TECUMSEH PRODUCTS v. GENEILA ASHER; HON. BRUCE COWDEN, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD
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RENDERED: May 27, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000288-WC
TECUMSEH PRODUCTS
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-01-86301
GENEILA ASHER; HON. BRUCE
COWDEN, ADMINISTRATIVE LAW
JUDGE; WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING IN PART; VACATING IN PART;
AND REMANDING
BEFORE:
JUDGE.1
** ** ** ** **
COMBS, CHIEF JUDGE; GUIDUGLI, JUDGE; MILLER, SENIOR
COMBS, CHIEF JUDGE:
Tecumseh Products (Tecumseh) petitions for
review of an opinion of the Workers’ Compensation Board that
affirmed an award of permanent occupational disability benefits
to the appellee, Geneila Asher.
Tecumseh argues that the ALJ
erred in enhancing Asher’s benefits by a multiplier of three as
1
Senior Judge John D. Miller, sitting as Special Judge by Assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
provided in KRS2 342.730(1)(c)1.
It also contends that the award
was based solely upon subjective symptoms rather than upon
objective medical findings of a harmful change as required by
KRS 342.0011(33).
We affirm the award of permanent partial
disability benefits.
However, in light of a recent decision of
the Kentucky Supreme Court analyzing the proper applicability of
the multiplier, we must vacate the ALJ’s three-times enhancement
of the award.
In Highland Heights Volunteer Fire Department v.
Ellis, ___ S.W.3d ___ (Ky. 2005), the Supreme Court outlined the
circumstances in which the multiplier shall apply.
The facts in this appeal are not in dispute.
Asher
began her employment with Tecumseh in 1977, and she worked in a
series of positions.
From 1989 until April 1, 2001, she worked
in the shipping office in a clerical capacity.
Because Tecumseh
was phasing out its operation, Asher’s job as a shipping clerk
was eliminated.
Because of her seniority with the company, she
was given the opportunity to be transferred to the machine shop
until the plant closed.
On April 2, 2001, while working at her
new position for approximately three (3) hours, Asher injured
her back.
After reviewing all of the evidence, the ALJ
determined that Asher had sustained a functional impairment of
8% -- equal to an occupational disability rating of 6.8%.
2
Kentucky Revised Statutes.
-2-
The
ALJ also found that Asher could return to clerical work but that
she was unable to return to work in the machine shop -– the type
of work that she was performing at the time of the injury.
Accordingly, he enhanced her award by the three-times multiplier
provided in KRS 342.730(1)(c)1.
Tecumseh challenged the application of the multiplier
in its appeal to the Board.
The statute at issue provides as
follows:
If, due to an injury, an employee does not
retain the physical capacity to return to
the type of work that the employee performed
at the time of injury, the benefit for
permanent partial disability shall be
multiplied by three (3) times the amount
otherwise determined under paragraph (b) of
the subsection, but this provision shall not
be construed so as to extend the duration of
payments[.]
In its review, the Board affirmed the award, including the
application of the multiplier:
[W]e see nothing in the literal language of
KRS 342.730(1)(c)1 which requires an ALJ, as
a matter of law, to disregard the type of
work being performed by an employee on the
date of injury, and focus instead on the
type of work performed by the employee in
another position prior to the date of
injury. . . . The ALJ’s award of the 3multiplier in this present claim was based
on Asher’s retained physical capacity to
return to the type of work actually being
performed by Asher on the day she was
injured. There is no dispute in the present
appeal that there is substantial evidence of
record to support a determination that Asher
does not retain the physical capacity to
-3-
return to the type of work Asher performed
on the day she was injured. Hence, we find
no error.
(Board’s Opinion of January 7, 2005, at pp. 2-3.)
In Ellis, supra, the Kentucky Supreme Court analyzed
the purpose of the statute and concluded:
Just as under previous versions of the
Act, the purpose of awarding an income
benefit under the 1996 version is to
compensate workers for a loss of wageearning capacity due to industrial injury;
therefore, KRS 342.730 bases the amount of a
worker’s benefit on the average weekly wage
and the amount of occupational disability
the injury causes. See Adkins v. R&S Body
Company, 58 S.W.3d 428 (Ky. 2001). . . . We
conclude, therefore, that the work to be
considered for the purpose of KRS
342.730(1)(c)1. is the individual’s regular
work, the work from which their [sic]
average weekly wage is derived.
Id., slip opinion p. 5.
(Emphasis added.)
Asher argues that the Board acted properly in
interpreting the statute literally, by focusing upon the type of
work being performed at the precise moment of injury.
However,
Tecumseh argues that awarding the multiplier under the unique
circumstances presented in this case does not comport with the
purpose of the statute.
We agree, and we also note that the
award does not conform to the interpretation of the statute
announced in Ellis -- a decision not available to the Board at
the time it rendered its opinion.
-4-
Contrary to the Board’s literal approach to the
statute, the Ellis court determined that the relevant work to be
considered is the injured worker’s “regular work, the work from
which [her] average weekly wage is derived.”
Id.
By virtue of
KRS 342.730(1)(d), Asher’s average weekly wage was derived by
reference to the wages she had earned as a shipping clerk, “in
the first, second, third, or fourth period of thirteen (13)
consecutive calendar weeks in the fifty-two (52) weeks
immediately preceding the injury.”
(Emphasis added.)
Asher’s
transfer to the brief period of employment in the machine shop
had virtually no impact on her average weekly wage.
She did not
work long enough to establish a work history of an earning
capacity as a machinist; thus, her momentary tenure as a
machinist could not constitute the “type of work” contemplated
by the statute.
We must conclude that the multiplier cannot
apply in this case pursuant to the holding in Ellis.
Next, Tecumseh argues that Asher failed to meet her
burden of proving the existence of a harmful change as evidenced
by objective medical findings.
The Board held that the ALJ was
entitled to believe the medical testimony that her underlying
degenerative disc disease was aroused into a disabling, painful
condition by the work-related accident.
See McNutt
Construction/First General Services v. Scott, 40 S.W.3d 854, 859
(Ky. 2001).
We agree that the ALJ acted properly in exercising
-5-
his prerogative to select credible evidence from among the
alternative theories presented.
The opinion of the Workers’ Compensation Board is
affirmed in part, vacated in part, and remanded for entry of an
award consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Walter E. Harding
Louisville, Kentucky
Mark D. Knight
Somerset, Kentucky
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