CHARLES PINKSTON v. TELETRONICS, INC.; DONALD G. SMITH, Administrative Law Judge; and WORKERS' COMPENSATION BOARD AND TELETRONICS, INC. V. CHARLES R. PINKSTON; DONALD G. SMITH, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
CORRECTED:
SEPTEMBER 23, 1999
TO BE PUBLISHED
SEPTEMBER 28, 1999
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98-SC-945-WC
CHARLES
v.
PI,NKSTON
APPEAL FROM COURT OF APPEALS
NO. 97-CA-905-WC
(Workers' Compensation Board No. 90-24860)
TELETRONICS, INC.; DONALD G. SMITH,
Administrative Law Judge; and
WORKERS' COMPENSATION
BOARD
APPELLEES
AND
98-SC-988-WC
TELETRONICS,
V.
INC.
CROSS-APPELLANT
CROSS-APPEAL FROM COURT OF APPEALS
NO. 97-CA-905-WC
(Workers' Compensation Board No. 90-24860)
CHARLES R. PINKSTON; DONALD G. SMITH,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
CROSS-APPELLEES
OPINION OF THE COURT
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
This
workers' compensation
appeal
concerns
several
questions relative to the award of rehabilitation benefits as
authorized by KRS 342.710 and KRS 342.715.
Claimant's date of birth is October 23, 1944.
injured at work in March,
He was
1990, when he fell through the ceiling of
a
building
in
which
he
was
installing
a
telephone
system.
Claimant
had a GED, had studied electronics, and had a master electrician's
license
in
West
occupational
pursue
a
He was awarded a 60% permanent, partial
Virginia.
Claimant indicated that he wished to
disability.
vocational
rehabilitation
program,
and
Drs.
Reiss,
Scutchfield, and Wells all indicated that claimant was an excellent
candidate
for
vocational
Administrative Law Judge (ALJ)
that
a
rehabilitation
In view of this, the
rehabilitation.
who considered the claim concluded
evaluation
was
appropriate.
Claimant underwent the required evaluation and
subsequently
appliance
enrolled
in
a
22-month, full-time
program
in
major
There was evidence that the program had a 94%
repair.
placement rate and that graduates were offered starting salaries
which
approached
claimant's
pre-injury
average
weekly
wage.
Participation in the program necessitated a 97-mile round trip from
his home in Springfield to the Kentucky Vocational School in
Elizabethtown
for
five
days
paid approximately $1,200.00
each
week.
The
employer
voluntarily
for registration fees, books and
tuition in the program but refused to reimburse claimant for
mileage or to pay additional rehabilitation benefits pursuant to
KRS
342.715;
December
6,
therefore, claimant moved to reopen the award on
1995, in
order
to
seek
those
benefits.
Claimant asserted that he was entitled to reimbursement for
mileage necessary to attend the vocational rehabilitation program.
He also asserted that he was entitled to rehabilitation benefits
pursuant to KRS 342.715 for a full 22 months of participation in
the vocational rehabilitation program in addition to his permanent
'
partial
disability
award.
He asserted that payment of the
-2-
permanent,
partial disability award should be suspended during the
period of vocational rehabilitation, with the balance of the award
becoming
In
payable
from
the
termination
of
rehabilitation
benefits.
response, the employer asserted that vocational rehabilitation
benefits were limited to 52 weeks and sought credit for its
voluntary payments to the extent that they covered more than 52
weeks
of
rehabilitation.
reopening, the
At
ALJ
awarded
rehabilitation
benefits
pursuant to KRS 342.715 for the 22 months of the program and
mileage
for
the
days
claimant
actually
attended
class.
Payment
of
the partial disability award was suspended during the 22-month
period
that
employer's
rehabilitation
appeal
and
benefits
claimant's
were
Pursuant
ordered.
cross-appeal,
the
to
the
Workers'
Compensation Board (Board) affirmed the order of rehabilitation
benefits pursuant to KRS 342.715 but determined that they were
authorized only from the date of the motion to reopen.
The Board
determined that rehabilitation benefits were paid in lieu of
partial disability benefits during the weeks that the two awards
reversing
overlapped,
the
award
in
that
regard.
The Court of Appeals determined that no llsound
evidence"
medical
supported the extension of the 52-week rehabilitation
period which was authorized by KRS 342.710 to 22 months. It
affirmed
now
the
decision
appeals, and
of
the
the
Board
employer
in
all
other
respects.
Claimant
cross-appeals.
On the date of claimant's injury, KRS 342.710 provided, in
pertinent
part,
as
follows:
(1) One of the primary purposes of this chapter
shall be restoration of the injured employe to
gainful employment. . . .
-3-
.
.
.
(3) An employe who has suffered an injury
covered by this chapter shall be entitled to prompt
medical rehabilitation services for whatever period
of time is necessary to accomplish physical
rehabilitation goals which are feasible, practical,
and justifiable. When as a result of the injury he
is unable to perform work for which he has previous
training or experience, he shall be entitled to
such vocational rehabilitation services, including
retraining and job placement, as may be reasonably
necessary to restore him to suitable employment. .
. . Vocational rehabilitation training, treatment
or service shall not extend for a period of more
than fifty-two (52) weeks, except in unusual cases
when by special order of the administrative law
j udge , after hearing and upon a finding, determined
by sound medical evidence which indicates such
further rehabilitation is feasible, practical and
justifiable, the period may be extended for
additional periods.
(4) Where rehabilitation requires residence
or near the facility or institution, away from
employe's customary residence, reasonable cost
his board, lodging or travel shall be paid for
the defendants.
KRS
of
and
342.710(3)
unlimited
duration
justifiable"
authorizes
in
physical
order
medical
to
rehabilitation
accomplish
rehabilitation
at
the
of
by
services
"feasible,
goals.
In
practical,
contrast,
the
vocational rehabilitation services which are provided are more
limited.
KRS 342.710(3)
authorizes an ALJ to order vocational
rehabilitation of more than 52 weeks' duration only after
conducting a hearing and upon llsound
rehabilitation
who
is
participates
in
"feasible,
a
practical,
rehabilitation
and
program
justifiable."
of
more
than
A worker
52
weeks'
approval, clearly does so without the
duration,
without
assurance
that
however,
that nothing in KRS 342.710 provides that benefits are
the
prior
medical evidence" that further
entire
program
will
be
compensable.
We
forfeited unless approval is obtained before enrollment in a
-4-
observe,
vocational
rehabilitation
program
of
more
than
52
weeks'
duration.
We observe that claimant entered the program after undergoing the
required
rehabilitation
evaluation, that the employer voluntarily
paid for the program until claimant moved to reopen, that there is
no indication that the program was not feasible, and that the ALJ
determined with the benefit of hindsight that the program was
l'reasonable,
practical,
and
justifiable."
Considering
claimant's
age and his occupational and educational background, we are
persuaded that the medical evidence offered in the initial claim
was sufficient to support the ALJ's
vocational
was
of
rehabilitation
compensable.
Appeals
in
Accordingly,
that
or
in
which
claimant
participated
we reverse the decision of the Court
regard.
KRS 342.710(4)
lodging
program
determination that the 22-month
authorizes the reasonable cost of "board,
travel" where rehabilitation requires residence at or
near a facility which is away from the worker's customary
residence.
Here, claimant
could
not
avail
himself
of
the
vocational rehabilitation services to which he was entitled without
making a daily commute of 97 miles.
We conclude, therefore, that
because the training facility was a significant distance from
claimant's
customary
residence, the payment of mileage would come
within the travel expenses contemplated by KRS 342.710(4).
L Construction v. Cannon, KY., 884 S.W.2d
therefore,
which
We,
affirm the award of mileage expenses for the days upon
claimant
On
647 (1994).
See C &
the
attended
class.
date
claimant's
of
injury,
KRS
342.715
provided:
Notwithstanding the provisions of KKS 342.730,
during the period the employe is eligible for
permanent total disability benefits and is actively
participating in a vocational or physical
-5-
rehabilitation program, pursuant to an order of the
administrative law judge, the employe's
benefits
shall be calculated by taking eighty percent (80%)
of his average weekly wage, but not more than one
hundred percent (100%) of the state's average
weekly wage, times the percentage of disability as
determined in this chapter.
summary, KRS
In
342.715 authorizes enhanced income benefits
only where the injured worker "is eligible for permanent total
disability
present
Use of the word "eligibleI
benefits."
entitlement
See, Webster's
to
New
benefits
Collegiate
for
permanent
Dictionary,
connotes a
total
1975
disability.
The
edition.
amount
of the benefit equals 80% of the worker's average weekly wage
(limited
by
percentage
the
of
state's
average
disability
as
weekly
determined
wage),
in
multiplied
Chapter
by
the
It is
342.
apparent that the Court of Appeals failed to abide by the plain
meaning of the words which the legislature employed when setting
forth the conditions for awarding a rehabilitation benefit and
instead, on the formula for computing the amount of the
focused,
benefit
We
are
as
providing
conclude,
a
however, that
unambiguous, and
compatible
rationale
with
the
those
the
for
the
conditions
formula
for
conditions.
result
for
computing
which
awarding
the
was
the
benefit
reached.
benefit
is
We conclude that KRS 342.715
should have been construed as plainly written and reverse the
decision
of
the
Court
of
Appeals
to
the
contrary.
We recognize that there may have been sound reasons for
making the enhanced rehabilitation benefits set forth in
KRS 342.715 available to workers whose permanent disability is
partial as well as to those whose permanent disability is total;
nonetheless,
provide
the
it was the prerogative of the legislature to choose to
benefit
only
for
the
latter
-6-
group.
In view of the
comparative value of a 425-week award and a lifetime award, it
could not be said that it was absurd for the legislature to focus
on reducing the number of lifetime awards for total disability.
That purpose would be advanced by providing an economic incentive
for totally disabled workers to seek physical and vocational
rehabilitation
occupational
and,
thereby, to reduce the extent of their
disability.
In instances where vocational
rehabilitation was successful, a lifetime award for total
disability could then be reopened by the employer and reduced.
Here, it is undisputed that the claimant is not permanently
and
totally
disabled.
Under those circumstances, KRS 342.715 does
not apply to this claim.
For
that
reason, further
questions
relative to the application of KRS 342.715 need not be addressed on
these
facts.
We conclude that claimant is entitled to be compensated for
the
travel
expenses
which
the
ALJ
awarded.
He is also entitled to
be compensated for the cost of the 22-month vocational
rehabilitation
totally
KRS
program,
itself.
Because he is not permanently and
disabled, he is not entitled to the benefits provided by
342.715.
The decision of the Court of Appeals is hereby affirmed, in
part,
and
reversed,
in
part.
The claim is hereby remanded to the
ALJ for the entry of an award which is consistent with the
foregoing.
Lambert,
Wintersheimer,
dissents,
in
C.J., and Graves, Keller, Stumbo, and
JJ.,
concur.
Cooper,
J., concurs in part, and
part, by a separate opinion in which Johnstone, J.,
joins.
-7-
ATTORNEY
FOR
PINKSTON:
Hon. Charles Ched Jennings
105 S. Sherrin Avenue
Louisville, KY 40207
ATTORNEY
FOR
TELETRONICS,
INC.:
Hon. William A. Miller, Sr.
FERRERI, FOGLE, POHL, & PICKLESIMER
203 Speed Building
333 Guthrie Green
Louisville, KY 40202
-8-
RENDERED:
SEPTEMBER 23, 1999
TO BE PUBLISHED
98-SC-0945-WC
CHARLES
PINKSTON
APPELLANT
APPEAL FROM COURT OF APPEALS
NO. 97-CA-905-WC
(Workers' Compensation Board No. 90-24860)
V.
TELETRONICS, INC.; DONALD G. SMITH,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
98-SC-0988-WC
TELETRONICS,
INC.
CROSS-APPELLANT
CROSS-APPEAL FROM COURT OF APPEALS
NO. 97-CA-905-WC
(Workers' Compensation Board No. 90-24860)
V.
CHARLES R. PINKSTON; DONALD G. SMITH,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
CROSS-APPELLEES
OPINION BY JUSTICE COOPER
CONCURRING IN PART AND DISSENTING IN PART
I dissent from the majority opinion insofar as it extends
the
duration
of
the
claimant's
vocational
rehabilitation
benefits
from fifty-two weeks to twenty-two months and awards him mileage
expense (at an unspecified rate) for the ninety-seven mile daily
round trip from his home in Springfield, Kentucky, to Kentucky
Tech-Elizabethtown
in
Elizabethtown,
Kentucky.
I.
KRS 342.710(3)
provides in pertinent part as follows:
Vocational rehabilitation training, treatment, or
service shall not extend for a period of more than
fifty-two (52) weeks, except in unusual cases when by
special order of the administrative law judge, after a
hearing and upon a finding, determined bv sound medical
evidence which indicates such further rehabilitation is
feasible, nractical, and iustifiable, the period may be
extended for additional periods.
(Emphasis added.)
I agree with the Court of Appeals that this statute means
exactly what it says: vocational
rehabilitation
limited to fifty-two weeks absent "sound
would justify an extension.
training
is
medical evidence" which
The ALJ based his decision to extend
the rehabilitation period to twenty-two months in this case not
on "sound
medical
evidence," but on the lay testimony of the
claimant and the director of Kentucky Tech.
In fact, no medical
evidence at all was offered in support of the claimant's motion
for an extension.
The majority opinion posits that the medical
proof offered during the litigation of the original claim
supports the ALJ's
decision.
Maybe; but the original claim was
litigated in 1992-93 and the present motion to reopen for
extension
1996.
of
rehabilitation
Regardless,
expenses
was
not
litigated
until
the medical proof which the majority claims
was sufficient to support the ALJ's
decision IS NOT EVEN IN THE
RECORD OF THIS REOPENED CASE.
-2-.
The ALJ who heard the motion to reopen was not the same ALJ
who presided over the original claim.
The summary of the medical
evidence in the Opinion and Award of September 24, 1993 does not
indicate that any of the doctors testified to a need for
rehabilitation or, if so, whether
vocational
rehabilitation
should exceed the statutory limit of fifty-two weeks.
ALJ's
Since the
grant of an extension to twenty-two months was not
by "sound
supported
medical
evidence," it was clearly erroneous
and should be set aside.
II.
KRS 342.710(4)
provides as follows:
Where rehabilitation requires residence at or near
the facility or institution, away from the employee's
customary residence, reasonable cost of his board,
lodging, or travel shall be paid for by the employer or
his insurance carrier.
This provision prima facie applies only when the employee is
required to reside away from his customary residence.
example,
For
the claimant in this case was injured while working in
Cleveland,
Ohio.
If
his
vocational
rehabilitation
required
him
to attend a facility or institution in Cleveland instead of in
Elizabethtown,
Kentucky, the statute would require his employer
to pay the cost of his travel to Cleveland and his room and board
while he was residing there and in attendance at the facility or
institution.
The statute does not authorize payment of travel
expenses if the employee, as here, commutes
from
his
customary
residence to the facility or institution where rehabilitation is
provided.
As in C & L Construction v. Cannon, KY., 884 S.W.2d
- 3 -
647 (19941,
provide
the majority of this Court has again undertaken to
workers' compensation
benefits
which
the
legislature
has
chosen not to provide.
The majority opinion does not address, and C & L
Construction v. Cannon did not address, whether there is a point
in distance where travel expenses will not be paid.
The
claimant
in this case lives in Springfield, which he asserts is a 48.5
mile drive from Kentucky Tech.
What if he lived in.Glendale,
which is 7.5 miles from Kentucky Tech?
Would he be entitled to
reimbursement for travel expenses for his fifteen mile daily
commute?
I live five miles from Kentucky Tech; but I live eight
miles from my place of employment in Elizabethtown.
Obviously,
I
am not entitled to be paid travel expenses for my daily sixteenmile commute to and from work just because I choose not to live
within walking distance of my office.
vocational
injury,
rehabilitation
training
But if I should need
because
of
a
I would be entitled, per the majority opinion in this
case, to travel expenses for the daily ten-mile
Kentucky
did
work-related
Tech
relocate
for
to
rehabilitation.
commute to
If the claimant in this case
Elizabethtown, would he be entitled not only to
the cost of relocation, but also to mileage expenses from his new
residence
to
Kentucky
Tech?
Nor has the ALJ or the majority of this Court specified the
method by which the claimant is to be reimbursed for travel
expenses.
Is he to be reimbursed for actual gas and oil expenses
(facts which are not in this record), which fluctuate almost
-4
-
daily and vary according to the make and model of vehicle being
driven; or is he to be paid at some unspecified rate per mile?
If the latter, is he to be paid at the same rate as state
employees (he was not a state employee), or at the rate which his
employer pays to its employees (information which also is not in
this
record)?
executives
What if the employer pays different rates to
than
to
hourly
employees?
Should
reimbursement
for
expenses already incurred be at the rate applicable to the year
of payment or at the rate applicable to the year in which the
expense
was
incurred?
These
are
the
problems
inevitably
encountered when we attempt to amend a purely statutory right of
action by application of common law equity principles.
Workers'
remedies
and
compensation is a creature of statute and the
procedures
described
therein
are
exclusive.
Morrison v. Carbide and Carbon Chemicals Corn., 278 Ky. 746, 129
S.W.2d
547, 549 (1939).
When an employer and employee submit
themselves to the provisions of the act, their rights and
liabilities are thereafter measured by the terms of the act.
Id
4, 129 S.W.2d at 550.
reimbursement
of
travel
In this instance, the act provides for
expenses
only
where
vocational
rehabilitation requires relocation to a residence at or near the
facility
or
institution.
It does not provide for reimbursement
of travel expenses incurred by the employee in commuting to that‘
facility or institution from his usual residence.
For these reasons,
I would affirm the Court of Appeals'
decision to set aside the ALJ's
decision to grant an extension of
- 5 -
the vocational rehabilitation period, and reverse its decision to
uphold the ALJ's
Johnstone,
award of travel expenses.
J., joins this opinion, concurring in part and
dissenting in part.
- 6 -
98-SC-945-WC
APPELLANT
CHARLES PINKSTON
v.
APPEAL FROM COURT OF APPEALS
NO. 97-CA-905-WC
(Workers' Compensation Board No. 90-24860)
TELETRONICS, INC.; DONALD G. SMITH,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
AND
98-SC-988-WC
TELETRONICS,
v.
CROSS-APPELLANT
INC.
CROSS-APPEAL FROM COURT OF APPEALS
NO. 97-CA-905-WC
(Workers' Compensation Board No. go-248601
CHARLES R. PINKSTON; DONALD G.
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
SMITH,
CROSS-APPELLEES
ORDER
On
the
Court's
own
motion, page 7 of the Opinion of the
Court in the above-styled matter is hereby corrected in order to
reflect that Cooper and Johnstone, JJ., concur, in part, and
dissent,
in
corrected,
part.
Copies of pages 1 and 7 of the opinion, as
are attached hereto and are substituted for pages 1 and
7 of the opinion as rendered on September 23, 1999.
ENTERED:
SeptemberN , 1999
Chief
Justice
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