Affordable Aluminum, Inc. v. Coulter

77 S.W.3d 587, 2002 Ky. LEXIS 118, 2002 WL 1308298
CourtKentucky Supreme Court
DecidedJune 13, 2002
DocketNo. 2001-SC-0941-WC
StatusPublished
Cited by3 cases

This text of 77 S.W.3d 587 (Affordable Aluminum, Inc. v. Coulter) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Affordable Aluminum, Inc. v. Coulter, 77 S.W.3d 587, 2002 Ky. LEXIS 118, 2002 WL 1308298 (Ky. 2002).

Opinion

OPINION OF THE COURT

This appeal concerns the method for calculating the average weekly wage of a worker who is injured after being employed for only three weeks. . KRS 342.140(l)(e). Relying on Hale v. Bell Aluminum, Ky., 986 S.W.2d 152 (1998), the Workers’ Compensation Board (Board) reversed an Administrative Law Judge’s (ALJ’s) finding concerning the claimant’s average weekly wage on the ground that the calculation included pre-employment earnings from a period in which the claimant was not covered by workers’ compensation insurance. After determining that the disputed earnings were not included in the calculation, the Court of Appeals reversed the Board and reinstated the finding. The employer appeals.

The claimant had worked in the siding business since 1988. Most of the time, he worked by the hour or the piece for a contractor. It was unclear from the record whether he was covered by workers’ compensation insurance when he did so. He indicated that sometimes he worked for his brother in Hart County but that, normally, he worked in Glasgow as a subcontractor for Smith Siding. He also testified that occasionally he bid on contracts himself and worked as a self-employed contractor, without workers’ compensation coverage.

At the time of his injury, the claimant installed siding for Affordable Aluminum, Inc., (Affordable) as a subcontractor. An insurance premium was deducted from his earnings, and he was covered under the employer’s workers’ compensation policy. About two months before he was injured, a severe had storm had resulted in an unusual demand for siding work in the Bowling Green area where he worked. He testified that subcontractors were paid $15.00 per square to remove damaged siding and $50.00 per square to install new. His first contact with Affordable was through James Maxwell who worked for the company .as a subcontractor. Maxwell and the claimant agreed to work together. After a 14% workers’ compensation premium was deducted, they split the income on a 60/40 basis, with Maxwell receiving 60% because he provided the tools. At some point, Maxwell quit, and the claimant began to work for Affordable as a subcontractor. He was injured on August 6, 1998, approximately three weeks later. At the hearing, the claimant testified that he had begun working for the employer in April, 1998, later explaining that he had only hauled away some shingles and was paid in cash.

With regard to his earnings, the claimant testified that after becoming a subcon[589]*589tractor for Affordable, he had received a total of $8,758.02 but had paid Jerry Fields $818.00 to help him. However, the ALJ later determined that the total also included $535.97 that Maxwell had paid him for work that he performed before July 17, 1998. After subtracting those two amounts, the difference that remained was $2,404.05.

Greg Tucker, a co-owner of Affordable, testified that the company began working in the Bowling Green area in March, 1998, with production lasting from May through August of 1998. He indicated that the company used subcontractors for all of the siding work in that area and introduced photocopies of checks that were paid to the claimant. The weekly totals are as follows:

July 27,1998 $1,001.03
August 3,1998 $1,760.40
August 10,1998 $ 460.62
TOTAL: $3,222.05

Tucker agreed that the claimant had paid Mr. Fields $818.00 for helping him do the work. Thus, according to Affordable’s records, the claimant’s earnings for the three-week period that he worked as a subcontractor were $2,404.05.

The claimant testified that siding work was available in the area during the four 13-week periods immediately preceding his injury at the rate of $40.00 per square and that he had installed 20 to 25 squares per week as a subcontractor for Smith Siding, earning from $800.00 to $1,000.00 per week. Furthermore, the hail storm that occurred a few months before his injury had increased both the availability of work and the wages. He testified that he worked six days a week, every week and that there was sufficient work for him to do so for more than 13 weeks after his injury, indicating that he was hired for an indefinite period of time. In contrast, Mr. Tucker indicated that his business is located in Louisville and that he knew nothing about the availability of construction and remodeling work in the Bowling Green area at the time.

Addressing the matter of average weekly wage, the ALJ noted that the amounts and dates of payment were undisputed. Furthermore, the ALJ noted the claimant’s unrebutted testimony concerning what he could have earned in the 10-week period before being employed by Affordable as a siding subcontractor. Thus, the ALJ determined that the claimant was capable of earning $800.00 per week for the ten weeks before he became a subcontractor for Affordable and that he earned $2,404.05 from Affordable. The ALJ concluded, therefore, that during the 13-week period preceding his injury, he would have earned a total of $10,404.05, for an average weekly wage of $800.31.

The employer maintained on appeal that the ALJ erred by considering evidence of the claimant’s earnings as an independent contractor at a time when he was not covered by workers’ compensation insurance. Hale v. Bell Aluminum, supra. Agreeing with the employer, the Board determined that the ALJ erred by imputing earnings of $800.00 per week to the weeks before the claimant began to work for Affordable as a subcontractor because he was not insured at the time. The Board noted, however, that there was substantial evidence concerning the availability of siding work at $65.00 per square and a dearth of evidence that weather conditions affected a worker’s earnings. Thus, it determined that the ALJ was authorized to project the claimant’s actual earnings in the employment onto a 13-week period and, thereby, to arrive at an average weekly wage of $801.35. However, noting its lack of authority to make such a finding of fact, it remanded the claim for additional proceedings. Again, the employer appealed.

[590]*590Rejecting the employer’s assertion that Hale v. Bell Aluminum, supra, controlled these facts, the Court of Appeals reversed the Board, and this appeal followed. The employer continues to maintain that KRS 342.140 deals only with wages earned prior to a work-related injury and while the worker is covered by workers’ compensation insurance. It emphasizes that Hale did not turn on the fact that the individual was earning concurrent wages but rather on the fact that “non-covered” wages must be excluded from the average weekly wage calculation. Therefore, it asserts that the claimant’s pre-injury earnings may not be considered when calculating his average weekly wage. Instead, the employer maintains that the employment must be viewed as being consistently intermittent and that the claimant’s earnings for the 13-week period must be limited to the $2,404.05 earned from Affordable, resulting in an average weekly wage of $184.93.

When calculating the average weekly wage of an individual who has recently begun an employment, KRS 342.140

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Cite This Page — Counsel Stack

Bluebook (online)
77 S.W.3d 587, 2002 Ky. LEXIS 118, 2002 WL 1308298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/affordable-aluminum-inc-v-coulter-ky-2002.