Workers’
Compensation Board
OPINION ENTERED: June 30, 2017
CLAIM NO. 201361953
COMMONWEALTH OF KY/DEPT OF PARKS PETITIONER
VS. APPEAL FROM HON. TANYA PULLIN,
ADMINISTRATIVE LAW JUDGE
SHANNON RUCKER
AND HON. TANYA PULLIN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. The Commonwealth of Kentucky Department of Parks
(“Department of Parks”) appeals from the December 7, 2016 Opinion, Award and
Order, and from the February 12, 2017 Orders rendered by Hon. Tanya Pullin,
Administrative Law Judge (“ALJ”), finding Shannon Rucker (“Rucker”) permanently
partially disabled and entitled to application of the two multiplier pursuant
to KRS 342.730 (1)(c)2 if she ceases to earn the same or greater wage. On appeal, the Department of Parks’ sole
argument is that the two multiplier is inapplicable in cases where a claimant
retains the physical capacity to return to the type of employment performed at
the time of the injury. Finding no
error, we affirm.
The facts relevant to this appeal are not contested. Rucker injured her back in a fall at work on
October 19, 2013. She continued to work
at the same wages on light duty until March 28, 2014. After leaving her position with the
Department of Parks, Rucker also had a post-injury period of employment as a
manager for the Red Pepper Deli. The
parties stipulated she returned to work at an equal or greater wage than her
pre-injury wages.
In the Opinion, Award and Order, the ALJ awarded permanent
partial disability benefits and determined Rucker retains the physical capacity
to return to the type of employment she performed at the time of her
injury. The ALJ further ordered:
Provided however, that should there be
cessation of employment, if that cessation is not due to the ‘employee’s
conduct shown to have been an intentional, deliberate action with reckless
disregard of the consequences either to himself or to another’ then the two
times multiplier contained in KRS 342.730(1)(c)(2) would be applied. Livingood v. Transfreight, LLC, 467
S.W.3d 249, 259 (Ky. 2015).
Rucker and the
Department of Parks filed petitions for reconsideration. Rucker sought additional language to clarify
that she did not need to cease all employment to qualify for the two
multiplier. The Department of Parks
argued she is no longer eligible for the two multiplier because the ALJ
determined she is physically capable of returning to her pre-injury employment.
In a February 12, 2017 Order ruling on Rucker’s petition
for reconsideration, the ALJ modified the Opinion to include the full text of
KRS 342.730(1)(c)2. In a separate order
also dated February 12, 2017, the ALJ overruled the Department of Parks’
petition for reconsideration as a re-argument of the merits, and indicated the
opinion provided more than sufficient findings to allow meaningful appellate
review.
On appeal, the Department of Parks argues the ALJ erred by
including the provisions of KRS 342.730(1)(c)(2). Citing A.K. Steel Corp. v. Childers,
167 S.W.3d 672 (Ky. App. 2005), Livingood v. Transfreight, LLC., 467
S.W.3d 249 (Ky. 2015), and Toy v. Coca Cola Enterprises, 274 S.W.3d 433
(Ky. 2008). The Department of Parks
contends the two multiplier may not be applied when a claimant retains the
physical capacity to return to the type of work performed at the time of the
injury.
Relevant portions of KRS 342.730 (1) provide as follows:
(c) 1. If, due to an injury,
an employee does not retain the physical capacity to return to the type of work
that the employee performed at the time of injury, the benefit for permanent
partial disability shall be multiplied by three (3) times the amount otherwise
determined under paragraph (b) of this subsection, but this provision shall not
be construed so as to extend the duration of payments; or
2. If an employee returns to work
at a weekly wage equal to or greater than the average weekly wage at the time
of injury, the weekly benefit for permanent partial disability shall be
determined under paragraph (b) of this subsection for each week during which
that employment is sustained. During any period of cessation of that
employment, temporary or permanent, for any reason, with or without cause,
payment of weekly benefits for permanent partial disability during the period
of cessation shall be two (2) times the amount otherwise payable under
paragraph (b) of this subsection. This provision shall not be construed so as
to extend the duration of payments.
As an initial step, all permanent partial disability awards
are subject to the initial calculation set forth in KRS 342.730(1)(b). Since the enactment of the current version of
KRS 342.730(1) in 2000, this Board has interpreted KRS 342.730(1)(b) as
establishing that, depending on the evidence submitted, the benefit determined
under (1)(b) may be modified by either (1)(c)1 or (1)(c)2. In cases where both (1)(c)1 and (1)(c)2 could
apply, the ALJ conducts an analysis pursuant to Fawbush v. Gwinn, 103 S.W.3d
5 (Ky. 2003)
to determine which provision is most appropriate. The legislature placed “or” between (1)(c)1
and (1)(c)2, indicating that either section may be applied. Had the legislature intended to limit
application of (1)(c)2 to claimants who also qualified for the three
multiplier, it would have used “however” or “but” to indicate a determination
under (1)(c)2 is dependent upon first determining (1)(c)1 is inapplicable. We believe the plain language of the statute
provides for independent consideration of the possible application of the three
and two multipliers.
Contrary to the Department of Parks’ assertion, AK Steel
does not stand for the proposition that where an injured worker retains the
physical capacity to return to his former employment, the analysis goes no
further. In that case, the ALJ
determined the claimant was not entitled to the two multiplier because the claimant
did not cease to earn the same or greater wage as a result of the work
injury. The claimant chose to retire
instead, and therefore never returned to work at the same or greater wage. In addressing the legislature’s intent
regarding the multipliers, the Court of Appeals stated as follows:
The statute's
provisions encourage an employer to return an injured employee to work at the
same or greater wages, since an employee who cannot return to work because he
is not physically able receives benefits enhanced by the 3 multiplier under KRS
342.730(1)(c)1. However, an injured employee who is physically able but fails
to return to work is limited to the unenhanced benefit under KRS
342.730(1)(b). (footnote omitted). Thus, the statute provides an incentive for
an injured employee who is able to return to his previous employment and able
to earn the same wage or a greater wage than he earned when injured to do
so. Such an employee is assured a double
benefit during any period that he is not employed for whatever reason, and
thus, he is compensated at an enhanced rate for having attempted to perform his
previous work even if the attempt later proved to be unsuccessful.
The Department of Parks’ reliance on Livingood is
misplaced. Livingood involved a
worker who retained the physical capacity to return to his pre-injury
work. Relying on the holding in Chrysalis
House, Inc. v. Tackett, 283 S.W.3d 671 (Ky. 2009), the ALJ, the Board and
the Court of Appeals all determined Livingood was not entitled to the two
multiplier. The Supreme Court overruled Chrysalis
House, holding that the two multiplier is applicable as long as the
cessation of employment is not the result of conduct that is an intentional,
deliberate action with reckless disregard of the consequences to himself or to
another. Because the ALJ had not made a
determination of Livingood’s post-injury average weekly wage, the Court
directed the ALJ to make that determination and to apply the two multiplier if
that wage was equal to or exceeded the wage at the time of injury. Clearly, case law agrees with the Board’s
reading of the statute as permitting application of the two multiplier in cases
where the claimant retains the physical capacity to return to the type of
employment performed at the time of the injury.
The Department of Parks concedes Rucker returned to work
for a period of time at the same or greater wage than that earned at the time
of injury. Rucker’s testimony regarding
her continued post-injury employment with the Department of Parks and
subsequent employment with the Red Pepper Deli is substantial evidence of a
return to work at the same or greater wage.
Thus, Rucker met the threshold for consideration of the application of
KRS 342.730(1)(c)2. The ALJ did not err
in providing the two multiplier would apply if she ceased employment at the
same or greater wage.
Accordingly, the December 7, 2016 Opinion, Award and Order and the February 12, 2017 Orders rendered by Hon. Tanya Pullin, Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON LORI DANIEL
1510 NEWTON PIKE #108
LEXINGTON, KY 40511
COUNSEL
FOR RESPONDENT:
HON MELISSA ANDERSON
640 S FOURTH ST #400
LOUISVILLE, KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON TANYA PULLIN
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601