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Greathouse v. Lowe's #05075/27/2005
VACATING AND REMANDING
BEFORE: COMBS, CHIEF JUDGE; McANULTY, JUDGE; MILLER, SENIOR JUDGE.
James Greathouse petitions for review of an opinion of the Workers' Compensation Board which affirmed the decision of the Administrative Law Judge (ALJ). The ALJ had denied enhanced benefits in conjunction with an award of permanent partial occupational disability benefits. Greathouse argues that the Board erred in affirming the ALJ's denial of his claim for the enhanced benefits provided in KRS 342.730(1)(c)1. We vacate and remand in light of a recent decision of the Kentucky Supreme Court that analyzes the proper application of KRS 342.730(1)(c)1. See, Highland Heights Volunteer Fire Department v. Ellis, ___ S.W.3d ___ (Ky. 2005).
The facts relating to Greathouse's claim are not in dispute. While working for Lowe's #507 (Lowe's) in July 2001, Greathouse sustained a severe injury , which required the fusion of his left wrist. In addition to his employment at Lowe's, Greathouse also worked at Mini-Data Forms as a printing press operator -- a job that involved repetitive heavy lifting. Greathouse had maintained concurrent, full-time employment with both employers for twelve years prior to his injury. His average weekly wage at the time of the 2001 injury was $917.75; $420 of that sum was derived from his employment at Lowe's, and $497.75 was earned at Mini-Data Forms.
After his injury , Greathouse was unable to return to his work at Mini-Data Forms; but he was able to return to Lowe's. Following a hearing on his disability claim, the ALJ determined that Greathouse had sustained a 12% functional impairment and awarded him permanent partial disability benefits.
The issue for our review is whether the ALJ erred in refusing to award Greathouse the enhanced benefits provided by KRS 342.730(1)(c)1 which provides as follows:
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 injury, the benefit for permanent partial disability shall be multiplied by three (3) times the amount otherwise determined under paragraph (b) of this subsection, but this provision shall not be construed so as to extend the duration of payments[.]
The ALJ found that Greathouse lacked the ability to return to his primary employment with Mini-Data Forms (ALJ's Opinion, Order and Award at p. 6). In determining not to apply the multiplier, the ALJ relied on this Court's reasoning in the unpublished opinion, Highland Heights Volunteer Fire Department v. Gavin Ellis, No. 2003-CA-001313-WC, rendered April 30, 2004. Ellis, the claimant, worked both as a stockbroker and as an unpaid volunteer firefighter for the City of Highland Heights. He was injured while working as a firefighter. After he recovered from his injuries, Ellis was able to return to work as a stockbroker but not as a firefighter. The ALJ determined that Ellis had sustained a 6% impairment attributable to the burns and to the back injury that he suffered in the accident.
However, he did not award the multiplier because Ellis retained the physical ability to return to his gainful employment as a stockbroker. The Board reversed. In affirming the Board, this court concluded:
Firefighting was the job Ellis was performing at the time of injury and it is the relevant employment for determining entitlement to the multiplier found in KRS 342.730(1)(c)1. In harmony with our reasoning in Ellis, the ALJ in the case before us determined that Lowe's was the "relevant employment for determining [Greathouse's] entitlement to the multiplier." (ALJ's opinion at p. 7.) Since Greathouse was able to return
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