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Claimant filed an application for workers' compensation, alleging injuries while working for Employer as a roofer. Having become a party because Employer was uninsured, the Uninsured Employers' Fund (UEF) denied the claim and stated that claimant's average weekly rate was unknown. Claimant asserted that his average weekly wage must be calculated under Ky. Rev. Stat. 342.140(1)(e) because he had worked for less than thirteen weeks when the injury occurred. The ALJ applied section 342.140(1)(e) and determined that Claimant's weekly wage was $400 per week. The Workers' Compensation Board vacated the average weekly rate calculation because the record contained insufficient evidence to apply section 342.140(1)(e) properly. The Board then remanded the claim for additional proceedings to include the taking of additional proof. The court of appeals affirmed. The Supreme Court reversed, holding that the Board exceeded its authority under Ky. Rev. Stat. 342.285(2)(c) by remanding the claim in order to provide Claimant with a second opportunity to meet his burden of proof.Receive FREE Daily Opinion Summaries by Email
RENDERED: APRIL 26, 2012
TO BE PUBLISHED
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COMMONWEALTH OF KENTUCKY,
UNINSURED EMPLOYERS' FUND
ON APPEAL FROM COURT OF APPEALS
CASE NOS. 2010-CA-001375-WC AND 2010-CA-001485-WC
WORKERS' COMPENSATION NO. 09-00270
D/B/A QUALITY EXTERIORS;
WILLIAM WILLIS BALLARD;
HONORABLE EDWARD D. HAYS,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
OPINION OF THE COURT
The Court of Appeals affirmed a decision in which the Workers'
Compensation Board (Board) vacated the average weekly wage calculation
because the record contained insufficient evidence to apply KRS 342.140(1)(e)
properly. The Board then remanded the claim for further proceedings to
include the taking of additional proof. Appealing, the Uninsured Employers'
Fund (UEF) asserts that, the Board exceeded its authority under KRS
342.285(2)(c) by remanding the claim in order to provide the claimant with a
second opportunity to meet his burden of proof. We agree and reverse.
The claimant argued from the outset that KRS 342.140(1)(e) governed the
calculation and had the burden to offer substantial evidence of the necessary
facts. Having concluded that the statute applied but that the record lacked
sufficient evidence to support a calculation under the statute, the Board
exceeded its authority under KRS 342.285(2)(c) by directing the Administrative
Law Judge (ALJ) to allow additional proof and then reconsider the matter.
The claimant was born in 1975 and obtained an associate's degree in
business from Western Kentucky University. His employment history included
work in construction, installing roofing and granite counter tops; driving a
forklift; and factory work. He filed' an application for workers' compensation
benefits on March 13, 2009, naming Jessie Rogers, d/b/a/ Quality Exteriors
as the defendant-employer. The claimant's application alleged right wrist,
hand, knee, and ankle injuries while working for Rogers as a roofer on
February 27, 2009, his first day of work. He also alleged that his weekly wage
on the date of injury was "$12.00/hr - 40 hrs/wk."
Having become a party because Rogers was uninsured, the UEF filed a
Form 111 that denied the claim and stated that the claimant's average weekly
wage was unknown. The UEF also filed a special answer, stating that the
claimant never worked for Quality Exteriors according to the alleged employer.
Rogers failed to file a Form 111; to submit any other pleadings; or to attend the
benefit review conference. He did appear and testify at the hearing.
The claimant's deposition and hearing testimony indicated that he
worked for Concord Roofing from June 2008 through January 2009 and
injured his right shoulder in January 2009 while working. He stated that he
had known Rogers since he was 17 or 18 years old. A night or two before he
began working for Rogers, he helped Rogers put a tarp on a roof because rain
was predicted. He stated that he drove to the home of Jeremy Jones on the
morning of February 27, 2009, after which he, Jones, and Rogers traveled in
Rogers' truck to the house that he had helped to tarp. They set up ladders to
the roof, after which he carried shingles up to Rogers and Jones and they
nailed them down. He stated that he was supposed to receive $10.00 per hour
in cash according to a conversation he had with Rogers. He broke the scaphoid
bone in his right wrist and injured his right leg when he fell from the roof about
three hours after beginning to work.
Jones testified in June 2009 that he worked as Rogers' employee at the
time of the claimant's injury and was paid by the hour. He described his own
employment during the previous winter as being nonexistent. He stated that
the claimant was at the worksite on February 27, 2009, but he did not know
whether Rogers used him and did not see him fall. Jones stated that the job at
that worksite lasted about three weeks. Sometime after February 27, 2009 he
became Rogers' subcontractor, which involved being paid by the square.
Rogers testified that he had hired the claimant as a subcontractor to
install some granite about a month before the alleged injury but denied ever
hiring him to do roofing. He stated that the claimant came to the worksite on
February 27, 2009 and asked for a job but that he did not hire him due to his
poor performance on a previous granite job. Rogers stated that the claimant
was at the worksite for only about 10 minutes and denied driving him for
Christa Nall, the business manager at Bardstown Ambulatory Care,
testified that a man who identified himself as being Jessie Rogers of Quality
Exteriors brought the claimant to the facility and stated that he would be
responsible for payment. The man left the facility before the claimant returned
to the receptionist's office after being treated. She provided a statement for
services in the amount of $876.00, which had not been paid.
The claimant asserted that his average weekly wage must be calculated
under KRS 342.140(1)(e) because he had worked for less than 13 weeks when
the injury occurred. Noting the absence of any evidence that the job was
temporary, he argued that his average weekly wage should be $400.00 based
on a 40-hour week at the rate of $10.00 per hour.
The UEF asserted that the claimant failed to meet his burden to prove an
average weekly wage under KRS 342.140(1)(e) because he offered no evidence
that the employment would extend beyond the initial job. Moreover, he offered
no evidence of the prevailing wage or the availability of similar work in the area
during the 13-week period immediately preceding the injury. The UEF argued
in the alternative that roofing is a seasonal occupation for which the average
weekly wage must be calculated under KRS 342.140(2).
The Al,,J rejected Rogers' testimony as not being credible and found the
claimant to be credible in stating that Rogers hired him to work for $10.00 per
hour in cash. Convinced that the claimant sustained a work-related injury as
alleged, the ALJ found that the scaphoid fracture produced a 13% permanent
impairment rating but that the claimant retained the physical capacity to
return to the type of work performed at the time of injury.
Turning to the issue of average weekly wage, the ALJ determined that
some people might consider roofing to be "exclusively seasonal" work but that
no evidence supported such a finding. The ALJ cited .Benito Mining Co. v.
Girdner,1 which involved a previous version of Chapter 342, for the principle
that the claimant worked a sufficient amount of time for his average weekly
wage to be fixed. The ALJ also cited Huff v. Smith Trucking, 2 for the principle
that the fact-finder must consider the facts and circumstances of each case
when determining the average weekly wage for an employment of less than 13
weeks' duration. The ALJ found that the claimant's wage should be based on a
regular 40-hour week at the rate of $10.00 per hour, for a total of $400.00 per
week. The claimant's award included medical benefits; $266.67 in weekly
temporary total disability benefits from February 28, 2009 through June 10,
2009; and $34.67 in partial disability benefits for the following 425 weeks.
The UEF appealed, raising the same arguments that it raised before the
ALI. Although the claimant acknowledged that roofing work depended on nonrainy weather, he argued that it was not exclusively seasonal work as
271 Ky. 87, 111 S.W.2d 571 (1937) (employee who worked one-half of his first day
and three hours of his second day had worked for a sufficient time to permit his
average weekly wage to be fixed).
6 S.W.3d 819 (Ky. 1999).
demonstrated by the fact that his injury occurred in February. He argued that
ample evidence supported the $400.00 per week figure and that the defendants
offered no contrary evidence. To support the argument he noted his
application for benefits, which alleged a 40-hour week; the absenCe of evidence
that he was hired for only one roofing job; Rogers' testimony that he continued
to have a roofing business; and Jones' testimony that he continued to perform
roofing for Rogers.
The Board found no error in the ALJ's decision to reject the calculation
proposed by the UEF but agreed with the UEF's assertion that the record
contained insufficient evidence to apply KRS 342.140(1)(e) properly. Convinced
that the claimant should not be denied income benefits simply because he
failed to submit sufficient proof, the Board relied on KRS 342.285(2)(c) to
vacate the average weekly wage finding and remand the claim to the ALj for
additional proceedings to include the taking of additional proof.
The UEF appealed and the claimant cross-appealed, but the Court of
Appeals affirmed the Board's decision. Appealing, the UEF continues to
maintain that the Board lacked the authority to remand the claim for
additional proof taking simply because the claimant failed to meet his burden
of proof. We agree.
Benito Mining Co. v. Girdner was decided under a previous version of
Chapter 342 and does not control the proof requirements in this claim. KRS
342.140(1)(e) bases the average weekly wage of an individual who was
employed by a defendant for less than the full 13 weeks preceding a work-
related injury on the amount that the individual would have earned had he
been employed for the full 13 weeks arid worked when work was available to
other employees in a similar occupation. The statute's objective is to obtain a
realistic estimate of the individual's probable earning capacity in the
An injured worker has the burden to prove every element of a claim for
income benefits, including the applicable average weekly wage. 4 A finding that
favors the party with the burden of proof must be reasonable; i.e., supported by
substantial evidence. The Board determined that the record would not support
a reasonable finding that the claimant's average weekly wage under KRS
342.140(1)(e) was $400.00. We agree.
The claimant's Form 110 alleged 40 hours of work per week, but he
admitted that roofing is not performed in rainy weather. Moreover, Jones
testified in June 2009 that his own employment as a roofer was almost nonexistent during the previous winter. Such evidence precluded a reasonable
finding that there would have been 40 hours' work available to a roofer during
each of the 13 weeks immediately preceding February 27, 2009. 5 Having failed
to offer evidence of all of the required elements under KRS 342.140(1)(e), the
claimant failed to meet his burden of proving his average weekly wage.
See, for example, Affordable Aluminum, Inc. v. Coulter, 77 S.W.3d 587 (Ky. 2002); Huff
v. Smith Trucking, 6 S.W.3d 819, 821-22 (Ky. 1999).
See Roark v. Alva Coal Corporation, 371 S.W.2d 856 (Ky. 1963); Wolf Creek Collieries
v. Crum, 673 S.W.2d 735 (Ky.App. 1984); Snawder v. Stice, 576 S.W.2d 276
See Huff v. Smith Trucking, 6 S.W.3d at 822.
Although KRS 342.285(2)(c) permits the Board to review an ALJ's decision to
determine whether it conforms to the provisions of Chapter 342, the Board
exceeded its authority under the statute by directing the ALL) . to order
additional proof and then reconsider the issue.
803 KAR 25:010 specifies the periods within which parties may take
proof. Although 803 KAR 25:010, § 15 allows the time for taking proof to be
extended, it requires the filing of a motion "no later than five (5) days before the
deadline sought to be extended" and "a showing of circumstances that prevent
timely introduction." This is not a case in which an injured worker lacked
guidance concerning the manner in which to prove an essential element of his
claim for income benefits. The claimant argued correctly from the outset that
KRS 342.140(1)(e) governed the calculation because his employment was of
less than 13 weeks' duration when his injury occurred. Moreover, numerous
judicial decisions addressed the proof requirements under KRS 342.140(1)(e)
long before his injury occurred. Having failed to submit adequate proof within
the time allowed and absent any evidence of circumstances that prevented him
from doing so, the claimant was not entitled to a second opportunity to prove
his average weekly wage. 6
The decision of the Court of Appeals is reversed.
All sitting. All concur.
See Nesco v. Haddix, 339 S.W.3d 465, 472 (Ky. 2011).
COUNSEL FOR APPELLANT,
COMMONWEALTH OF KENTUCKY,
UNINSURED EMPLOYERS' FUND:
Charles Davis Batson
Assistant Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
COUNSEL FOR APPELLEE,
JESSIE ROGERS, D/B/A QUALITY EXTERIORS:
134 Conley Avenue
Bloomfield, KY 40008
COUNSEL FOR APPELLEE,
WILLIAM WILLIS BALLARD:
Ben Thomas Haydon, Jr.
798 Portland Avenue
P.O. Box 1155
Bardstown, KY 40004