TTD benefits issue was properly preserved and final and appealable by claimant: UNITED PARCEL SERVICE, INC. V. PETERSON (COA 2/15/2008)

UNITED PARCEL SERVICE, INC. V. PETERSON
WORKERS COMP:  TTD benefits issue was properly preserved and final and appealable
2007-CA-001479
PUBLISHED: AFFIRMING
PANEL:  THOMPSON, PRESIDING;  NICKELL, VANMETER CONCUR
COUNTY: WCB
DATE RENDERED: 2/15/2008

The employer, United Parcel Service, Inc., petitions for review of an opinion of the Workers’ Compensation Board affirming the Chief Administrative Law Judge’s (CALJ) finding that Martina Stoudmire properly preserved as an issue whether she was entitled to additional temporary total disability benefits (TTD benefits). The Board further found, however, that the CALJ failed to address whether substantial evidence existed that, because of Stoudemire’s left knee and low back conditions, she had not reached a level of improvement that would permit her to return to her customary employment. KRS 342.0011(11)(a). As a result, the Board remanded the case for additional findings.

The sole issue raised on this appeal is whether the Board correctly concluded that Stoudmire had properly preserved the issue of additional TTD benefits from July 16, 2004, through August 1, 2005. UPS contends that pursuant to 803 KAR 25:010 § 13, Stoudemire did not preserve the issue by raising it at the hearing or designating it as a contested issue. The regulation provides that the CALJ is to conduct a benefit review conference and, if the claim is not settled as a result of the conference, a summary stipulation of all contested and uncontested issues must be prepared and signed by the parties and the CALJ. The regulation further provides that only contested issues shall be the subject of further proceedings.

Although the issue of additional TTD benefits was not raised at the initial benefit review conference, the extent and duration of disability was specifically designated as a contested issue in the parties’ stipulations. UPS’s preservation argument ignores that the term “disability” as used in KRS 342.730, encompasses both temporary total disability benefits and permanent partial disability benefits. Moreover, the Supreme Court of Kentucky has recently rejected the argument now poised by UPS.

COA held the WCB’s decision was final and appealable, and the claimant properly preserved issue whether she was entitled to additional TTD benefits.

Michael Stevens

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