467 S.W.3d 249 (Ky. 2015), 2014-SC-000100-WC, Livingood v. Transfreight, LLC

Docket Nº2014-SC-000100-WC
Citation467 S.W.3d 249
Opinion JudgeBARBER, JUSTICE.
Party NameALTON LIVINGOOD, APPELLANT v. TRANSFREIGHT, LLC, ET. AL., APPELLEE
AttorneyCOUNSEL FOR APPELLANT: Larry Duane Ashlock, Esq., Morgan & Morgan. COUNSEL FOR APPELLEE: Walter A. Ward, Donnie James Niehaus, Ward, Hocker, Thornton, PLLC.
Judge PanelAll sitting. All concur.
Case DateAugust 20, 2015
CourtSupreme Court of Kentucky

Page 249

467 S.W.3d 249 (Ky. 2015)

ALTON LIVINGOOD, APPELLANT

v.

TRANSFREIGHT, LLC, ET. AL., APPELLEE

2014-SC-000100-WC

Supreme Court of Kentucky

August 20, 2015

Released for Publication September 10, 2015.

Page 250

[Copyrighted Material Omitted]

Page 251

ON APPEAL FROM COURT OF APPEALS. CASE NO. 2013-CA-000349-WC. WORKERS' COMPENSATION BOARD NO. 09-WC-73444.

COUNSEL FOR APPELLANT: Larry Duane Ashlock, Esq., Morgan & Morgan.

COUNSEL FOR APPELLEE: Walter A. Ward, Donnie James Niehaus, Ward, Hocker, Thornton, PLLC.

All sitting. All concur.

OPINION

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BARBER, JUSTICE.

This workers' compensation appeal involves entitlement to temporary total disability (" TTD" ) benefits during a period of light-duty work and application of the two multiplier, KRS 342.730(1)(c)2. The ALJ denied both. The Workers' Compensation Board (" Board" ) and the Court of Appeals affirmed. We affirm the denial of TTD benefits and reverse and remand with respect to the two multiplier, because our analysis here today convinces us to reconsider the holding in Chrysalis House, Inc. v. Tackett, 283 S.W.3d 671 (Ky. 2009).

I. BACKGROUND

Appellant, Alton Livingood (" Livingood" ), injured his left shoulder on September 16, 2009, while working as a certified forklift operator for Appellee, Transfreight, LLC (" Transfreight" ). He underwent two shoulder surgeries and was off work from November 11, 2009, through March 2, 2010. He returned to light duty from March 3, 2010, through October 5, 2010. Livingood subsequently underwent a third shoulder surgery and was off work again from October 6, 2010, through December 12, 2010. TTD benefits were paid for the periods he was off work.

On December 13, 2010, Livingood returned to work without restrictions. Four hours into his shift, Livingood accidentally bumped into a pole while operating the forklift in an unfamiliar area. There was no damage. At the time of the incident, Livingood was still under a physician's care and taking prescribed Lortab. On December 23, 2010, Transfreight terminated his employment.

Livingood testified that " [t]hey said I should have been paying more attention to what I was doing, and they fired me." Stephanie Baldwin, Transfreight's human resources business partner, testified that Transfreight has a progressive discipline policy " that from infraction to infraction, we either go directly to the next step or depending upon the matter, we can skip steps." Ms. Baldwin thought that the forklift incident was the third incident. It was a " preventable accident, ... deemed to be relative." But, in Livingood's case, he was already on " full and final warning" status with the next step being termination when the forklift incident occurred. Otherwise, his employment would have continued.

On December 18, 2011, Livingood started working for Vogt Management packing post-it notes at $8.50 an hour. Livingood testified that he would have had to work two weeks at Vogt to get close to what he had earned in one week at Transfreight.

On August 15, 2012, the ALJ rendered an Opinion, Award & Order. It reflects a stipulated average weekly wage (" AWW" ) of $550.43. The ALJ noted that Livingood's hourly rate remained $13.25 from the time of the injury until his termination. While on light duty, Livingood " was on the payroll at his regular rate of pay." His light-duty activities included:

changing batteries in forklifts and monitoring restrooms to see who was writing on walls. In addition, he was given an

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assignment to find freight that was in the wrong place, write it down and have the forklift operators move it. He estimated that he spent 50% of his time changing batteries, 25% of his time monitoring bathrooms and 25% going around and making sure everything was in the right place. Even before his injury, he performed the " misplaced freight" duties on a daily basis. Prior to the injury [Livingood] also had the job of changing batteries for about a five month period.... Immediately before his injury, however, he operated a forklift 100% of the time ....

The ALJ denied Livingood's request for TTD benefits while he was on light duty. Except for bathroom monitoring, Livingood had performed the other activities before the injury; further, they were not a make-work project. The ALJ was not persuaded that Livingood was terminated due to his disabling shoulder injury and declined to award the two multiplier under KRS 342.730(1)(c)2 and Chrysalis House v. Tackett, 283 S.W.3d 671 (2009). The ALJ awarded permanent partial disability [" PPD" ] benefits in the amount of $11.93 per week, based upon a straight 5% impairment rating. Livingood filed a petition for reconsideration contending, inter alia, that the ALJ erred in not awarding the two multiplier. By Order of September 18, 2012, the ALJ denied the petition for reconsideration.

Livingood appealed to the Board, which affirmed by Opinion rendered Januaiy 25, 2013. The Board disagreed with Livingood's argument that he was entitled to additional TTD benefits while he was on light duty: .

Pursuant to KRS 342.0011(11)(a), in order for a claimant to be entitled to TTD benefits, he must satisfy a two-prong test: (1) he must not have reached maximum medical improvement (" MMI" ); and (2) he must not have reached a level of improvement that would permit his return to employment. Double L Constr., Inc. v. Mitchell, 182 S.W.3d 509, 513 (Ky. 2005). A release to perform minimal work rather than the type that is customaiy or that the employee was performing at the time of the injuiy does not constitute " a level of improvement that would permit a return to employment" under KRS 342.0011(11) (a). Id. at 514 (citing Cent. Kentucky Steel v. Wise, 19 S.W.3d 657, 659 (Ky. 2000)). However, during his return to work, Livingood was paid the same wage he was paid prior to his injuiy. The ALJ found that a majority of Livingood's work during this time was work he had been trained to do, and ... had previously performed for the employer.....In total, 75% of Livingood's post-injuiy work was work he customarily and regularly performed for his employer pre-injuiy. The ALJ found that Livingood had therefore not satisfied the second prong of the KRS 342.0011(11)(a) test for TTD benefits. We are not persuaded that the evidence in the record renders the ALJ's finding unreasonable or compels a different outcome.

The Board found no error in the ALJ's decision not to award the two multiplier under KRS 342.730(1)(c)(2).

[T]he Kentucky Supreme Court has held that KRS 342.730(1)(c)(2) only permits a double income benefit when employment ceases for a reason relating to the disabling injury. Chrysalis House, Inc. v. Tackett, 283 S.W.3d 671, 674 (Ky. 2009). Livingood was ultimately let go due to the December 13, 2010 forklift incident. He claims this incident actually was a result of his injury.... Transfreight's human resources representative testified that but for multiple prior infractions, the forklift incident would not have resulted

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in Livingood's termination. The ALJ ultimately decided that the termination was unrelated to Livingood's injury. This decision was within the ALJ's discretion and was not unreasonable in light of the evidence presented.

By Opinion rendered January 31, 2014, the Court of Appeals affirmed. The Court of Appeals was not convinced that the ALJ had misapplied the law or misinterpreted the evidence.

II. ANALYSIS

Livingood contends that he was entitled to additional TTD from March 3, 2010, until October 5, 2010, while on light duty, because he did not perform his customary work as a forklift operator. 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." Livingood relies upon Central Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky. 2000) and Double L Construction, Inc., v. Mitchell, 182 S.W.3d 509 (Ky. 2005). Both are distinguishable on their facts. Double L Construction involved concurrent employment which is not at issue here.1

In Wise, the employee was not working during the period TTD was in issue. Wise, an ironworker, fractured his arm on April 28, 1997. The employer voluntarily paid TTD through August 1, 1997. At the end of September 1997, Wise moved to Florida and started working for a different employer. His treating physician did not assign MMI until October 28, 1997. The ALJ awarded TTD benefits through September 30, 1997. The employer argued that under KRS 342.0011(11)(a), TTD should have been terminated in July 1997, when the treating physician would have allowed Wise to return to work with a five-pound lifting restriction. The Court disagreed, because " [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.

As the Court explained in Advance Auto Parts v. Mathis, No. 2004-SC-0146-WC, 2005 WL 119750, at *3 (Ky. Jan. 20, 2005), and we reiterate today, Wise does not " stand for the principle that workers who are unable to perform their customary work after an injury are always entitled to TTD." Livingood had the burden of proof on the issue. Where the ALJ finds against the party with the burden of proof, the standard of review on appeal is whether the evidence compelled a contrary finding. FEI Installation, Inc. v. Williams, 214 S.W.3d 313 (Ky. 2007). The Board and the Court of Appeals were not convinced that it did. Nor are we. " The

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function of further review in our Court is to address new or novel questions of statutory construction, or to reconsider precedent when such appears necessary, or to review a question of constitutional magnitude." Western Baptist v. Kelly, 827 S.W.2d 685, 688, 39 4 Ky.L.Summary 54 (Ky. 1992).

Livingood...

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