No. 00-00903 (2002). Louisville Packaging v. Rivera.

• Case Date: February 20, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 00-00903 (2002). Louisville Packaging v. Rivera LOUISVILLE PACKAGING PETITIONER/CROSS-RESPONDENT VS. EDWIN RIVERA RESPONDENT/CROSS-PETITIONER AND HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE RESPONDENTOPINION ENTERED: February 20, 2002 CLAIM NO. 00-00903APPEAL FROM HON. DONALD SMITH, ADMINISTRATIVE LAW JUDGE AFFIRMING IN PART AND REMANDING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.GARDNER, Member. Louisville Packaging, Inc. appeals and Edwin Rivera ("Rivera") cross-appeals from an opinion and award and orders on petitions for reconsideration rendered by Hon. Donald G. Smith, Administrative Law Judge ("ALJ"). Louisville Packaging contends there is no substantial evidence to support a finding of causation/work-relatedness. Rivera argues the ALJ erred 1) in failing to award additional temporary total disability ("TTD") and 2) in granting Louisville Packaging a credit for short-term disability benefits he received. We believe the ALJ has made insufficient findings supporting his award of TTD and on this issue, we remand. We find no merit in the remaining assignments of error by the parties, and in all other respects, the ALJ's opinion and award is affirmed. Rivera filed an application for resolution of injury claim on August 4, 2000, alleging an August 8, 1998 injury to his low back. Rivera's employment history reveals that he worked for Louisville Packaging from early 1993 through mid to late 1999. Rivera is presently employed by Cardinal Manufacturing. Rivera testified both by deposition and at the final hearing. Rivera described the injury as occurring when he bent down to lift a lid off a painting pod containing silicone. Rivera testified he "felt something sharp" and thought he had pulled a muscle. According to Rivera, Louisville Packaging shut down at noon on Saturday and the injury occurred sometime around 11:30. Rivera testified he notified his supervisor, a Mr. Turner, by phone the following evening. Rivera stated that he described to Turner how the accident occurred and his belief that he had pulled a muscle. Turner was contacted by Louis Acuna, operations manager, and was requested to complete an accident report on the following day. Subsequent to the accident, Rivera worked intermittently until January 1999. Rivera underwent surgery in April 1999. It is unclear from Rivera's testimony whether he worked post-operatively for any substantial period for Louisville Packaging, but in any event, he was terminated in September 1999. Since that date, it was Rivera's testimony that he worked for an out-of-state employer about a week. Rivera returned to full time work in January 2000 for Cardinal Manufacturing. Rivera stated he has never fully recovered from his surgery and remains in pain but was forced to obtain full time employment in order to meet his living expenses. Rivera testified he had no income and applied for short-term disability benefits. He initially believed his injury was not serious and it was not until months later he found out he would have to undergo surgery. Rivera stated he believed the short-term disability benefits would cover his living expenses until after surgery, at which time he could return to work. Additional lay testimony was introduced by way of the deposition of David Dwayne Turner. Turner, at the time of Rivera's injury, was production supervisor for Louisville Packaging. Turner testified it was his recollection that Rivera did not notify him of work-related incident. Turner stated that he could not remember exactly what was said, but it was to the effect that Rivera was bending over to pick up something at home and strained his back. Also testifying by deposition was Carol Sue Fountain, an administrative assistant with Louisville Packaging. Fountain testified she was responsible for all human resource issues with the company. Fountain stated that around August 8, 1998, she had a conversation with Rivera in which he informed her that he had a previous injury that did not happen at work. Fountain believed Rivera had been in contact with the operations manager and that she and the operations manager...