# Bowerman v. Black Equipment Co.

> Court of Appeals of Kentucky · October 2, 2009 · 297 S.W.3d 858

URL: https://www.frixlaw.com/law-library/cases/9729871

## Case

- **Full name:** Randy BOWERMAN, Appellant, v. BLACK EQUIPMENT COMPANY; Acuity Insurance; Hon. Marcel Smith, Administrative Law Judge; And Workers’ Compensation Board, Appellees
- **Court:** Court of Appeals of Kentucky
- **Decided:** October 2, 2009
- **Citations:** 297 S.W.3d 858; 2009 Ky. App. LEXIS 189; 2009 WL 3162147
- **Precedential status:** Published
- **Opinion:** Dissent by Keller
- **Judges:** Caperton, Keller, and Nickell, Judges
- **Cited by:** 79 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

KELLER, Judge,
Dissenting:
While I agree with a great deal of the majority’s opinion, I disagree with their ultimate conclusions; therefore, I respectfully dissent and write separately.
I agree with the majority and the Board that the ALJ used the standard for determining permanent total disability, not the TTD standard, when she denied Bower-man’s claim for TTD benefits in her interlocutory opinion. However, on reconsideration, the ALJ stated that Bowerman’s condition did “not meet the definition of temporary total disability found in KRS 342.0011(ll)(a)” and she found, using that standard, “that plaintiff has reached a level of improvement that would permit a return to employment.”
Kentucky Revised Statute 342.0011(ll)(a) defines temporary total disability as “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^]” Thus, an injured employee is entitled to TTD benefits until he reaches maximum medical improvement or
until the medical evidence establishes the recovery process, including any treatment reasonably rendered in an effort to improve the claimant’s condition, is over, or the underlying condition has stabilized such that the claimant is capable of returning to his job, or some other employment, of which he is capable, which is available in the local labor market. W.L. Harper Construction Company, Inc. v. Baker, 858 S.W.2d 202, 205 ( [Ky.App.]1993).
Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327, 329 (Ky.App.2000). Although the ALJ, in her order on reconsideration, did not cite Halls Hardwood Floor Co., she did cite the correct statutory language. Therefore, the ALJ ultimately applied the correct standard when she determined that Bowerman was not entitled to interlocutory TTD benefits. Because the ALJ had previously summarized the facts, she was not required to do more. See Big Sandy Community Action Program v. Chaffins, 502 S.W.2d 526 (Ky.1973).
Furthermore, I note that, although there was evidence to the contrary, Dr. O’Brien stated that Bowerman could return to work with no restrictions. Dr. O’Brien’s opinion is probative evidence, sufficient to support the ALJ’s finding. Although I might have found otherwise, because the ALJ ultimately applied the correct standard and Dr. O’Brien’s opinion supported her findings, I do not believe this Court can disturb those findings on appeal.
I also agree with Bowerman, the Board, and the majority that the ALJ’s finding in the interlocutory opinion regarding when Bowerman reached maximum medical improvement is inconsistent with her finding on that issue in her final opinion. In fact, as the majority notes, when the ALJ adopted the interlocutory opinion in her final opinion, she made her final opinion internally inconsistent. However, I disagree with the majority that this inconsistency merits reversal. I do so because I believe that the ALJ initially denied Bow-erman’s request for interlocutory TTD benefits based on her assessment of his ability to return to work. She did not base that opinion on when he reached maximum medical improvement. Therefore, when Bowerman reached maximum medical im *878 provement is not dispositive, and the change in the ALJ’s opinion regarding that date is irrelevant. Because I believe the ALJ’s inconsistent findings regarding maximum medical improvement are not dispositive and are irrelevant, I do not believe the majority’s analysis regarding an ALJ’s ability to alter her findings is necessary. However, I do not disagree with that analysis.
I respectfully disagree with the majority’s opinion that the “overwhelming weight of the lay and medical evidence adopted by the ALJ in her interlocutory opinion compelled an award of ongoing TTD benefits ...” for two reasons. First, as noted above, Dr. O’Brien stated that Bowerman could return to work without restriction, which was sufficient evidence of substance to support the ALJ’s opinion. Second, the ALJ, not this Court, is saddled with the job of weighing the evidence. While Dr. Davies and Dr. Berkman limited Bower-man’s ability to perform work activity, I can find nothing in the record that so denigrates Dr. O’Brien’s opinion that the ALJ was compelled to ignore or discount it. Therefore, although I might have found differently, I do not believe that the ALJ was compelled to do so.
1 also agree with the majority that an ALJ who places a claim in abeyance is not required to award TTD benefits. In doing so, I note that 803 KAR 25:010 § 12 states that an ALJ may order interlocutory relief in the form of income, medical expense, or rehabilitation benefits. Under paragraph 5, “[i]f interlocutory relief is awarded in the form of income benefits, the application shall be placed in abeyance unless a party shows irreparable harm will result.” Based on the plain language of 803 KAR 25:010 § 12(5), an ALJ is required to place a claim in abeyance if she orders payment of TTD benefits. However, she is not required to order payment of TTD benefits simply because she places a claim in abeyance. Had the legislature or the Department of Workers’ Claims wanted to make this requirement, either could have done so.
Finally, I painfully recognize and greatly sympathize with Bowerman’s frustration regarding the course his claim took. However, the ALJ’s ultimate findings, despite being imperfect and delayed, were supported by the evidence and not contrary to law. Therefore, I would reluctantly affirm the Board who affirmed the ALJ.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9729871. Public record. Not legal advice.