Opinion
NO. 2014-CA-001315-WC
06-12-2015
MARIA GARCIA APPELLANT v. CENTRAL KENTUCKY PROCESSING, INC.; HON. JANE RICE WILLIAMS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Larry D. Ashlock Lexington, Kentucky BRIEF FOR APPELLEE CENTRAL KENTUCKY PROCESSING, INC.: Johanna Frantz Ellison Lexington, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-10-69601
OPINION
AFFIRMING
BEFORE: COMBS, NICKELL, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Maria Garcia petitions this Court to review a July 11, 2014, Opinion of the Workers' Compensation Board (Board) which reversed in part and remanded an Opinion and Award entered by the Administrative Law Judge (ALJ) on February 6, 2014. We affirm.
In December 2010 Garcia was employed by Central Kentucky Processing, Inc., and suffered work-related injuries to her left wrist and right shoulder. Both Garcia and Central Kentucky Processing stipulated that Garcia's average weekly wage before her injuries was $474.28 and that Garcia did not retain the physical capacity to return to the type of work performed at the time of her injuries.
By Opinion and Award entered February 6, 2014, the ALJ found that Garcia sustained a 10 percent permanent partial impairment. The ALJ also believed that Garcia was not entitled to the three multiplier set forth Kentucky Revised Statutes (KRS) 342.730(1)(c)(1). Rather, the ALJ concluded that KRS 342.730(1)(c)(2) was applicable as Garcia earned a post-injury wage that was the same or greater than her pre-injury wage.
Garcia then petitioned the Board for review. The Board agreed with the ALJ that Garcia's post-injury wage was the same or greater than her pre-injury wage. The Board recognized that "[w]hile the ALJ seemed to particularly emphasize Garcia's increased hourly rate, she also acknowledged 'during the best quarter, the wage was $477.92, higher than the pre-injury wage of $474.78.'" Board's Opinion at 7. However, the Board vacated the ALJ's decision that KRS 342.730(1)(c)(2) was applicable rather than KRS 342.730(1)(c)(1). The Board believed that the ALJ utilized the incorrect standard under Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003) in deciding whether KRS 342.730(1)(c)(1) or KRS 342.730(1)(c)(2) was controlling. Upon remand, the Board instructed the ALJ to determine whether the work-related injuries permanently altered Garcia's ability to earn money. Garcia now seeks review in this Court.
Our review of an opinion of the workers' compensation board is limited. We only reverse the Board's opinion where "the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause a gross injustice." W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). In reviewing the Board's opinion, we necessarily look to the ALJ's opinion. Relevant to this appeal, the ALJ's findings of fact may only be disturbed if not supported by substantial evidence. And, the ALJ, as fact-finder, possesses the sole discretion to judge the credibility of testimony and weight of evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).
Garcia presents one issue for our review - whether the Board erred by affirming the ALJ's determination that she returned to work making the same or greater wages per KRS 342.730(1)(c). Particularly, Garcia argues that the Board erred by relying upon Ball v. Big Elk Creek Coal Co., Inc., 25 S.W.3d 115 (Ky. 2000) for calculating Garcia's post-injury average weekly wage under KRS 342.140. She maintains that KRS 342.730(1)(c) was amended in 2000 and that Ball interpreted that pre-amended version of KRS 342.730(1)(c). Consequently, Garcia maintains that Ball should not be relied in calculating her post-injury weekly wage.
Although not stated in the caption of the Workers' Compensation Board's Opinion, the Board actually affirmed the Administrative Law Judge on this issue now on appeal. Board's Opinion at 7-8.
In Ball, 25 S.W.3d 115, the Supreme Court interpreted a previous version of KRS 342.730(1)(c)(2) that contained the same operative language as the current version. Both versions of KRS 342.730(1)(c)(2) provide "[i]f an employee returns to work at a weekly wage equal to or greater than the average weekly wage at the time of injury." The Ball Court recognized that the General Assembly enacted KRS 342.140 as a method to determine a worker's earnings by computation of the average weekly wage. Thus, we believe Ball is still controlling, and KRS 342.140 must be utilized to determine a worker's post-injury wages under KRS 342.730(1)(c)(2).
The previous version of Kentucky Revised Statutes 342.730(1)(c) was effective December 12, 1996.
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Accordingly, we conclude that the Board properly relied upon Ball in affirming the ALJ's finding that Garcia's post-injury weekly wage was greater than or equal to her post-injury average weekly wage under KRS 342.730(1)(c)(2).
For the foregoing reasons, we affirm the Opinion of the Workers' Compensation Board.
ALL CONCUR. BRIEF FOR APPELLANT: Larry D. Ashlock
Lexington, Kentucky
BRIEF FOR APPELLEE CENTRAL
KENTUCKY PROCESSING, INC.:
Johanna Frantz Ellison
Lexington, Kentucky