Opinion
NO. 2016-CA-001424-WC
03-31-2017
JAMES UNDERWOOD APPELLANT v. PELLA WINDOWS DEPE PLLC, HON. GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE and WORKERS' COMPENSATION BOARD APPELLEE
BRIEF FOR APPELLANT: James D. Howes Louisville, Kentucky BRIEF FOR APPELLEE: James G. Fogle Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-11-00713 OPINION
AFFIRMING
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BEFORE: COMBS, MAZE AND STUMBO, JUDGES. COMBS, JUDGE: This is a Workers' Compensation case in which the appellant challenges the date utilized by the Administrative Law Judge (the ALJ) in calculating his award. Two injury dates are involved. The ALJ awarded permanent partial disability (PPD) benefits enhanced by the three-multiplier for the first injury and Permanent Total Disability (PTD) benefits after the second. Appellant, James Underwood, contends that the Board erred in remanding for additional findings regarding application of the three-multiplier and in reversing the start date of the PTD award. After our review, we affirm.
We refer to the record only as necessary to resolve the issues before us. Underwood was employed by Appellee, Pella Windows Depe, PLLC (Pella). His job involved removal and installation of windows and doors. He testified that a single window weighs seventy-five pounds or more and the doors more than 300 pounds. He would have to load his truck himself before going out on jobs.
On May 11, 2011, Underwood filed an Application for Resolution of Injury Claim (Form 101) alleging that on June 3, 2009, he suffered injury to his head, neck, back and hands when he fell off a ladder; and that on April 21, 2010, he became aware of the manifestation of injury to his wrists due to repetitive lifting (cumulative trauma). Underwood continued to work at Pella after June 3, 2009, until August 4, 2010. He has since undergone carpal tunnel releases, wrist fusion, and a multi-level anterior cervical discectomy and fusion. Underwood's claim was placed in abeyance for a period of time until he reached maximum medical improvement.
On December 28, 2015, the ALJ rendered an Opinion, Order, and Award, which provided, in relevant part, as follows:
[T]he ALJ is . . . persuaded by Dr. McEldowney's opinion that plaintiff has a 29% impairment rating due to his June 3, 2009 cervical injury and a 30% impairment
due to his April 21, 2010 injury. . . . [T]he ALJ is not persuaded plaintiff was totally disabled as a result of the June 3, 2009 injury alone. Instead, given the plaintiff's credible testimony that he continued to work in pain after June 3, 2009, the ALJ is persuaded plaintiff returned to his same job, but did not, in reality, retain the physical ability to return to that job. As such, he is entitled to application of the 3x multiplier in KRS 342.730(1)(c)(1)[] beginning June 3, 2009 and continuing for 425 weeks. . . .
[T]he ALJ is persuaded that plaintiff is now permanently and totally disabled as a result of the combined effects of his cervical injury and his bilateral wrist conditions. ... As such, it is determined plaintiff is permanently and totally disabled beginning April 21, 2010.
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 payment." --------
The ALJ awarded PPD benefits beginning on June 3, 2009, and PTD benefits beginning on April 21, 2010, with a credit for the overlapping period of the PPD award. Temporary Total Disability (TTD) benefits were not awarded and are not at issue on appeal.
On January 15, 2016, Pella filed a Petition for Reconsideration requesting additional findings of facts with respect to the three-multiplier. Pella also asserted that "Plaintiff continued to work up until August 4, 2010. Thus, any award of PTD should not begin until at least August 4, 2010." (Underline original).
On February 12, 2016, the ALJ rendered an Order on Petition for Reconsideration. The ALJ agreed that Underwood had in fact worked until August 4, 2010; however, that fact did not change his analysis because "plaintiff testified that by April 21, 2010, and continuing until August, he could no longer lift ... with his hands but, instead, had to use his forearms to lift windows." With respect to the three-multiplier, the ALJ explained that:
[D]efendant argues additional findings are necessary to support the conclusion plaintiff does not retain the ability to return to his former job given that he continued to perform his regular job after the June, 2009 injury and even after the April 21, 2010 manifestation date of his cumulative trauma claim, up to the time he stopped working in August, 2010. Quite simply, the ALJ was persuaded plaintiff continued to work for the several months after April 2010, when his neck and wrist symptoms worsened, only through extreme motivation and will. Indeed, plaintiff's treating physicians, Dr. Guarnaschelli and Dr. Tuna, took plaintiff off work for his neck, left arm and bilateral wrist complaints in August, 2010. Thus, the medical record, along with plaintiff's testimony support the conclusion that plaintiff is not capable of returning to the job he held at the time of the injury, which further supports the opinion that plaintiff is now totally disabled.
For these reasons, the Order & Award rendered in this case on December 28, 2015 remains unaltered and in effect.
Pella appealed to the Board. By Opinion rendered August 26, 2016, the Board reversed in part, vacated in part and remanded. With respect to the start date of the PTD award, the Board held that:
Here, no special accommodations were made for Underwood. Underwood worked full duty, at full wages, between April 21, 2010 and August 4, 2010. Though he performed his work differently due to his pain his job tasks were not altered and he did not require the use of a helper. The ALJ did not conclude Pella is a "sympathetic
employer." Instead, he cited only Underwood's "extreme motivation and will."
For these reasons, we are compelled to the conclusion, that as a matter of law, a worker cannot be considered totally permanently disabled during a period he continues to work at his regular job, with no accommodations, at full wages. As such, Underwood cannot be deemed permanently disabled until he ceased working at Pella. On remand, the ALJ is directed to amend the award to commence PTD benefits on August 4, 2010.
With regard to the three-multiplier, the Board vacated and remanded for further findings of fact. The Board explained that during period of PPD, Underwood "worked full duty and full time, though he testified he was in pain and his wrist symptoms worsened." The Board explained that KRS 342.730(1)(c)1 applies where the employee does not retain the physical capacity to return to the type of work he performed at the time of the injury; however:
The award of PPD benefits concerns only Underwood's June, 2009 work accident and, therefore, his cervical injury. The ALJ's analysis does not explain why due to the effects of the June, 2009 injury alone, Underwood was unable to continue to return to the type of work he performed at the time of the injury. In light of the unique circumstances of this case - specifically, that Underwood continued to work without accommodation during this period - further analysis is required.
Underwood appeals. He first contends that the Board erred in reversing the start date of the PTD award. Underwood draws our attention to Roby v. Trim Masters, Inc., 2015-CA-000923-WC, 2016 WL 3962602 (Ky. App. July 22, 2016). Roby is distinguishable on its facts. Underwood is not challenging the ALJ's conclusion that he is permanently, totally disabled. The issue is simply when his PTD award should begin.
Underwood also argues that the principles in Gunderson v. City of Ashland, 701 S.W.2d 135 (Ky. 1985), still apply. We agree with Pella that this is not a Gunderson case. In Gunderson, a police officer who was paralyzed and confined to a wheelchair after having been shot in the line of duty returned to work as a dispatcher after modifications were made to the unit. Our Supreme Court agreed with the old board that Gunderson was totally occupationally disabled. "[E]xcept for the compassionate treatment of his employer, Gunderson is entirely precluded from successful competition for employment in the job market." Id. at 137. As the Board explained here, the ALJ did not conclude that Pella was a "sympathetic employer."
Underwood acknowledges that workers' compensation is a creature of statute. Williams v. Eastern Coal Corp., 952 S.W.2d 696, 698 (Ky. 1997). The statute defines permanent total disability as "the condition of an employee who, due to an injury, has a permanent disability rating and has a complete and permanent inability to perform any type of work as a result of an injury...." KRS 342.0011(11)(c). The statute affords us no latitude. We are compelled to agree with the Board that "as a matter of law, a worker cannot be considered totally permanently disabled during a period he continues to work at his regular job, with no accommodations, at full wages."
Next, Underwood contends that the Board erred in remanding for additional findings regarding the three-multiplier. Underwood agrees that it only applies to the 2009 cervical injury, but he fails to persuade us how the Board erred in concluding that further analysis was required. Our reviewing function is to correct the Board only where we perceive it "has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). We find no error.
We affirm the opinion of the Workers' Compensation Board.
ALL CONCUR BRIEF FOR APPELLANT: James D. Howes
Louisville, Kentucky BRIEF FOR APPELLEE: James G. Fogle
Louisville, Kentucky