Whittaker v. Robinson

981 S.W.2d 118, 1998 Ky. LEXIS 167, 1998 WL 897041
CourtKentucky Supreme Court
DecidedOctober 15, 1998
DocketNos. 98-SC-309-WC, 98-SC-310-WC
StatusPublished
Cited by6 cases

This text of 981 S.W.2d 118 (Whittaker v. Robinson) 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
Whittaker v. Robinson, 981 S.W.2d 118, 1998 Ky. LEXIS 167, 1998 WL 897041 (Ky. 1998).

Opinion

OPINION OF THE COURT

This workers’ compensation appeal concerns the proper definition of the word “wage” with regard to determining whether the claimant returned to work at a wage [119]*119which was greater than his pre-injury wage for the purposes of applying KRS 342.730(l)(b).

Claimant was employed by the defendant-employer as a mechanic or repairman in underground coal mining from February 22, 1995 until April 7, 1995, when he sustained a work-related injury to his left knee. The parties stipulated to an average weekly wage of $480.00, and the defendant-employer does not dispute claimant’s testimony that his hourly wage was $12.00. Claimant testified that he worked from 48 to 50 hours per week.

Claimant testified that after corrective surgery and a period of unemployment, he obtained employment repairing equipment for a surface mining company, a position which was compatible with his work restrictions. He testified that he worked from 50 to 60 hours per week at an hourly wage of $10.00. Approximately two weeks after beginning the subsequent employment, claimant sustained another work-related injury. He was receiving temporary, total disability (TTD) benefits for that injury from the subsequent employer at the time of the hearing on this claim.

The Administrative Law Judge (ALJ) who considered the claim determined that claimant had sustained a 2% functional impairment and a 30% occupational disability as a result of the April 7, 1995, injury. Noting that claimant’s average weekly wage was greater after the injury than it was before the injury, the ALJ concluded that claimant was limited to a recovery of 4% permanent, partial disability, an amount equal to twice his functional impairment rating. Although stating that this limitation seemed unjust on these facts, the ALJ concluded that it was required by KRS 342.730(l)(b) as amended effective April 4, 1994. Acts, 1994, Ch. 181, § 25.

Claimant appealed the ALJ’s application of KRS 342.730(l)(b) and asserted that KRS 342.730(l)(c) should apply to this claim. He argued that although the additional hours of work in his post-injury employment resulted in an average weekly wage which was greater than before the injury, his hourly wage was less than it had been before the injury. Furthermore, the subsequent employment was weather-dependent, and no • work was performed during periods of inclement weather.

In a two-to-one decision, the Workers’ Compensation Board (Board) affirmed the decision of the ALJ. The majority emphasized that income benefits are paid as a percentage of average weekly wage and that the difference between the pre- and post-injury average weekly wage most closely approximates the extent of a worker’s actual financial loss due to the injury. The dissenting opinion indicated a belief that the application of KRS 342.730(l)(b) unfairly penalized the claimant for returning to work after his injury, particularly since he was no longer working at a wage equal to or greater than his pre-injury wage.

The Court of Appeals noted that because the legislature had provided a statutory definition of the term “wage,” it was not permitted to consider the common use of the word in construing KRS 342.730(l)(b). The court stated:

If the Legislature intended for the average weekly wage to be used in calculations under KRS 342.730, it was perfectly capable of specifying average weekly wage. However, the Legislature used the word “wage”, and under KRS 342.0011(17) we hold that the Legislature intended calculations to be based on the wage rate fixed by the employer, be it by piece, hourly, weekly, or monthly.

The Court of Appeals concluded that because claimant was paid by the hour rather than by the week, his actual hourly rate should have been used by the ALJ in determining whether to apply KRS 342.730(l)(b); therefore, the decision of the Board was reversed. These appeals by the employer and the Special Fund followed.

It is undisputed that claimant’s unemployment at the time of the hearing was due to a subsequent injury which was sustained in the subsequent employment. For that reason, it is not material to determining the compensation to which he is entitled for the claim which is presently under consideration. See Fleming v. Windchy, Ky., 953 S.W.2d 604 (1997).

[120]*120KRS 342.730(l)(b) provides, in pertinent part, as follows:

For permanent, partial disability, where an employee returns to work at a wage equal to or greater than the employee’s preinju-ry wage, sixty-six and two-thirds percent (66-2/3%) of the employee’s average weekly wage but not more than seventy-five percent (75%) of the state average weekly wage as determined by KRS 342.740, multiplied by his percentage of impairment caused by the injury or occupational disease as determined by “Guides to the Evaluation of Permanent Impairment,” American Medical Association, latest edition available, unless the employee establishes a greater percentage of disability as determined under KRS 342.0011(11), in which event the benefits shall not exceed two (2) times the functional impairment rate, ....

KRS 342.0011(17) defines the term “wages” as:

“Wages” means, in addition to money payments for services rendered, the reasonable value of board, rent, housing, lodging, fuel, or similar advantages received from the employer, and gratuities received in the course of employment from others than the employer as evidenced by the employee’s federal and state tax returns.

We will begin our discussion by making several observations. First, it is apparent that income benefits pursuant to all sections of KRS 342.730 are calculated as a percentage of the worker’s average weekly wage. Second, it is apparent that the legislature used only the term “wage” in the first clause of KRS 342.730(l)(b) and used the term “average weekly wage” in the second clause.

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Cite This Page — Counsel Stack

Bluebook (online)
981 S.W.2d 118, 1998 Ky. LEXIS 167, 1998 WL 897041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whittaker-v-robinson-ky-1998.