BRADY (JAMES) VS. COMP KENTUCKY AMERICAN WATER, ET AL.
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RENDERED: JANUARY 7, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001408-WC
JAMES BRADY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-09-94750
KENTUCKY AMERICAN WATER;
HON. ROBERT L. SWISHER, ADMINISTRATIVE
LAW JUDGE; AND THE WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CAPERTON, AND CLAYTON, JUDGES.
CAPERTON, JUDGE: The Appellant, James Brady, appeals the June 25, 2010,
opinion and order of the Workers’ Compensation Board affirming the March 2,
2010, order of the Administrative Law Judge (ALJ) and subsequent April 5, 2010,
order of the ALJ denying Brady’s petition for reconsideration. On appeal, Brady
makes one argument, that he is entitled to a reinstatement of benefits pursuant to
Kentucky Revised Statutes (KRS) 342.0011. Having reviewed the record, the
arguments set forth by Brady, and the applicable law, we affirm.
Brady is a 54-year-old man with a high school education. He began
working for Kentucky American Water in 1988. On December 18, 2007, Brady
injured his left elbow while turning off the water. Thereafter, on July 2, 2008,
Brady injured his right shoulder, again while turning off the water. Brady
underwent surgery for both injuries, using 12 weeks of sick time for the first injury
and 18 weeks of sick time for the second. According to Brady, although he
received temporary total disability checks from the workers’ compensation carrier,
Kentucky American forced him to “sign over” his checks to them. Brady further
testified that after all of his sick time was used, he was allowed to keep his
workers’ compensation checks. It is undisputed that following each injury, Brady
returned to work at the same job earning the same or a higher rate of pay.
In reviewing the record, we note that Kentucky American did not
enter an appearance in this matter nor did it in any other way attempt to defend this
claim. No evidence was submitted on its behalf and it has not filed a brief for
consideration on appeal.
After reviewing the evidence submitted by Brady, which consisted
primarily of his own testimony and medical evidence, the ALJ issued an opinion,
award, and order in this matter on March 3, 2010. The ALJ found in favor of
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Brady and awarded him permanent partial disability (PPD) benefits based upon a
3% impairment rating for the December 18, 2007, injury to the left elbow in
accordance with the 5th Edition of the AMA Guides. Further, the ALJ awarded PPD
benefits for the right shoulder injury of July 2, 2008, based upon a 7% impairment
rating in accordance with the Guides.
In addition to the award of PPD benefits, the ALJ also awarded
periods of temporary total disability (TTD) benefits, stating:
For temporary total disability, Plaintiff shall receive from
the Defendant/Employer or its carrier such benefits as
have heretofore been paid by the Defendant/Employer
and/or its carrier as to the injury of December 18, 2007
and the injury of July 2, 2008. Defendant/Employer shall
take credit for any and all such payments heretofore paid.
See March 3, 2010, Opinion, Award, and Order of Administrative Law Judge, p. 7.
The ALJ addressed the issue of whether Brady was entitled to the
TTD or if he was required to give the TTD to his employer and opined that this
was a contractual issue between the employer and employee over which the ALJ
had no jurisdiction. In so finding, the ALJ stated:
I can only speculate that there may be a condition or term
in the plaintiff’s employment agreement pertaining to the
coordination of benefits under which the TTD checks
were delivered to the employer. Any dispute as between
the Plaintiff and employer as to that procedure, condition,
or term would appear to the undersigned to be a
contractual/civil matter between those parties not falling
within the jurisdiction of the ALJ. No evidence as to
actual TTD payment dates (i.e. duration), nor rates has
been introduced although Plaintiff testified that he was
paid TTD while off-work following each of his injuries.
I find, therefore, that Plaintiff is entitled to such TTD
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benefits as have already been actually paid as to each
injury date both as to rate and duration but that no
additional TTD is awarded herein.
See March 3, 2010, Opinion, Award, and Order of Administrative Law Judge, pp.
4-5.
As noted, Brady filed a petition for reconsideration which was denied
in an order entered on April 5, 2010. In denying the Petition for Reconsideration,
the ALJ noted that there was no evidence in the record as to whether Brady’s sick
time was “recredited” to the extent of the TTD surrendered by Brady to Kentucky
American, nor was there evidence as to the employment contract between Brady
and Kentucky American concerning sick pay or any potential coordination of
benefits as a result of a work-related injury. The ALJ went on to opine that any
request to reinstate “accumulated sick pay” would be an issue not within the
auspices of KRS 342, and would more appropriately be addressed in an
employment benefit action. Concerning Brady’s request for reimbursement of
TTD benefits, the ALJ found that request to be more properly addressed in a circuit
court enforcement action pursuant to KRS 342.305.
Brady then appealed to the Board, arguing that the ALJ erred in failing
to order Kentucky American to repay the TTD benefits which he was required to
give to Kentucky American. The Board affirmed the ALJ. In doing so, the Board
first affirmed the TTD award itself, finding that there was no objection to the
appropriateness of the award or the period for which it was issued and, further, that
it appeared to be supported by substantial evidence. Concerning the issue of
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whether Brady should be reimbursed sick pay in the amount of the surrendered
TTD benefits, the Board agreed with the ALJ that the reinstatement of accrued sick
pay is not a workers’ compensation issue. The Board agreed with Brady that he
was entitled to payment of TTD benefits but agreed with the ALJ that there was no
evidence in the record as to whether Brady’s sick time account was recredited to
the extent of the TTD surrendered. Accordingly, the Board affirmed the opinion of
the ALJ. It is from that opinion that Brady now appeals to this Court.
On appeal, Brady makes only one argument; namely, that he is
entitled to a reinstatement of benefits. In support thereof, Brady asserts that KRS
342.0011(11)(a) clearly states that TTD is to be paid when an employee “has not
reached maximum medical improvement from an injury and has not reached a
level of improvement that would permit a return to employment.” Thus, Brady
argues that, unlike sick pay, TTD is only to be paid to the injured worker in
connection with a work injury. He therefore asserts that other types of policies,
including sick pay and vacation pay, are not interchangeable with TTD.1
Accordingly, Brady argues simply that his employer should not have
taken his TTD and forced him to exhaust his sick pay for a work-related injury.
Brady argues that those benefits should have remained untouched because they
have nothing to do with a work-related injury. He requests that his benefits be
1
Brady argues that if an employee has a nonwork-related illness or injury, the employer cannot
simply decide that he or she should receive TTD payments rather than “sick pay” or payments
from some other policy of insurance.
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restored or that he be paid directly the TTD owed to him. As noted, Kentucky
American Water has not filed a brief in response to Brady’s arguments.
In reviewing the arguments made by Brady, we note that our
Kentucky Supreme Court has long recognized that the function of the Court of
Appeals in reviewing the decisions of the Board is to correct the Board only where
the Court perceives that 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 Hospital v. Kelly, 827 S.W.2d 685, 68788 (Ky. 1992). We review this matter with this standard in mind.
Having reviewed the record and applicable law concerning the
payment of TTD and credits entitled in connection therewith, we are in agreement
with Brady that if in fact the employer did require Brady to surrender his TTD and
use his sick time in its place without crediting his account for the amount
surrendered, such action would be both contrary to the workers’ compensation
statute and detrimental to the injured worker. Having so stated, we are
nevertheless in agreement with the ALJ that if this did in fact occur, the proper
venue to address that issue would be in an enforcement action filed in the circuit
court pursuant to KRS 342.305.
It is the function of this Court to review the opinions of the Board and
the ALJ and to ensure that those opinions were supported by substantial evidence,
and to verify that the Board in affirming the ALJ has not overlooked or
misconstrued the law, or committed an error causing gross injustice. See Kelly,
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supra. In the matter sub judice, there is no question that TTD was paid to Brady.
Stated simply, Kentucky American should be provided credit for their payments.
There has been no dispute as to the award of TTD itself, either as to the amount
awarded or as to the duration of the award. Thus, we are in agreement with the
Board that the award of TTD itself was supported by substantial evidence and shall
not be disturbed on appeal. See Wolf Creek Collieries v. Crum, 673 S.W.2d 735
(Ky. App. 1984).
Having so found, we further note that proper crediting of sick leave is
an employment issue which is beyond our review in the matter sub judice.
Likewise, this Court is not the proper forum to issue an original decision on an
enforcement action under KRS 342.305. The circuit court is the proper forum for
Brady to file an original enforcement action pursuant to KRS 342.305, should he
wish to do so.
Wherefore, for the foregoing reasons, we hereby affirm the June 25,
2010, opinion and order of the Workers’ Compensation Board affirming the March
2, 2010, order of the Administrative Law Judge and subsequent April 5, 2010,
order of the Administrative Law Judge denying Brady’s petition for
reconsideration.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEES:
Theresa Gilbert
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Lexington, Kentucky
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