Pro Services, Inc. v. Wilson, NO. 2010-CA-001322-WC (Ky.App. 2013) – TO BE PUBLISHED:  An ALJ must make sufficient findings of fact to allow for proper review.

Wilson was injured after he fell through a hole that had been cut for steps leading to the basement in a house he was helping construct. Wilson worked for Tri County Builders at the time, which was subcontracting for Pro Service. Tri County paid him between $10 and $12, in cash, per hour for his approximately eight hour work week. Testimony indicated Wilson also worked for Goff Mobile Homes around the time of his injury. Pro Services accepted “up-the-ladder liability for Wilson’s claim (i.e. serious injuries to his back, neck, head, jaw, chest, ribs, and traumatic brain injury). The ALJ ruled Wilson permanently totally disabled and awarded benefits but did not include wages earned from any other employment. This case hinges on whether Wilson was concurrently employed.

There were five issues in this case. The first issue concerned Pro Service’s petition for review: did the Board invade the ALJ’s province by making its own findings of fact concerning Wilson’s concurrent employment? The Court held that the Board did not substitute its judgment for the ALJ because the ALJ failed to include analysis of the issue; the Board directed the ALJ to consider the evidence presented and make findings.

The second issue also concerned Pro Service’s petition for review: did the Board err in vacating the ALJ’s findings of fact and conclusions of law concerning Wilson’s concurrent employment when supported by substantial evidence? The Court held that the hours worked and for whom are conclusory without any account of testimony given. The Court cannot determine whether the ALJ was unconvinced or merely overlooked the testimony because no analysis was given.

The third issue is the last issue concerning Pro Service’s petition for review: did the Board overlook or misconstrue controlling statutes and/or precedents in making its ruling? The Court held that since the Board did not actually make a ruling (other than the remand to the ALJ) there was nothing construed or overlooked.

The fourth issue concerned Wilson’s cross-petition for review: did the Board err in holding judicial admissions have no place in Workers’ Compensation proceedings? The court held that the Board correctly stated that judicial admissions have no place in Workers’ Compensation proceedings. The absence of KRCP 36 (“Requests for Admission”) and the presence of KAR 25:010 § 16 keep testimony from being a binding judicial admission.

The fifth issue concerned a Board assertion: Is it common knowledge that full-time employment is a 40 hour work week? The court held that “[F]ull-time employment for purposes of state employees is 37.5 hours per week. There is neither ‘common knowledge’ nor a gold standard for determining the number of hours per week to be considered full-time.”

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