ALLEN KEITH STEWART V. KIAH CREEK MINING; RICHARD H. CAMPBELL, JR., Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: APRIL 26,200l
TO BE PUBLISHED
ALLEN KEITH STEWART
V.
APPEAL FROM COURT OF APPEALS
NOS. 1999-CA-002023-WC,
1999-CA-002239-WC
WORKERS’ COMPENSATION BOARD NO. 97-76965
KIAH CREEK MINING;
RICHARD H. CAMPBELL, JR.,
Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
AFFIRMING
The question presented by this workers’ compensation appeal concerns the
method for calculating the weekly benefit of a partially disabled worker who does not
retain the physical capacity to return to the type of work that he performed at the time of
the injury. KRS 342.730(1)(b), (c), and (d). The claimant asserts that
KRS 342.730(1)(d) authorizes use of the weekly wage rate for total disability rather than
the rate for partial disability. The Workers’ Compensation Board (Board) and the Court
of Appeals have determined, however, that the plain language of the provision does not
affect the method for calculating the amount of the benefit but limits the benefit to a
maximum of the weekly benefit for total disability.
An Administrative Law Judge (ALJ) determined that the claimants work-related
impairment was 15%, that he was unable to return to the type of work that he was
performing when he was injured, and that he was entitled to vocational rehabilitation.
His pre-injury average weekly wage exceeded the state’s average weekly wage. Based
upon the date of injury, the ALJ applied the December 12, 1996, version of
KRS 342.730(1)(b), (c), and (d) to calculate the amount of the weekly benefit.
KRS 342.730( 1) sets forth formulae for calculating awards for total and partial
disability. The applicable subsections provide, in pertinent part, as follows:
(b)
For permanent partial disability, sixty-six and two-thirds percent (66-2/3%)
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 the permanent impairment rating caused by
the injury or occupational disease as determined by “Guides to the
Evaluation of Permanent Impairment,” American Medical Association,
latest edition available, times the factor set forth in the table that follows:
AMA Impairment
Oto5%
6tolO%
11 to 15%
16to20%
21 to 25%
26 to 30%
31 to 35%
36% and above
Factor
0.75
1 .oo
1.25
1.50
1.75
2.00
2.25
2.50
(c) 1. 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 one and one-half
(l-1/2) times the amount otherwise determined under paragraph (b) of this
subsection, but this provision shall not be construed so as to extend the
duration of payments.
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(d)
For permanent partial disability, if an employee has a permanent disability
rating of fifty percent (50%) or less as a result of a work-related injury, the
compensable permanent partial disability period shall be four hundred
twenty-five (425) weeks, and if the permanent disability rating is greater
than fifty percent (50%) the compensable permanent partial disability
period shall be five hundred twenty (520) weeks from the date the
impairment or disability exceeding fifty percent (50%) arises. Benefits
payable for permanent partial disability shall not exceed ninety-nine
percent (99%) of sixty-six and two-thirds percent (66-2/3%) of the
employee’s average weekly wage as determined under KRS 342.740 and
shall not exceed seventy-five percent (75%) of the state average weekly
wage, except for benefits payable pursuant to paragraph (c)l. of this
subsection, which shall not exceed one hundred percent (100%) of the
state average weekly wage, nor shall benefits for permanent partial
disability be payable for a period exceeding five hundred twenty (520)
weeks, notwithstanding that multiplication of impairment times the factor
set forth in paragraph (b) of this subsection would yield a greater
percentage of disability.
Also relevant is KRS 342.0011(36), which defines the term “permanent disability rating”
as being the product of the AMA impairment and the factor set forth in
KRS 342.730(1)(b).
In calculating the claimant’s benefit, the ALJ multiplied the AMA impairment by
the statutory factor [KRS 342.730(1)(b)], multiplied the product by 1.5
[KRS 342.730(1)(c)l],
and multiplied that product by 100% of the state’s average
weekly wage [KRS 342.730(1)(d)] to calculate the weekly income benefit as follows:
15% x 1.25 x 1.5 x $447.03 = $125.73.
The employer asserted on appeal that the ALJ had misconstrued
KRS 342.730(1)(d) and, therefore, had miscalculated the benefit. It maintained that the
function of KRS 342.730(1)(d) was to limit the maximum benefit for partial disability to
100% of the state’s average weekly wage but that the ALJ had misconstrued the
provision as basing the calculation of the benefit upon 100% of the state’s average
weekly wage. In an opinion rendered on July 30, 1999, the Board affirmed the decision.
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On August 11, 1999, before a petition for review had been filed in the Court of
Appeals and before the time for doing so had expired, the Board withdrew its opinion.
The claimant filed a petition for reconsideration and motion to set aside the order
withdrawing the opinion; whereupon, the employer filed a protective petition for review
in the Court of Appeals and a motion to abate the matter. After hearing oral argument,
the Board overruled the petition for reconsideration on September 3, 1999, and
rendered a new opinion in which it concluded that the plain language of the statutes
supported the employer’s position and that the ALJ’s decision must be reversed. The
claimant appealed.
Agreeing that the Board retained authority over its opinion until a petition for
review was filed or the time for filing such a petition had expired, the Court of Appeals
affirmed on the threshold issue, dismissed the employer’s petition for review, and
affirmed the Board’s second opinion. In appealing to this Court, the claimant maintains
only that KRS 342.730(l)(d) entitles him to have his benefit calculated at 100% of the
state’s average weekly wage, the rate for total disability.
We begin by considering the meaning of each subsection of KRS 342.730(l).
KRS 342.730(1)(a) provides a benefit for total disability that equals 66 2/3% of the
worker’s average weekly wage, up to a maximum of the state’s average weekly wage.
In other words, well-paid workers are limited to a benefit of no more than 100% of the
state’s average weekly wage if they become totally disabled.
When read together, KRS 342.001 l(36) and KRS 342.730(1)(b) provide that the
benefit for permanent, partial disability is calculated by multiplying 66 2/3% of the
worker’s average weekly wage (up to a maximum of 75% of the state’s average weekly
wage) by the disability rating (AMA impairment multiplied by the factor). It is apparent
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that when multiplied by the applicable factor, AMA impairments of 26% or more result in
a disability rating of more than 50%, a figure that becomes significant when determining
the duration of the award. It is also apparent that when AMA impairments of 40% or
more are multiplied by the applicable factor of 2.50, they result in a disability rating that
equals or exceeds 100% and also result in a benefit for partial disability that equals or
exceeds 75% of the state’s average weekly wage. This becomes significant under
subsection (1 )(d).
KRS 342.730(1)(c)l indicates that the benefit determined under
KRS 342.730(1)(b) is to be multiplied by 1.5 if the partially disabled worker does not
retain the physical capacity to return to the type of work he performed at the time of the
injury. In other words, the weekly benefit for such workers is enhanced by 50%. It is
apparent, however, that applying the 1.5 multiplier to the benefit for an AMA impairment
greater than 30% or a disability rating greater than 66.67% results in an enhanced
benefit for partial disability that exceeds 100% of the state’s average weekly wage, the
maximum benefit for total disability. This becomes significant under subsection (l)(d).
We find nothing in the plain language of KRS 342.730(1)(d) that is unclear and,
therefore, subject to interpretation. It contains three separate provisions, all of which
affect partial disability awards. First, it sets the duration of the awards: 425 weeks for a
disability rating of 50% or less and 520 weeks for a disability rating of more than 50%.
Second, it limits the maximum benefit for partial disability to 99% of 66 213% of the
worker’s average weekly wage and also limits it to 75% of the state’s average weekly
wage unless KRS 342.730(1)(~)1 applies, in which case the benefit is limited to 100% of
the state’s average weekly wage. Third, it limits the maximum duration of partial
disability benefits to 520 weeks even if the disability rating which is calculated in
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KRS 342.730(1)(b) yields a percentage that is greater than partial.
Based upon the plain language of KRS 342.730(l), we conclude that the proper
method for calculating the award of a partially disabled worker who is unable to return to
the type of work he performed when injured is as follows:
1. Calculate the benefit for partial disability as directed by
KRS 342.730( 1 )(b):
a.) Calculate the permanent disability rating by multiplying the AMA
impairment by the applicable factor from the table in KRS 342.730(l)(b).
b.) Multiply the disability rating by 66 2/3% of the worker’s average weekly
wage or 75% of the state’s average weekly wage, whichever is less.
2. Multiply the benefit for partial disability by 1.5 as directed by
KRS 342.730( 1 )(c)l .
3. Apply KRS 342.730(1)(d):
a.) Determine the duration of the benefit based upon the permanent disability
rating obtained in step la.
b.) Limit the benefit to a maximum of 99% of 66 2/3% of the worker’s average
weekly wage and 100% of the state’s average weekly wage because
KRS 342.730( 1 )(c)l applies.
c.) The duration of the benefit may not exceed 520 weeks even if the
permanent disability rating equals or exceeds 100%.
Applying this formula, the claimant’s benefit is calculated as follows: 15% x 1.25 x
$335.27 x 1.5 = $94.29. It is payable for 425 weeks, and it exceeds neither 99% of 66
2/3% of the claimants average weekly wage nor 100% of the state’s average weekly
wage.
The decision of the Court of Appeals is affirmed, and this matter is remanded to
the ALJ for the entry of a proper award.
All concur.
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COUNSEL FOR APPELLANT:
Hon. Robert J. Greene
KELSEY E. FRIEND LAW FIRM
P.O. Box 512
Pikeville. KY 41502
COUNSEL FOR APPELLEE
KIAH CREEK MINING:
Hon. Terri Smith Walters
JONES & WALTERS, PLLC
P.O. Box 1167
Pikeville, KY 41502
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