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Baker v. Wal-Mart Stores6/10/2005
ed this statute by concluding that the Legislature by inserting the word "or" between subsections (1)(c)1 and (1)(c)2 in the 2000 amendment to KRS 342.730 "evinced an intent for only one of the provisions to be applied to a particular claim." The Supreme Court further held that neither subsection "takes precedence over the other... that an ALJ is authorized to determine which provision is more appropriate on the facts."
Baker argues that the ALJ failed to make an appropriate analysis of the statutory language regarding the multipliers. He argues that a claimant should neither be denied an award based on the 3 multiplier of KRS 342.730(1)(c)2 nor the .2 multiplier of (1)(c)3, because he returned to work for the same or greater wages, nor should a claimant's benefits be limited to the provisions of KRS 342.730(1)(b) because he returned to work for the same employer.
In comparing this case to Fawbush, we note that the injured worker in both cases lacked the physical capacity to return to the type of work he performed at the time of the injury and both returned to work at a wage equal to or greater than his average weekly wage at the time of the injury.
However, the two cases are distinguishable factually on a very important point. In Fawbush, there was a question as to whether the claimant would be able to continue to earn a wage that equaled or exceeded his pre-injury wage indefinitely. The Supreme Court in Fawbush stated:
Furthermore, although he was able to earn more money than at the time of his injury, his unrebutted testimony indicated that the post-injury work was done out of necessity, was outside his medical restrictions, and was possible only when he took more narcotic pain medication than prescribed. It is apparent, therefore, that he was not likely to be able to maintain the employment indefinitely.
The case before us is clearly distinguishable since the ALJ made extensive findings that Baker had been accommodated by Wal-Mart, had returned to work within his restrictions, and was willing to work overtime if it were offered. Based on these factors, the ALJ concluded that there was no reason that Baker could not continue working for Wal-Mart as a cashier earning those same or greater wages for the indefinite future.
The ALJ considered both subsections (1)(c)1 and (1)(c)2, and chose subsection (1)(c)2 of KRS 342.730, which provides that when the claimant returns to work at the same or greater wage, the benefits "shall be determined under paragraph (b) of this subsection." The ALJ's opinion devoted two pages to this election not to use the multiplier and the findings are sufficient to justify that decision.
The Board in its August 6, 2004 opinion stated, Absent some testimony or other evidence that Baker would be unlikely to be able to continue in some employment at the same or greater wage, we cannot say the ALJ's finding is unreasonable. The evidence cited by the ALJ in reaching his determination is substantial evidence that supports a finding that Baker could continue to earn a wage that equals or exceeds his pre-injury wages.
Thus, Baker failed in meeting his burden of proof to justify the use of the multipliers.
For the foregoing reasons, the opinion of the Workers' Compensation Board is affirmed.
ALL CONCUR.
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