q: Okay. There you go. Thanks. Did OPS give you an [sic] medical - - any medicines to take?

 

A: No.

 

Q: And, then they’re the ones that referred you to Doctor Frank Bonnarens?

 

A: Yes.

 

Q: How long was it before you got to see Doctor Bonnarens?

 

A: Seven or eight weeks.

 

. . .

 

Q: So, you got to see Doctor Bonnarens and then he did surgery on December the 7th of 2014, is that correct?

A: Yes.

 

Q: And, if you - - what is your understanding, what did he do surgery wise?

 

A: He reattached my rotator cup [sic].

 

. . .

 

Q: Okay. Now, let’s talk about - - when - - did you miss any work completely where you were off work completely?

 

A: Just - - after he released me, I went to work before Christmas and Robbie said he didn’t have any work for me that day - -

 

. . .

 

A: - - before Christmas.

 

Q: And, then how - - and then you were sent home?

 

A: Yes.

 

Q: And, when were you called back in?

 

A: Like, a week later.

 

Q: All right. And, then you worked at that particular point in time - - the surgery was December the 7th, so I want to come back and ask you questions.

 

A: Uh-huh. (Yes)

 

Q: So, you had from the date of your injury up until, let’s talk about the date of your surgery on December 7th, 2014. What type of light duty work did they have you do, when you were in this program?

 

A: Answering the phone and filing paperwork and painting with my left hand.

 

Q: Had you ever done that type of work activity before?

 

A: No.

 

Q: Was it, at any time, any part of your job duties that you had done before?

 

A: No.

 

Q: Is - - was it a union job, a position that people could bid upon?

 

A: No.

 

Q: Was it busy work, just given to you to keep you busy?

 

A: Yes.

 

Q: And, is it something that had to be done every day - -

 

A: No. No.

 

Q: - - and isn’t done every day?

 

A: No.

 

Q: Now, let’s talk about your - - what was your hourly rate before your work injury - -

 

A: Around - -

 

Q: - - do you recall?

 

A: - - 21.70 or something like that.

 

Q: When you were in the AWP program, when you were working, alternative work program, did they reduce your hourly rate?

 

A: To 17.

 

Q: And, did they permit you to work any of the overtime hours?

 

A: No overtime.

 

Q: So, your – - your pay was never the same while you were on light duty.

 

A: No.

 

Q: Okay. Now, let’s come to the surgery. From 12-7 of ’14 until December 24th of ’14, it looks like a couple weeks, did Workers’ Comp pay your Work - - did you get Workers’ Comp benefits at that time?

 

A: Yes.

 

Q: And, then you were told on 12-24 that there was no work available?

 

A: Right.

 

Q: And then you returned to work the next Monday?

 

A: Yes.

 

. . .

 

Q: Okay. All right. Let’s see. Let’s come back to - - so, you came back after December the 28th, it looks like. And, you continued to work up until March of 2015.

 

A: Right.

 

Q: And, that’s when you did the same work you’d done previously - -

 

A: Yes.

 

Q: - - the light duty work - -

 

A: Uh-huh. (Yes)

 

Q: - - in that program, painting, filing or answering the phones.

 

A: Uh-huh. (Yes)

. . .

Q: It’s made up work for you?

 

A: Yes.

 

Q: And, you continued to earn less money - -

 

A: Yes.

 

Q: - - the 17 hour rate.

 

A: Yeah. Uh-huh. (Yes)

 

          Mahan testified he was released by Dr. Frank Bonnarens to return to full duty work, with no restrictions, on March 17, 2015.

Robbie Owen (“Owen”), Operations Supervisor at ABF, was deposed on July 1, 2016. He acknowledged that after his October 7, 2014, injury, Mahan was placed on light duty work:

A: He was placed on AWP, which is Alternate Work Program, which is light duty. He is to just assist supervisors, answer phones, nothing strenuous, maybe writing trailer numbers down, whatever - - whatever was needed in the office.

 

Q: Okay. And tell me a little bit about why - - why do you – all offer that?

 

A: I believe just so that the person injured - - I mean, they can still make a little bit of money. They can help out in the office. They’re not just sitting at home.

 

Q: And is it pursuant to the union contract?

 

A: That, I do not know.

 

Q: Okay. Okay. I’ve got number - - something I’ve marked as Exhibit No. 2 there. What is that?

 

. . .

 

A: That is notifying Mr. Mahan he has been placed on AWP.

 

Q: Okay. And what is AWP?

 

A: Alternate Work Program.

 

Q: Okay. And what does that provide in terms of wages?

 

A: 85 percent.

 

Q: Of…

 

A: Their regular hourly wage.

 

Q: For…

 

A: Just 40 hours a week.

 

. . .

 

Q: Okay. Do you know what type of job activities Mr. Mahan did during this Alternative Work Program?

 

A: I know he answered phones. He may have done a yard check or two, which means going out in the yard, writing all the trailer numbers down in the yard.

 

Q: Can you think of anything else he did?

 

A: No.

Q: Okay.

 

A: Just assist.

 

Q: Okay. And then did he report to work and do that work?

 

A: Yes.

 

Q: Okay. And does this - - do these job activities during the Alternate Work Program, do they help ABF Freight?

 

A: Yes.

 

          Concerning the duties performed in the Alternative Work Program, Owen explained:

Q: And are you at - - let’s talk about in that program. I think you told me there was answering phones, a yard check by going through and, I guess, noting what trucks are in the yard?

 

A: Yeah, trailers. We have trailers in our yard.

 

Q: Trailers? I said that wrong.

And then I put here ‘assist.’ What do you mean by ‘assist’?

 

A: Assist the supervisors or the people in office if they need a copy made or something faxed.

 

Q: Okay. Do you - - do they - - I guess, when they report, what do they do? Sit in the office until they’re given their assignment?

 

A: Yes.

 

Q: And is a lot of their time maybe spent sitting because there is nothing to do?

 

A: Yes.

 

Q: And these jobs that you might have them doing - - like a yard check or assist or answer phones - - those are, I guess, made-up jobs for them - - is that a fair way to say it - - under this light-duty program?

 

A: Yes.

 

Q: They’re not regular jobs? They’re not a job that a union member could bid on and bump him from and expect to have that job?

 

A: No, sir.

 

. . . 

 

Q: Is any of that what you would consider to be meaningful work?

 

A: If - - yeah, somewhat, I believe.

 

Q: All right. But it’s made-up work?

 

A: Yes.

 

Q: It’s not something you would have somebody do every day?

 

A: No.

 

. . .

 

Q: Is it a fair statement that most of their time is sitting and waiting for assignment?

 

A: Yes.

 

          As to when Mahan returned to full duty work following surgery, Owen testified:

Q: Do you see that in front of you, Mr. Owen?

 

A: Yes.

 

Q: Do you see the date on that?

 

A: 4/14/15 - - no.

 

Q: ‘Today’s date’?

 

A: Oh, ‘3/17/15.’

 

Q: Okay. And what does it say for work status?

 

A: ‘Regular duty.’

 

Q: Okay. If Mr. Mahan was returned to regular duty, what is - - to your knowledge, did Mr. Mahan return to work at regular duty?

 

A: Yes.

 

Q: And then did you-all provide full-duty work to him?

 

A: Yes.

. . .

 

Q: Okay. And then I’ve got these wage records that I filed into evidence.

 

When do these show that Mr. Mahan returned to work with overtime?

 

A: On 3/21/2015.

 

Exhibit 2 to Owen’s deposition is an undated letter from ABF to Mahan regarding a start date in the Alternative Work Program of October 8, 2014.

Several records of Dr. Bonnarens were filed in the record by both parties. Relevant to the issue on appeal is the November 14, 2014, medical record filed by Mahan which states, in part, as follows:

MRI shows a rupture of the long head of the biceps in addition to a tear of the supraspinatus tendon. The patient is noted to have AC joint arthropathy too.

 

. . .

 

We will be proceeding with surgery on his right shoulder, acromioplasty, Mumford, and repair of the rotator cuff. We will address any other pathology as indicated. Surgery will be scheduled at his convenience.

 

In a March 17, 2015, medical record, filed by ABF, Dr. Bonnarens stated “[t]he plan is to return him [Mahan] to work regular duty.” Also relevant to this appeal is the May 2, 2016, medical record, filed by ABF, in which Dr. Bonnarens provided the date Mahan reached maximum medical improvement (“MMI”):

August 14, 2015. The patient was clearly at maximum medical improvement, doing his regular duty job, working 13-hour days and demonstrating full range of motion, no abnormal laxity, and good strength. The patient was not seeking any further treatment at that point and as a result he should be judged at maximum medical improvement.

 

Mahan filed the March 30, 2016, Independent Medical Examination (“IME”) report of Dr. Jules Barefoot and an attached “Medical Questionnaire” of that same date. Relevant to the issue on appeal is the “Medical Record Review” section of the report which included the following:

An operative report by Dr. Bonnarens on 12/03/2014, notes right shoulder arthroscopic surgery was done on that date with a rotator cuff repair, acromioplasty, Mumford procedure, debridement of the biceps stump and labrum, anterior and posterior, and a bone graft.[3]

In the attached Medical Questionnaire, Dr. Barefoot opined Mahan had reached MMI status.

Wage records filed by ABF indicate a gap in wages between the work week ending on December 6, 2014, during which Mahan worked 16 hours, and the work week ending on January 3, 2015, during which Mahan worked 32 hours.

The June 24, 2016, BRC Order and Memorandum lists the contested issues as follows: benefits per KRS 342.730; work-relatedness/causation; notice [handwritten: “on 11/13/14”); injury as defined by the ACT; credit for [handwritten: “modified duty wages”]; exclusion for pre-existing disability/impairment; and TTD. Under “other” is the following: “11/13/14 alleged injury withdrawn.” Stipulations include no voluntary payments of TTD benefits, an average weekly wage (“AWW”) of $946.26, and a return to work date of March 17, 2015, at a wage greater than his AWW.

In his brief to the ALJ, Mahan argued he “is entitled to TTD benefits for the periods of light duty he worked from 10/7/14 through 12/7/14 and from 12/28/14 through 3/17/15” asserting, in relevant part, as follows:

In the present case, the Plaintiff was provided with two periods of light duty work that did not constitute a return to his ‘customary’ employment, and he had not yet reached MMI. The following are the pertinent periods for consideration:

 

1.      From the date of the injury on 10/7/14 until the date of his surgery on 12/7/14, the Plaintiff had not returned to his ‘customary’ work activities, and he had not been placed at MMI. Therefore, the Plaintiff requests Award provisions for TTD benefits for these dates for which the Defendant is not entitled to any credits.

 

2.      From 12/7/14 through 12/24/14, the Plaintiff was off work completely and received income benefits from an unknown source. If the Defendant is able to provide documentation that its workers’ compensation carrier provided income benefits during this period, then the Defendant is entitled to an appropriate credit for any payment of income benefits made during this time. If not, the Defendant is not entitled to any credits.

 

3.      From 12/28/14 until he was released to work with no restrictions on 3/17/15, the Plaintiff had not returned to his ‘customary’ work activities, and he had not been placed at MMI. Therefore, the Plaintiff requests Award provisions for TTD benefits for these dates for which the Defendant is not entitled to any credits.

 

The Plaintiff is entitled to TTD benefits for the periods of light duty he worked from 10/7/14 through 12/7/14 and from 12/28/14 through 3/17/15.

 

          On appeal, ABF contends Mahan was not entitled to TTD benefits. In the alternative, ABF asserted it is entitled to a full credit for the modified duty wages it paid.

In the September 6, 2016, Opinion, Award, and Order, regarding TTD benefits, the ALJ found as follows:

Temporary total disability is defined in KRS 342.001(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 which would permit a return to employment. Magellan Health v. Helms, 140 S.W.2nd 579 (Ky. App. 2004). In W.L. Harper Construction Company, Inc. vs Baker, 858 S.W.2nd 202 (Ky. App. 1993) the Court explained that temporary total disability benefits are payable until medical evidence establishes that the recovery process including any treatment reasonably rendered in an effort to improve the plaintiff’s condition is over and the underlying condition is stabilized such that the workers’ compensation claimant is capable of returning to  his job or to some other employment which he is capable of performing and which is available in the local labor market.

 

The ALJ finds the plaintiff was temporarily totally disabled from the date of the injury on October 7, 2014 until he returned to unrestricted work on March 21, 2015. This is consistent with the testimony of the plaintiff and the opinion of the plaintiff’s treating physician Dr. Bonnarens. In fact, Dr. Bonnarens did not give an MMI date until after the return to work on March 21, 2015. The ALJ is of course aware that the plaintiff was doing work through an alternate work program during some of this period of time. However, this work was being done pursuant to a union contract which mandated that this work be made available to the plaintiff. The ALJ is convinced that this is a bargain [sic] for right pursuant to the union contract and does not affect the plaintiff’s entitlement to temporary total disability benefits under the Kentucky Workers’ Compensation Act. The plaintiff was working less hours and making less money than he was at the time of his injury. He was not at MMI and was not able to return to his customary work. This was in fact made up work mandated by the union contract. While at first glance it may seem unfair that the plaintiff can draw temporary total disability and also be earning wages the ALJ would point out that this was created by a bargain [sic] for right between the union and the employer. If the employer wanted credit for any workers’ compensation benefits then that should have been bargained for during negotiations. Having not bargained for credit the ALJ finds the employer is not entitled to credit at this time. The appropriate award of temporary total disability at the rate of $630.84 per week will be entered for the period of October 7, 2014 through March 21, 2015.

 

          In its petition for reconsideration, ABF requested the award of TTD benefits be limited to a duration of February 17, 2015, through March 17, 2015, asserting, in part, as follows: “The only note filed of Dr. Bonnarens that mentions restrictions is the note of February 17, 2015 which mentions ‘light assist only.’ After that, Dr. Bonnarens released Mr. Mahan to full duty on March 17, 2015, not March 21, 2015.”

          In the October 17, 2016, Order overruling ABF’s Petition for Reconsideration, the ALJ determined as follows:

The plaintiff’s treating physician, Dr. Frank Bonnarens, did not find that plaintiff reached MMI until August 14, 2015. However, he previously released the plaintiff to return to unrestricted work. The plaintiff returned to work on March 21, 2015. The date of March 21, 2015, was accepted since that was the date the plaintiff returned to unrestricted work although Dr. Bonnarens had released him to return to unrestricted work on March 17, 2015. However, as previously indicated Dr. Bonnarens actually did not give an MMI date until August 13, 2015. The Administrative Law Judge therefore finds that the award of temporary total [sic] through the date of March 21, 2015 to be appropriate. The Administrative Law Judge’s prior award of temporary total [sic] is appropriate. The plaintiff was not at MMI and had not returned to his customary or similar work. He essentially was doing made up work. In those circumstances, the plaintiff is entitled to receive both temporary total [sic] and any wages that the employer might pay. For the foregoing reasons, it is hereby considered and ordered, the defendant-employer’s Petition for Reconsideration is OVERRULED.

 

          As the claimant in a workers’ compensation proceeding, Mahan had the burden of proving each of the essential elements of his cause of action, including entitlement to TTD benefits. See Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Since Mahan was successful in that burden, the question on appeal is whether there was substantial of record to support the ALJ’s decision.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).  Substantial evidence” is defined as evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable persons. Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).  

In making a determination granting or denying an award of TTD benefits, an ALJ has wide-ranging discretion. Seventh Street Road Tobacco Warehouse v. Stillwell, 550 S.W.2d 469 (Ky. 1976); Colwell v. Dresser Instrument Div., 217 S.W.3d 213, 219 (Ky. 2006).  KRS 342.285 designates the ALJ as the finder of fact.  Therefore, the ALJ has the sole discretion to determine the quality, character, and substance of evidence.  Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). The ALJ, as fact-finder, may choose whom and what to believe and, in doing so, may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same party’s total proof. Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977); Pruitt v. Bugg Brothers, 547 S.W.2d 123 (Ky. 1977).

          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 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 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 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), with regard to the standard for awarding TTD, the Kentucky 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 Kentucky 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 Kentucky Supreme Court clarified when TTD benefits are appropriate in cases where the employee returns to modified duty.  The Court stated 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.

 

          Pursuant to Livingood v. Transfreight, LLC, et, al., supra, and Trane Commercial Systems v. Tipton, supra, the ALJ was required to determine if Mahan had been released to return to customary employment, i.e. work within his physical restrictions and for which he has the experience, training, and education, after his October 7, 2014, injury.  In both the September 6, 2016, Opinion, Award, and Order and the October 17, 2016, Order overruling ABF’s Petition for Reconsideration, the ALJ acknowledged that while Mahan was performing work after his October 7, 2014, injury, the work he was performing was not his customary work but, instead, “made up work mandated by the union contract.” This determination, to the extent that it pertains to Mahan’s entitlement to TTD benefits from the date of injury to the date of Mahan’s surgery, and again from the date Mahan returned to work following his surgery through the date he started full duty work is fully supported by substantial evidence comprised of Mahan’s testimony and Owen’s testimony, and this determination will not be disturbed. That said, the award of TTD benefits from March 17, 2015, through March 21, 2015, is vacated, as March 17, 2015, is the date upon which the parties stipulated Mahan returned to full duty work at the BRC.

          We remand the claim to the ALJ for additional findings regarding the date upon which Mahan underwent right shoulder surgery performed by Dr. Bonnarens and to what extent, if any, ABF is entitled to credit for income benefits Mahan agreed he received from an “unknown source” from the date of surgery through Mahan’s return to alternative work at ABF on December 28, 2014.

          In all claims, the ALJ must provide a sufficient 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). This Board is cognizant of the fact 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; however, the ALJ must 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).

          In his brief to the ALJ, Mahan asserted that from the date of his right shoulder surgery through December 24, 2014, he was off work and “received income benefits from an unknown source.” On remand, in an amended opinion, award, and order, the ALJ must first make a finding as to the date upon which Mahan underwent surgery on his right shoulder. We are aware this poses a challenge to the ALJ, as the record is replete with inconsistencies regarding the date of surgery. Indeed, Dr. Barefoot’s IME report cites to a December 3, 2014, operative record by Dr. Bonnarens, yet we are unable to locate this record or any record by Dr. Bonnarens noting the precise date of surgery. In his testimony, Mahan refers to the surgery having taken place on December 3, 2014, and December 7, 2014, while in his brief to the ALJ, Mahan asserted the surgery was on December 7, 2014. On remand, the ALJ must provide a finding of fact regarding the date of the surgery. Also on remand, the ALJ must determine to what extent, if any, ABF is entitled to a credit for payment of income benefits made to Mahan from the date of surgery through December 28, 2014. Both the September 6, 2016, Opinion, Award, and Order and the October 17, 2016, Order overruling ABF’s Petition for Reconsideration are silent on this issue.

          Accordingly, the ALJ’s award of TTD benefits from October 7, 2014, through March 17, 2015, is AFFIRMED. The ALJ’s award of TTD benefits from March 17, 2015, through March 21, 2015, is VACATED. This claim is REMANDED for additional findings and entry of an amended opinion, award, and order in accordance with the views expressed herein.

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON STEVEN R ARMSTRONG

138 S THIRD ST

LOUISVILLE KY 40202

COUNSEL FOR RESPONDENT:

HON CHED JENNINGS

401 W MAIN ST STE 1910

LOUISVILLE KY 40202

ADMINISTRATIVE LAW JUDGE:

HON R ROLAND CASE

657 CHAMBERLIN AVE

FRANKFORT KY 40601



[1] This alleged date of injury was ultimately withdrawn at the June 24, 2016, Benefit Review Conference (“BRC”).

[2] Other filings in the record, including Mahan’s brief to the ALJ, indicate a surgery date of December 7, 2014. We are unable to locate any surgical records from Dr. Bonnarens indicating the exact date of surgery.

[3] The Board is unable to locate this operative report in the record.