ROAD FORK DEVELOPMENT COMPANY, INC. v. MICKEY JAMES SMITH; HON. W. BRUCE COWDEN, ALJ; AND WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED:
NOVEMBER 7, 2003; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000963-WC
ROAD FORK DEVELOPMENT COMPANY, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-00-64828
v.
MICKEY JAMES SMITH;
HON. W. BRUCE COWDEN, ALJ;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, DYCHE AND McANULTY, JUDGES.
BARBER, JUDGE:
The sole issue herein is whether the Workers’
Compensation Board erred in affirming the Administrative Law
Judge’s application of the “2x” multiplier under KRS
342.730(1)(c)2.
We vacate the Opinion of the Board and remand
with direction that the ALJ make additional findings and
recalculate the award.
The Appellee is Mickey James Smith (“Smith”), an
electrician in the coal mining industry.
Smith sustained two
work-related injuries while employed by the Appellant, Road Fork
Development Co., Inc. (“the employer”).
The first occurred on
September 9, 2000, when Smith injured his neck and shoulder in a
rock fall.
leave.
He missed four days of work that he took as personal
Smith returned to work and sustained a second injury on
October 18, 2000.
pulling on a cable.
This time, he injured his low back while
It is uncontroverted that Smith did not
return to work after October 18, 2000.
The parties stipulated
the payment of ttd from October 19, 2000 through January 24,
2001 at the rate of $509.03 per week for a total payment of
$4,257.15.
The medical evidence was in conflict and included the
report of David Forester, M.D., treating psychiatrist.
The ALJ
found that Dr. Forester diagnosed major depression and panic
attacks, assigned a 30% psychiatric impairment rating and opined
that Smith’s current emotional difficulties were the direct
result of the injuries of September 9 and October 18, 2000.
The ALJ determined that Smith had met his burden of
proving the work-relatedness and medical causation of his
psychiatric claim.
The ALJ relied upon the opinion of Dr.
Forester in concluding “that the Plaintiff’s current emotional
difficulties are the direct result of injuries occurring in the
course of his employment on September 9, 2000, and subsequently
-2-
when he attempted to return to work and injured his low back on
October 18, 2000 while pulling a buggy cable.”
The ALJ was further persuaded by Dr. Forester’s 30%
impairment rating and the vocational assessment of Dr. Ralph
Crystal, in concluding that Smith was not totally disabled.
Using the applicable KRS 342.730(1)(b) grid factor of 1.35% the
ALJ calculated a disability rating of 40.5%.
The ALJ found that
Smith retained the physical capacity to return to the type of
work he had performed at the time of the injury; further, that
Smith had not returned to work and was not currently earning any
wages.
Pursuant to KRS 342.730(1)(c)2, the ALJ ordered that the
payment of ppd during the period of cessation of employment, for
any reason, with or without cause, shall be two times the amount
otherwise payable under KRS 342.730(1)(b).
The employer appealed to the Board1 and argued that the
ALJ had erred in applying the “2x” multiplier, because Smith had
never returned to work.
The employer asserted that the
Legislature did not intend for KRS 342.730(1)(c)2 to be applied
to claims where the claimant did not work after his injury.
The
Board noted that it had previously rejected this argument in
another decision and affirmed the ALJ’s Opinion and Award.
1
Smith cross-appealed to the Board asserting that the ALJ failed
to properly consider application of the “3x multiplier” under
KRS 342.730(1)(c)1. The Board concluded that the ALJ’s
decision, in that regard, had a substantial evidentiary
foundation. Smith did not appeal from the Board’s decision.
-3-
On May 9, 2003, the employer filed a petition for
review in this Court again asserting that the ALJ erred in his
application of KRS 342.730(1)(c)2.
We agree insofar as the
second injury is concerned, Smith having returned to work after
the first.
The applicable version of KRS 342.730(c)22 provides:
If an employee returns to work at a weekly
wage equal to or greater than the average
weekly wage at the time of injury, the weekly
benefit for permanent partial disability
shall be determined under paragraph (b) of
this subsection for each week during which
that employment is sustained. During any
period of cessation of that employment,
temporary or permanent, for any reason, with
or without cause, payment of weekly benefits
for permanent partial disability during the
period of cessation shall be two 2 times the
amount otherwise payable under paragraph (b)
of this subsection. This provision shall not
be construed so as to extend the duration of
payments.
The language of the statute contemplates that the
employee has actually returned to work after the injury.
We
believe that the Legislature intended to provide an incentive
for injured employees to return to work, by assuring them of a
double benefit during any period of cessation of employment,
regardless of reason.
Employees who make the effort to return
to work are rewarded, if that attempt later proves to be
unsuccessful.
2
Effective July 14, 2000.
-4-
In the case sub judice, Smith had two separate injuries
to separate parts of his body.
He returned to work after the
September 2000 injury to his neck and shoulder; his employment
ceased when he sustained the October 2000 injury to his low
back.
Dr. Forester opined that Smith’s 30% psychiatric
impairment rating was the direct result of both injuries.
The
ALJ, as was his prerogative, found Dr. Forester’s rating to be
the most accurate.
The ALJ’s conclusion -- that Smith’s
psychiatric impairment was due to both injuries -challenged on appeal.
has not been
The ALJ also concluded that Smith
retained the physical capacity to return to work.
Thus, Smith is entitled to the “2x” multiplier for ppd
benefits attributable to the first injury for any period of
cessation of employment, because he returned to work and worked
until the time of the second injury.
Smith is not be entitled
to the “2x” multiplier ppd benefits awarded for the second
injury, because he did not return to work thereafter, contrary
to the ALJ’s finding that he retained the physical capacity to
do so.
Accordingly, we vacate the Board’s Opinion affirming
the ALJ’s Opinion and Award, and remand this case with direction
that the ALJ make additional findings and recalculate the award.
Specifically, the ALJ should find the percentage of impairment
attributable to each of the two injuries, and redetermine the
-5-
percentage of permanent partial disability for each under KRS
342.730(1)(b).
The ALJ should then apply KRS 342.730(1)(c)2, as
appropriate, and recalculate the award.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
A. Stuart Bennett
Lexington, Kentucky
R. Roland Case
Pikeville, Kentucky
-6-
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.
