CHESTER HOGSTON V. BELL SOUTH TELECOMMUNICATIONS, ET AL.
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RENDERED : NOVEMBER 18, 2010
TO BE PUBLISHED
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Courf of
2010-SC-000299-WC
CHESTER HOGSTON
V.
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2009-CA-002108-WC
WORKERS' COMPENSATION BOARD NO. 07-01094
BELL SOUTH TELECOMMUNICATIONS ;
HONORABLE JAMES KERR,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS'COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
REVERSING
This appeal concerns an Administrative Law Judge's (ALJ's) refusal to
award the claimant double benefits under KRS 342.730(1) (c)2, having found
there to be no connection between the cessation of his employment and the
injury for which he sought double benefits. The Workers' Compensation Board
and the Court of Appeals affirmed. Appealing, the claimant asserts that the
decisions below result from a misapplication of the decision in Chrysalis House,
Inc. v . Tacicett . 1 We reverse because we agree that the claimant is entitled to
double benefits, but we decline his invitation to limit Chrysalis House to
instances where an employee would otherwise profit from illegal conduct.
1 283 S .W .3d 671 (Ky. 2009) .
The claimant began working for the defendant-employer in 1977 as a
lineman. He became a facility technician early in 2000, which required him to
work in a bucket truck; go into manholes ; and climb poles and ladders when a
bucket truck could not be used. The job also required lifting, squatting, and
bending.
The claimant had a history of injuries that required surgeries to both of
his knees. The record indicates that he received temporary total disability
benefits for a work-related right knee injury that occurred in the 1980s and
injured his left knee twice, while playing football in 1976 and while working in
1997. He sustained the right knee injury presently at issue in a work-related
fall that occurred in January 2006.
Dr. Shockey performed surgery to repair medial and lateral meniscal
tears in the right knee in March 2006. He later reported a good surgical result
and assigned a 4% permanent impairment rating but no restrictions . He also
reported a finding of "gouty arthropathy of the knee" but indicated that it was
unrelated to the January 2006 injury.
The claimant returned to work after recovering from his work-related
right knee injury. Dr. Shockey testified when deposed that he performed two
additional knee surgeries, in June and December 2007, to address conditions
he considered to be unrelated to the January 2006 injury. He assigned a 10%
impairment rating in July 2007, after the second right knee surgery, but
attributed the claimant's restrictions to the left knee . He noted in August 2007
that the claimant's right knee was doing well but that his left knee was painful.
Moreover, the claimant had difficulty when ascending and descending inclines
and with lifting. He also had difficulty with his hands, including frequent
numbness in the median nerve distribution. Dr. Shockey restricted the
claimant from significant climbing or heavy lifting and performed bilateral
carpal tunnel releases, which he stated were non-work-related. He later
performed left knee surgery and attributed the need for surgery to the
combined effects of the 1976 injury and the 1997 injury, the latter of which he
characterized as being work-related .
At some point the employer offered the claimant light-duty work in the
office . He remained on the payroll until January 10, 2008, when he was
terminated'because his permanent medical restrictions prevented him from
performing the duties of a facility technician, particularly climbing poles and
ladders. He supported his application for workers' compensation benefits with
Dr. Shockey's medical records. The claimant testified at the hearing that his
permanent physical restrictions resulted from his non-work-related carpal
tunnel and left knee conditions.
The ALJ awarded benefits based on the 4% permanent impairment rating
that Dr. Shockey assigned to the January 2006 injury. Having found that the
claimant's physical restrictions did not result from the injury, the ALJ relied on
Chrysalis House as a basis to refuse to award double benefits under KRS
342 .730(1)(c)2 .
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
3
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 court acknowledged in Chrysalis House that KRS 342.730(1)(c)2
"appears at first blush to provide clearly and unambiguously for a double
benefit during a . . . cessation of employment at the, same or a greater wage `for
any reason with or without cause ."'2 The court determined, however, that the
provision is a subsection of KRS 342.730(1) that must be interpreted in the
context in which it was written. Thus, when read in light of the fact that KRS
342 .730(1) provides income benefits based on "disability" due to impairment
from a work-related injury, KRS 342 .730(1)(c)2 permits a double 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."3
The claimant argues that Chrysalis House ignored the plain language of
KRS 342 .730(1)(c)2, which is more specific than KRS 342 .730(1), and that the
decision's precedential value should be limited to its facts, i.e., to instances
2 283 S .W.3d at 674.
3 id.
where an employee would otherwise profit from the consequences of an illegal
act. We disagree.
The court decided Chrysalis House as a matter of statutory
interpretation, not as a matter of public policy with respect to an individual's
right to profit from an illegal act. As a consequence, the court remanded the
claim for the ALJ to determine "whether employment at the same or a greater
wage ceased for reasons related to [Tackett's] injury."4 The rationale
supporting the court's interpretation of KRS 342 .730(1)(c)2 applies equally to
the present facts, which involve no allegation of illegal conduct.
What distinguishes this case from Chrysalis House for the purpose of
KRS 342 .730(1)(c)2 is that the claimant sustained multiple work-related
injuries that involved both of his knees. Mindful that KRS 342 .730(1) permits
disability from previous work-related injuries other than coal workers'
pneumoconiosis or traumatic hearing loss to be considered for certain limited
purposes,5 we hold that KRS 342 .730(1)(c)2 includes a cessation of
employment due to the disabling effects of previous work-related injuries as
well as the injury being compensated.
Dr. Shockey attributed the claimant's permanent medical restrictions to
his left knee, but he attributed part of the disability they produced to the
4 283 S.W.3d at 675.
5 KRS 342 .730(1)(e) excludes such disability for the purpose of determining the extent
of partial disability or duration of benefits but makes no reference to enhanced
benefits or to work-related conditions not previously compensated under Chapter
342. KRS 342 .730(1) (a) excludes such disability but permits disability from
previous work-related injuries to be considered when finding a worker to be totally
disabled.
effects of the 1997 work-related injury. Although the ALJ found there to be "no
connection" between the cessation of the claimant's employment and the 2006
work-related knee injury for which he sought compensation, Dr. Shockey's
uncontroverted testimony linked the reason for the claimant's termination to
work-related disability .
The decision of the Court of Appeals is reversed, and this claim is
remanded for the entry of an award under KRS 342.730(1)(c)2.
All sitting. All concur.
COUNSEL FOR APPELLANT,
CHESTER HOGSTON:
Robert J . Greene
Kelsey E. Friend Law Firm
P.O . Box 512
Pikeville, KY 41502
COUNSEL FOR APPELLEE,
BELL SOUTH TELECOMMUNICATIONS :
James Burke Cooper
Boehl, Stopher 8s Graves, LLP
444 West Second Street
Lexington, KY 40507
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