NQT ALLWOOD MANUFACTURING, INC . V RICKEY CLARK ; HON . W . BRUCE COWDEN, JR ., ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
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IMPORTANT NOTICE
NOT TO BE PUBLISHEDOPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVI_L PROCED URE PROMUL GA TED B Y THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITY IN ANY OTHER
CASE INANY CO URT OF THIS STATE.
RENDERED : August 25, 2005
NQT
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2004-SC-0784-WC
ALLWOOD MANUFACTURING, INC.
V
APPELLANT
APPEAL FROM COURT OF APPEALS
2003-CA-2144-WC
WORKERS' COMPENSATION BOARD NO . 00-76636
RICKEY CLARK; HON . W. BRUCE COWDEN, JR.,
ADMINISTRATIVE LAW JUDGE; AND WORKERS'
COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
In a decision that the Workers' Compensation Board (Board) and the Court of
Appeals have affirmed, an Administrative Law Judge (ALJ) based the claimant's
average weekly wage on his earnings from both the defendant-employer and a
concurrent employer. Appealing, the defendant-employer asserts that the Court of
Appeals misconstrued KRS 342 .140(5) and also that the record did not contain
substantial evidence to support the finding of concurrent employment . We affirm .
The claimant was unemployed for a number of years due to a work-related low
back injury . In January, 2000, he began to work full-time for Allwood Manufacturing,
Inc., as a material handler. In April, 2000, he also began to work part-time at a
convenience store that was owned by Duke & Long Distributing Company. Shortly
thereafter, the claimant injured his neck and shoulder while working for Allwood. He
later testified that he thought the injury occurred on April 15, 2000; however, Allwood
reported to its insurance carrier that it occurred on May 15, 2000. Despite multiple
surgeries, the claimant was unable to work and sought benefits for total disability . The
ALJ determined that the injury had rendered him totally disabled but that half of his
disability was pre-existing, active and, therefore, non-compensable .
Among the contested issues was the manner for determining the claimant's
average weekly wage . The claimant asserted that he was entitled to have his income
benefit based on the combined wages from his two employments . Allwood maintained
that it was unaware the claimant was a paid employee of Duke & Long and, therefore,
that the statute was inapplicable.
At his discovery deposition, the claimant testified as follows :
Q.
Did Bob Futrell know about your job at Duke & Long?
A.
Yes, sir.
Q.
And why do you say that?
A.
Because I worked on the weekends at my other job.
Q.
You worked on the weekends at Metropolis Truck and
Travel?
Q.
Did you tell anyone at Allwood you were being paid for that
work?
A.
Yes, sir, they knew I was working there .
Q.
Did they know that you were being paid for that work?
A.
I don't know if they did or not .
Q.
Do you remember advising someone at Allwood that you
were just trying to help out your girlfriend?
A.
When I first went over there, I was.
Q.
Did you ever tell anyone at Allwood that it changed, and you
were earning money while working at Duke & Long?
A.
When I first started? Say that again?
Q.
You just indicated, if I understand you correctly, that your
initial intent was to go to Metropolis Truck and Travel to help
out?
A.
Uh-huh (affirmative response)
Q.
Is that fair?
A.
Yes, sir.
Q.
And then later on, it was decided that you would start to
make an hourly rate of pay?
A.
Hourly wages, yes, sir.
Q.
How long was it into your work at Metropolis Truck and
Travel that it was decided you would receive pay, instead of
just help out?
A.
It was probably a week and half something like that, two
weeks.
Q.
Did you ever tell Bob Futrell that you were working for pay at
Duke & Long, or Metropolis Truck and Travel?
A.
Yes, sir, I believe I did .
Q.
When did you tell him that?
A.
I don't remember the exact date, but there was something
said about working overtime on the weekends after I took
that for extra money, and I told him that I could not do it, I
wasn't going to give it up.
Q.
You weren't going to give up your wage at Metropolis Truck
and Travel?
A.
Yes, sir.
Q.
We're here about an accident that you had at Allwood, or
one that you describe in your application ; did you tell Mr.
Futrell before that accident that you were working for pay at
Metropolis Truck and Travel?
A.
Yes, sir, as far as I know I did .
Questioned on the matter again, at the hearing, he testified :
Q.
So when did you start working for wages for Duke & Long?
A.
Somewhere along the 14 or 15th, somewhere along in there .
Q.
At about the same time you think you had your accident at
Allwood?
A.
Yes, sir, that's what I'm saying .
Q.
And if I recall your prior testimony correctly, you are not sure
whether or not anyone at Allwood knew you were working for
wages at Duke & Long?
A.
I think I told them I was, I know I told them I had started work
because they wanted me to work on the weekends, and I
told them that since I had started over there, and they hadn't
been wanting any overtime before, that I was going to keep
the weekend job over there.
Allwood's co-owner and manager, Robert Futrell, testified on the company's
behalf as follows :
Q.
You heard Mr. Clark testify to a job he had through Duke &
Long at Metropolis Truck Stop, I believe it is?
A.
Yes, sir.
Q.
When Mr. Clark was working for you, were you aware he
was employed by Duke & Long at this truck stop in
Metropolis?
A.
I was aware that he was there but he stated to me that he
went over and helped his girlfriend out. I was made aware
that he actually drew a wage when I received this in the mail
from your office . That's the first time I knew he actually drew
wages.
Q.
And by this, are you talking about what has been made an
exhibit?
A.
The payroll statement there, yes sir, the payroll statement. I
don't know he actually drew wages, but I knew he would go
over there, and I think his words were "I helped her out over
there."
Q.
So when did you first learn Mr. Clark was an employee of
Duke & Long?
A.
Actually as a paid employee, when I received that.
Q.
Was that after his claim was filed?
A.
Yes, I believe it was a few months ago, about two months
ago, whenever I received that . . . it was before the
deposition that we had in your office .
Resolving the issue in the claimant's favor, the ALJ stated as follows :
22 . From the facts and evidence, the [ALJ] must find that the
statute does apply so as to require concurrent employment. The [ALJ]
points out that on page 23 of the formal hearing transcript, the Plaintiff
testified that he thought that he had told his supervisors with Allwood
Manufacturing Company that he was working at another job because they
wanted him to work weekends and he told them that since starting with
this other job, he was going to keep the weekend job that he had with
Duke & Long. The Plaintiff further testified in his discovery deposition on
page 31 that he had started working as a cashier just before the injury at
Allwood occurred . He further testified that he was working 48 hours every
two weeks as a part-time employee working as a janitor and a cashier and
earning between $5.50 or [sic] $6 .00 per hour . The wage records reflect
that the Plaintiff's rate per hour was $6 .00 per hour, however.
Furthermore, the [ALJ] cites to the testimony of Robert Futrell, who
testified at the formal hearing that he knew that the Plaintiff was working
for Duke & Long at a convenient truck stop at the same time he was
working for his company. For these reasons, the [ALJ] finds that
concurrent employment applies. The [ALJ] calculates the Plaintiff's wage
with Duke & Long at $135.00 per week and his wage for the
Defend ant/Employer to be $247 .89 per week, for a total wage rate of
$382 .89 per week.
Allwood maintains that, in affirming the Board's decision, the Court of Appeals
misconstrued KRS 342 .140(5), which provides :
When the employee is working under concurrent contracts with two
(2) or more employers and the defendant employer has knowledge
of the employment prior to the injury, his wages from all the
employers shall be considered as if earned from the employer liable
for compensation .
Allwood argues that the statute requires two findings: 1 .) that the injured employee was
working under concurrent contracts with two or more employers ; and 2 .) that the
5
defendant-employer had knowledge of the concurrent employment prior to the
compensable injury . Pointing to the finding that Futrell knew of the claimant's work at
the truck stop before he was injured, Allwood asserts that Futrell's actual testimony was
the opposite . It argues that knowledge the claimant went to the truck stop to help his
girlfriend does not constitute knowledge of the type required by KRS 342 .140(5) and
that the record contains no substantial evidence to support a finding of concurrent
employment.
Contrary to the employer's assertion, we are not persuaded that the Board and the
Court of Appeals "misconstrued the statute in finding the appellant employer had
knowledge of other 'work' performed by Mr. Clark as of the date of injury in question ."
Like the employer, they construed the statute as requiring both concurrent employment
and the employer's knowledge of that employment as of the date of injury . They were
simply not convinced that the AU was required to rely upon Futrell's testimony
regarding what he knew and when ; nor are we .
KRS 342 .285 provides that an ALJ's decision is "conclusive and binding as to all
questions of fact" and that the Board "shall not substitute its judgment for that of the
[ALJ] as to the weight of evidence on questions of fact." KRS 342.290 limits the scope
of review by the Court of Appeals to that of the Board and also to errors of law arising
before the Board. The courts have construed KRS 342 .285 to mean that the fact-finder,
rather than the reviewing court, has the sole discretion to determine the quality,
character, and substance of evidence . Paramount Foods, Inc. v. Burkhardt , 695
S .W .2d 418 (Ky. 1985) . As fact-finder, an AU may reject any testimony and believe or
disbelieve various parts of the evidence, regardless of whether it comes from the same
witness or the same adversary party's total proof. Caudill v. Maloney's Discount Stores,
560 S.W.2d 15, 16 (Ky. 1977) . Where the party with the burden of proof is successful
before the ALJ, the issue on appeal is whether substantial evidence supported the ALJ's
conclusion, in other words, whether the conclusion was reasonable . Special Fund v.
Francis , 708 S .W .2d 641, 643 (Ky. 1986); Smyzer v. B. F. Goodrich Chemical Co., 474
S .W .2d 367 (Ky. 1971). Although a party may note evidence that would have supported
a contrary conclusion, such evidence is not an adequate basis for reversal on appeal.
Special Fund v. Francis, supra ; McCloud v. Beth-Elkhorn Corp . , 514 S .W.2d 46 (Ky.
1974).
Contrary to the employer's assertion that the AU was required to rely on Futrell's
testimony concerning Allwood's knowledge, even the uncontradicted testimony of an
interested witness will not compel a particular result . Grider Hill Dock v. Sloan , 448
S.W.2d 373 (Ky. 1969) . The knowledge of an individual at a given point in time is a fact
that may be inferred from the available evidence . The claimant and Futrell gave
conflicting testimony regarding what Allwood knew and when . Although the claimant
stated at one point that he "thought" he informed Futrell, his testimony as a whole was
not as speculative as that isolated statement might imply or so speculative that it must
be viewed as being unreliable. Futrell stated that he understood the claimant's
statements to him to mean that he was merely "helping out" his girlfriend, but the words
"helping out" do not foreclose a reasonable inference that the helper is being paid to do
so.
It is apparent that the evidence regarding Allwood's knowledge of the concurrent
employment was conflicting and that the weight of the evidence did not compel a finding
in either party's favor. Nonetheless, there was sufficient evidence to support a
reasonable inference that Allwood knew of the concurrent employment before the date
of the injury. Under the circumstances, we find no error in the finding that was made or
in the decisions to affirm it.
The decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
Richard Christion Hutson
Whitlow, Roberts, Houston & Straub
P.O. Box 995
Paducah, KY 42002-0995
COUNSEL FOR APPELLEE:
John T. Carneal
P.O. Box 428
Paducah, KY 42001
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