NESCO v. Haddix, et al.Annotate this Case
An administrative law judge ("ALJ") found that claimant's work for defendant's temporary employment agency was sporadic but failed to specify whether KRS 342.140(1)(d) or (1)(e) was used to calculate her average weekly wage. The Workers' Compensation Board reversed and remanded the claim and this appeal was taken from the decision by the court of appeals to affirm. The employer argued that which subsection of KRS 342.140(1) applied was a factual determination to be made by the ALJ; that the ALJ committed harmless error by failing to specify the subsection of KRS 342.140(1) used in the average weekly wage calculation; and that additional proof should not be permitted on remand. Claimant defended the court of appeals' decision but also argued in a cross-appeal that the record compelled a finding under KRS 342.140(1)(e) that her average weekly wage was $320.00. The court held that the ALJ did not commit harmless error by failing to specify the subsection relied upon and that the ALJ must analyze the evidence under KRS 342.140(1)(e) on remand. The court reversed with respect to the decision to reopen for additional proof because claimant argued from the outset that KRS 342.140(1)(e) controlled the calculation. The court also held that the record contained adequate evidence to apply the statute under the present circumstances and did not compel the finding that either party sought.