Lowe’s Home Centers, Inc. v. Middleton, No. 2014-CA-001136-WC (Ky.App. 2015):  The Fawbush rule is not applicable to circumstances where a claimant returns, post-injury, to exactly the same pre-injury employment and admittedly maintains the capacity to perform it on the date of her award; it is only applicable where a claimant proves he or she no longer has the capacity to work the same type of pre-injury employment, and has either returned to some accommodated form of prior employment or to a different form of employment.

Middleton was injured during the course and scope of her employment with Lowe’s.  The parties agreed that due to her anterior cervical discectomy and fusion, she incurred an impairment rating of 27%, but the parties differed over application of the multipliers under KRS 342.730(1)(c)1 and (1)(c)2.  Middleton returned to work at her same pre-injury job, earning a higher wage than she did pre-injury.  Nonetheless, the ALJ awarded benefits based on the triple multiplier of KRS 342.730(1)(c)1 presumably based on plaintiff’s assumption she might someday require accommodations and might someday require a prescription for pain relief.  The Court determined the record was void of any restrictions on her activities other than a recommendation that she avoid certain activities.  Every physician had released her to resume her pre-injury employment, and Middleton returned to that same pre-injury work.  Because of this, KRS 342.730(1)(c)1 did not apply and, thus, a Fawbush analysis was not appropriate since the Fawbush rule requires that both KRS 342.730(1)(c)1 and (c)2 must apply.  As such, the Court concluded the evidence merely supported reopening, “per KRS 342.730(1)(c)4, for an application of the KRS 342.730(1)(c)2 two-times multiplier to any benefit period during which Middleton’s employment ceases in the future for a reason relating to her injury.”

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