SANDRA TOY V. COCA COLA ENTERPRISES, ET AL.
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RENDERED : DECEMBER 18, 2008
TO BE PUBLISHED
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2008-SC-000149-WC
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SANDRA TOY
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APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NO . 2006-CA-002631-WC
WORKERS' COMPENSATION BOARD NO . 01-93106
COCA COLA ENTERPRISES ;
HONORABLE SHEILA LOWTHER,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) denied the claimant's motion to
reopen to contest her former employer's reduction in her benefits under KRS
.
.730(1)(c)2
342 The ALJ reasoned that she presently earned the same or a
greater wage from a different employer . The Workers' Compensation Board and
the Court of Appeals affirmed. Appealing, the claimant argues that KRS
342 .730(1)(c)2 refers only to cessation of the employment to which she
returned after she was injured and that her former employer should not benefit
from her initiative in finding subsequent employment . We affirm.
pc:
The claimant's application for benefits alleged a cervical spine injury due
to repetitive trauma in her work for Coca Cola Enterprises (Coke) . She
continued to work for Coke and to earn the same or a greater wage . The
parties agreed to settle the claim for weekly benefits of $59 .63 for a period of
425 weeks.
Coke discharged the claimant shortly after the settlement was approved .
Consistent with KRS 342.730(1) (c)2, the parties then agreed to double the
weekly benefits for the remainder of the award. Sometime thereafter, the
claimant returned to work with a different employer at a wage equal to or
greater than her average weekly wage at the time of the injury. Coke learned of
the employment, obtained a copy of her wage records, and reduced her weekly
benefit to $59 .63 . The claimant then filed a motion to contest the reduction,
asserting that KRS 342 .730(1)(c)2 referred only to the employment to which she
returned initially. She also argued that Coke should not be permitted to
benefit simply because she obtained other work. Having failed to convince the
AIJ, the Board, or the Court of Appeals, she continues to appeal.
KRS 342 .730(1)(c)2 provides as follows:
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
(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 . (emphasis added) .
The claimant argues that the phrase "during any period of cessation of
that employment" refers specifically to the employment to which she returned
after the injury. She points to KRS 342.710(l), which states that a primary
goal of Chapter 342 is to encourage injured workers who retain the ability to
work to do so, preferably with the same employer and to the same or similar
employment. She maintains that her interpretation is "the only logical
interpretation of [KRS 342.730(l)(c)2] that is consistent with KRS 342 .710(l) ."
She concludes that because she marked far Coke after her injury and earned
the same or a greater wage, she is entitled to double benefits during any period
of cessation of her employment with Coke, regardless of her subsequent return
to work for another employer at the same or a greater wage. We disagree .
The essence of statutory construction is to determine and effectuate the
legislative intent.' KRS 342 .730(l) provides income benefits to replace some of
the wages that workers lose due to the occupational effects of work-related
injuries.
Consistent with the purpose of the benefit and with KRS 342 .7 10(1}'s goal of
encouraging a return to work, KRS 342 .730(l)(c)2 focuses on post-injury
Hale v. Combs, 30 S.W.3d 146, 151 (Ky. 2000) ; City of Louisville v. HeIrnan, 253
11MV2d 598, 600 (Ky. 1952) ; AK Steel Corporation v. Commonwealth, 87 S.W.3d 15,
17 (Ky. App. 2002).
wages. Although KRS 342.7 10(1) expresses a preference for a return to the
same employment, IRS 342 .730(l)(c)2 requires only that the injured worker
"returns to work at a weekly wage equal to or greater than the average weekly
wage at the time of injury ." Thus, it applies without regard to whether the
worker returns to the employment in which the injury occurred or to other
employment .
Workers who retain the physical capacity to return to the type of work
performed at the time of injury receive a basic income benefit under KRS
342 .730(l)(b), regardless of their post-injury earnings. The purpose of KRS
342 .730(l)(c)2 is to keep partially disabled workers in the habit of working and
earning as much as they are able. It creates an incentive for them to return to
work at which they will earn the same or a greater average weekly wage by
permitting them to receive a basic benefit in addition to their wage but
assuring them of a double benefit if the attempt proves to be unsuccessful .2
Although the statute also creates an incentive for employers to continue to
employ injured workers in order to avoid paying double benefits, its focus is on
encouraging a return to work at the same or a greater wage rather than to a
particular employment. Had the legislature intended to limit the statute to one
post-injury employment, it could have done so explicitly. It did not. We
conclude, therefore, that the words "that employment" and the phrase "[d]uring
any period of cessation of that employment" refer to the cessation of
2
age AK Steel Corporation y. Chflder§, 167 S.W.3d 672, 675-76 (KY. APP- 2005) .
4
employment at which the individual earns an average weekly wage equal to or
greater than the average weekly wage at the time of injury rather than to a
particular employment. This interpretation is consistent with the purpose of
awarding income benefits and with the principle of limiting the amount of
income benefits paid to workers who experience no present loss of income . 3
KRS 342 .125(3) permits reopening at any time to conform an award
made under KRS 342 .730(l)(c)2 to a post-award change in circumstances . 4
When read in tandem with KRS 342 .125(3), KRS 342 .730(l)(c)2 permits an
award to be reopened and doubled during any period in which the recipient's
average weekly image is less than the average weekly wage earned at the time of
injury. 5 It also permits a double benefit award to be reopened an reduced
during any period that the recipient's average weekly wage equals or exceeds
the average weekly wage at the time of injury.
The decision of the Court of Appeals is affirmed.
All sitting. All concur.
See Ball y. Big Elk Creek Coal Co., Inc., Ky., 25 S.W.3d 115 (2000) .
1 Meade v. Reedy Coal Co ., Ky., 13 S.W.3d 619 (2000) .
' Ball v. Big Elk Creek Coal Co., Inc., supra.
3
COUNSEL FOR APPELLANT,
SANDRA TOY:
Theresa C . Gilbert
Ann Batterton Lawyer
Denney, Morgan, Rather & Gilbert
156 Market Street
Lexington, Ky 40507
COUNSEL FOR APPELLEE,
COCA COLA ENTERPRISES:
Joel Walter Aubrey
Mary Ellen Schaffner
Pohl, Kiser & Aubrey, P.S .C .
303 North Hurstbourne Parkway
suite 110
Louisville, Ky 40222
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