Opinion
NO. 2015-CA-001728-WC
01-13-2017
UNITED PARCEL SERVICE APPELLANT v. CAELA HELMS; HONORABLE WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Christopher G. Newell Kenneth J. Dietz Louisville, Kentucky BRIEF FOR APPELLEE, CAELA HELMS: James D. Howes Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 12-WC-98149 OPINION
REVERSING
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BEFORE: J. LAMBERT, TAYLOR, AND THOMPSON, JUDGES. LAMBERT, J., JUDGE: United Parcel Service (UPS) has petitioned this Court for review of the decision of the Workers' Compensation Board (the Board) affirming the Administrative Law Judge's (ALJ) May 7, 2015, Amended Opinion and Order on Remand and the June 17, 2015, Opinion and Order on Reconsideration. In its appeal, UPS contends that as a matter of law, injured employee Caela Helms was not entitled to an award of temporary total disability (TTD) benefits from the time she returned to work on August 15, 2012. We agree, and therefore we reverse the Board's opinion.
This matter has previously been before this Court on appeal, and we shall rely upon the statement of facts and procedural history as set forth in the prior opinion:
The Appellant, Caela Helms, alleges she injured her right leg on January 4, 2012, when she was pinned between a van and a dolly during her work at Appellee United Parcel Service ("UPS") as a package handler. She also alleged she suffered from post-traumatic stress as a result of the injury. At her deposition, Helms testified as follows regarding the day of her injury:
[S]he had gotten out of a work van to load an aircraft. She explained that another UPS employee driving a tug hit the van which caused her body to be pinned between the van and a dolly. The tug hit the van approximately three more times after her leg was pinned between the van and the dolly. Helms testified her job included loading aircrafts which involved a lot of bending and lifting of items weighing up to seventy pounds. She also operated tugs and various equipment.
Opinion of the Workers' Comp. Board at p. 2.
During her employment with UPS, Helms also worked at Elder Care for Families (hereinafter "Elder Care") every Friday from 7:00 a.m. to 3:00 p.m. and every other Sunday from 7:00 a.m. to 11:00 a.m. Helms worked for Elder Care until Christmas Day of 2011.
In September of 2012, Helms obtained employment with Delta Global Services (hereinafter "Delta") as a driver working on the ramp at Louisville International Airport. She worked at this job every Friday from 7:00 a.m. to 5:00 p.m. and a couple of hours in the morning Monday through Thursday before going to work at her job for UPS.
A hearing was held before the ALJ on April 25, 2013, at which Helms testified that in addition to sustaining a large laceration, she also broke her right leg. As a result of her injury, Helms was off work from January 4, 2012, until August 15, 2012, and was paid Temporary Total Disability ("TTD") benefits through August 12, 2012. Helms testified that she returned to work at UPS on August 15, 2012, with accommodations, which included her supervisor allowing her to rest if her leg hurt or if she felt she had been standing too long. (Helms estimated that she rested approximately ten to fifteen minutes at least once per day during her regular shift.)
Helms also testified before the ALJ that she had not been able to completely perform her duties as she had prior to her injury. She explained that she was a lot more anxious and this made it more difficult for her to do her work. She stated that she had problems with balance and was unable to walk for a long period of time as a result of her leg injury.
Helms stated that she has no feeling in the back side of her right leg and that this loss of sensitivity extends from the back of her knee into her foot. She did not undergo surgery but underwent physical therapy at Frazier Rehabilitation Center and continually receives psychological counseling.
Helms acknowledged before the ALJ that she is under no work restrictions at UPS and that the crew members and her supervisor perform all her work involving dollies. She also testified that she was not taking medication and that she was earning an Average Weekly Wage ("AWW") which was equal to or greater
than what she had been making at the time of her injury. Finally, Helms testified that she had not missed any work with UPS or Delta and that she had no plans to stop working at either job. At the conclusion of the hearing, the parties stipulated that Helms had an AWW of $443.37 (based on her dual employment) and that she had been underpaid TTD benefits in the amount of $59.00 per week.
Concerning Helms' entitlement to TTD benefits, the ALJ entered the following findings of fact and conclusions of law:
KRS [Kentucky Revised Statutes] 342.0011(11)(a) defines "temporary total disability" to mean 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.
Based on the sworn testimony of the plaintiff and the persuasive medical report from Dr. McEldowney, I make the factual determination that the plaintiff was temporarily totally disabled from January 5, 2012 to and including January 4, 2013, at which time she reached maximum medical improvement, and that the plaintiff is entitled to recover temporary total disability benefits from the defendant and its workers' compensation insurance carrier for that period of time.
Although the ALJ did not specifically state that he relied upon the impairment rating assessed on January 4, 2014, by Dr. Anthony McEldowney, the Board found that it was clear from the ALJ's subsequent analysis and the award that he had.
[I]n conducting the requisite analysis pursuant to Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003), the ALJ relied upon the testimony of Dr. McEldowney and Helms to determine enhancement by the three multiplier pursuant to KRS 342.730(1)(c)(1) was
appropriate. Based on the stipulated AWW, the ALJ awarded TTD benefits of $295.58 from January 5, 2012, to January 4, 2013, and PPD [permanent partial disability] benefits of $141.87 beginning January 4, 2012, and continuing for 425 weeks.
Helms filed a petition for reconsideration with the ALJ asserting that the opinion contained a typographical error as the ALJ stated payment of PPD benefits commenced on January 4, 2012, when it should have commenced on January 5, 2013, or when the award of TTD benefits ended.
UPS also filed a petition for reconsideration of the award contending that the award of PPD benefits should commence on January 4, 2013, instead of January 4, 2012. UPS also asserted that, as a matter of law, the ALJ's award of TTD benefits could not extend beyond August 14, 2012, since Helms had improved to the point where she could return to employment on August 15, 2012. It argued that, since TTD benefits were paid through August 12, 2012, Helms would only be entitled to two days of TTD benefits. Consequently, UPS argued that the award of PPD benefits by the ALJ should have commenced on August 15, 2012.
On reconsideration, the ALJ amended his award to reflect the award of PPD benefits beginning on January 5, 2013, and continuing for 425 weeks. With respect to UPS's argument regarding when the award of TTD benefits should terminate, the ALJ stated that the May 6, 2013 Opinion and Order discussed all the contested issues raised by the parties in the benefit review conference order. With this exception, the ALJ reaffirmed its Opinion and Order.
On appeal to the Board, UPS asserted that despite the ALJ's acknowledgement that there is a two-prong test for determining an award of TTD benefits, he only addressed the first prong, finding Helms did not reach maximum medical improvement ("MMI") until January 4, 2013. It argued that the ALJ never addressed Helms'
testimony that she went back to work on August 15, 2012, at her regular position making a greater AWW.
UPS also argued that the facts in Central Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky. 2000), are "grossly inapplicable" to the facts in the case sub judice. It argued that by Helms' own admission, she returned to her same job making a greater AWW. Further, it contends that since Helms was working for an additional employer, Delta, no argument can be made that she did not return to her customary work as she admits it was the same job with only minor accommodations made by her co-workers.
In its October 11, 2013 Order Vacating and Remanding, the Board held that the ALJ had determined in its May 6, 2013 Opinion and Order that, based on the opinion of Dr. McEldowney, Helms attained MMI on January 4, 2012. The Board also held that, concerning Helms' entitlement to TTD benefits, the ALJ should have then engaged in an analysis as to whether Helms had "returned to employment," as defined in Central Kentucky Steel v. Wise, supra, at any point between August 15, 2012, through January 4, 2013. Finally, the Board ruled that, in awarding TTD benefits through January 4, 2013, the ALJ had determined when Helms attained MMI, but did not determine the point at which Helms had reached a level of improvement that would permit her return to employment. In awarding TTD benefits from January 4, 2012, through January 4, 2013, the ALJ must make a determination Helms had not reached MMI and during this period had not reached a level of improvement that would permit a return to employment as defined herein. The Board held that the ALJ did not make such a determination in its opinion and order.
In its petition for reconsideration of the Board's decision, UPS pointed out an award of TTD benefits terminates upon obtaining MMI or a return to employment. It asserted that since Helms had returned to employment on August 15, 2012, TTD benefits should terminate on August 14, 2012. Although UPS did not
request additional findings of fact, the Board held that the issue of the ALJ's failure to engage in the requisite analysis had been sufficiently preserved for review. It also held that as a matter of law, the ALJ was required to engage in the two-prong analysis in determining whether an award of TTD benefits was appropriate.Helms v. United Parcel Serv., Inc., 2014 WL 3406916, at *1-3 (2013-CA-001870-WC) (Ky. App. July 11, 2014).
In her appeal to this Court, Helms argued that the Board erred in finding that the ALJ had not engaged in the proper analysis. The Board found that on reconsideration, the ALJ had declined to address this argument raised by UPS and had therefore failed to analyze the TTD issue pursuant to the statute and case law. Specifically, the ALJ failed to determine whether Helms had "returned to work in a customary manner or to work which she was performing at the time of her injury" as of August 15, 2012, or thereafter. Id . at *5. Therefore, this Court affirmed the Board's decision remanding the case to the ALJ for additional fact-finding.
Upon remand, the ALJ issued an amended opinion and order on September 26, 2014. Therein, the ALJ addressed TTD and after making a factual determination that Helms "was a credible and convincing lay witness and that her testimony rang true," concluded that based upon that testimony and medical evidence from Dr. McEldowney, Helms was temporarily totally disabled from January 5, 2012, through January 4, 2013, when Dr. McEldowney stated she had reached maximum medical improvement (MMI). UPS filed a petition for reconsideration, arguing that the ALJ's conclusion was inconsistent with the facts of record. While Helms argued that the ALJ correctly awarded TTD benefits during the time period in question, she requested additional findings by the ALJ in accordance with the Board's order of remand. The ALJ issued an opinion and order on reconsideration on November 17, 2014, essentially copying the language from the amended opinion and order on remand.
On appeal, the Board again vacated the ALJ's ruling on Helms' entitlement to TTD. Citing to W.L. Harper Constr. Co. v. Baker, 858 S.W.2d 202, (Ky. App. 1993), the Board noted that an employee seeking TTD benefits must establish both that he has not reached MMI from an injury and that he has not reached a level of improvement that would permit him to return to work pursuant to KRS 342.0011(11)(a). The Board went on to state:
It is noted that Helms was released to return to work without restrictions on August 13, 2012, and continues to work the same number of hours, and earns at least at the same rate of pay. It is undisputed Helms was entitled to an award of TTD benefits from January 5, 2012 through August 14, 2012 based upon the fact she did not return to work until August 15, 2012. However, Helms returned to work with no restrictions on August 15, 2012, although she stated her job was accommodated. Dr. Baker opined she performs the essential functions of her job, although Dr. McEldowney opined she could not do her previous work. Despite her return to work, the remaining issue is her entitlement to additional TTD benefits from the date of her return until her evaluation by Dr. McEldowney.The Board ultimately held that the ALJ's analysis again failed to satisfy both prongs of the test related to the period of time from August 15, 2012, through January 4, 2013, and was therefore deficient. The Board stated that "the ALJ MUST conduct the appropriate analysis as explained above." (Emphasis in original).
The ALJ issued a second amended opinion and order on remand on May 7, 2015. In the portion of the opinion addressing TTD, the ALJ again copied paragraphs of text from the first amended opinion and order on remand, and underlined several of the sentences. UPS again filed a petition for reconsideration, pointing out that the ALJ failed to analyze the issue as directed by this Court and the Board. In his opinion and order on reconsideration, the ALJ stated:
I made and again made the determination that the plaintiff's sworn lay testimony, as covered above, is very credible and convincing and further that the medical evidence from Dr. McEldowney, the orthopedic surgeon, which is covered above, is very persuasive, compelling and reliable, leading me to make the determination that the plaintiff was temporarily totally disabled from January 5, 2012 to and including January 4, 2013, when Dr. McEldowney opined that she reached maximum medical improvement.
I make the determination that when the plaintiff did return to work she did not return to her customary work or the work she was performing at the time of her injuries and she had not reached maximum medical improvement until January 4, 2013. I make the determination that she did not return to the job she was doing at the time she was injured, since she could not meet the 70-pound lifting requirement and was also psychologically incapable of operating dollies. I make the determination that those two job requirements were integral parts of her former job and that it is clear that she was incapable of performing either task.
I also make the determination that Dr. McEldowney's rebuttal report dated April 22, 2013 was persuasive, compelling and reliable. Dr. McEldowney stated that Ms. Helms can no longer work around dollies or perform the heavy lifting and carrying requirements required by her job for the defendant, since her knee instability precludes her from lifting and carrying 70 pounds and if she is placed in that type of work environment, she runs the risk of further injuring her right knee, which could lead to an additional surgical procedure.
UPS again appealed the ALJ's decision. In an opinion entered October 16, 2015, the Board entered an opinion affirming the ALJ's decision. Related to the award of TTD, the Board stated:
Although the order on remand does not provide a clear and succinct analysis, it is minimally sufficient to satisfy the requirements of the multiple directives previously provided to the ALJ. Despite the fact that Helms returned to work for UPS in August 2012, the ALJ pointed to testimony which establishes she was unable to perform the full gamut of her job duties, although she was released to return to work with no restrictions. Likewise, Dr. McEldowney's report supports the ALJ's determination that she did not reach MMI until he saw her on January 4, 2013.We note that one Board Member concurred in result only and the other Board Member dissented without furnishing a separate opinion. This petition for review now follows.
Although not clearly stated, the ALJ's June 17, 2015 Opinion and Order on Reconsideration is sufficient to satisfy the requirements set forth in W.L. Harper Construction Company v. Baker, 858 S.W.2d 202 (Ky. App. 1993), Central Kentucky Steel v. Wise, 19 S.W.3d 657, 659 (Ky. 2000), [and] Magellan Behavioral Health v. Helms, 140 S.W.3d 579 (Ky. App. 2004), in finding Helms [was] entitled to TTD benefits during the disputed period after her return to work for UPS until she reached MMI as assessed by Dr. McEldowney.
On appeal, UPS contends that the ALJ's TTD award when Helms had returned to work without restrictions and at a greater wage than when she was injured was not consistent with the evidence or the law. UPS argues that the ALJ's additional analysis in the opinion and order on reconsideration goes to whether Helms was eligible for the 3.0 multiplier, not whether she returned to her usual and customary work on August 15, 2012, for purposes of the TTD analysis. Helms contends that she was only doing minimal work upon her return to work at UPS on August 15, 2012, and thus was entitled to TTD benefits through January 4, 2013.
Our standard of review in workers' compensation appeals is well-settled in the Commonwealth. "The function of further review of the [Board] in the Court of Appeals is to correct the Board only where the Court perceives the Board 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).
Kentucky law establishes that "[t]he claimant in a workman's compensation case has the burden of proof and the risk of persuading the board in his favor." Snawder v. Stice, 576 S.W.2d 276, 279 (Ky. App. 1979) (citations omitted). "When the decision of the fact-finder favors the person with the burden of proof, his only burden on appeal is to show that there was some evidence of substance to support the finding, meaning evidence which would permit a fact-finder to reasonably find as it did." Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). However, "[i]f the board finds against a claimant who had the burden of proof and the risk of persuasion, the court upon review is confined to determining whether or not the total evidence was so strong as to compel a finding in claimant's favor." Snawder, 576 S.W.2d at 280 (citations omitted).
Because the decision favored Helms, we must determine whether there was some evidence of substance to support the ALJ's findings.
Although a court cannot substitute its evaluation of the weight and credibility of the evidence for that of the Workmen's Compensation Board, nevertheless, the findings of fact of the board when it decides in favor of the claimant must be supported by substantial evidence. Substantial evidence means evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.Smyzer v. Goodrich Chem. Co., 474 S.W.2d 367, 369 (Ky. 1971). And it has long been the law in Kentucky that "[t]he ALJ, as the finder of fact, and not the reviewing court, has the sole authority to determine the quality, character, and substance of the evidence." Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993), citing Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).
The sole issue before this Court is whether the ALJ properly awarded TTD benefits to Helms from August 15, 2012, through January 4, 2013, after she had returned to work at UPS as well as with another employer. "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." Bowerman v. Black Equip. Co., 297 S.W.3d 858, 874 (Ky. App. 2009), citing Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327, 329-330 (Ky. App. 2000).
KRS 342.0011(11)(a) defines TTD 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 Double L Constr., Inc. v. Mitchell, 182 S.W.3d 509, 513 (Ky. 2005), the Supreme Court of Kentucky explained:
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, [19 S.W.3d 657 (Ky. 2000)], 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).
Two aspects of the philosophy underlying workers' compensation acts are: 1.) that injured workers are to be compensated for a loss of the ability to earn a living without regard to fault; and 2.) that the cost of an industrial injury should be borne by the employment in
which the injury occurred, thereby encouraging the employer to promote workplace safety.The Mitchell Court went on to state that "[a]s defined in KRS 342.0011(11)(a), temporary total disability is not based on a finding of AMA impairment. Nor, as determined in Central Kentucky Steel v. Wise, supra, is it based on an inability to perform any type of work." Mitchell, at 515. More recently, in Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 60 (Ky. 2012), the Supreme Court confirmed that, "[b]oth factors must be present throughout an awarded period of TTD." There is no dispute that Helms had not reached MMI during the time period in dispute. The issue before this Court is whether she had reached a level of improvement that would permit her to return to work under the second prong.
In arguing that Helms failed to meet the second prong of the test, UPS points out that Helms had returned to her customary work without any restrictions on August 15, 2012, and she worked in this capacity through January 4, 2013, albeit with accommodations. In the order on reconsideration, the ALJ specifically found as follows:
I make the determination that when the plaintiff did return to work she did not return to her customary work or the work she was performing at the time of her injuries and she had not reached maximum medical improvement until January 4, 2013. I make the determination that she did not return to the job she was doing at the time she was injured, since she could not meet the 70-pound lifting requirement and was also psychologically incapable of operating dollies. I make the determination that those two job requirements were integral parts of her former job and that it is clear that she was incapable of performing either task.
I also make the determination that Dr. McEldowney's rebuttal report dated April 22, 2013 was persuasive, compelling and reliable. Dr. McEldowney stated that Ms. Helms can no longer work around dollies or perform the heavy lifting and carrying requirements required by her job for the defendant, since her knee stability precludes her from lifting and carrying 70 pounds and if she is placed in that type of work environment, she runs the risk of further injuring her right knee, which could lead to an additional surgical procedure.The Board found the ALJ's order on remand to be "minimally sufficient to satisfy the requirements of the multiple directives previously provided to the ALJ. Despite the fact that Helms returned to work for UPS in August 2012, the ALJ pointed to testimony which establishes she was unable to perform the full gamut of her job duties, although she was released to return to work with no restrictions." The Board also mentioned the ALJ's reliance upon Dr. McEldowney's determination that Helms had reached MMI on January 4, 2013.
UPS asserts that the ALJ's findings went to whether Helms was entitled to the 3.0 multiplier pursuant to KRS 342.730(1)(c) (whether she retained the physical capacity to perform the same job as when she was injured) rather than whether she returned to her usual and customary work for purposes of the TTD analysis. We must agree with UPS that the findings upon which the ALJ based his award of TTD benefits go to whether she was entitled to the 3.0 multiplier as they addressed whether she had the physical capacity to return to the same job she had at the time of her injury. The question before the ALJ was whether she had returned to her usual and customary work, which the record reflects she had on August 15, 2012. In addition, the record reflects that Helms had taken a second job with Delta doing the same job as she does at UPS. Accordingly, we must hold that the ALJ erred as a matter of law in awarding TTD benefits to Helms from the time she returned to work on August 15, 2012, through January 4, 2013.
For the foregoing reasons, the opinion of the Workers' Compensation Board affirming the decisions of the Administrative Law Judge is reversed, and this matter is remanded for the entry of an amended opinion awarding TTD benefits only through August 14, 2012.
ALL CONCUR. BRIEF FOR APPELLANT: Christopher G. Newell
Kenneth J. Dietz
Louisville, Kentucky BRIEF FOR APPELLEE,
CAELA HELMS: James D. Howes
Louisville, Kentucky