Opinion
NO. 2018-CA-000375-WC
06-08-2018
CITY OF HENDERSON APPELLANT v. RANDALL JENKINS; R. ROLAND CASE, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Marcel Smith Lexington, Kentucky BRIEF FOR APPELLEE: Samuel J. Bach Henderson, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-10-69566 OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, DIXON AND MAZE, JUDGES. COMBS, JUDGE: Appellant, City of Henderson, appeals from a decision of the Workers' Compensation Board which vacated the conclusion of the Administrative Law Judge that the three-multiplier is not applicable and remanding for further determination. After our review, we affirm.
We limit our discussion of the record to the issue before us. On December 14, 2010, Appellee, Randall Jenkins (Jenkins), sustained an abdominal injury while working as a firefighter for the Appellant, City of Henderson (City).
He also alleged 2014 and 2015 shoulder injuries and a 2015 pulmonary claim which are not at issue on this appeal.
On March 26, 2014, Jenkins testified by deposition. At the time of the December 2010 injury, he was working at two jobs. In addition to his job at the City, Jenkins also worked as an EMT for Henderson Emergency Ambulance Service (HEAS). After he was injured at the City, Jenkins could no longer perform his EMT job for HEAS due to the lifting involved. Jenkins never returned to work for HEAS after the December 2010 injury -- although his official retirement date from HEAS was not until March 2011.
However, Jenkins has returned to work for the City where his job duties include both EMS runs and fires. When asked about why he did not return to his EMT job with HEAS, Jenkins explained:
A. I knew that I could not do that job [at HEAS], and -- and I could not go back and take the risk of busting this thing open again, the herniating again, because I went through so much misery.
Q. Okay.
A. I knew that I would not be able to do that job [at HEAS]. So when I was released finally, I just retired.
Q. But you stayed on at the fire department.
A. Yes, I did.
Q. And you admitted earlier that the fire department required lifting 100 pounds.
A. Yes.
Q. You're under oath.
A. Yes.
Q. Did you lift 100 pounds when you returned to work at the fire department after this injury?
A. An actual 100 pounds? No.
Q. Could you have?
A. No. No.
Q. Could - before you hurt your shoulder, could you have?
A. No.
Q. How did you get away with it?
A. I cheat real good.
Q. And you had other pe --
A. I used --
Q. You had other people working with you.
A. I supplement it [sic] with my crew --
Q. You had other guy -- you had other younger guys working with you --
A. Yes.
Q. -- that you could --
A. Yes.
Q. -- tell to do it for you.
A. I either got them to do it for me or assist, or I'd -- when I say "cheat," I used some type of physical thing to prompt [sic] me up, like the hose line, where you normally wouldn't do that.
You know, I might brace myself against a wall that you normally wouldn't do; get in a position on the ground where I could handle it, but not like I did before. There would be no way.
Jenkins testified at the June 26, 2017, hearing. At that time, he was 62 years of age and was still working. Jenkins explained that he is "required to be an EMT at work [for the City] . . . ." He has not performed any EMT work elsewhere since the 2010 injury date. However, he only performs his EMT duties for the City "in a supervisory capacity. That's what's keeping me going."
On August 23, 2017, the ALJ rendered an Opinion, Award & Order. The ALJ summarized the evidence, including Jenkins' testimony that "he was no longer able to perform the duties of an EMT and has to take on a supervisor role." The ALJ awarded 8.5% permanent partial disability (PPD) benefits for Jenkins's 2010 abdominal injury, but he declined to award the three-multiplier:
Kentucky Revised Statute (KRS) 342.730(1)(c) 1 provides:
If, due to an injury, an employee does not retain the physical capacity to return to the type of work that the employee performed at the time of injury, the benefit for permanent partial disability shall be multiplied by three (3) times the amount otherwise determined under paragraph (b) of this subsection, but this provision shall not be construed so as to extend the duration of payments[.]
[P]laintiff has returned to work as a firefighter and continues to do so earning equal or greater wages. However, the plaintiff has not returned to his work as an EMT. Additionally, the ALJ finds the plaintiff has the physical capacity to return to firefighting work as he continues to perform the duties of a firefighter with the defendant employer. Therefore, the plaintiff will not be entitled to the three factor. . . .
The parties filed Petitions for Reconsideration. Inter alia, Jenkins maintained that:
The second error concerns the finding made that, "the plaintiff has not returned to his work as an EMT. Additionally, the ALJ finds the plaintiff has the physical capacity to return to firefighting as he continues to perform the duties of a firefighter with the defendant employer." Essentially this is a finding that Plaintiff is able to perform all of the duties of the job that he performed at the time of the injury in question.
However, it is noted that Mr. Jenkins testified at the hearing that he performed EMT duties for the City of Henderson in his job as a Firefighter and that he was no longer able to perform those duties (Transcript of Evidence, p. 30). Thus, at the time of the December 2010 injury, Mr. Jenkins was performing two job functions for the City of Henderson while employed as a
firefighter, one of which was EMT. The ALJ has noted that he is unable to return to this type of work.(Emphasis original.)
By Order rendered October 10, 2017, the ALJ overruled Jenkins's Petition for Reconsideration other than to correct the TTD rate. The ALJ cited Lowe's No. 0507 v. Greathouse, 182 S.W.3d 524 (Ky. 2006), which holds that an inability to return to a concurrent job does not entitle the claimant to the three-multiplier where he retains the physical capacity to return to the job in which the injury occurred. The ALJ explained that while Jenkins "does not have the physical capacity to return to . . . his concurrent employment, he does have the physical ability to return to the type of work he was performing at the time of the injury for the City . . . . In fact, the plaintiff has returned to work as a firefighter . . . ."
Temporary total disability.
The City appealed to the Board. Jenkins cross-appealed. On February 9, 2018, the Board entered an Opinion affirming on the City's appeal, and affirming in part, vacating in part, and remanding on Jenkins's cross-appeal.
The City's appeal to the Board involved the issue of the applicable interest rate on past-due benefits, which is not before us.
The Board agreed with Jenkins that the ALJ "did not adequately address [his] ability to perform the entire job he was performing" for the City and vacated the ALJ's determination that the three-multiplier is not applicable to the December 14, 2010, injury. The Board remanded to the ALJ with instructions to determine whether Jenkins retains the physical capacity to return to the type of work he performed as an EMT for the City at the time of the injury -- as more fully detailed at page 30 of the Opinion. Unequivocally, the Board "express[ed] no opinion as to the outcome."
The Board affirmed the ALJ's determination that Jenkins retains the capacity to return to work strictly as a fire fighter." (Emphasis original.) --------
On March 8, 2018, the City filed a Petition for Review in this Court. On appeal, the City makes a generalized argument that the Board may not re-weigh the evidence and substitute its findings for those of the ALJ. That is a correct statement of the law, but that is not what occurred in this case. We agree with the Board that the ALJ misunderstood Jenkins's argument and that Jenkins's work for the City did indeed include EMT duties, which the ALJ failed to fully address in determining whether KRS 342.730(1)(c)1 is applicable. We agree that remand on this issue by the Board was wholly appropriate.
The Workers' Compensation Board's Opinion is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Marcel Smith
Lexington, Kentucky BRIEF FOR APPELLEE: Samuel J. Bach
Henderson, Kentucky