Double L Const., Inc. v. Mitchell, 2005-SC-0036-WC.

• Citation: 182 S.W.3d 509
• Decision Date: 23 November 2005
• Docket Number: No. 2005-SC-0036-WC.,2005-SC-0036-WC.
• Parties: DOUBLE L CONSTRUCTION, INC. Appellant, v. Earl D. MITCHELL; Hon. Roger D. Riggs, Administrative Law Judge; and Workers' Compensation Board Appellees.
• Court: United States State Supreme Court (Kentucky)

182 S.W.3d 509

DOUBLE L CONSTRUCTION, INC. Appellant, v. Earl D. MITCHELL; Hon. Roger D. Riggs, Administrative Law Judge; and Workers' Compensation Board Appellees.

No. 2005-SC-0036-WC.

Supreme Court of Kentucky.

November 23, 2005.

Rehearing Denied February 23, 2006.

Douglas A. U'Sellis, U'Sellis & Kitchen, PSC, Louisville, Counsel for Appellant.

Robert L. Catlett, Jr., Louisville, Counsel for Appellee.

OPINION OF THE COURT

An Administrative Law Judge (ALJ) determined that an injury to the claimant's eye while performing carpentry resulted in a period of temporary total disability (TTD) that ended when he was released to return to his usual job as a carpenter. The Workers' Compensation Board (Board) reversed the award on the ground that the claimant continued performing his concurrent, part-time janitorial job without interruption. Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky.2001). Convinced that the Board misconstrued Robertson, the Court of Appeals determined that Central Kentucky Steel v. Wise, 19 S.W.3d 657, 659 (Ky.2000), controlled and reinstated the award. Although we agree that the claimant was entitled to TTD based on his temporary inability to perform carpentry and affirm in that regard, our reasoning is different.

The claimant was born in 1951 and was a high school graduate. He had spent his entire career as a carpenter in the construction business. In 2001, he began working for the defendant-employer. His injury occurred on January 6, 2003, when a nail struck by a co-worker flew up and hit the claimant in his left eye, lacerating the cornea and causing various complications. The claimant underwent three surgeries, the last of which was the implantation of a permanent acrylic intraocular lens. His physician prescribed corrective lenses and released him to return to work on August 18, 2003.

In addition to his full-time work as a carpenter, the claimant worked fifteen hours per week as a janitor. He had done so for Sky-Brite Corp. and its predecessor since 1995. The job involved emptying trash cans throughout Kroger's corporate headquarters. He explained that he took the second job to be certain that he could pay child support because construction work is seasonal. He testified that child support was deducted from his earnings with Sky-Brite; therefore, he did not take time off from the job when he injured his eye.

Medical evidence indicated that Dr. Karp performed the two initial surgeries and released the claimant to return to light-duty work on March 3, 2003. 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. Dr. Karp's records indicate that the claimant telephoned on the following day to report that he had sought treatment elsewhere.

On March 4, 2003, the claimant sought treatment with Dr. Meyer, who noted that although the eye appeared to be healing well, some sutures were loose and some of the knots were exposed. He removed the loose sutures and over several weeks removed those that remained. On March 25, he took the claimant off work altogether. He performed the lens implant on May 5. When deposed on June 18, he stated that he thought the claimant had reached MMI, but he did not release him to return to work until August 18, 2003.

Dr. Meyer assigned a 8% AMA impairment, attributing a 1% impairment to loss of vision and a 7% impairment to difficulty with loss of contrast sensitivity, glare, and difficulty with vision in certain lighting. Like Dr. Meyer, Dr. Eiferman assigned a 1% AMA impairment for loss of vision. He added an additional 3% impairment for other factors such as those described by Dr. Meyer.

The parties stipulated that the claimant's average weekly wage from carpentry was $536.00. Taking into account concurrent earnings of $107.31 per week for the janitorial work, they stipulated that his combined average weekly wage was $643.31. They also stipulated that the employer paid voluntary TTD benefits at the rate of $357.35 per week from January 8, 2003, through March 3, 2003, for a total of $2,807.75. Among the contested issues was whether the employer overpaid or underpaid TTD.

When testifying at the hearing on September 25, 2003, the claimant stated that he had not returned to carpentry. He explained that he had refrained from doing so "to let my eye have plenty of time to heal" and that he continued to have increased sensitivity to sunlight, cold temperatures, and dust. He stated that the employer paid TTD benefits in the amount of $357.35 "every Friday afternoon" until March 3, 2003. He also stated that it made two subsequent benefit payments, on March 14 and 21, 2003, but that the total payments were not more than $2,800.00.

The employer asserted that it did not owe additional TTD. Furthermore, it relied on Robertson v. United Parcel Service, supra, in asserting that the claimant was not entitled to the TTD he received because he had worked continuously for Sky-Brite after his injury. It argued that Robertson stands for the principle that Chapter 342 views concurrent employments as though they are parts of one job. Thus, a worker whose injury temporarily prevents him from working a full day has only a temporary partial disability, which is not compensable. On that basis, the employer asserted that it was entitled to credit its voluntary TTD payments against the claimant's permanent partial disability award.

The ALJ acknowledged that the claimant continued to perform janitorial work despite his injury but noted that Dr. Meyer did not release him to return to work until August 18, 2003. Concluding that the injury prevented him from performing his usual work as a construction carpenter until that time, the ALJ awarded TTD at the rate of $428.87 per week from the date of the injury until August 18, 2003, followed by permanent income benefits that were based on the 3% impairment Dr. Eiferman assigned. In a petition for reconsideration, the claimant pointed out that Dr. Eiferman had actually assigned a 4% impairment, consequently the ALJ granted the petition and amended the award.

Until December 12, 1996, Chapter 342 did not define temporary total disability. Addressing the absence of a statutory definition, the court explained in W.L. Harper Construction Company v. Baker, 858 S.W.2d 202 (Ky.App.1993), that temporary benefits are appropriate until the worker's condition has stabilized and is not expected to improve with further treatment. At that point, any lingering disability may be viewed as being permanent. Noting that Kentucky did not recognize the concept of temporary partial disability, the court determined that TTD benefits are appropriate until further medical treatment will not improve the worker's condition or until the worker is able to return to some type of work.

The employer bases its arguments on two statutes. As enacted effective December 12, 1996, KRS 342.0011(11)(a) governs the duration of a TTD award. It provides as follows:

"Temporary total disability" means 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.

KRS 342.140(5) provides that a worker's earnings from a concurrent employment of which the employer has knowledge "shall be considered as if earned from the employer liable for compensation." As such, they are included when determining the average weekly wage for the purpose of awarding income benefits.

In Central Kentucky Steel v. Wise, supra, the court was called upon to interpret KRS 342.0011(11)(a) when determining whether the duration of a steelworker's TTD award was proper under the evidence. The employer asserted that TTD benefits should have terminated when Wise was released to return to work with a five-pound lifting restriction. Rejecting the argument, the court determined that "[i]t would not be reasonable to terminate the benefits of an employee when he was 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. Noting that the ALJ awarded TTD until Wise returned to work and that he did not reach MMI until about a month later, the court determined that substantial evidence supported the award. Id.

Robertson v. United Parcel Service, supra, involved TTD in the context of concurrent employments. Robertson's injury occurred while working for UPS. It caused him to miss only two days' work for UPS but to be unable to perform masonry work for about three months. The ALJ awarded medical expenses for a temporary flare-up of symptoms from Robertson's non-work-related back condition but no TTD or permanent income benefits. Among other things, Robertson argued on appeal that he had not reached MMI and that he was entitled to TTD benefits based on his average weekly wage in the masonry job. Although the court noted that KRS 342.730(1) authorized benefits for temporary total disability but not for temporary partial disability, it determined only that the evidence did not compel a TTD award. Id., 64 S.W.3d at 287.

In the present case, the claimant was injured while working as a construction carpenter. The ALJ acknowledged that the claimant continued to perform janitorial work without interruption. Noting that Dr. Meyer thought he had reached MMI by June 18, 2003, but did not release him to return to work until August 18, 2003, the ALJ awarded TTD from the date of injury until August 18, 2003, giving the employer credit for "for any of such benefits heretofore paid."¹

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...