Commonwealth, Uninsured Employers' Fund v. Rogers

396 S.W.3d 292, 2012 WL 1453611, 2012 Ky. LEXIS 46
CourtKentucky Supreme Court
DecidedApril 26, 2012
DocketNo. 2011-SC-000335-WC
StatusPublished
Cited by1 cases

This text of 396 S.W.3d 292 (Commonwealth, Uninsured Employers' Fund v. Rogers) 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
Commonwealth, Uninsured Employers' Fund v. Rogers, 396 S.W.3d 292, 2012 WL 1453611, 2012 Ky. LEXIS 46 (Ky. 2012).

Opinion

[293]*293OPINION OF THE COURT

The Court of Appeals affirmed a decision in which the Workers’ Compensation Board (Board) vacated the average weekly wage calculation because the record contained insufficient evidence to apply KRS 342.140(l)(e) properly. The Board then remanded the claim for further proceedings to include the taking of additional proof. Appealing, the Uninsured Employers’ Fund (UEF) asserts that the Board exceeded its authority under KRS 342.285(2)(c) by remanding the claim in order to provide the claimant with a second opportunity to meet his burden of proof. We agree and reverse.

The claimant argued from the outset that KRS 342.140(l)(e) governed the calculation and had the burden to offer substantial evidence of the necessary facts. Having concluded that the statute applied but that the record lacked sufficient evidence to support a calculation under the statute, the Board exceeded its authority under KRS 342.285(2)(c) by directing the Administrative Law Judge (ALJ) to allow additional proof and then reconsider the matter.

The claimant was born in 1975 and obtained an associate’s degree in business from Western Kentucky University. His employment history included work in construction, installing roofing and granite counter tops; driving a forklift; and factory work. He filed an application for workers’ compensation benefits on March 13, 2009, naming Jessie Rogers, d/b/a/ Quality Exteriors as the defendant-employer. The claimant’s application alleged right wrist, hand, knee, and ankle injuries while working for Rogers as a roofer on February 27, 2009, his first day of work. He also alleged that his weekly wage on the date of injury was “$12.00/hr-40 hrs/wk.”

Having become a party because Rogers was uninsured, the UEF filed a Form 111 that denied the claim and stated that the claimant’s average weekly wage was unknown. The UEF also filed a special answer, stating that the claimant never worked for Quality Exteriors according to the alleged employer. Rogers failed to file a Form 111; to submit any other pleadings; or to attend the benefit review conference. He did appear and testify at the hearing.

The claimant’s deposition and hearing testimony indicated that he worked for Concord Roofing from June 2008 through January 2009 and injured his right shoulder in January 2009 while working. He stated that he had known Rogers since he was 17 or 18 years old. A night or two before he began working for Rogers, he helped Rogers put a tarp on a roof because rain was predicted. He stated that he drove to the home of Jeremy Jones on the morning of February 27, 2009, after which he, Jones, and Rogers traveled in Rogers’ truck to the house that he had helped to tarp. They set up ladders to the roof, after which he carried shingles up to Rogers and Jones and they nailed them down. He stated that he was supposed to receive $10.00 per hour in cash according to a conversation he had with Rogers. He broke the scaphoid bone in his right wrist and injured his right leg when he fell from the roof about three hours after beginning to work.

Jones testified in June 2009 that he worked as Rogers’ employee at the time of the claimant’s injury and was paid by the hour. He described his own employment during the previous winter as being nonexistent. He stated that the claimant was at the worksite on February 27, 2009, but he did not know whether Rogers used him and did not see him fall. Jones stated that the job at that worksite lasted about three weeks. Sometime after February 27, 2009 [294]*294he became Rogers’ subcontractor, which involved being paid by the square.

Rogers testified that he had hired the claimant as a subcontractor to install some granite about a month before the alleged injury but denied ever hiring him to do roofing. He stated that the claimant came to the worksite on February 27, 2009 and asked for a job but that he did not hire him due to his poor performance on a previous granite job. Rogers stated that the claimant was at the worksite for only about 10 minutes and denied driving him for medical treatment.

Christa Nall, the business manager at Bardstown Ambulatory Care, testified that a man who identified himself as being Jessie Rogers of Quality Exteriors brought the claimant to the facility and stated that he would be responsible for payment. The man left the facility before the claimant returned to the receptionist’s office after being treated. She provided a statement for services in the amount of $876.00, which had not been paid.

The claimant asserted that his average weekly wage must be calculated under KRS 342.140(l)(e) because he had worked for less than 13 weeks when the injury occurred. Noting the absence of any evidence that the job was temporary, he argued that his average weekly wage should be $400.00 based on a 40-hour week at the rate of $10.00 per hour.

The UEF asserted that the claimant failed to meet his burden to prove an average weekly wage under KRS 342.140(l)(e) because he offered no evidence that the employment would extend beyond the initial job. Moreover, he offered no evidence of the prevailing wage or the availability of similar work in the area during the 13-week period immediately preceding the injury. The UEF argued in the alternative that roofing is a seasonal occupation for which the average weekly wage must be calculated under KRS 342.140(2).

The ALJ rejected Rogers’ testimony as not being credible and found the claimant to be credible in stating that Rogers hired him to work for $10.00 per hour in cash. Convinced that the claimant sustained a work-related injury as alleged, the ALJ found that the scaphoid fracture produced a 13% permanent impairment rating but that the claimant retained the physical capacity to return to the type of work performed at the time of injury.

Turning to the issue of average weekly wage, the ALJ determined that some people might consider roofing to be “exclusively seasonal” work but that no evidence supported such a finding. The ALJ cited Benito Mining Co. v. Girdner,1 which involved a previous version of Chapter 342, for the principle that the claimant worked a sufficient amount of time for his average weekly wage to be fixed. The ALJ also cited Huff v. Smith Trucking,2 for the principle that the fact-finder must consider the facts and circumstances of each case when determining the average weekly wage for an employment of less than 13 weeks’ duration. The ALJ found that the claimant’s wage should be based on a regular 40-hour week at the rate of $10.00 per hour, for a total of $400.00 per week. The claimant’s award included medical benefits; $266.67 in weekly temporary total disability benefits from February 28, 2009 through June 10, 2009; and $34.67 in par[295]*295tial disability benefits for the following 425 weeks.

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Cite This Page — Counsel Stack

Bluebook (online)
396 S.W.3d 292, 2012 WL 1453611, 2012 Ky. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-uninsured-employers-fund-v-rogers-ky-2012.