NESCO VS. HADDIX (JACKLYN), ET AL.
Annotate this Case
Download PDF
RENDERED: FEBRUARY 26, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001129-WC
NESCO
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-07-71953
JACKLYN HADDIX; HON. JOSEPH W.
JUSTICE, ADMINISTRATIVE LAW
JUDGE; AND WORKERS'
COMPENSATION BOARD
APPELLEES
AND
NO. 2009-CA-001564-WC
JACKLYN HADDIX
v.
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-07-71953
NESCO; HON. JOSEPH W.
JUSTICE, ADMINISTRATIVE LAW
JUDGE; AND WORKERS'
COMPENSATION BOARD
CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: NICKELL AND THOMPSON, JUDGES; GRAVES,1 SENIOR
JUDGE.
GRAVES, SENIOR JUDGE: : Nesco petitions for review of an opinion of the
Workers’ Compensation Board (Board) which reversed and remanded an opinion,
award and order of the Administrative Law Judge (ALJ). The two leading issues
on appeal are (1) whether the ALJ properly calculated the average weekly wage of
former Nesco employee Jacklyn Haddix under KRS 342.140; and (2) whether the
Board exceeded its authority in remanding the issue for additional proof and
findings of fact. We affirm.
Nesco is an employment agency which places its workers in various
jobs in exchange for a percentage of their wages. The placements are usually
temporary and vary in duration. Occasionally, a job may be “temp to hire,” which
means that the individual Nesco sends to fill a position may be hired permanently.
Jacklyn Haddix, who was 48 years of age at the time of the final
hearing, began working at Nesco in 2005. She has a high school diploma and has
1
Senior Judge J. William Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
-2-
held jobs as a day care worker, food service worker, and assembly worker. Nesco
placed Haddix with different employers; the periods of employment varied in
duration, with substantial intervening periods when Haddix was not employed.
The flexibility of these assignments was convenient for Haddix, who has custody
of her young granddaughter.
Nesco placed Haddix with Toyo Lex for two days in October 2005,
and with Yokkaich from November 2005 until April 2006. After her placement
with Yokkaich ended, Haddix worked at various other short assignments until
April 2007, when she was placed by Nesco with Star Manufacturing. At Star, she
performed assembly work that involved filling tubs with small parts and then
carrying the fifty-pound tubs to a skid. She also performed tasks that required her
to stand, weld and work over the height of her shoulder. Her assignment with Star
ended after about four weeks, in June 2007. On August 6, 2007, she was sent back
to Star to perform the same job at $8 per hour for forty hours per week. The
duration of the employment was not specified. According to Haddix, a staffing
specialist at Nesco told her that the job was a “temp to hire” position, but the
staffing specialist denied making this statement. Haddix was the only worker that
Nesco sent back to Star in August 2007. Two days later, on August 8, 2007,
Haddix slipped on some oil while at work and fell backwards, injuring her neck.
She was placed on light duty work at Nesco until October 16, 2007, when she was
terminated.
-3-
The ALJ found that Haddix had suffered a work-related injury; that
her functional impairment was 17 percent; and that she was unable to return to the
same type of employment and hence her award was eligible for the triple multiplier
under KRS 342.730(1)(c). In calculating Haddix’s average weekly wage (AWW),
the ALJ made no direct reference to the pertinent statute, KRS 342.140, choosing
instead to rely on Nesco’s calculation of her AWW. The ALJ noted that Haddix’s
work record was “very sporadic” and consequently, treating her employment at
Star at the time of her injury as a permanent job for purposes of calculating AWW
was “unrealistic.” After acknowledging that using the amount calculated by Nesco
would mean that Haddix would receive very little in compensation benefits for a
very serious injury, the ALJ adopted Nesco’s AWW of $45.18.
The pertinent portions of KRS 342.140 state as follows:
The average weekly wage of the injured employee at the
time of the injury or last injurious exposure shall be
determined as follows:
(1) 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:
…
(d) The wages were fixed by the day, hour, or by
the output of the employee, the average 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
-4-
in the fifty-two (52) weeks immediately preceding
the injury.
(e) The employee had been in the employ of the
employer less than thirteen (13) calendar weeks
immediately preceding the injury, his average
weekly wage shall be computed under paragraph
(d), taking the wages (not including overtime or
premium pay) for that purpose to be the amount he
would have earned had he been so employed by
the employer the full thirteen (13) calendar weeks
immediately preceding the injury and had worked,
when work was available to other employees in a
similar occupation.
Nesco applied section (1)(d) to arrive at $45.18, by averaging
Haddix’s wages over the thirteen weeks immediately preceding the date of the
injury. (She received three paychecks during this period, in the amounts of
$248.00 on May 18, 2007, $147.40 on June 15, 2007, and $192.00 on August 10,
2007.) It is unclear why Nesco selected these thirteen weeks, since under section
(d) the thirteen weeks most favorable to the employee in the preceding fifty-two
weeks should be used. In Haddix’s case, these most lucrative weeks spanned from
February 2007 to May 2007, when, according to Nesco’s own calculations, her
average weekly wage was $59.08. Nesco also contended that, even under section
(1)(e), an AWW of $45.18 was correct, as reflecting a “realistic snapshot” of
Haddix’s overall employment in the thirteen weeks preceding the injury.
The Board reversed the ALJ’s decision on this issue, holding that
(1)(e) was the section of the statute that should have been applied to calculate
Haddix’s AWW. Because the ALJ had not specified what statutory or case law
-5-
authority he had relied in determining the AWW, the Board remanded the case for
reconsideration of this issue and for taking additional evidence relevant to section
(1)(e). It directed the ALJ as follows:
[T]he ALJ need not believe that Haddix was a permanent
employee of Star in order to use her full-time or close to
full-time pay when calculating her AWW. Rather, the
ALJ must consider the unique facts and circumstances in
this case and based on that information determine what
Haddix would have earned had she been so employed by
the employer for the full thirteen calendar weeks
immediately preceding the injury and had worked, when
work was available to other employees in a similar
occupation.
Accordingly, this matter must be remanded to the
ALJ for the taking of additional evidence as set forth in
this opinion. As pointed out by Rogers, no one else but
Haddix was sent to Star when the most recent opening
was available at Star. Haddix’s work pattern was erratic
and sporadic but the fact remains that Haddix was the
one chosen by Nesco to work for Star and had already
worked for Star on two other occasions during 2007. On
the first occasion, her employment lasted for almost four
(4) weeks. Her employment was terminated either
because there was a layoff or the purpose of Haddix’s
work at Star had ended. The necessary records of Star
and Nesco are available to establish what work was
available to other employees in a similar occupation for
the thirteen calendar weeks immediately preceding the
injury.
The Board’s opinion included a dissent, which agreed that KRS
342.140(1)(e) was the appropriate section for calculating Haddix’s AWW, but
contended that Haddix had failed to meet her burden of proving what “she would
have earned for the full thirteen weeks immediately preceding the injury and had
worked, “when work was available to other employees in a similar occupation.”
-6-
The dissent also observed that there was no compelling evidence that Haddix
would have worked any more regularly than her sporadic work record established
and that the ALJ ’s decision was reasonable under the evidence presented.
In reviewing a decision of the Workers’ Compensation Board, our
function “is to correct the Board only where the . . . Court perceives 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.” Western
Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
On appeal, Nesco contends that the determination as to whether the
AWW should be calculated under KRS 342.140(1)(d) or (e) was a question of fact
for the ALJ, and that consequently the Board’s decision that section (e) must apply
was a factual finding beyond the scope of the Board’s review. “An appellate court
reviews the application of the law to the facts and the appropriate legal standard de
novo.” Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001). It was certainly
not beyond the scope of the Board’s review to direct the ALJ to apply the correct
statutory standard to the facts, particularly as the ALJ never specified which
section of the statute he was applying. In a factually-similar case, C & D
Bulldozing Co. v. Brock, 820 S.W.2d 482 (Ky. 1991), the Board also reversed the
ALJ on wage calculation and held that section (1)(e) rather than (1)(d) provided the
proper method of calculation. In Brock, the ALJ did specify which section of the
statute he was applying, but provided no factual findings to support his decision.
The employer argued that the Board had exceeded the proper scope of review and
-7-
invaded the province of the fact finder by substituting its judgment for that of the
ALJ. The Kentucky Supreme Court disagreed, noting that the Board “of necessity,
considered the testimony, which in fact did not support the ALJ’s conclusion, and
from which it drew the only possible inference.” Brock, 820 S.W.2d at 485. In the
case before us, the ALJ did make findings of fact regarding the nature of Haddix’s
employment, but failed to specify which statutory standard was being applied to
these facts. Under Brock, it was well within the Board’s authority to direct the
ALJ to apply (1)(e). An ALJ is required to make sufficient findings of fact to
support his opinion and to permit meaningful review. Shields v. Pittsburgh &
Midway Coal Mining Co., 634 S.W.2d 440, 444 (Ky. App. 1982).
Nesco next argues that the evidence establishes that Haddix worked
for Nesco more than thirteen weeks prior to the date of injury and that therefore
section (1)(d) should apply. As we have already noted, it is unclear why in
applying section (1)(d) Nesco used the thirteen weeks immediately preceding the
date of Haddix’s injury to calculate AWW, since section (1)(d) requires the most
favorable of the thirteen-week segments in the prior year to be employed. Again,
the factual situation is similar to that Brock, in which the claimant worked for the
employer for at least nine weeks over a fifteen-week period preceding the injury.
The employer maintained that if there are thirteen weeks between the date of hire
and the date of injury, then (1)(d) must apply. The Supreme Court disagreed,
explaining as follows:
-8-
C & D has misstated the statutory scheme which does not
turn upon the time period from an original date of hire to
the date of injury, but turns upon the actual period of
employment. The statutory language is clear that one
should consider how long the employee “had been in the
employ of the employer.” While this process would be
very simple in the case of continuous employment, where
the work is sporadic, a determination must be made on a
case-by-case basis.
Brock, 820 S.W.2d at 485. The Supreme Court further noted that there was no
indication that the employment relationship continued during the periods when the
claimant was not working:
[T]here was no indication that during the 15-week period
the claimant had any rights which he could assert against
the employer, or had any connection, however tenuous,
with the employer; that there was no indication that C &
D had provided any benefits to its employees which
continued for claimant when he received no wages, nor
was there any indication that claimant had any priority
with respect to reemployment; and that there was no
indication that C & D continued any health and accident
insurance benefits for claimant during the time he was off
from work or that they were obligated to do so.
Id.
Haddix was first hired by Nesco in 2005, and her employment with
Star began in April 2007, ended after four weeks, and then recommenced for two
days prior to her injury on August 8, 2007. In the periods between the temporary
jobs arranged for her by Nesco, she was plainly in the same position as the
employee in Brock. Indeed, it was the uncontradicted testimony of Julie Gammon,
an area manager for Nesco, that during the period when employees are not working
for an outside employer, they are not employees of Nesco. For purposes of
-9-
calculating AWW, Haddix was not an “employee” of Nesco for full the thirteen
weeks preceding August 8, 2007. Under Brock, the Board correctly held that
(1)(d) was the applicable section.
Nesco further argues that the ALJ’s adoption of $45.18 as Haddix’s
AWW was equally correct under section (1)(e) or (1)(d), because it was a realistic
snapshot of her sporadic employment pattern. In Huff v. Smith Trucking, 6 S.W.3d
819 (Ky. 1999), the employee worked for two of the thirteen weeks immediately
preceding his injury, earning a total of $375.00. The employer argued, and the
Court of Appeals agreed, that these total earnings must be divided by 13 weeks to
yield an average weekly wage of $28.85.
The Kentucky Supreme Court specifically rejected this approach,
mandating instead a computation pursuant to (1)(e) which “must take into
consideration the unique facts and circumstances of each case.” Id. at 822.
KRS 342.140(1)(e) applies to injuries sustained after
fewer than 13 weeks’ employment. It utilizes the
averaging method set forth in KRS 342.140(1)(d) and
attempts to estimate what the worker’s average weekly
wage would have been over a typical 13-week period in
the employment by referring to the actual wages of
workers performing similar work when work was
available. As was recognized in Brock, the goal of KRS
342.140(d) and (e) is to obtain a realistic estimation of
what the injured worker would be expected to earn in a
normal period of employment.
Id. at 821.
Although there is no dispute that Haddix’s employment with Nesco
had been sporadic, there is no indication that the ALJ considered the factors set
-10-
forth in section (1)(e) or the guidance provided in cases such as Brock or Huff
when he ruled that her AWW should be based on the average amount she earned in
the thirteen weeks immediately preceding the injury. The Board did not err in
directing the ALJ to reconsider the evidence in light of the appropriate statutory
and case law.
In her cross-petition, Haddix argues that such a reconsideration is
unnecessary and that the ALJ should calculate her AWW as if she had worked fulltime for the thirteen weeks prior to the injury. She points to the evidence that she
had been hired by Nesco to work at Star indefinitely, with no ending date; that she
had worked at a previous Nesco placement for six consecutive months; and that
Nesco has another employee who has been working at a “temporary” placement
for nearly five years. She argued that Nesco had failed to offer any evidence from
Star that Haddix’s placement would not have lasted for at least thirteen weeks.
Our case law is clear, however, that the intermittent nature of her employment
must also be considered by the ALJ in arriving at a reasonable estimation of her
AWW. As the Brock court observed:
It is unfortunate that there is not a provision which is
more narrowly tailored to accommodate consistently
intermittent employment that is still not seasonal
employment. However, the compensation scheme is
based upon a determination of average weekly wages,
and we must apply the statute as best we can to varying
circumstances.
Brock, 820 S.W.2d at 486.
-11-
Nesco next argues that the Board erred in remanding the case for
further findings under (1)(e). Nesco asserts that the records of Star and Nesco
relating to what work was available to other employees are unavailable and should
in any event have been requested by Haddix as forming part of her burden of
proof. See Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003). Nesco relies on T.J.
Maxx v. Blagg, 274 S.W.3d 436 (Ky. 2008), which held that an ALJ’s sua sponte
order of a university evaluation after the proof had been closed and the briefs
submitted was an abuse of discretion because it violated the pertinent regulations
governing discovery and proof and because the disparity in the evidence which
prompted the order did not warrant reopening. In this case, however, no
regulations bar the Board’s action in reopening the proof. Morevoer, in Huff, a
remand by the Board for further findings on precisely this issue of AWW was
acceptable. Id. at 820. In a situation such as this, where the parties and the ALJ
appeared to be uncertain as to the applicable statutory section for calculating
AWW, such a remand for further findings is not a misuse of the Board’s power. If
the records relating to other employees are unavailable, the ALJ may still
reconsider the existing proof in light of KRS 342.140(1)(e) and the relevant case
law.
Finally, Nesco argues that the Board was improperly attempting to
influence the ALJ’s ruling in the following portion of its opinion:
In this case, the ALJ had before him Haddix’s
testimony that she had successfully worked earlier at Star
for Nesco. She then returned to Star for two days which
-12-
was described by Haddix as a “temp-to-hire” assignment
but by Kelly Rogers as a “short term assignment,” or
“indefinite” duration. Having been returned to Star by
Rogers because she was one of its “good employees” and
because Haddix had been assigned there before, we think
more than likely given that past relationship, Haddix
would have worked more than 3 weeks during the 13
week period following her August 6, 2007 assignment
with Star.
Of course, this Board is without authority to
substitute its judgment for that of the ALJ unless the
evidence is so overwhelming, upon consideration of the
whole record, as to compel a contrary finding. [Citations
omitted.] We do not believe the evidence necessarily
compels a contrary finding in this matter.
Nesco contends that this portion of the opinion should be stricken.
The Board’s observation regarding the likelihood that Haddix’s employment would
have continued for more than three weeks is not a binding directive on the ALJ.
Furthermore, the Board correctly stated that it was without authority to substitute
its judgment for that of the ALJ unless the evidence was so overwhelming as to
compel a contrary finding, and that the Board did not believe that the evidence rose
to that level. We see no need to strike these comments from the record.
The opinion of the Workers’ Compensation Board reversing and
remanding is therefore affirmed.
ALL CONCUR.
-13-
BRIEF FOR APPELLANT/CROSSAPPELLEE:
BRIEF FOR APPELLEE/CROSSAPPELLANT:
H. Brett Stonecipher
Lexington, Kentucky
Daniel E. Moriarty
Lexington, Kentucky
-14-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
