MICHAEL ROBINSON v. CLIFFCO ENTERPRISES; SPECIAL FUND; HON. RICHARD CAMPBELL, JR., ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED:
March 13, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-0817-WC
MICHAEL ROBINSON
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
NO. WC-96-001905
CLIFFCO ENTERPRISES;
SPECIAL FUND;
HON. RICHARD CAMPBELL, JR.,
ADMINISTRATIVE LAW JUDGE; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING IN PART - REVERSING IN PART
* * * * *
BEFORE:
GUDGEL, CHIEF JUDGE; EMBERTON and GUIDUGLI, Judges.
GUIDUGLI, JUDGE.
Michael Robinson (Robinson) appeals from a
decision of the Workers' Compensation Board entered on
February 28, 1997, which affirmed the opinion, award, and order
entered by the Administrative Law Judge (ALJ) holding that he was
only entitled to benefits for a 4% impairment rating.
We affirm
in part and reverse in part.
Robinson was employed by appellee, Cliffco Enterprises
(Cliffco) as an underground coal miner.
He sustained a
work-related injury to his left knee on April 7, 1995 (the
Cliffco injury).
Physicians who examined and treated Robinson
gave impairment ratings ranging between 1% and 4%, and advised
him against returning to underground mining work.
At the time of
his injury, Robinson earned $12.00 an hour and worked
approximately 48-50 hours per week.
Robinson's average weekly
wage at Cliffco was stipulated to be $480.
Following his recovery from his left knee injury,
Robinson was employed by Elkhorn Crystal Coal Company (Elkhorn)
as a mechanic.
Robinson worked for Elkhorn for approximately two
weeks before sustaining an injury to his right knee (the Elkhorn
injury).
Robinson stated that he was paid $10.00 per hour at
Elkhorn, and that he worked 50-60 hours per week.
However,
Robinson also testified that because Elkhorn was a surface mining
operation, his work was weather-dependent and that no work was
performed during periods of inclement weather.
At the time of
the hearing for the Cliffco injury, Robinson was not working
because of the Elkhorn injury and was being paid Temporary Total
Disability (TTD) benefits by Elkhorn.
Robinson filed his Form 101 for the Cliffco injury on
January 9, 1996, naming both Cliffco and the Special Fund.
Robinson also filed an application for retraining benefits (RIBS)
on the same day alleging that he had contracted coal workers'
pneumoconiosis.
Only Cliffco was named in this petition.
Robinson's claims were consolidated by order of the ALJ on
February 14, 1996.
In his opinion, order and award entered on October 8,
1996, the ALJ noted that while Robinson's "hourly wage rate [at
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Elkhorn] was lower than that paid him by [Cliffco], the amount of
his weekly wage at Elkhorn Crystal was greater than that he
earned prior to the injury of April 7, 1995."
The ALJ then held:
Because it has been determined that plaintiff returned to work
at a wage equal to or greater than that which he earned prior to
his injury, the assessment of his disability is controlled by the
provisions of KRS 342.730(1)(b). Therefore, his recovery of
income benefits must be based upon the maximum amount payable for
permanent partial disability, his average weekly wage having been
sufficient to warrant that level of benefits, "multiplied by his
percentage of impairment caused by the injury . . . as determined
by the '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 benefit
shall not exceed two (2) times the functional impairment rate."
However, before he can be awarded benefits for his impairment,
there must be a finding that the work injury produced a degree of
permanent occupational disability. Cook v. Paducah Recapping
Service, Ky., 694 S.W.2d 684 (1985). If permanent disability is
established, he is entitled to the greater of the impairment or
disability, subject to the maximum imposed by the provisions of
KRS 342.730(1)(b).
13. That plaintiff retains at least a
modicum of permanent functional impairment
and is subject to some rather significant
limitations on his activities lead to the
conclusion that he suffers some permanent
disability as a result of the work injury
that is the subject matter of this claim.
That disability is substantial, as it is
evident that the residuals of such injury,
will severely impinge upon his ability to
return to the type work he performed in and
around the coal mining industry and probably
make it difficult for him to work as a rough
carpenter. Therefore, while he is still a
young man who has advanced his education to
the high school level, plaintiff is deemed to
be suffering a permanent occupational
disability of 30% as a consequence of the
work injury of April 7, 1995.
14. Because the extent of his permanent
occupational disability exceeds the level of
his permanent functional impairment as
measured in accordance with the A.M.A.
Guides, two percent (2%) as assessed by Dr.
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Goodman, plaintiff is entitled to an award of
income benefits equivalent to the factor,
four percent (4%), obtained by doubling that
impairment rating. Limiting plaintiff's
award to such a minimal recovery seems
unjust; however, that disposition is required
by KRS 342.730(1)(b), a part of the April 4,
1994, amendments to the Act.
The ALJ also found that Robinson was entitled to RIBS
and that Cliffco was responsible for payment of those benefits.
Additionally, the ALJ ordered Robinson to notify Elkhorn of the
recovery awarded against Cliffco in order to allow Elkhorn "to
adjust the level of temporary total disability benefits being
paid him for the work injury of June 1, 1996."
Both Robinson and Cliffco appealed from the ALJ's
opinion.
Neither party sought to join Elkhorn on appeal.
In an
opinion rendered on February 28, 1997, the Board affirmed the
ALJ's order in part and reversed and remanded in part.
Before the Board, Robinson argued that the ALJ erred in
holding that KRS 342.730(1)(b) controlled the amount of benefits
payable by Cliffco for the Cliffco injury.
In affirming the ALJ,
the Board held:
[W]e must now turn to the question of what
standard is to be used when determining
whether an individual is earning a wage
greater than or equal to the wage he was
earning at the time of his injury. "Wages"
is defined in KRS 342.0011(17). Included
therein is the individual's hourly pay.
While working for Cliffco he was earning $12
per hour and while working for Elkhorn
Crystal he was earning $10 per hour. We are,
however, also cognizant that benefits are
payable in accordance with an individual's
average weekly wage. This, of course, is
controlled by the provisions of KRS 342.140.
When, as here, the ALJ is faced with the
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issue of the applicability of the hourly wage
versus the average weekly wage, there clearly
exists a significant question. While we can
perceive of a multitude of potential
questions arising within these conflicting
standards, we are of the opinion that when
the general purpose of Workers Compensation
is considered in conjunction with the greater
likelihood of consistency of determination
that the more appropriate comparison would be
average weekly wage at the time of the injury
versus average weekly wage upon return to
work. It must be remembered that one of the
basic purposes of Workers Compensation is to
indemnify an employee who has sustained an
injury from financial loss as a result of
that injury. Harlan Collieries vs. Shell,
Ky., 239 SW2d 923 (1951). In order to
effectuate such a purpose analyzing an
individual's average weekly wage before the
injury and after the injury is a more
reasonable standard than merely to compare an
hourly wage before and after the injury.
As to Cliffco's argument that Robinson could not receive RIBS
while receiving TTD, the Board held:
The ALJ appropriately recognized that an
injured worker may not receive more than 100%
of the State's average weekly wage and
therefore directed Robinson to notify Elkhorn
Crystal of his award of retraining incentive
benefits. Presumably, Elkhorn Crystal would
then take credit for these dollars paid.
Cliffco, however, believes that so long as
Robinson receives temporary total disability
benefits, he may not receive payments for
retraining incentive benefits. We agree.
While the net effect of the ALJ's decision is
to prevent an excess recovery on the part of
Robinson in contravention of McCoy Elkhorn
Coal Corp. vs. Sullivan, Ky., 862 SW2d 891
(1993), we believe that the issue is more
directly addressed in Arch of Kentucky, Inc.
vs. Halcomb, Ky., 925 SW2d 460 (1996). The
Court in Halcomb discussed Sullivan and
reached a more far reaching conclusion than
they did in Sullivan. The Court in Halcomb
in spite of some of the language contained in
Sullivan held that the award of retraining
incentive benefits in conjunction with total
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disability benefits was not an economic issue
but rather a retraining issue. So long as
the individual is incapable of engaging in
"rehabilitation" as a result of a work injury
from which he is totally disabled, he may not
receive retraining incentive benefits. The
ALJ here treated the retraining incentive
benefits as an economic issue. We therefore
conclude that Robinson is not entitled to
receive benefits pursuant to KRS 342.732 (1)
(a) so long as he is receiving total
disability benefits whether temporary or
permanent.
On appeal, Robinson again argues that the ALJ erred in
holding that his benefits award is controlled by KRS
342.730(1)(b), which provides in pertinent part:
For permanent, partial disability, where an
employee returns to work at a wage equal to
or greater than the employee's preinjury
wage, sixty-six and two-thirds percent (662/3%) 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, for a maximum period, from
the date the disability arises, of four
hundred twenty-five (425) weeks subject to
the provisions of subsection (1)(d) of this
section.
Robinson argues that his actual hourly rate should be used in
deciding whether he falls under KRS 342.730(1)(b) as opposed to
his average weekly wage.
We agree.
KRS 342.730(1)(b) requires us to look at whether the
employee has returned to work at a wage which is equal to or
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greater than his pre-injury wage.
As defined in Chapter 342 of
the Kentucky Revised Statutes, "wage" is "money payments for
services rendered[.]"
KRS 342.0011(17).
When a word is
specifically defined by statute, courts are not to look to the
common and approved use of the word to construe the statute.
See
Claude N. Fannin Wholesale Co. v. Thacher, Ky. App., 661 S.W.2d
477, 480 (1983).
In this case, Robinson was paid $10 per hour while
working at Elkhorn.
There can be no argument that this hourly
wage is less than what he earned at Cliffco.
Therefore, Robinson
is entitled to benefits pursuant to KRS 342.730(1)(c).
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.
Robinson next argues that the Board lacked jurisdiction
to allow Cliffco to take credit on its liability for payment of
RIBS during the time he was receiving TTD benefits from Elkhorn
because Cliffco failed to name Elkhorn as a party to its
cross-appeal from the opinion of the ALJ.
Our review of the
record shows that Robinson did not raise this issue before the
Board, therefore, it is not properly preserved for our review.
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Lost Mountain Mining v. Fields, Ky. App., 918 S.W.2d 232, 234
(1996).
Having considered the parties' arguments on appeal, the
opinion of the Board is affirmed in part and reversed in part.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, CLIFFCO
ENTERPRISES:
Thomas G. Polites
Lexington, KY
David H. Neeley
Prestonsburg, KY
BRIEF FOR APPELLEE, SPECIAL
FUND:
Joel D. Zakem
Louisville, KY
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