Opinion
NO. 2018-CA-001163-WC
05-22-2020
WILLIAM DECKER APPELLANT v. CONTROL SYSTEMS; HON. MONICA RICE-SMITH, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Wayne C. Daub Louisville, Kentucky BRIEF FOR APPELLEE CONTROL SYSTEMS: Douglas A. U'Sellis Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-13-63962 OPINION
AFFIRMING IN PART AND REVERSING IN PART
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BEFORE: ACREE, KRAMER, AND L. THOMPSON, JUDGES. ACREE, JUDGE: William Decker appeals the decision of the Workers' Compensation Board. He believes the Board erred: (1) by miscalculating his average weekly wages; and (2) by finding his benefits are subject to the limitations of the 1994 version of Kentucky Revised Statutes (KRS) 342.730(4). We affirm in part and reverse in part.
BACKGROUND
Decker is a 66-year-old man who began working for Control Systems in 1978 and continued working with the company until his first work-related injury in 1990. In 2002, he returned to Control Systems only to suffer another work-related injury in 2006. He did not have any previous problems with his lower back, but because of the injury, he required a cervical fusion. This prompted Decker to file a workers' compensation claim, which the Workers' Compensation Board barred due to the statute of limitations. But, in 2013, Decker injured his back working another remodeling job, causing him to initiate this current workers' compensation action.
Decker worked as a laborer/construction worker doing carpentry and remodeling work. After his injury, Decker consulted three doctors for treatment, participated in physical therapy, and received a lumbar fusion surgery for his back. Decker was unable to return to any work requiring physical labor. At the time of his injury, he made $20 per hour, but his hours varied from week to week. In addition to his hourly wages, he received a Christmas bonus, but the amount fluctuated each year.
The administrative law judge (ALJ) heard the testimony of Decker's doctors and examined his medical records, then issued an opinion, order, and award on February 5, 2018. The ALJ awarded Decker TTD (temporary total disability) benefits of $205.67 per week from October 15, 2013 through June 4, 2017, and found that from June 5, 2017 through July 21, 2017, Decker would be subject to the tier-down provisions of KRS 342.730(4).
Decker filed a petition for reconsideration with the Board claiming two errors, and he claims the same errors before this Court.
First, says Decker, the ALJ erred in calculating his average weekly wage by dividing his $3,000 Christmas bonus by 52, the number of weeks in a year, instead of 13, representing the 13-week period he actually worked. Decker believed the date Control Systems paid the bonus should be the date the ALJ used in calculating the weekly rate.
Second, Decker argues the ALJ erred by applying the 1994 version of KRS 342.730(4) after the Supreme Court found the statute's 1996 amendment of that subsection unconstitutional.
As for the first argument, the Board found no error in the ALJ's calculation of the Christmas bonus, but remanded the case to allow the ALJ to correct the transposition of two numbers in the order.
Similarly, the Board found no error in the ALJ's application of the 1994 version of KRS 342.730(4) requiring a tier-down approach to the benefits award. This Court notes that both the ALJ's opinion, award, and order dated February 5, 2018, and the Board's order dated July 6, 2018 affirming the tier-down calculation were rendered after the Supreme Court found the 1996 version of KRS 342.730(4) unconstitutional in Parker v. Webster County Coal, LLC (Dotiki Mine), 529 S.W.3d 759 (Ky. 2017), and before the effective date of the legislation modifying the statute.
In an opinion dated July 6, 2018, the Board remanded to the ALJ with instructions to correct the error of transposed numbers, but the Board agreed with the ALJ that the benefits be awarded by the tier-down method, "consistent with KRS 342.730(4) as that section existed prior to the 1996 amendment to the Act." This appeal followed.
STANDARD OF REVIEW
Our review of an opinion of the Workers' Compensation Board is limited. We only reverse the Board's opinion when "the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." W. Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). In reviewing the Board's opinion, we look to the ALJ's opinion. The ALJ's findings of fact will not be disturbed if supported by substantial evidence. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). And, the ALJ, as fact-finder, possesses the discretion to judge the credibility of testimony and weight of evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). Our review proceeds accordingly.
ANALYSIS
Average Weekly Wages
Decker first takes issue with the computation of his average weekly wage. The Board and the ALJ determined that Decker's Christmas bonus was based upon work performed throughout the year, not just work performed in the quarter Decker received it. The Board concluded that including the full amount in the quarter Decker received the bonus would result in an inflated and inaccurate average weekly wage. We agree.
KRS 342.140 governs the calculation of an employee's weekly wage. It provides in relevant part:
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:
. . .
(c) The wages were fixed by the year, the average weekly wage shall be the yearly wage so fixed divided by fifty-two (52);
(d) The wages were fixed by the day, hour, or by the output of the employee, the average
KRS 342.140(1). The ALJ found the average weekly wage was $398.51 by dividing the base wage total for the thirteen-week period by 13 (the number of weeks in a quarter), then adding to that number 1/52 of the Christmas bonus as though it were paid in equal weekly amounts rather than as a lump sum. The ALJ determined the bonus was analogous to "wages fixed by the year," and made the calculation based on KRS 342.140(1)(c). The Board agreed; so does this Court.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 . . . .
Decker only worked six weeks in the thirteen-week period. He believes, therefore, that the bonus had to be a result of the work he did during that period. He testified that he always received a Christmas bonus, but some years were higher than others. He believes the bonus amount is directly related to the amount of work he does. That logic is flawed. Decker testified that the Christmas bonus was one of the highest amounts he ever received. How could he obtain one of the highest amounts he ever received by only working six weeks, when he worked more often other years and received less? We affirm the Board's ruling. Tier-Down Approach
In April 2017, the Kentucky Supreme Court rendered Parker v. Webster County Coal, LLC (Dotiki Mine), 529 S.W.3d 759 (Ky. 2017). In that opinion, the Kentucky Supreme Court ruled that the limitation of benefits at Social Security retirement age under KRS 342.730(4) was unconstitutional. Decker argues the ALJ erred in finding his benefits are subject to the limitations set forth in KRS 342.730(4) as amended in 1994. We agree.
As workers' compensation cases came to this Court following the rendition of Parker, we were tasked with correcting errant decisions affected by application of the unconstitutional version of KRS 342.730(4). This required determining what was to be applied instead of the unconstitutional provision - the prior constitutional version, or retroactive application of the new legislation. Disparate approaches among the various panels of this Court resulted in the Kentucky Supreme Court's grant of discretionary review of a similar workers' compensation case - Holcim v. Swinford, 581 S.W.3d 37 (Ky. 2019). This Court abated this case, and many others, in anticipation of a ruling from the Kentucky Supreme Court.
On August 29, 2019, the Court rendered Holcim v. Swinford, holding the 2018 version of KRS 342.730(4) must apply retroactively. Id. at 44. Because the newly-enacted amendment applies retroactively, it must be used to determine the duration of Decker's benefits.
We find that the new version of KRS 342.730(4) controls and that the ALJ should determine a proper end date using the revised version of the statute.
CONCLUSION
Based on the foregoing, we affirm the Board's finding as to average weekly wages but reverse and remand as to the end date for benefits. On remand, the Board shall direct the ALJ to determine a proper end date for Decker's benefits pursuant to the new version of KRS 342.730(4).
ALL CONCUR. BRIEF FOR APPELLANT: Wayne C. Daub
Louisville, Kentucky BRIEF FOR APPELLEE CONTROL
SYSTEMS: Douglas A. U'Sellis
Louisville, Kentucky