Eric Turner v. Ford Motor Company

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

· THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), · · THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR,USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY.COURT OF THIS STATE; HOWEVER, UNPUBLISHED.KENTUCKY APPELLATE DECISIONS, · RENDERED AFTER JANUARY 1, 2003, MAY BE CITED ~OR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY·ADDRESS THE ISSUE BEFORE THE. COURT. OPINIONS CITED FOR CONS.IDERATION BY THE COURT .SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALO.NG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE . ACTION.

RENDERED: SEPTEMBER 28, 2017

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· ·. ERIC TURNER :APPELLANT

ON APPEAL FROM COURT OF APPEALS v. · · CASE NO. 2016-CA-001008-WC WORKERS' COMPENSATION BOARD . Nb. 13-WC-01225 , I

' . . FORD MOTOR COMPANY; APPELLEES HON .. THOMAS POLITES, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD

MEMORANDUM OPINION OF THE COURT

AFFIRMING

. . In 2012, Eric L. Turner (Turner), was working for Appellee, Ford Motor

Compariy (Ford), in Louisville, Kentucky. Turner wa~ tasked with ru~bing . wires thr~ugh various parts of Ford vehicles which required the use of his · hands and upper body. On ~eptember 27, 2012, he suffered upper extremity injuries as a result of his repetitive work activities.

He filed . his Form. 101 . - Injury Claim Application . on August 9, "' 2013. The

Admin,istrative Law Judge (AW) considered Turner's deposition and medical reports submitted by multiple physicians who treated Turner after his ipjury. The parties stipulated that Turne~'s average weekly wage was $1.,377 .20. · *2 Based on this evidence; the A.W awarded· Turner temporary total disability (TID) benefits from M~ch 8, 2013 to July 15, 2013. The AW also awarded Turner.medical expenses and pe~anent pap:ial disability (PPD) benefits based

upon a 7% impairment rating. Turner appeale~ several issues to the Workers' Compensation Board

(Board), which unanimously affirmed the AW's findings. The Court of . . Appeals

unanimously affirmed ·the Board's decision on the issue of PPD benefits and unanimously reversed the Board on the issue of TID benefits. The court remanded the case to· the AW to consider the factors discussed in .our recent case of Trane Commerci.al Systems v. Tipton, 481 S.W.3d 800 (Ky. 2016). Turner now appeals to this Court. Having reviewed the record and the law, we affirm the Court of Appeals. ·

Analysis

In order to reverse, we must·determine that the AW's findings were "so unreasonable under the evidence that it must be viewed as erroneou~ as a matter of law." KRS 342.285; Ira A. Watson Department Store .v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). Turner raises only one issue mi appeal. He argues that because the .findings and conclusions of the:AW are consistent with the requirements of Tipton, it was error for the Court of Appeals tp reverse and remand on th~ issue of entitlement to TID benefits.

The issue here involves the type of work Turner was performing during

the time period for which he was awarded TID benefits-March 8, 2013 to July . . 15, 2013. During-that time, he was a light-duty inspector and was paid his

regular wage. He performed additional light-duty tasks in~luding sweeping and putting dots on engines with a marker.

Because the resolution of this issue is central fo our holding in Tipton, it is necessary to· quote from that case at some length:

[A]bsent extraordinary circumstances, an award ofTID benefits is · inappropriate if an injured employee has been released to return to customary emplOyment, _i.e. work.within her:- physical restrictions and for which sh.e has the experience, training, and education; arid the employee has actually returned to employment. We do not attempt to foresee what extraordinazy circumstances might justify an awarq of TID benefi,ts to an employee who has returned to · employment under those. circumstances; however, in making any such award, an ALJ must take into·consideration the purpose for paying income benefits and set forth specific evidence-based reasons why an award of TID benefits in addition to the employee's wages would forward that purpose. .

Tipton, 481 S.W.3d 807.

Ford argues that Turner's light-duty inspector job was a legitimate job that benefited Ford and did not require additional training to perform. Ford also contends that Turner was not entitled to TID benefits because his situation did not constitute an "extraordinary circumstance."

We recently adq:r:-essed a similar issue in Toyota Motor Mfg:, Kentucky,. Inc. v.~ Tudor, 491 S.W.3d 496 (Ky. 2016). Like the present case, Tipton had not

been rendered when the ALJ in Tudor awarded TID benefits to a claimant who was on restricted duty. As such, we concluded in Tudor that "['!J]ecause the

ALJ could not have considered [Tipton] ·factors, this matter is remanded to the ALJ for that consideration." Id. at 504. The same resolution is appropriate here.

Conclusion

For the foregoing reasons, we hereby.affirm the Court of Appeals' decision reversing the award of 'ITD benefits for the period of March 8, 2013 to July 15, 2013 .. We remand this-.case to the AW to consider the !ZPtonfactors in determining whether Turner is entitled to 'ITD benefits for the period of

March 8, 2013 to July 15, 2013. . On remand, the . AW shall clearly' define and

consider the specific nature of Turner's light-duty tasks.

All sitting. All concur .. COUNSEL FOR APPELLANT:· Charles E. Jennings ·

COUNSEL FOR APPELLEE, FORD MOTOR COMPANY: . .

George T. Kitchen, III Reminger Co., LPA