CHRYSALIS HOUSE, INC. V. KENNETH TACKETT; HONORABLE GRANT ROARK, ADMINISTRATIVE
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CHRYSALIS HOUSE, INC .
V.
ON APPEAL FROM COURT OF APPEALS
CASE NO . 2007-CA-002316-WC
WORKERS' COMPENSATION BOARD NO. 04-01480
KENNETH TACKETT;
HONORABLE GRANT ROARK,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
REVERSING AND REMANDING
An Administrative Law Judge (ALJ) ordered . the claimant's employer to
pay him a double income benefit under KRS 342 basing the decision
.730(1)(c)2,
on findings that he returned to work at the same or a greater wage but that the
employer terminated the employment and he earned less presently than at the
time of his injury. The Workers' Compensation Board and the Court of Appeals
affirmed based on the statute's unambiguous language . Appealing, the
employer asserts that it discharged the claimant for cause due to an allegation
of criminal activity ; that the ALJ determined he committed criminal activity ;
and that public policy prohibits him from profiting from such activity .
We reverse. KRS 342.730(1) (a) through (e) provide compensation for
"disability" caused by a work-related injury. When read in context, KRS
342 .730(1)(c)2 permits a double income benefit if post-injury employment at
the same or a greater wage ceases "for any reason with or without cause,"
provided that the reason relates to the disabling injury. The ALJ must
determine on remand whether the reason for a cessation of employment at the
same or a greater wage related to the claimant's disabling injury.
The claimant was employed by Chrysalis House, a residential substance
abuse treatment center . An ALJ determined that he sustained a work-related
injury in 2003 that produced an 11% permanent impairment rating. The ALJ
also determined that he lacked the physical capacity to return to the type of
work performed at the time of the injury but that he had returned to light-duty
work at the same or a greater wage and would be able to continue to perform
such work for the indefinite future . Thus, the claimant received income
benefits of $38 .87 per week under KRS 342 .730(1)(c)2, which authorized
double benefits during any period of cessation of such employment.
The claimant moved to reopen on October 2, 2006, to conform the award
to KRS 342 .730(1)(c)2 . He asserted that the employment ceased on September
20, 2006, and that he earned $5 less per hour than at the time of his injury.
Chrysalis resisted on the ground that he was discharged for cause due to theft.
The claimant testified that he found a blank money order in the
Chrysalis parking lot and put it in his pocket. When two days passed with no
one from Chrysalis claiming that they had lost the money order, he made it
payable to himself and cashed it. He discovered subsequently that one of the
residents alleged that a money order had been stolen. He left an anonymous
note in her room, stating that the money would be repaid, and then repaid it.
After Chrysalis discovered that he was the individual who had cashed the
money order, Lisa Minton called him to her office and discharged him. About
two weeks later, he found work with a temporary services business but earned
less than he had at the time of the injury.
Lisa Minton, Chrysalis's executive director and personnel committee
chair, testified that she discharged the claimant for violating the center's
personnel policy, which states that theft is grounds for disciplinary action or
discharge. She explained that a resident reported the money order stolen from
her dresser drawer and had it traced . The return showed ultimately that the
claimant had cashed it. During the intervening month, an anonymous note
and payments appeared in the resident's dresser drawer. Although the
resident refused to press charges, Chrysalis attempted to do so but was
unsuccessful because it was not the victim of the alleged theft.
Erica Harvey, Chrysalis's assistant director, testified that she received a
copy of the incident report that the resident completed. She stated that the
staff had access to the residents' rooms, which were unlocked . She could find
no documentation that the claimant had ever been in the affected resident's
room.
The ALJ found the alleged criminal activity to be irrelevant for the
purposes of KRS 342 .730(1)(c)2 . Rejecting Chrysalis's argument that the
claimant should not be permitted to profit from an illegal act, the ALJ noted
that the double benefit did not result from the illegal act but from the decision
to discharge him, "which may or may not be directly related to the illegal act."
In response to Chrysalis's request for a specific finding concerning whether the
claimant committed a criminal act, the ALJ determined that his explanations
were not credible and that he stole the money order, endorsed it, and cashed it .
KRS 342 .730(1)(c)2 provides as follows:
2 . 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 . (emphasis added) .
Chrysalis states that it discharged the claimant for theft and points to
the specific finding that he committed theft.' It asserts that the
Commonwealth has a longstanding policy of preventing individuals from
' Cf. American Cold Storage v. Sinegra, 2003-SC-0972-WC, 2004 WL 2624163 (Ky.
2004) (worker discharged for alleged criminal activity but record contained no finding
that he committed such activity).
profiting from their illegal acts and that the legislature did not intend for the
words "with or without cause" to supercede that policy. In other words,
although KRS 342 .730(1)(c)2 enhances an award upon the cessation of
employment "with or without cause," the phrase does not include a discharge
that
is based on the commission of an illegal act.
Relying on authority that
illustrates a policy of reducing or disallowing compensation to wrongdoers or of
refusing to enforce contracts that are illegal or where the consideration is
against public policy, Chrysalis argues that to interpret the statute in a
manner that encourages illegal conduct would be contrary to public policy. 2
The claimant argues that the statute is clear and unambiguous . It even
permits an individual who returns to work at the same or a greater wage to quit
voluntarily and receive a double benefit. He also argues that the authority on
which Chrysalis's public policy argument relies involves convicted criminals
and that he was neither charged with nor convicted of a crime .
We presume when interpreting a statute that the legislature intended for
it to mean exactly what it says. 3 Although ambiguous language must be
interpreted based on legislative purpose and intent, unambiguous language
requires no interpretation. 4 Yet, nothing requires a statute's subsection to be
2 Dunlap v . Lebus, 112 Ky. 237, 65 S.W. 441 (1901) ; Stevens v. Denison , 150 S.W.3d
80 (Ky. App. 2004) ; Ray v. Stone, 952 S .W.2d 220 (Ky. App. 1997) .
3 Revenue Cabinet v. O'Daniel, 153 S.W.3d 815, 819 (Ky. 2005).
4 Hale v. Combs, 30 S.W.3d 146, 151 (Ky. 2000) ; City of Louisville v. Helman , 253
S.W.2d 598, 600 (Ky. 1952); AK Steel Corporation v. Commonwealth , 87 S .W .3d 15,
17 (Ky. App. 2002).
read in a vacuum rather than in the context of the entire statute.
KRS 342 .730(1)(c)2 appears at first blush to provide clearly and
unambiguously for a double benefit during a period of cessation of employment
at the same or a greater wage "for any reason, with or without cause." It is,
however, a subsection of KRS 342 .730(1), which authorizes income benefits to
be awarded for "disability" that results from a work-related injury. We
conclude for that reason that, when read in context, KRS 342
.730(1)(c)2
permits a double income benefit during any period that employment at the
same or a greater wage ceases "for any reason, with or without cause," provided
that the reason relates to the disabling injury.
KRS 342 through (e) provide income benefits "for disability"
.730(1)(a)
caused by a work-related injury. KRS 342.730(1)(b) authorizes a basic income
benefit "for partial disability ." The benefit is a function of the permanent
impairment rating that an injury causes and a statutory factor that is weighted
to favor higher impairment ratings, which are likely to have greater
occupational effects. KRS 342.730(1)(c) adjusts the benefit to account more
accurately for the injury's occupational effects by considering the worker's
physical capacity to perform the type of work performed at the time of injury, a
return to work at the same or a greater wage, age, and educational level. 5
KRS 342 compensates a worker who does not retain the
.730(1)(c)1
5
Although not relevant for the present purpose, KRS 342 .730(1) (d) bases the duration
of a partial disability award on the severity of the disability.
physical capacity to return to the type of work performed at the time of the
injury with a triple benefit. Consistent with KRS 342.7 10(l), KRS
342.730(1) (c)2 encourages a worker who retains the physical capacity to return
to work at the same or a greater wage to do so. 6 It permits the worker to
receive the basic partial disability benefit in addition to the wage from working
but assures the worker of a double benefit if the attempt later proves to be
unsuccessful .? Moreover, it discourages an employer from continuing to
employ an injured worker at the same or a greater wage for the sole purpose of
securing a finding of partial rather than total disability or a finding under KRS
342 .730(1)(c)2 rather than KRS 342 .730(1)(c)1, after which KRS 342.125(1)(d)
would require the worker to show a worsening of impairment to reopen.$
The ALJ determined in the present case that the claimant committed an
illegal act but that the employer's decision to discharge him "may or may not be
directly related to the illegal act." Although he obtained subsequent
employment, he earned a lower average weekly wage. Thus, this claim must be
remanded for further proceedings to include a finding concerning whether
employment at the same or a greater wage ceased for reasons related to his
injury.
6 KRS 342 .7 10(1) states that one of the primary goals of Chapter 342 is to encourage
injured workers to return to work, preferably with the same employer and to the same
or similar work.
7 AK Steel Corp. v. Childers, 167 S.W.3d 672, 676 (Ky. App . 2005).
8 See Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003) .
The decision of the Court of Appeals is reversed and this claim is
remanded for further proceedings in accordance with this opinion .
Minton, C.J. ; Abramson, Cunningham, Schroder, Scott, and Venters,
JJ., concur. Noble, J ., not sitting.
COUNSEL FOR APPELLANT,
CHRYSALIS HOUSE, INC. :
Gregory Lonzo Little
Ferreri & Fogle
300 East Main Street
Suite 400
Lexington, Ky 40507
COUNSEL FOR APPELLEE,
KENNETH TACKETT:
David Marshall
120 North Upper Street
Lexington, Ky 40507
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