Commonwealth v. Turner
| Decision Date | 21 March 2013 |
| Docket Number | 2011-SC-000790-WC |
| Parties | COMMONWEALTH OF KENTUCKY, UNINSURED EMPLOYERS' FUND APPELLANT v. MICHELE LYNN TURNER; LEE WARNER, D/B/A FLIP CITY GYMNASTICS ACADEMY; ASHLEY STRATTON, D/B/A FLIP CITY GYMNASTICS ACADEMY; HONORABLE R. SCOTT BORDERS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES |
| Court | United States State Supreme Court — District of Kentucky |
IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM COURT OF APPEALS
WORKERS' COMPENSATION NO. 09-01019
MEMORANDUM OPINION OF THE COURTAFFIRMING
Appellant, the Commonwealth of Kentucky, Uninsured Employers' Fund, ("UEF") appeals from a decision of the Court of Appeals which affirmed a workers' compensation award in favor of Appellee, Michele Lynn Turner. The UEF concedes that Turner is entitled to workers' compensation benefits, but argues that the amount of her award was miscalculated because it was based in part on wages from a job unaffected by her injury. The UEF also argues that the Administrative Law Judge ("ALJ") should have relied on Turner's W-2 formsto calculate her average weekly wage instead of basing it on her testimony. For the reasons set forth below, we affirm the Court of Appeals.
Turner suffered a neck and spinal injury1 while working as a coach and gymnastics instructor for Flip City Gymnastics Academy. Flip City did not carry workers' compensation insurance. As a result of her injury, Turner is unable to perform certain "hands-on" aspects of her coaching job, such as spotting gymnasts, and is limited to lifting items no greater than twenty to twenty-five pounds. Prior to the injury, Turner testified that she worked eighteen hours a week at Flip City at a salary of ten dollars per hour. However, after the injury Turner could only work approximately eight hours a week for Flip City and her job responsibilities were reduced.
While working at Flip City, Turner held concurrent employment as a substitute teacher's assistant for the Jefferson County Public Schools ("JCPS"). It is undisputed that Turner's supervisors at Flip City knew about her job with JCPS. Turner worked a maximum of thirty-two and a half hours a week during the school year for JCPS at a rate of $8.73 per hour. The injury Turner suffered at Flip City did not impact her ability to perform her job with JCPS, outside of the two weeks of work she missed while recovering from her injury. After recovering from her neck injury, Turner was made a permanent employee of JCPS and received a raise to $ 11.31 per hour.
The ALJ awarded Turner benefits for her temporary total disability and for her 28.75% permanent partial disability. The ALJ calculated the permanent partial disability by determining her average weekly wage based on working eighteen hours at Flip City and her concurrent employment with JCPS. Pursuant to KRS 342.730(1)(c)(1), the ALJ used a multiplier of three on her combined average weekly wage for a total permanent partial disability benefit of $266.64 per week for 425 weeks.
On appeal, both the Workers' Compensation Board and Court of Appeals affirmed the ALJ's decision. The UEF now appeals to this Court.
I. THE ALJ CORRECTLY CALCULATED TURNER'S AVERAGE WEEKLY
WAGE BY INCLUDING WAGES FROM HER CONCURRENT EMPLOYER
The UEF's first argument is that the ALJ erred by including the wages Turner earned from her concurrent employer, JCPS, into the calculation of her average weekly wage. The UEF contends that since Turner's ability to work for JCPS was not affected or impaired by her injury at Flip City, by including those wages in the average weekly wage calculation, it provides her an inappropriate windfall. This is especially true, the UEF argues, since after her injury Turner received a raise from JCPS.
The law and record in this matter does not support the UEF's position. KRS 342.140 states in pertinent part:
Computation of employee's average weekly wage. The average weekly wage of the injured employee at the time of the injury or last injurious exposure shall be determined as follows: . . . (5) 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 or her wagesfrom all the employers shall be considered as if earned from the employer liable for compensation.
Since it is undisputed that Turner's supervisor at Flip City knew of her concurrent employment with JCPS, the plain language of KRS 342.140(5) requires the wages from JCPS to be included in the average weekly wage calculation. The ALJ did not err in determining Turner's average weekly wage.
The UEF contends that Double L Const, Inc. v. Mitchell, 182 S.W.3d 509 (Ky. 2005) provides authority by which one can avoid the application of KRS 342.140(5) if the worker's ability to perform their job with a concurrent employer is unaffected by the injury. However, Double L involves the calculation of temporary total disability benefits, not permanent partial disability benefits which is the subject matter of this case. On the subject of determining permanent partial disabilities, Double L clearly states that: Id. at 514.
While Turner did receive a pay raise and a full-time year-round job from JCPS after her injury, it cannot be said that the injury did not affect her ability to work. Turner testified that she still feels neck pain and discomfort due to her injury and is having difficulty sleeping. Due to the neck pain, she must take breaks from her job at JCPS. Accordingly, we find that Turner's jobperformance at JCPS was affected by the Flip City injury and the ALJ correctly included Turner's wages from JCPS as part of the average weekly wage calculation.
II. THE ALJ PROPERLY APPLIED THE THREE
MULTIPLIER TO TURNER'S AWARD
The UEF next argues that the ALJ erred by applying the three multiplier contained in KRS 342.730 to Turner's workers' compensation benefits. The UEF again contends that since Turner's ability to work at her concurrent job with JCPS was not permanently impeded by her Flip City injury, and that she actually received a raise at that job, it is unfair that the triple multiplier be applied to those wages. KRS 342.730(1)(c) states:
If, due to an injury, an employee does not retain the physical capacity to return to the type of work that the employee performed at the time of the injury, the benefit for permanent partial disability shall be multiplied by three (3) times the amount otherwise determined . . .
In this matter it is undisputed that Turner cannot return to the type of work she performed at the time of her injury - serving as a gymnastics coach with the requirement that she be able to...
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