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Greathouse v. Lowe's #05075/27/2005
to work at Lowe's, the ALJ concluded that he was not entitled to the multiplier. In affirming the decision of the ALJ, the Board observed that while the unpublished opinion in Ellis did not constitute controlling authority, an abundance of prudence dictated that it follow the decision until there was "published guidance to the contrary." (Board's Opinion of December 10, 2004, at p. 4.)
While Greathouse's appeal was pending in this court, the Kentucky Supreme Court completed its review of Ellis and reversed this Court, reasoning as follows:
Just as under previous versions of the Act, the purpose of awarding an income benefit under the 1996 version is to compensate workers for a loss of wage-earning capacity due to industrial injury ; therefore, KRS 342.730 bases the amount of a worker's benefit on the average weekly wage and the amount of occupational disability the injury causes. See Adkins v. R&S Body Company, 58 S.W.3d 348 (Ky. 2001).... We conclude, therefore, that the work to be considered for the purpose of KRS 342.730(1)(c)1. is the individual's regular work, the work from which their average weekly wage is derived. (Emphasis added.)
Ellis, Supreme Court slip op. at p. 5.
Although Ellis was unable to return to the actual work (firefighting) that he was performing at the time of the injury , the court determined that the multiplier in KRS 342.730(1)(c)1 did not come into play because it did not have any impact on Ellis's average weekly wage (i.e., Ellis was able to return to the work from which he derived his actual weekly wage).
Factual distinctions between the two cases indicate that Greathouse should receive the benefit of the multiplier. Unlike Ellis, Greathouse had a truly concurrent work situation - earning wages at both places of employment. Pursuant to KRS 342.750(5), his average weekly wage was calculated by adding his wages from both jobs. Thus, Greathouse's "regular work," "the work from which his average weekly wage derived," included his employment at Mini-Data Forms. A literal application of the most recent interpretation of KRS 342.730(1)(c)1 by the Supreme Court thus dictates that Greathouse is entitled to the multiplier based on the loss of his ability to earn wages at his second job .
Lowe's presents arguments based on several policy reasons that would preclude enforcement of the multiplier in concurrent work situations. For example, it contends that employers may "be tempted to demand" that their employees "cease the concurring employment" as a condition of continued employment. It also contends that it is not fair to expose employers to the risks inherent in concurrent employment situations. Although these arguments are both sensible and persuasive, they may be addressed only to the Legislature as the Supreme Court has now articulated the pertinent law that we are bound to follow.
The opinion of the Board is vacated, and this matter is remanded for further proceedings consistent with this opinion.
ALL CONCUR.
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