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Workers’
Compensation Board
OPINION ENTERED: February
10, 2017
CLAIM NO. 201595081
CENTRAL CHRISTIAN CHURCH
PETITIONER
AS INSURED BY KESA
VS.
APPEAL FROM HON. R. ROLAND CASE,
ADMINISTRATIVE LAW JUDGE
BENJAMIN
DUNAWAY
HON.
R. ROLAND CASE,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
* * * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Central Christian Church (“Central”)
appeals from the October 19, 2016 Opinion, Award and Order rendered by Hon. R.
Roland Case, Administrative Law Judge (“ALJ”).
The sole question on appeal is whether the ALJ erred in enhancing
Benjamin Dunaway’s (“Dunaway”) permanent partial disability benefits by the two
multiplier. Finding no error, we affirm.
Dunaway testified by deposition on April 28, 2016 and at
the hearing held August 25, 2016. He
performed general maintenance work for Central, including servicing the
heating, air conditioning and boiler units, as well as electrical and plumbing
work, grounds keeping, and special event preparation. Dunaway injured his neck on July 5, 2014 when
carrying a table over his head. As he
went through a doorway, the table hit the top of the doorway and came down on
his head. Dunaway testified he returned
to work on light duty for six months but had difficulty performing his
job.
Dunaway was terminated from Central in December 2014. While employed at Central, he was provided
keys to the buildings and a credit card because he did all the purchasing for
the church buildings. He acknowledged
that he did not return the keys or the credit card immediately after his
termination. Approximately a month and a
half after his employment ended, Central alleged Dunaway had stolen and used a
credit card from his supervisor for personal purchases. He was charged, convicted, and required to
make restitution.
At his deposition, Dunaway was not questioned about the
reason he ceased working at Central. At
the final hearing, he testified as follows:
Q: Okay. And, were you -- how did your
employment end with Central Christian?
A: I had called the pastor, it was a little
before Christmas and I had asked him -- I didn’t ask, I told him that I wasn’t
able to return to work that day and he told me if I didn’t come in, that I was
fired.
Q: Had you already missed some days?
A: Yes, sir. I had missed some days.
Q: Okay. Had you missed any days for anything
other than your neck problems?
A: No not -- probably once or twice, but it was
just -- nothing to do with the neck at all.
During
cross-examination, Dunaway further testified:
Q: And, now -- the last thing I have. You -- I wasn’t going to ask you, but you
testified, you were terminated from Central Christian Church, weren’t you?
A: Yes, sir.
Q: You were terminated for cause for the
allegations of stealing a credit card from your supervisor and using it?
A: No, sir. That was not even the reason
why. No.
Q: Charges were not brought against you?
A: They sure were. Yes, sir.
Q: And, you paid restitution?
A: Yes, sir.
Paid it all back to them.
Q: Were you ever convicted of that?
A: Yes, sir.
MR.
LITTLE: Okay.
A: But, that wasn’t the reason why I was
fired. That was way after the - - that
right there happened.
Q: How did you have access to a supervisor’s
credit card, if you were already terminated?
A: They let me have the credit card. I had keys and everything they let me have
for my position, ‘cause I had keys for every building and had credit cards too,
because I made all the purchases, I had PO’s and all that.
Q: So, they terminated you, didn’t take their
credit cards back and didn’t take their keys back?
A: Well, they asked me to return them and I was
returning them on the way there, you know, what I mean. I hadn’t returned them for a little bit,
because I was dealing with a lot of stress and stuff. But, yes, sir. It happened.
The ALJ concluded Dunaway retains the physical capacity to
return to the type of work he performed at the time of the injury. The parties stipulated, and the ALJ found,
Dunaway had returned to work at the same or greater wages. The ALJ then noted the exception to the
application of the two multiplier enunciated in Livingood v. Transfreight,
467 S.W.3d 249 (Ky. 2015), which bars benefit enhancement when the claimant is
terminated for conduct which constitutes “an intentional deliberate action with
reckless disregard of the consequences either to himself or to another.” The ALJ declined to impose this exception,
explaining:
At
first blush it might appear the plaintiff is not entitled to the two factor
because of his theft conviction.
However, at the hearing the plaintiff testified that he was released
from work before Christmas of 2014 and the incident did not occur until
approximately a month and a half after that or sometime in January. The ALJ asked counsel to clarify the series
of events relative to the events of the termination and theft conviction. The plaintiff’s testimony relative to the
termination is contained on pages 18 through 20 of the transcript of
evidence. From a review of this
testimony it would appear the plaintiff did cease to labor in December of
2014. The exact reason for him stopping
work at that time is not clear cut.
However, the allegation of theft appears to have occurred sometime after
December of 2014. It is therefore found
that the plaintiff is entitled to the two multiplier. The ALJ would note in passing that the
statute in question does say “for any reason with or without cause.”
No petition for reconsideration was filed. On appeal, Central argues the ALJ erred in
enhancing benefits by the two multiplier.
It maintains the only logical conclusion is that Dunaway’s employment
was terminated because of theft through unauthorized use of Central’s credit
card. In support of its argument,
Central contends “Dunaway testified he was terminated for theft at his
deposition then at the hearing before concocting some illogical, irrational story
he was told he was going to be let go,” but was allowed to retain the credit
card and keys. Central urges, as a
matter of law and public policy, the enhancement provided by KRS 342.730(1)(c)2
cannot apply where the employee’s illegal misconduct is the reason employment
ceases.
Central’s argument is predicated on the assumption Dunaway
was terminated as a result of his criminal activity. However, while the circumstances might point
to this conclusion, it offered no proof to substantiate the allegation. Central presented no testimony, nor did it
produce records documenting or identifying, the reason for his
termination. It did not offer the
records from Dunaway’s criminal conviction, which might have confirmed whether
the unauthorized use of the credit card occurred before or after his employment
ceased. Contrary to Central’s assertions
in its brief to this Board, at no point did Dunaway testify he was terminated
as a result of the use or theft of a credit card. In his deposition, Dunaway acknowledged he
was terminated in December and that his insurance was canceled after he was
fired, but he was not questioned about, nor was there any discussion of, the
reason for his termination. As set forth
above, at the final hearing, Dunaway acknowledged he was charged with and
convicted of theft and ordered to pay restitution. However, he unequivocally testified the
incident occurred at least a month after his termination.
Substantial evidence, indeed the only evidence, supports
the ALJ’s determination that the termination occurred before the criminal
activity. Thus, the criminal activity
cannot be the basis for the cessation of his employment at the same or greater
wage. The evidence compelled a finding
of entitlement to application of the two multiplier, and the ALJ did not err.
Accordingly, the October 19, 2016 Opinion, Award and Order rendered by Hon. R. Roland Case, Administrative Law Judge, is hereby AFFIRMED.
ALVEY, CHAIRMAN, CONCURS.
STIVERS, MEMBER, CONCURS AND FILES A SEPARATE OPINION.
STIVERS,
MEMBER. While I agree with the majority, I believe features of this case need to be highlighted.
Contrary to
Central’s representations in its brief to the ALJ and to this Board, Dunaway
did not testify during his April 28, 2016, deposition that his employment with
Central was terminated due to theft.
There is only one deposition of Dunaway contained in the record. As pointed out by the ALJ, Dunaway’s
testimony regarding the theft charge to which he pled guilty is contained on
pages 18-20 of the hearing transcript.
In addition to the testimony cited in the majority opinion, the
following exchange and testimony took place during the hearing:
Judge Case: I’m
confused on that last series of events. If you would try to clarify for me,
please.
Mr. Brown: Okay.
Judge Case: I’m
confused on the time line.
Mr. Brown. Sure.
Re-direct examination
by Mr. Brown:
Q: You were released
in – in – just before Christmas in 2014, is that correct?
A: Yes, sir.
Q: When did the theft
charges –
A: It –
Q: --when did that
incident occur?
A: At least, about a
month and a half after that.
Q: Okay. So, some time
[sic] in January?
A: Yes, sir.
That
testimony from Dunaway caused the ALJ to conclude the theft was not the reason
for the cessation of Dunaway’s employment with Central, but, rather, as Dunaway
explained, because he was unable to come to work in December 2014. We must accept Dunaway’s testimony and the
ALJ’s findings as fact as Central did not file a petition for reconsideration
taking issue with the ALJ’s findings concerning the sequence of the relevant
events or requesting clarification.
As we have
noted many times, pursuant to KRS 342.285, in the absence
of a petition for reconsideration, on questions of fact, the Board is limited to a determination of whether there is substantial evidence contained in the
record to support the ALJ’s conclusion. Stated otherwise, inadequate,
incomplete, or even inaccurate fact finding on the part of
an ALJ will not justify reversal or remand if there is substantial evidence in
the record that supports the ultimate conclusion. Eaton Axle Corp. v.
Nally, 688 S.W.2d 334 (Ky. 1985).
Consequently, we cannot look beyond the ALJ’s finding that Dunaway was
terminated before the theft occurred. As
such, Dunaway is entitled to income benefits enhanced by the two multiplier
pursuant to the Kentucky Supreme Court’s holding in Livingood v.
Transfreight, LLC, 467 S.W.3d 249 (Ky. 2015) since the reason for Dunaway’s
termination was his inability to return to work and not the theft which the ALJ
concluded occurred after his termination from Central. Based on the record and as determined by the
ALJ, Dunaway’s termination was unrelated to his theft from the church. Therefore, the ALJ properly enhanced
Dunaway’s benefits by the two multiplier pursuant to KRS 342.730(1)(c)2 and as
outlined in Livingood v. Transfreight, LLC, supra.
COUNSEL FOR PETITIONER:
HON
GREGORY L LITTLE
1510
NEWTOWN PIKE #108
LEXINGTON,
KY 40511
COUNSEL FOR RESPONDENT:
HON
WILLIAM BROWN
HON
KELLY SPENCER
2224
REGENCY ROAD
LEXINGTON,
KY 40503
ADMINISTRATIVE LAW JUDGE:
HON
R. ROLAND CASE
PREVENTION
PARK
657
CHAMBERLIN AVENUE
FRANKFORT,
KY 40601
