Opinion
NO. 2013-CA-001320-WC
07-11-2014
SONIA S. MULL APPELLANT v. ZAPPOS.COM, INC.; HON. JOHN COLEMAN, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: James D. Howes Louisville, Kentucky BRIEF FOR APPELLEE, ZAPPOS.COM, INC.: Scott C. Wilhoit Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-11-93629
OPINION
REVERSING
BEFORE: ACREE, CHIEF JUDGE; JONES AND MOORE, JUDGES. MOORE, JUDGE: An Administrative Law Judge (ALJ) determined that Sonia Mull was entitled to an award of temporary total disability income benefits (TTD) from May 15, 2011, until December 29, 2011. Mull's employer, Zappos.com, Inc. (Zappos), appealed to the Workers' Compensation Board and the Board subsequently reversed. Mull now appeals to this Court. We reverse.
FACTUAL AND PROCEDURAL HISTORY
Mull began her employment with Zappos in August 2010, working ten-hour shifts on weekends and earning $11.00 per hour. Her work at Zappos largely required her to engage in prolonged standing while retrieving boxes from a conveyor belt, scanning the boxes, and putting them into Zappos boxes for shipping. Mull's work was fast paced and repetitive, often requiring her to handle 300 boxes per hour. She first noticed numbness and stiffness in her right hand in January 2011. On February 5, 2011, she had difficulty lifting the middle finger of her right hand from a closed fist and had a snapping or flicking sensation in the finger.
In early March, Mull's treating physician, Dr. Dennis Sparks, diagnosed her with trigger finger. As Dr. Sparks described in a treatment note, he gave Mull "a note to be off of work," but believed that being off work was "probably not going to do anything at all for her trigger finger." On March 5, 2010, Mull brought Dr. Sparks' note to her supervisor at Zappos, told her supervisor that she did not feel physically capable of performing her usual work because of the condition of her hand, and she requested a one-month leave of absence. Her request was refused and she was instead directed to take a drug test, pursuant to Zappos's policy. After she passed the drug test, she was placed on what Zappos categorized as "light duty" or "alternative" work.
Mull continued her light duty work at Zappos every weekend until she eventually quit on May 15, 2011. She filed a workers' compensation claim on August 17, 2011, alleging that she had sustained a repetitive motion injury to the middle finger of her right hand during the course and scope of her employment with Zappos on February 5, 2011. As her claim progressed, she requested TTD from May 15, 2011, until December 29, 2011 (the date that she was eventually determined to be at maximum medical improvement or "MMI"). When her claim was later submitted to the ALJ for final adjudication, the ALJ found that Mull had proven that she had lacked the physical capacity to "return to employment" during her requested period of TTD within the meaning of Kentucky Revised Statute (KRS) 342.0011(11)(a); that Mull had not reached MMI until December 29, 2011; and that Mull was, therefore, entitled to TTD income benefits from her requested date of May 15, 2011, to December 29, 2011.
Zappos filed a petition for reconsideration arguing in relevant part:
It is absolutely uncontroverted that alternative work was provided for [Mull] within the restrictions assigned.[] Despite alternative work being made available, [Mull] elected to leave her part time position at Zappos so she could spend more time with her family. While [Mull's] reasons for leaving her part time work at Zappos are legitimate, they are not sufficient to warrant the awarding of Temporary Total Disability Benefits. Meanwhile,
[Mull] continued to work full time for Travel Exchange[] after cutting back her time demands for "family reasons ."
There is absolutely no evidence to suggest that [Mull's] cessation of the alternative duty at Zappos had anything to do with her physical capabilities to perform the light duty job. [Mull] admits that the reason why she quit working her part time job at Zappos was because of "family reasons" instead of anything to do with her trigger finger. Accordingly, it is respectfully submitted that error patently appears on the face of the Opinion & Award as it relates to the awarding to Temporary Total Disability Benefits. There has been no finding of fact that [Mull] was disabled from doing the alternative job at Zappos during which time TTD was awarded.
The ALJ was persuaded that a set of restrictions assessed by Dr. Anthony McEldowney, one of Mull's experts, applied to Mull during the period of requested TTD. Dr. McEldowney's report stated that Mull no longer retained the physical capacity to return to the type of work performed at the time of her injury, and further stated that Mull was restricted to "no repetitive gripping or grabbing/lifting activities with her right hand."
While working part-time with Zappos, Mull also worked full-time during the week with a different employer, Travel Exchange. Mull's position with Travel Exchange was sedentary accounting-type work. Based upon Mull's undisputed description of this work, it had no duties or physical requirements in common with her work at Zappos.
The ALJ was persuaded that a set of restrictions assessed by Dr. Anthony McEldowney, one of Mull's experts, applied to Mull during the period of requested TTD. Dr. McEldowney's report stated that Mull no longer retained the physical capacity to return to the type of work performed at the time of her injury, and further stated that Mull was restricted to "no repetitive gripping or grabbing/lifting activities with her right hand."
While working part-time with Zappos, Mull also worked full-time during the week with a different employer, Travel Exchange. Mull's position with Travel Exchange was sedentary accounting-type work. Based upon Mull's undisputed description of this work, it had no duties or physical requirements in common with her work at Zappos.
Overruling Zappos's petition for reconsideration, the ALJ stated "In this instance the plaintiff was not placed at maximum medical improvement until December 29, 2011 and was on light duty work restrictions. Therefore, she met the two pronged test and her ability to do light duty work is irrelevant."
Zappos then raised the same argument on appeal before the Workers' Compensation Board. Reversing, the Board held:
Here, Zappos accommodated Mull's restrictions with a scanning position, which she testified was a normal part of her employment prior to the injury. Zappos correctly notes Mull acknowledges she was capable of continuing to perform the light duty work but ceased her employment with Zappos for personal reasons completely unrelated to the work injury. Nothing in the record establishes the light duty work constituted "minimal" work and she worked regular shifts while under restrictions. She also was capable of performing,
and continued to perform for more than one year post-injury, her primary full time employment with Travelex. Given Mull was capable of performing work for which she had training and experience, and voluntarily ceased her employment for reasons unrelated to her injury or the job duties, substantial evidence does not support the award of TTD benefits[.]
Mull now appeals.
STANDARD OF REVIEW
The ALJ is the finder of fact in workers' compensation matters. Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). In that regard,
KRS 342.285(2) provides that the Board shall not reweigh the evidence and substitute its judgment for that of the ALJ with regard to a question of fact. The standard of review with regard to a judicial appeal of an administrative decision is limited to determining whether the decision was erroneous as a matter of law. American Beauty Homes v. Louisville & Jefferson County Planning & Zoning Commission, Ky., 379 S.W.2d 450, 457 (1964). Where the ALJ determines that a worker has satisfied his burden of proof with regard to a question of fact, the issue on appeal is whether substantial evidence supported the determination. Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 (1986). Substantial evidence has been defined as some evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable people. Smyzer v. B.F. Goodrich Chemical Co., Ky., 474 S.W.2d 367 (1971). Although a party may note evidence which would have supported a conclusion contrary to the ALJ's decision, such evidence is not an adequate basis for reversal on appeal. McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46 (1974). The crux of the inquiry on appeal is whether the finding which was made is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law. Special Fund v. Francis, supra, at 643.Id.
ANALYSIS
The overarching issue presented in this appeal is whether Mull was entitled to an award of temporary total disability income benefits from May 15, 2011, to December 29, 2011. In Bowerman v. Black Equipment Co., 297 S.W.3d 858, 874-75 (Ky. App. 2009), this Court explained the law regarding TTD as follows:
Entitlement of a workers' compensation claimant to TTD benefits is a question of fact to be determined in accordance with KRS 342.0011(11)(a). Statutory interpretation is a matter of law reserved for the courts, and courts are not bound by the ALJ's or the Board's interpretation of a statute. Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327, 329-330 (Ky. App. 2000). Indeed, it is the appellate court's province to ensure that ALJ decisions, and the Board's review thereof, are in conformity with the Workers' Compensation Act. KRS 342.290; Whittaker v. Reeder, 30 S.W.3d 138, 144 (Ky. 2000).
TTD is statutorily defined in KRS 342.0011(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 that would permit a return to employment [.]" In Central Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky. 2000), the Supreme Court of Kentucky established how the statutory definition was to be interpreted and applied in determining the duration of any appropriate award of TTD benefits. In Wise, the employer argued KRS 342.0011(11)(a) required termination of TTD benefits as soon as an injured worker is released to perform any type of work. However, relying upon the plain language of KRS 342.0011(11)(a), the Supreme Court 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 that is
customary or that he was performing at the time of his injury." Id. at 659. Thus, a release "to perform minimal work" does not constitute a "return to work" for purposes of KRS 342.0011(11)(a).
Thus, as defined by the statute, there are two requirements for an award of TTD benefits: first, the worker must not have reached MMI; and, second, the worker must not have reached a level of improvement that would permit him to return to the type of work he was performing when injured or to other customary work. Absent either requirement, a worker is not entitled to TTD benefits. Furthermore, pursuant to the construction assigned under Wise, KRS 342.0011(11)(a) takes into account two distinct realities: first, even if a worker has not reached MMI, temporary disability can no longer be characterized as total if the worker is able to return to the type of work performed when injured or to other customary work; and, second, where a worker has not reached MMI, a release to perform minimal work does not constitute "a level of improvement that would permit a return to employment" for purposes of KRS 342.0011(11)(a).
The purpose of awarding income benefits, such as TTD, was explained by the Supreme Court in Double L. Construction, Inc. v. Mitchell, 182 S.W.3d 509 (Ky. 2005), which applied the two-pronged TTD standard announced in Wise. The Supreme Court held:
[t]he purpose for awarding income benefits such as TTD is to compensate workers for income that is lost due to an injury, thereby enabling them to provide the necessities of life for themselves and their dependents.
Id. at 514. The Court clarified that TTD is not based on a finding of AMA impairment, nor based on an inability to perform any type of work. Id. at 515.
In the case at bar, no evidence of record disputes: 1) Mull sustained a work-related injury on February 5, 2011, and it warranted an impairment rating; 2) Mull reached maximum medical improvement (MMI) from that injury on December 29, 2011; 3) Mull's injury did not cause her any absences from her job with Zappos or any reduction in wages or of her regularly scheduled hours of work; 4) Mull was able to perform the post-injury "light duty" work Zappos assigned to her without difficulty; and 5) Mull voluntarily terminated her employment with Zappos on May 15, 2011, for reasons not associated with either her work-related injury or her light duty work.
Mull contends that the ALJ could have reasonably inferred from certain evidence that she terminated her employment with Zappos because she was incapable of performing her light duty employment. In her brief, she argues:
[T]he Board inappropriately concluded that Ms. Mull ceased her employment with Zappos for "personal reasons completely unrelated to the work injury". That is, the Plaintiff testified that she terminated her employment with Zappos based on a "work life balance." However, this testimony is only part of the evidence of record that was considered by the ALJ, and it is completely within the ALJ's discretion to believe or not believe any portion of the Plaintiff's testimony. It will be noted that on page 11 of the hearing transcript of evidence Ms. Mull testified that when she resigned she was extremely busy. At that time tax refunds contributed to customers' increased buying activity. She explained that the departure of the seasonal help following the holidays led to a very busy job where the boxes sometimes "would even pile up from the conveyor and get stuck right there". It was certainly within the ALJ's discretion to infer that Plaintiff's injury, continuing pain, and overwhelming workload, coupled with Dr. McEldowney's restrictions and Dr. Sparks' record of medical care, supported the conclusion that the Plaintiff found herself trying to perform a job that exceeded her physical capacity.The ALJ, however, did not conclude that Mull's work injury caused her to quit her employment with Zappos. Moreover, the evidence cited in Mull's argument merely demonstrates that Mull was restricted in the use of her right hand, and that the holiday and tax seasons made work at Zappos busy for every worker. It does not support an inference that Mull was incapable of or had any difficulty performing her light duty work, which did not require the use of her right hand beyond her medical restrictions. And, as Mull's argument indicates, inferring that she quit due to an inability to perform the light duty work would be contrary to Mull's unrefuted and unequivocal testimony that she was able to perform the light work, and that the only reason she quit was because it was simply "too much time away from [her] family, you know, working for seven days."
Also not in dispute are the various duties Mull performed pre- and post-injury. Pre-injury, her regular job assignment was in the shipping department. Her pre-injury duties sometimes required her to work in inventory or refurbishing, but mostly involved working on a conveyor belt where she would perform 100 to 300 repetitive activities per hour consisting of holding a scanner gun in her left hand, scanning a box of shoes brought in on a conveyor belt, placing the box of shoes into a Zappos box, taping the Zappos box shut, and adding a bar code to the Zappos box. Conversely, Mull's post-injury light duty work involved scanning items and keeping account of the scanner guns that were being used by other workers.
With this in mind, the specific question presented in this appeal is whether Mull's ability to continue working for Zappos, albeit in a "light duty" capacity, demonstrated that she had never departed from a level of improvement constituting a "return to employment" within the meaning of KRS 342.0011(11)(a) —if so, then Mull was not entitled to any period of TTD income benefits. This is an inquiry that involves the application of law to the facts of this case. Because the facts relevant to this inquiry (as stated above) are undisputed, we owe no deference to the ALJ's decision on this point. See Hinkle v. Allen-Codell, Co., 298 Ky. 102, 106-7, 182 S.W.2d 20 (1944).
For her part, Mull does not contest the Board's statement that the light duty work Zappos assigned her was "work for which she had training and experience" or that it was comprised of duties that were "a normal part of her employment prior to the injury." She argues in her brief, however, that "it should not matter that [she] was performing a function that was a part of the overall activity at Zappos" because she "did not possess the physical ability to continue her gripping/grabbing activities while scanning the boxes." Stated differently, Mull's position is that of the ALJ: She should be considered totally disabled for the purpose of a TTD award because she was capable of performing some, but not all, of her customary pre-injury duties within the parameters of her medical restrictions.
Incidentally, at least one unpublished decision demonstrates that the Board and this Court have interpreted "return to employment" in roughly the same manner as Mull and the ALJ. In Heaven Hill Distilleries, Inc., v. Lawson, No. 2008-CA-001041-WC, 2008 WL 5147138 (Ky. App. Dec. 5, 2008), the claimant, Bonnie Lawson, was a quality control inspector at a bottling plant whose job included inspecting half-pint, quart, and half-gallon bottles. Lawson sustained a work-related injury in October, 2003, and her physician, Dr. Shea, consequently restricted her from working for a period of time thereafter. The employer argued that Lawson was not entitled to TTD during the period of restriction because Dr. Shea testified that, at that time, Lawson would have been capable of performing lighter duty work inspecting only half-pint bottles, and that he was unaware that the employer had in fact made such a job available to Lawson when he ordered Lawson not to return to work. Id. at *1-2. Nevertheless, the Board affirmed the ALJ's decision to award Lawson TTD for the period of restriction; in relevant part, it held:
Even if we were to conclude Lawson misled Dr. Shea into believing no work she could perform was available, the fact remains that the evidence clearly established Lawson could not perform the work on the half-gallon line following the October 2003 injury, nor during the time periods she was taken off work by her physicians. Since this was the work she was performing at the time of her shoulder injury, we cannot say the ALJ's award of TTD benefits was so unreasonable under the evidence that it must be reversed as a matter of law.Id. at *2. In affirming the Board, this Court added:
In the case sub judice, Lawson's pre-injury employment duties included lifting both half-pint and quart bottles from the assembly line. Even if Lawson were released to perform her job on a light duty by lifting only half-pint bottles, we do not deem such restricted work as tantamount to the type of work she performed customarily or before injury.Id. at *3.
Thus, because the claimant in Lawson could have returned to work consisting entirely of duties she customarily performed pre-injury (i.e., inspecting half-pint bottles), but to work that excluded two of her usual and customary pre-injury duties (i.e., inspecting quart and half-gallon bottles), she was deemed temporarily and totally disabled.
Zappos's position, on the other hand, is that of the Board in this case: The term "return to employment" should be interpreted broadly enough to include a claimant's demonstrated ability to perform a job at approximately the same wage and for the same number of hours primarily consisting of duties (but not necessarily every duty) that the claimant had the training and experience to perform pre-injury and which constituted a normal part of the claimant's employment pre-injury.
And, incidentally, at least one unpublished decision demonstrates that the Board and this Court have interpreted "return to employment" in roughly the same manner as Zappos. In Livingood v. Transfreight, LLC, No. 2013-CA-000349-WC, 2014 WL 356605 (Ky. App. Jan. 31, 2014), the claimant, Alton Livingood, was a forklift operator whose pre-injury duties included changing batteries in forklifts and ensuring freight was in the correct location. He sustained a work-related injury in September, 2009. Following surgery, Livingood returned to work in March, 2010, on "modified duty" at the same wage he was previously paid until he underwent another surgery in October, 2010. Id. at *1. His "modified duty" did not include operating a forklift; "25%" of his modified work consisted of duties he had never previously been assigned; but, "75%" of his modified work consisted of pre-injury duties (i.e., changing batteries in forklifts and ensuring freight was in the correct location). Id. at *2. Livingood asserted that he was entitled to TTD income benefits for the period of time when he worked in his modified duty capacity because his modified duty work did not include all of his pre-injury duties. Id. The Board rejected Livingood's claim, and this Court affirmed, for the following reasons:
This "25%" figure related to Livingood's new duties as a "bathroom monitor." In its own review, the Board explained that this was a function that was required in the operation of Transfreight's business and that it did not simply qualify as a "make-work" project. See Livingood v. Transfreight, LLC, W.C.B. Claim No. 2009-73444 (entered January 25, 2013).
[D]uring his return to work, Livingood was paid the same wage he was paid prior to his injury. The ALJ found that a majority of Livingood's work during his time was work he had been trained to do, and work that he had previously performed for the employer. Once he returned to work, Livingood spent half of his time changing batteries in forklifts and 25% of his time ensuring freight was in the correct location, both tasks Livingood performed prior to his injury. In total, 75% of Livingood's post-injury work was work he customarily and regularly performed for his employer pre-injury.Id. at *2.
We pause for a moment to emphasize that Lawson and Livingood are unpublished cases. We do not cite them as either precedent or persuasive authority regarding Mull's or Zappos's interpretation of "return to employment" within the meaning of KRS 342.0011(11)(a). See Kentucky Civil Rule (CR) 76.28(4)(c). They merely underscore a level of inconsistency in the Board's decisions on the subject of awarding TTD and, as such, they demonstrate why no form of deference should be accorded in this instance to the Board's construction of its own statutory mandate. See Homestead Nursing Home v. Parker, 86 S.W.3d 424, 426 (Ky. App. 1999) ("Although our review of the Board's statutory interpretations is less deferential than our review of its factual determinations, nevertheless, an administrative agency's construction of its statutory mandate, particularly its construction of its own regulations, is entitled to respect" (citations omitted)).
Indeed, Livingood is currently on appeal before the Kentucky Supreme Court.
With this in mind, however, published Kentucky decisions provide limited guidance with respect to which interpretation of "return to employment" is correct.
To begin, Wise, 19 S.W.3d 657, is cited as authority on this subject by both parties. There, the claimant (a journeyman ironworker) ceased his employment with Central Kentucky Steel (CKS) after fracturing his left arm in a work-related injury on April 28, 1997. On July 11, 1997, the claimant's treating physician released him to return to work, so long as the work in question would not require him to lift more than five pounds with his left arm. Upon review, the Kentucky Supreme Court determined that the five-pound lifting restriction prohibited a "return to employment" because it only permitted the claimant 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. The Court further determined that the claimant did not "return to employment" until September 30, 1997, when he "moved to Florida and returned to work earning approximately $13.00 per hour," which was less than his pre-injury hourly wage of $18.76. Id. at 658-59.
The Wise decision does not answer several questions posed in this case. For example, we are left to assume that most, if not all, of the claimant's ironworking duties could not have coexisted with his five-pound lifting restriction. Wise does not indicate whether CKS was inclined to accommodate the claimant's restrictions, or if doing so would have made any difference for the purpose of awarding TTD. In determining when a claimant can "return to work," Wise appears to place weight upon a doctor's report indicating that the claimant could be released back to work without any restrictions. Id. at 659. But, the Wise Court ultimately found that substantial evidence supported that the claimant had achieved a "return to employment" on September 30, 1997—a date that no doctor had placed any significance upon inasmuch as medical restrictions were concerned. The date of September 30, 1997, only appears significant because, according to the opinion, that was the date when the claimant chose to begin working at an unspecified job in a different state at a lower wage.
Wise does not explain what work the claimant performed in Florida. In light of the rule espoused in Wise and the outcome of that case, the assumption would be that the claimant performed at least some of the duties typically assigned to an ironworker.
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Mull also cites Double L Const., Inc. v. Mitchell, 182 S.W.3d 509 (Ky. 2006). There, the claimant sustained a compensable injury to his left eye on January 6, 2003, while working full-time as a carpenter in the construction business. As of September 25, 2003, he had not returned to work as a carpenter. Id. at 512. The claimant's doctor released him to perform unspecified "light-duty" work on March 3, 2003. The Mitchell opinion does not explain what the claimant's medical restrictions were as of that date. But, in light of the result reached in Mitchell, and the fact that he was awarded TTD until his doctor released him back to work without any restrictions on August 18, 2003, Mitchell could either mean 1) the employer's ability to accommodate the claimant's restrictions was irrelevant for the purpose of awarding TTD; or 2) most or all of the claimant's typical and customary work as a construction carpenter could not have been performed within the "light-duty" restrictions. See id. at 511 ("Concerned about the stitches that remained in his eye, the lifting required in the carpentry job, and effects of exposure to dust, the claimant did not return to carpentry [as of March 3, 2003]").
The Mitchell Court also found that the claimant's continued ability in spite of his injury to perform a second, part-time job involving "emptying trash cans throughout Kroger's corporate headquarters" did not qualify as a "return to employment," explaining:
The claimant's injury occurred in his employment as a construction carpenter; therefore, his customary work for the purposes of KRS 342.0011(11)(a) was construction carpentry, including the duties that he was performing at the time he was injured. It is undisputed that the injury rendered him unable temporarily to perform his customary work until August 18, 2003; therefore, he did not reach a level of improvement that would permit a return to employment until August 18, 2003.Id. at 514 (emphasis added).
It remains unclear from this language and the remainder of the opinion whether, by using the word "duties," the Mitchell Court meant "every duty" as urged by Mull. It appears that the Mitchell claimant's respective jobs of full-time construction carpenter and part-time office trash collector had no duties in common. Mitchell does make clear, however, that a worker's ability to perform other concurrent employment involving a different set of duties and physical requirements has no bearing upon the analysis of whether a claimant is entitled to an award of TTD. Thus, it is apparent that the Board misconstrued the applicable law when it focused upon Mull's ability, post injury, to perform her concurrent full-time employment at Travel Exchange in determining that Mull was not entitled to TTD. See Note 2, supra.
Another case touching upon whether a return to "light duty" work qualifies as a "return to employment" is Bowerman, 297 S.W.3d 858. There,
Bowerman's [e.g., the claimant's] customary work at Black [e.g., the employer] was as a forklift operator, and . . . this was the type of work he was performing at Black when he sustained his work-related injury. According to Bowerman's uncontradicted testimony, his pre-injury work duties as a forklift operator included "lots of heavy lifting, doing engine repairs, pulling heads off, pulling motors out, transmissions, brake jobs, and pulling wheels and tires off." In performing these duties, Bowerman "tried not to lift anything over 100-120 pounds if he could help it."Id. at 876.
Bowerman sustained a work-related back injury on October 14, 2004, and his doctor assigned him restrictions that allowed him to return to some light work activities. Id. at 861. From October 25, 2004, to April 22, 2005, Bowerman continued working at Black in a "light duty" capacity. To that end, there is no indication from the opinion itself whether Bowerman's hours of work or wages were reduced in this position. But, as it relates to his duties,
He was kept in the office in the parts room. He cleaned the office, took out the garbage, filled parts orders and pulled parts for customers. He said that he had problems performing this job because there was a lot of reaching involved. Some parts were too heavy and he could not pick them up. He could not kneel down or get down onId. at 876.
his knees. His service manager, Donnie Hertter[,] would assist him in this job.
Upon review, this Court determined that even though Bowerman had in fact resumed working for Black as of October 25, 2004, his ability to perform the light duties assigned to him merely demonstrated, at best, that Bowerman was capable of returning to "some form of work," as opposed to the "type of work he had performed at Black when injured or to other customary work," and therefore did not evince a "return to employment" within the meaning of KRS 342.0011(11)(a). Id. Thus, Bowerman, like Mitchell, can at least be said to stand for the proposition that light work consisting of duties entirely different from pre-injury work duties cannot be considered a "return to employment" for the purpose of awarding TTD. What Bowerman adds is that it makes no difference whether this light work is performed for, or is offered by, the pre-injury employer.
Finally, a decision providing a further measure of guidance is FEI Installation, Inc. v. Williams, 214 S.W.3d 313 (Ky. 2007). There, the claimant was a trained millwright employed as a "working foreman" on construction projects, supervising a small crew of four to six workers. In that capacity,
[H]e directed the other members but would also change out bolts; lift and carry on his shoulder angles that weighed up to 120 pounds; and use his hands to push and pull, grasp and grip, climb, perform various over-the-shoulder activities, and bring supplies to the crew.Id. at 315.
After he sustained a work-related injury to his right arm, his treating physician, Dr. Kilambi, restricted him to "light-duty work that required minimal use of his right hand" between August 24, 2003 (the date of the injury) and November 17, 2003 (the date of an ensuing surgery). Id. at 315. The claimant's employer argued that the claimant was not entitled to TTD during this period because the physical demands of his customary work did not exceed his restrictions. Id. at 317. The ALJ denied the claimant's request for TTD. In particular, the ALJ chose to believe the testimony of the claimant's superintendant, Scott Brown, to the effect that the claimant's restrictions could have been accommodated because the physical activity or the use of tools in the claimant's pre-injury work as a foreman, described above, was optional and not a required function of the job. Id. at 316. Reversing, the Kentucky Supreme Court held that certain evidence compelled a finding that the claimant's injury prevented him from performing his customary work, that his customary work did not come within his restrictions, and that the claimant was entitled to an award of TTD. The Court explained:
It was undisputed that during the relevant period Dr. Kilambi restricted the claimant to light-duty work. The only documentary evidence also indicates that he also restricted the claimant from more than minimal use of his right hand. The claimant was right-handed. Although Mr. Brown testified that the foreman's job did not require more than light-duty work, he also testified that all of the foremen of the four to six-man crews "jumped in" and helped their crews. The claimant described himself as the "working foreman" of a small crew. Like his crew, he was required to wear a safety harness, although he wasId. at 317.
not required to wear a tool belt. His description of the work he performed clearly exceeded his restrictions, and its accuracy was supported by the fact that he was injured while ratcheting a bolt on a conveyor. Moreover, nothing refuted his testimony that he took medication after the injury that prevented him from performing his duties and that Dr. Kilambi placed his right arm in a sling for a period five or six weeks after the injury.
To summarize: Whether or not it was a required duty of the foreman job, it was customary for those working in the claimant's position (i.e., that of a foreman) to jump in and help their crews, which entailed physical labor and the use of tools. The claimant's injury to his dominant hand prevented him from doing so. Thus, irrespective of whether the employer would have continued to make this duty optional for the claimant post-injury as part of an accommodation to the claimant's medical restrictions, the Kentucky Supreme Court found that the claimant's inability to perform this type of duty post-injury was dispositive for the purpose of awarding TTD—essentially this inability indicated that the claimant had not yet reached a requisite level of medical improvement.
The Williams Court could have cited the claimant's use of pain medication to treat his work-related injury during this period of time as the sole basis for compelling an award of TTD. As the Court noted, the claimant testified that he "was told [by Brown] that he could not work because he was on medication," id. at 315, and "[m]oreover, nothing refuted his testimony that he took medication after the injury that prevented him from performing his duties." Id. at 317 (emphasis added). From its use of the word "moreover" to preface this point, however, we read Williams to mean that this was merely cited by the Court as an alternative basis for granting TTD. Indeed, if the claimant's use of medication in and of itself prevented the claimant from performing all of his duties as a foreman, and an inability to work all of the duties of a given job were the only criterion for determining entitlement to TTD, then it would have been meaningless for the Court to have focused extensively upon the claimant's inability to perform just one optional but customary duty (i.e., that the claimant's injury prevented him from jumping in and helping his crew) in its analysis.
Having reviewed the applicable case law on the subject of what constitutes a "return to employment," we are left to make the following conclusions. First, as Wise tends to indicate, a worker can "return to employment" by returning to work at a lower wage post-injury. Second, no published case places emphasis on the amount of hours that a worker is capable of performing at any job post injury. But, if the amount of hours a worker is capable of working is relevant at all, it is relevant only within the context of the pre-injury employment. See Mitchell, 182 S.W.3d at 514. Third, Bowerman and Williams indicate that it makes no difference whether the post-injury job is performed for the same pre-injury employer, or whether the pre-injury employer would consider the job to be "light duty." The dispositive factor is always the worker's ability to perform the pre-injury job. Finally, Williams indicates that Kentucky precedent favors Mull's interpretation of the phrase "return to employment": an employee has achieved this level of improvement if, and only if, the employee can perform the entirety of his or her pre-injury employment duties within the confines of their post-injury medical restrictions.
We are cognizant that this interpretation flies in the face of the plain meaning of the words "totally disabled"; it narrowly defines otherwise broad language such as "return to employment"; and, when applied in the context of a worker who is capable of performing most pre-injury duties or pursuing some other employment for equal wages and for an equal amount of hours each week, it would seem to contradict the very purpose of awarding TTD, that is, "to compensate workers for income that is lost due to an injury, thereby enabling them to provide the necessities of life for themselves and their dependents." Mitchell, 182 S.W.3d at 514. Be that as it may, this interpretation is consistent with binding precedent and, whether we agree with it or not, we are bound to follow it. It is the purview of the Kentucky Supreme Court or the General Assembly to say otherwise.
Applying this interpretation, it also becomes apparent that the Board erred in reversing the ALJ's determination that Mull was entitled to TTD from May 15, 2011, to December 29, 2011. Due to her work-related injury, Mull no longer retained the physical ability to perform any activities requiring gripping and grabbing with her right hand or both hands. Her pre-injury employment was undisputedly and largely comprised of such activities. And, her post-injury light duty work was not.
CONCLUSION
For these reasons, we REVERSE the Board and direct it to reinstate Mull's award of TTD income benefits.
ACREE, CHIEF JUDGE, CONCURS.
JONES, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: James D. Howes
Louisville, Kentucky
BRIEF FOR APPELLEE,
ZAPPOS.COM, INC.:
Scott C. Wilhoit
Louisville, Kentucky