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.