OPINION ENTERED: FEBRUARY 25, 2010
CLAIM NO. 09-00143
GATEWAY COMMUNITY ACTION AGENCY PETITIONER
VS. APPEAL FROM HON. RICHARD JOINER,
ADMINISTRATIVE LAW JUDGE
BRENDA EVANS
and HON. RICHARD JOINER,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
REVERSING AND REMANDING
* * * * * *
BEFORE: ALVEY, Chairman, COWDEN and STIVERS, Members.
STIVERS, Member. Gateway Community Action Agency (“Gateway”) appeals from the opinion and award of the Hon. Richard Joiner, Administrative Law Judge (“ALJ”) rendered September 17, 2009. The ALJ awarded Brenda Evans (“Evans”) permanent partial disability (“PPD”) benefits at the rate of $23.07 per week based on an 8% permanent impairment from February 17, 2007, through September 19, 2007, and thereafter, pursuant to KRS 342.730(1)(c)2, at the rate of $46.14.1
On appeal, relying on Chrysalis House, Inc. v. Tackett, 283 S.W. 3d 671 (Ky. 2009), Gateway argues the ALJ erroneously enhanced Evans’ weekly benefits by the two multiplier. Gateway observes the ALJ determined Evans worked for 19 months following the injury receiving her regular pay and was discharged for reasons unrelated to her injury. Accordingly, Gateway argues the clear language of Chrysalis House prohibits the imposition of the two multiplier since her employment at an average weekly wage (“AWW”) equal to or greater than the AWW at the time of the injury ceased for reasons unrelated to the disabling injury.
Evans was deposed on April 16, 2009, and also testified at the hearing on July 28, 2009. Evans’ hearing testimony reveals on February 16, 2007, she was injured when she slipped and fell on ice in Gateway’s parking lot and landed on her right side. She immediately experienced back and shoulder pain. Evans returned to work at her regular job and continued to work at the same pre-injury hours for nineteen months through September 19, 2008. Evans indicated, in her deposition and at the hearing, her employment was terminated because she was accused of hurting a child. Evans denied the accusation and when she was denied unemployment benefits because of the accusation, she successfully appealed that denial.
After determining Evans had a 9% impairment as a result of the shoulder injury, the ALJ made the following findings:
Does the claimant have the physical capacity to return to the type of work performed at the time of the injury? There are two factors which must be determined in order to properly calculate the benefit for permanent partial disability. The first factor is whether or not the claimant retains the physical capacity to perform the type of work done at the time of the injury. At the time of the injury, Ms. Evans was working as a head start teacher. She continued to work following the injury for about 19 months when she was discharged for reasons unrelated to her injury. I believe that she retains the capacity of doing the work that she was doing at the time of the injury but may need additional medical treatment for her shoulder to improve her condition.
Has the plaintiff returned to work at a weekly wage equal to or greater than the average weekly wage at the time of the injury? The second factor is whether the claimant is earning a wage which is equal to or greater than the wage earned at the time of the injury. Since Brenda K. Evans is not working, she does not have wages that are greater than or equal to the wage at the time of injury. She did however work from the date of injury for approximately 19 months after her regular job. I infer from this that doing her regular job involved receiving her regular pay. Therefore she did earn the same or greater wage from February 2007 until September 2008.
Neither party contested the above findings. Regarding Evans’ entitlement to the two multiplier as set forth in KRS 342.730(1)(c)2, the ALJ concluded as follows:
Because Brenda K. Evans has returned to work at an average weekly wage equal to or greater than the average weekly wage at the time of the injury and has ceased that employment, the benefit for permanent partial disability shall be multiplied by two pursuant to KRS 342.730(1)(c)2 after September 19, 2008.
Gateway filed a petition for reconsideration maintaining the award contained two patent errors appearing on its face. First, Gateway maintained Evans continued to work for the defendant-employer with no missed time until September 19, 2008, and if the two multiplier was appropriate in this claim, it should be imposed after September 19, 2008, not August 19, 2007. Second, Gateway argued imposition of the two multiplier was not appropriate in this case as Evans was discharged for reasons unrelated to her injury. The ALJ acknowledged this fact in his order. Citing Chrysalis House, supra, Gateway argued the Supreme Court held KRS 342.730(1)(c)2 permits the following:
a double income benefit during any period employment at the same or greater wage ceases ‘for any reason, with or without cause’ provided the reason relates to the disabling injury.
Thus, Gateway argued Evans’ income benefits should not have been enhanced via the two multiplier, and Evans is only entitled to weekly benefits of $23.07. The ALJ denied Gateway’s petition for reconsideration stating as follows:
This case comes before the Administrative Law Judge on petition for reconsideration filed by the Defendant. No response has been filed. I have reviewed the record again and the Opinion and Award entered on September 17, 2009. I do not find patent errors appearing on the face of the Opinion and Award. However, I will accept the defendant’s assertion that the doubling of the weekly benefit should not begin before September 19, 2008 as opposed to August 19, 2008. The argument relating to the decision in Chrysalis House v. Tackett, 283 S.W. 3d 671 (Ky. 2009) has been considered. I believe the Kentucky Supreme Court was carving out a public policy exception to a statute that otherwise would have permitted a thief to get caught and then rewarded by having his compensation benefits doubled. There are no such considerations applicable in this case. On this basis, the petition for reconsideration is GRANTED, to the extent that paragraph 1 of the Award is amended to read:
1. The Plaintiff, Brenda K. Evans, shall recover of the defendant/employer, Gateway Community Action Agency, and/or its insurance carrier, no temporary total disability but she shall receive benefits at the rate of $23.07 per week from February 17, 2007 through September 19, 2007, and thereafter the sum of $46.14 per week [sic] for 7.65% permanent disability rating for so long as she is so disabled but for a period not to exceed 425 weeks from February 17, 2007 together with interest at the rate of 12% per annum on all past and unpaid installments of compensation and defendant shall take credit for any compensation heretofore paid.
In its appeal brief, Gateway argues Chrysalis House contains no language which carves out a public policy exception alluded to by the ALJ. Gateway reiterates since the ALJ found Evans’ termination was unrelated to the injury, Evans is not entitled to double income benefits once her employment ceased. We agree and reverse.
First we point out, as is apparent from reading Evans’ brief, Evans understands Chrysalis House does not permit enhancement of benefits based on the facts in the case sub judice.
Second, the testimony undeniably establishes Evans’ employment ceased nineteen months after the injury for reasons unrelated to her disabling injury. More importantly, the ALJ made this finding, and Evans did not challenge the finding via a petition for reconsideration. Thus, on appeal, that finding must be taken as factual. Furthermore, on appeal, Evans certainly does not dispute the reason for her termination had nothing to do with her disabling work injury. As the Supreme Court pointed out in Chrysalis House v. Tackett, supra:
KRS 342.730(1)(c)2 appears at first blush to provide clearly and unambiguously for a double benefit during a period of cessation of employment at the same or a greater wage ‘for any reason, with or without cause.’ It is, however, a subsection of KRS 342.730(1), which authorizes income benefits to be awarded for ‘disability’ that results from a work-related injury. We conclude for that reason that, when read in context, KRS 342.730(1)(c)2 permits a double income benefit during any period that employment at the same or a greater wage ceases ‘for any reason, with or without cause,’ provided that the reason relates to the disabling injury.
Id. at 674.
Based on the above language, and since Evans admitted and the ALJ found the cessation of Evans employment at a weekly wage equal to or greater than her average weekly wage at the time of injury was due to reasons unrelated to the disabling injury, Evans is not entitled to the two multiplier from and after the date her employment ceased at Gateway.
Accordingly, the decision of the ALJ enhancing Evans’ PPD benefits, via the two multiplier, to $46.14 after September 19, 2008, is reversed. This matter is remanded to the ALJ with directions to enter an amended award reflecting that Evans, at this time, is entitled to PPD benefits in the amount of $23.07 from February 17, 2007, continuing thereafter for 425 weeks. Further, Evans would be entitled to have her benefits enhanced by the two multiplier only when her employment at a weekly wage equal to or greater than her average weekly wage at the time of the injury ceases for reasons which relate to the work injury. Accordingly, the decision of the ALJ is REVERSED and REMANDED for entry of an amended award in conformity with the opinions expressed herein.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON JEFFREY D DAMRON
P O BOX 351
PIKEVILLE KY 41502
COUNSEL FOR RESPONDENT:
HON DAVID R MARSHALL
120 N UPPER ST
LEXINGTON KY 40507
ADMINISTRATIVE LAW JUDGE:
HON RICHARD JOINER
145 EAST CENTER ST
MADISONVILLE KY 42431
1 In the opinion and award the ALJ initially ordered PPD benefits of $23.07 to be paid through August 17, 2007. He later amended the award to reflect $23.07 should be paid through September 19, 2007. This also appears to be a mistake because, if enhancement was appropriate, the proof established $23.07 should have been paid through September 19, 2008, and thereafter PPD benefits would be paid at the rate of $46.14.
