Opinion
NO. 2015-CA-0001346-WC
05-13-2016
HARRY W. HAUBER, III APPELLANT v. THE KROGER CO.; HON. JONATHAN R. WEATHERBY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Christopher Harrell Louisville, Kentucky BRIEF FOR APPELLEE: James B. Cooper Lexington, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-89364 OPINION
AFFIRMING
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BEFORE: CLAYTON, JONES, AND TAYLOR, JUDGES. CLAYTON, JUDGE: Harry Hauber, III appeals the opinion of the Workers' Compensation Board affirming in part and vacating and remanding in part the March 30, 2015 Opinion and Award, and the May 3, 2015 Order on petition for reconsideration by the Hon. Jonathan R. Weatherby, Administrative Law Judge (ALJ). Hauber presents one issue on appeal: did the Board err when it affirmed the ALJ's finding that Hauber was not entitled to temporary total disability ("TTD") benefits between August 1, 2012, the date Hauber returned to work, and May 13, 2014, the date Hauber obtained maximum medical improvement ("MMI")? Finding no error with the Board's opinion, we affirm.
FACTS
Hauber worked for the Kroger Company as a stock crew member. As such, he would lift up to sixty pounds at a time and was an efficient stocker. On March 31, 2012, while lifting a thirty-pound case of vinegar, Hauber injured his back. He informed his supervisor and was treated at the local emergency room. He was then treated by a family physician and eventually Dr. Joseph Werner at Louisville Bone and Joint Specialists. Dr. Werner prescribed physical therapy and epidural injections to treat Hauber's injuries. He restricted Hauber to a thirty-five-hour work week, no lifting over ten pounds, periodic changes in sitting and standing, and no repetitive bending, twisting, or stooping.
Following a four-month absence, Hauber returned to work on August 1, 2012. He worked up to sixty hours per week after his return. Though he remained a stocker, he no longer performed the same stocking duties. Hauber stocked lighter weight items of ten to fifteen pounds. He now stocks the chip aisle and moves product using a power jack. In spite of Hauber's return to work, Dr. Werner did not find Hauber was at MMI until May 13, 2014. Hauber sought compensation from The Kroger Co.
As a result of his workers' compensation claim, Hauber was awarded TTD benefits at a rate of $712.29 per week. The ALJ determined that because Hauber returned to meaningful employment on August 1, 2012, he was temporarily totally disabled between March 31, 2012, and July 31, 2012, and entitled to TTD benefits for that period. Hauber was also awarded permanent partial disability (PPD) benefits of $111.70 per week commencing on August 1, 2012, and continuing for a period not to exceed 425 weeks together with interest at a rate of 12% per annum on all past due and unpaid installments. Hauber petitioned for reconsideration of the TTD benefits, asking for the payments to end on May 13, 2014. The ALJ reaffirmed his decision.
Hauber then appealed to the Workers' Compensation Board, which affirmed the ALJ's opinion concerning the TTD benefits:
The ALJ relied upon Hauber's testimony in determining he was not entitled to TTD benefits after the August 1, 2012 return to work. The ALJ noted Hauber returned to stocking, but was assigned to lighter products such as chips. The ALJ also noted Hauber uses the power jack. After reviewing the holding of Bowerman v. Black Equipment, [297 S.W.3d 858 (Ky. App. 2009)], the ALJ concluded Hauber returned to stocking shelves, "which is the exact activity that he was performing when injured, albeit with items weighing less," and therefore not entitled to TTD benefits after his return to work. The ALJ reiterated his determination in the Order denying Hauber's petition, finding he "returned to work that was customary on July 31, 2012, and as a result TTD was properly terminated as of that date per the finding in Bowerman v. Black Equipment Co., 297 SW3d [sic] 858."
Following a review of testimony by Hauber, we find substantial evidence supports the ALJ's determination, and no contrary result is compelled. The records of Dr. Werner and the testimony of Hauber are consistent regarding the restrictions assigned when he returned to work for Kroger: no lifting over ten pounds; no repetitive bending, twisting, or stopping [sic]; alternate between sitting and standing; and limited to a thirty-five hour work week.
Hauber testified he no longer lifts over ten or fifteen pounds, avoids overhead work by either using a stepladder or not doing the task at all, and very seldom performs work below the waist. He is not as productive as he used to be, and has to take more breaks. He also indicated the time he reports to work has changed as well.
However, Hauber stated he continues to use the power jack, green u-boats, brown trucks, hand jacks and bass carts. At the hearing, Hauber indicated he stocks lighter products, such as snack chips. He uses the power jack to pull product out, and stated it does not involve any heaving lifting. Hauber also explained he seldom reaches or crawls on his knees. On cross-examination at the hearing, Hauber confirmed he is still able to transport material with the power jack and agreed he is doing light stocking. Hauber agreed his job duties upon return were "[a]ll jobs that somebody at the store would have to do."
In light of the above testimony, we find substantial evidence supports the ALJ's determination Hauber returned to work that was customary. Although Hauber's testimony establishes he could not return to all his former duties, the ALJ could reasonably conclude from the evidence he had returned to the type of work he was performing when injured or to other customary work. Hauber's ability to identify portions of his testimony which is contrary to the ALJ's determination is not adequate to require reversal on appeal.
We are cognizant of the three recent decisions of the Kentucky Court of Appeals, Sonia S. Mull v. Zappos.Com, Inc., 2013-CA-001320-WC (rendered July 11, 2014); Delena Tipton v. Trane Commercial Systems, 2014-CA-00626 (rendered August 22, 2014); and Nesco Resource v. Michael Arnold, 2013-CA-001098 (rendered March 13, 2015), all designated not to be published. In each of these cases, the injured worker was awarded TTD benefits during a time period when they were on light duty, and could perform some, but not all of their customary pre-injury job duties. However, none of the above cases are [sic] authoritative, and two are pending before the Kentucky Supreme Court.
The Board then sua sponte determined the PPD benefits should have begun on March 31, 2012, not August 1, 2012. It vacated that portion of the order and remanded it for a correct commencement date of PPD benefits.
Hauber now appeals solely concerning whether he was entitled to TTD benefits between August 1, 2012, the date he returned to work, and May 13, 2014, the date he obtained MMI. The Kroger Co. maintains no error occurred. We agree.
THE ALJ AND BOARD DID NOT ERR
Kentucky Revised Statutes (KRS) 342.0011(11)(a) defines TTD as when an employee "has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment[.]" Hauber argues that though he "return[ed] to employment," he continued to suffer a TTD until May 13, 2014, because he did not return to the type of work he performed before he was injured or to other customary work. "The issue presented concerns statutory interpretation, which is purely a question of law, which we review de novo." Saint Joseph Hosp. v. Frye, 415 S.W.3d 631, 632 (Ky. 2013).
To support his argument, Hauber relies on Mull v. Zappos.com, Inc., 2014 WL 3406684 (Ky. App. 2014), and Tipton v. Trane Commercial Systems, 2014 WL 4197504 (Ky. App. 2014). In each of those cases an employee was injured on the job and ended up being moved to a similar, but not exactly the same, job. Different panels of this Court determined the employee's return to similar work, which involved lighter duty work than the employee's customary, pre-injury duties, did not constitute a "return to employment" because the employee was not performing the entirety of his or her pre-injury employment duties.
While those unpublished cases may have been of some value to Hauber when he wrote his brief, both opinions have since been reversed by the Kentucky Supreme Court. Mull was overturned in a not-to-be-published opinion, Zappos.com v. Mull, 2015 WL 6590024 (rendered October 29, 2015). There, the Kentucky Supreme Court found an employee's pre-injury job tasks included retrieving product, scanning product, and placing product in shipping boxes. Post-injury, the employee's job tasks were restricted to simply scanning items. As scanning items was neither minimal work nor a significant diversion from the pre-injury job tasks, nor did it result in the employee receiving a lesser hourly wage, the Kentucky Supreme Court found the employee had returned to regular and customary employment and was not entitled to TTD benefits.
Applying Mull to the instant case, Hauber would not be entitled to TTD benefits after he returned to work. Post-injury, Hauber still moved and stocked product. Even though he stocked lighter weight product, he still performed a necessary stocking job in the store. Likewise, there is no allegation that Hauber received a lesser hourly wage for performing lighter weight stocking duties. Thus, pursuant to Mull, the ALJ properly determined Hauber was not entitled to TTD benefits after he returned to work on August 1, 2012.
Hauber also relies upon Tipton, which has since been overturned in a published opinion. Trane Commercial Systems v. Tipton, --- S.W.3d ---, 2016 WL 671170 (final March 10, 2016). Trane's holding controls the instant case. In Trane the employee, Delena Tipton, was working on quality control testing air conditioning units when she fell and broke her kneecap. Following an extended absence from work, Tipton was released by her treating physician to return to sedentary work with no overtime. Tipton returned to Trane doing a different job -assembling electrical-circuit boards - while earning the same hourly pay as prior to the injury. She was also restricted to an eight-hour work day. Tipton later achieved MMI but maintained her circuit board assembly job and began working overtime again.
Trane ceased paying Tipton's TTD benefits when she returned to work, and Tipton argued to the ALJ that she was entitled to those benefits until she achieved MMI. The ALJ denied TTD benefits after Tipton resumed work, finding that she had returned to "customary, non-minimal work" when she returned to Trane as a circuit-board assembler. The Board affirmed the ALJ's order. Relying on Bowerman v. Black Equipment Co., 297 S.W.3d 858 (Ky. App. 2009), a panel of this Court reversed the Board's opinion, concluding that Tipton's return to work did not terminate her TTD benefits because Tipton had not performed the circuit-board assembly job prior to her injury.
The Kentucky Supreme Court reversed this Court's opinion:
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 [657,] 659 [(Ky. 2000)]. However, it is also not reasonable, and it does not further the purpose of 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.Trane Commercial Systems v. Tipton, --- S.W.3d ---, 2016 WL 671170 at *6 (alterations added and in original, paragraph breaks added).
The same outcome is dictated in the instant case. On August 1, 2012, Hauber returned to work at Kroger performing stocking duties - moving and placing product. Even though Hauber stocked only lighter weight items, the type of work he performed was still customary to his pre-injury work as a stocker. And we see no extraordinary circumstances in Hauber's case that would justify an award of TTD to an employee who has returned to employment.
Though Hauber may not be as efficient a stocker as he once was, and though he may not be able to lift as much weight as he previously did, Hauber is still able to stock items at Kroger. Hauber thus "return[ed] to employment" on August 1, 2012, and he was no longer entitled to TTD benefits. KRS 342.0011(11)(a). We find no error with the ALJ's order or the Board's opinion.
CONCLUSION
This case places one question squarely before us: when a person who previously stocked heavy grocery goods is injured on the job and returns stocking lighter grocery goods, has the person "return[ed] to employment" pursuant to KRS 342.0011(11)(a)? Under the Kentucky Supreme Court's holdings of Trane, supra, and Zappos.com, supra, we are compelled to answer in the affirmative. Hauber was not entitled to TTD benefits as of August 1, 2012, the date he resumed stocking duties at Kroger. Accordingly, we affirm the opinion and order entered below.
ALL CONCUR. BRIEF FOR APPELLANT: Christopher Harrell
Louisville, Kentucky BRIEF FOR APPELLEE: James B. Cooper
Lexington, Kentucky