Central Kentucky Steel v. Wise, No. 1999-SC-0962-WC.

• Decision Date: 15 June 2000
• Docket Number: No. 1999-SC-0962-WC.
• Citation: 19 S.W.3d 657
• Parties: CENTRAL KENTUCKY STEEL, Appellant, v. Charles F. WISE; Hon. Irene Steen, Administrative Law Judge, and Workers' Compensation Board, Appellees.
• Court: United States State Supreme Court — District of Kentucky

19 S.W.3d 657

CENTRAL KENTUCKY STEEL, Appellant, v. Charles F. WISE; Hon. Irene Steen, Administrative Law Judge, and Workers' Compensation Board, Appellees.

No. 1999-SC-0962-WC.

Supreme Court of Kentucky.

June 15, 2000.

Douglas A. U'Sellis, Boehl Stopher & Graves, Louisville, for Appellant.

Neil S. Weiner, Louisville, Walter W. Turner, Department of Workers' Claims, Frankfort, for Appellees.

WINTERSHEIMER, Justice.

This appeal is from an opinion of the Court of Appeals affirming a decision of the Workers' Compensation Board which affirmed an opinion and award by the Administrative Law Judge.

The questions presented are whether substantial evidence supported the duration of the award of temporary total disability benefits; whether the average weekly wage was calculated correctly and whether the ALI should be required to correct and/or clarify her finding concerning the medical expense dispute.

Wise fractured his left arm on April 28, 1997, when a bundle of steel hit him while working for Central Kentucky Steel. Previously, Wise worked for CKS in October, November, and December of 1996, before being laid off. He was unemployed from December 10, 1996, until March 1997 when he returned to work for CKS. Although he was unable to work during that interim due to a non-work-related finger injury, he testified that he would have elected not to work even if that injury did not occur. Wise worked for CKS seven days between March 18, 1997 and April 28, 1997, the date of the arm injury. During that time, he earned $18.76 per hour. CKS voluntarily paid temporary total disability benefits of $89.41 per week from April 29, 1997, through August 1, 1997. At the end of September 1997, Wise moved to Florida and returned to work earning approximately $13.00 per hour.

Thereafter, Wise filed for benefits under the Kentucky Workers' Compensation Act. The arbitrator awarded him TTD benefits in the amount of $447.03 per week from April 29, 1997, through August 1, 1997. He also determined Wise to have a 1% permanent partial impairment and awarded him weekly benefits of $42.51 for 425 weeks. Finally, the arbitrator awarded Wise medical benefits for occupational therapy in accord with the Kentucky medical fee schedule.

CKS filed a request for a de novo review before an administrative law judge. The ALJ affirmed all of the determinations by the arbitrator except that she extended the TTD benefits until September 30, 1997. She further determined that a disputed medical bill from Lee Memorial Hospital in Florida where Wise received treatment was compensable. The Board and the Court of Appeals both affirmed the opinion and award of the ALJ This appeal followed.

CKS argues that the Court of Appeals and the Board erred in affirming the award of TTD benefits through September 30, 1997. It contends that if a claimant has either reached maximum medical improvement or has been released to return to work, the condition of temporary total disability would no longer exist and eligibility for TTD benefits would terminate. To support its position CKS relies on testimony from Dr. Gardner, the treating physician, who stated that he would allow Wise to return to work on July 11, 1997, with a restriction on lifting no more than five pounds with his left hand. Thus, CKS maintains that benefits should have terminated on July 11, 1997. We disagree.

KRS 342.0011(11)(a) states that:

"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.

CKS would interpret the statute so as to require a termination of TTD benefits as soon as the worker is released to perform any type of work. We cannot agree with that interpretation. It 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. Dr. Gardner stated that Wise did not reach maximum medical improvement until October 28, 1997. Moreover, Wise did not return to work until the end of September. Consequently, the award by the ALJ of TTD benefits through September 30, 1997, was supported by substantial evidence.

Alternatively, CKS argues that even if the statute intends that an individual return to or, at least, be released to return to his or her usual job, the evidence in the record before the ALJ clearly indicates that Dr. Gardner...