Huff v. Smith Trucking

6 S.W.3d 819, 1999 Ky. LEXIS 162, 1999 WL 1204859
CourtKentucky Supreme Court
DecidedDecember 16, 1999
DocketNo. 99-SC-0360-WC
StatusPublished
Cited by11 cases

This text of 6 S.W.3d 819 (Huff v. Smith Trucking) 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
Huff v. Smith Trucking, 6 S.W.3d 819, 1999 Ky. LEXIS 162, 1999 WL 1204859 (Ky. 1999).

Opinion

OPINION OF THE COURT

The sole issue presented by this workers’ compensation appeal concerns the proper method for calculating the average weekly wage of a worker who was employed for fewer than 13 weeks when he was injured. KRS 342.140(l)(e).

Claimant worked regularly as an underground coal miner until he was laid off in December, 1992. In January, 1993, William Smith, the owner of Smith Trucking (the defendant-employer), bought timber rights to a parcel of land and hired claimant as a timber cutter. Claimant and Smith were the only persons working on the tract. The company’s usual business was hauling coal, but it had been unable to procure hauling contracts. There was evidence that this was the company’s first venture into the logging business. The employer anticipated that the project would take 15-20 days of actual work; however, it was expected to extend over a [820]*820longer period because the work could only be performed in good weather. There was no indication that the employer had secured other timber rights or expected to have other employment for the claimant after the project was completed. Claimant was paid a daily wage of $75.00 for the days that he worked. The Administrative Law Judge (ALJ) determined that claimant had worked for five days over a two-week period when he sustained a head injury on January 18, 1993. The company ceased operations after the accident and subsequently went bankrupt. Claimant did not work after the accident, and he alleged total occupational disability.

The ALJ awarded a period of TTD benefits followed by a 50% permanent, partial occupational disability. Noting that both the logging operation and the employment had lasted for a total of two weeks, the ALJ indicated that he found the question of average weekly wage to be the most troublesome in the case. The ALJ noted that, in C & D Bulldozing v. Brock, Ky., 820 S.W.2d 482 (1991), the very nature of the employment was sporadic; whereas, here, the short period of employment had more to do with the injury than with any other factor. For that reason, dividing earnings of $375.00 by 13, as advocated by the employer, seemed inappropriate on these facts. The ALJ concluded that the most appropriate way to measure average weekly wage would be to divide the total salary ($375.00) by the number of weeks worked (2) to produce a figure of $187.50.

Claimant appealed, and the employer cross-appealed. The Workers’ Compensation Board (Board) rejected claimant’s argument that KRS 342 .140(l)(f) should be applied to these facts. However, noting that the fact that claimant was hired to work for only 15-20 days did not negate the applicability of KRS 342.140(l)(e), the Board reversed the ALJ. As applied to these particular facts, the Board construed KRS 342.140(l)(e): 1.) to provide that the average weekly wage should reflect what claimant would have earned had he been employed for a full 13 weeks in the same occupation before being injured, and 2.) to permit evidence concerning whether work was available to workers employed by other employers. The claim was remanded to the ALJ for further findings and for a determination of claimant’s average weekly wage pursuant to KRS 342.140(l)(e).

On remand, the ALJ determined from claimant’s testimony that timber cutting work was available in the area where he resided and that, typically, it paid $75.00 per day. Based upon these findings, the ALJ concluded that the average weekly wage was $375.00. The employer appealed, asserting that this method of calculation ignored the actual circumstances of the employment relationship and that the ALJ had based the calculation on the fiction that claimant would have been employed every day for the full 13-week period. The Board rejected the employer’s argument and affirmed, after which the employer appealed.

The Court of Appeals observed that the purpose of KRS 342.140(l)(e) is to compute an average weekly wage which is a realistic reflection of the worker’s earning capacity. The court noted that claimant was employed on a sporadic basis for a limited period of time, and there was no evidence concerning the consistent availability of timber cutting work. The employer had presented evidence that it harvested timber only when it had a contract to do so and when the weather allowed. The court concluded that there was no evidence concerning the practices of other employers and no substantial evidence that claimant would have worked every day and earned $375.00 per week; therefore, the decision of the Board was reversed.

With regard to the proper method for calculating claimant’s average weekly wage, the Court of Appeals noted that the injury occurred shortly after the employment began and that claimant’s earnings from the employment did not reflect his actual earning capacity over a 13-week period. The court also noted that neither [821]*821KRS 342.140(l)(e) nor Brock seemed to have contemplated this particular situation. Nonetheless, it was persuaded by the employer’s argument that claimant’s total earnings of $375.00 must be divided by 13 weeks to yield an average weekly wage of $28.85.1

This appeal by the claimant raises what essentially is a fairness argument. He emphasizes that the manner in which the Court of Appeals applied KRS 342.140(l)(e) equates his earning capacity over a 13-week period in the employment to what he earned over two weeks and ignores the fact that more work was available had he not been injured. He asserts that the Board was correct in permitting consideration of the wages earned by timber cutters who worked for other employers and that its decision should not have been reversed.

The employer has advocated the computation adopted by the Court of Appeals. The crux of the employer’s argument is that claimant should not be considered a continuous, regular employee because he was hired for a specific job of very limited duration. For that reason, the employer insists that claimant’s average weekly wage should not be computed in the same manner as that of a worker hired for continuous, regular work.

The applicable version of KRS 342.140 provides, in pertinent part:

The average weekly wage of the injured employe at the time of the injury ... shall be determined as follows:
(1) If at the time of the injury which resulted in death or disability....

Free access — add to your briefcase to read the full text and ask questions with AI

Related

William Decker v. Control Systems
Kentucky Supreme Court, 2022
Commonwealth, Uninsured Employers' Fund v. Rogers
396 S.W.3d 292 (Kentucky Supreme Court, 2012)
Abel Verdon Construction v. Rivera
348 S.W.3d 749 (Kentucky Supreme Court, 2011)
Nesco v. Haddix
339 S.W.3d 465 (Kentucky Supreme Court, 2011)
Fawbush v. Gwinn
103 S.W.3d 5 (Kentucky Supreme Court, 2003)
Affordable Aluminum, Inc. v. Coulter
77 S.W.3d 587 (Kentucky Supreme Court, 2002)
Marsh v. Mercer Transportation
77 S.W.3d 592 (Kentucky Supreme Court, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
6 S.W.3d 819, 1999 Ky. LEXIS 162, 1999 WL 1204859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huff-v-smith-trucking-ky-1999.