Garrard County Fiscal Court v. Camps

469 S.W.3d 409, 2015 Ky. LEXIS 1767, 2015 WL 4979840
CourtKentucky Supreme Court
DecidedAugust 20, 2015
Docket2014-SC-000610-WC
StatusPublished

This text of 469 S.W.3d 409 (Garrard County Fiscal Court v. Camps) 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
Garrard County Fiscal Court v. Camps, 469 S.W.3d 409, 2015 Ky. LEXIS 1767, 2015 WL 4979840 (Ky. 2015).

Opinion

OPINION OF THE COURT

Appellant, Garrard County Fiscal Court, appeals a Court of Appeals decision which held that wages from Julie Camps’s former concurrent employer should be included in calculating her average weekly wage (“AWW”). In so holding, the Court of Appeals reversed the Workers’ Compensation Board (“Board”) which affirmed an opinion and order by the Administrative Law Judge (“ALJ”) that excluded the concurrent employer wages in the AWW cal[410]*410culation. For the below stated reasons, we reverse the Court of Appeals.

Camps worked as a full time paramedic for the Garrard County Fiscal Court. For almost the entire year leading up to her work-related injury, she was concurrently employed as a paramedic with Clark County EMS. Garrard County was aware of Camps’s concurrent employment. She quit her job with Clark County on May 6, 2011, intending to obtain another paramedic job closer to her home. However, before she could obtain a new second job, Camps suffered an acute ankle sprain while working for Garrard County on May 13, 2011. Her injury required reconstructive surgery for a complete lateral ligament tear. Camps filed for workers’ compensation based on an AWW calculation including her wages from both Garrard County and Clark County.

Camps testified in favor of her claim that it was common for paramedics to have two employers. She said that paramedics were in high demand and it was easy for them to find jobs. Camps said that it was necessary for her to have concurrent employment so that she could earn a living wage to support her family. Garrard County did not contest that Camps suffered a work-related injury, but disputed the inclusion of her Clark County wages as a part of her AWW calculation.

The ALJ reviewed the evidence and awarded Camps workers’ compensation. However, the ALJ rejected Camps’s recommended method of calculating her AWW because it included both her Gar-rard County and Clark County wages. The ALJ reasoned:

Camps makes a very compelling and rationale [sic] argument to support her inclusion of wages from Clark County. The ALJ, however, is duty bound to follow published authority from the higher appellate courts. The ALJ finds Wal-Mart v. Southers, 152 S.W.3d 242, 246-47 (Ky.App.2004), controls the case at hand. In this case, the Kentucky Court of Appeals held that: ‘[KRS 342.140(5) ] only lists two elements necessary to establish concurrent employment: proof the claimant was working under contract with more than one employer at the time of injury, and proof the defendant employer had knowledge of the employment.’
In this case, Camps was not working under contracts with more than one employer at the time of the injury. Certainly, she had done so in the past and based on her testimony, the ALJ finds that Campsfs] intent was to continue to do so in the future. However, at the time of injury she had terminated her employment with Clark County and had not yet secured a contract for employment with another employer. As such, the ALJ is precluded from including Camps[s] concurrent wages from Clark County, earned in the weeks prior to her injury.
In many respects, the ALJ recognizes that this.is a harsh result. Again, however, the ALJ finds current authority clear with respects to the requirements for including concurrent wages. Those requirements were not satisfied in this claim with respect to Camp[s] employment with Clark County.
As such, the ALJ concludes that the Camps AWW in this claim is limited to the wages she earned working for the Garrard County. Based on the wage records submitted by Garrard County, the ALJ finds that Campsfs] AWW was $470.96.
Camps filed a petition for reconsidera[411]*411tion1 arguing the AL J failed to make sufficient findings regarding her alleged concurrent employment and that her AWW should be $1,038.17. The ALJ denied the petition for reconsideration. The Board affirmed and Camps appealed, to the Court of Appeals.

The Court of Appeals, in a two to one decision, reversed the Board. The majority held that Southers “inartfully worded the requirements” for a person to claim concurrent employment. KRS 342.140 provides the method for calculating an employee’s AWW and when concurrent employment wages should be included. It states in pertinent part:

[t]he average weekly wage of the injured employee at the time of the injury or last injurious exposure shall be determined as follows:
(1) If at the time of the injury which resulted in death or disability or the last date of injurious exposure preceding death or disability from an occupational disease:
(d) The wages were fixed by the day, hour, or by the output of the employee, the average weekly wage shall be the wage most favorable to the employee computed by dividing by thirteen (13) the wages (not including overtime or premium pay) of said employee earned in the employ of the employer in the first, second, third, or fourth period of thirteen (13) consecutive calendar weeks in the fifty-two (52) weeks immediately preceding the injury;
(5) When the employee is working under concurrent contracts with two (2) or more employers and the defendant employer has knowledge of the employment prior to the injury, his or her wages from all the employers shall be considered as if earned from the employer liable for compensation.

The Court of Appeals held that the elements to establish concurrent employment are determined by interpreting KRS 342.140 as a whole to maximize the compensation an injured worker receives for the loss of earning capacity. The majority held that:

[wjhen the relevant look-back period of KRS 342.140(1) or (2) is incorporated into the wording of ICRS 342.140(5), the ‘is’ in the statement ‘[wjhen the employee is working under concurrent contracts’ refers to the period for looking back to establish AWW as set by when the injury occurred, rather than the date of the injury. In this manner, wages from all the employers shall be considered as if earned from the employer liable for compensation’ just as if the employee was merely working a variety of jobs for a single employer, which may or may not have continued the entire relevant look back period.

Thus, the Court of Appeals concluded that KRS 342.140(5) requires the following two elements to establish concurrent employment: “proof the claimant was working under contracts with more than one employer during the relevant look-back period following an injury and proof the defendant employer had knowledge of the employment.” The dissent, written by Judge Taylor, stated that Southers was controlling and that the Board should be affirmed. This appeal followed.

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Cite This Page — Counsel Stack

Bluebook (online)
469 S.W.3d 409, 2015 Ky. LEXIS 1767, 2015 WL 4979840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrard-county-fiscal-court-v-camps-ky-2015.