United Parcel Serv. v. Helms

• Decision Date: 13 January 2017
• Docket Number: NO. 2015-CA-001728-WC,2015-CA-001728-WC
• Parties: UNITED PARCEL SERVICE APPELLANT v. CAELA HELMS; HONORABLE WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
• Court: Kentucky Court of Appeals

UNITED PARCEL SERVICE APPELLANT v. CAELA HELMS; HONORABLE WILLIAM J. RUDLOFF,ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

NO. 2015-CA-001728-WC

Commonwealth Of Kentucky Court of Appeals

JANUARY 13, 2017

NOT TO BE PUBLISHED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 greaterthan 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) wasappropriate. 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 notrequest additional findings of fact, the Board held that the issue of the ALJ's failure to engage in the requisite analysis had been sufficiently

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