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January 15, 2016 201285818

Commonwealth of Kentucky 

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

 

 

                       * * * * * *

 

 

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