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Livingood v. Transfreight, 2014-SC-000100-WC (Ky. 2015):  Chrysalis House v. Tackett, 283 S.W.3d 671 (Ky. 2009) is overturned.  

The Livingood Court re-visited Chrysalis House, an opinion in which the Court previously held that a claimant can be denied application of the x2 factor under KRS 342.730(1)(c)2 if his employment at an equal or greater wage ceases for a reason not relating to the alleged injury.

The Livingood Court found that Chrysalis House was not consistent with the legislative intent of KRS 342.730(1)(c)2, and held:

KRS 342.730(1)(c)2 permits a double income benefit during any period that employment at the same or a greater wage ceases ‘for any reason, with or without cause,’ except where the reason is the employee’s conduct shown to have been an intentional, deliberate action with a reckless disregard of the consequence either to himself or to another.

The Court also addressed Central Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky. 2000) and the line of cases following it, which allow the payment of TTD when an individual has returned to work but not at his same or customary duties. Specifically, the Court, citing Advance Auto Parts v. Mathis, No. 2004-SC-0146-WC, 2005 WL 119750 (Ky. 2005), held that Wise “does not ‘stand for the principle that workers who are unable to perform their customary work after an injury are always entitled to TTD.'”


KES Acquisition Co vs Danny J Wolfe etal 201101165.pdf:  Hearing Loss case addressing, among other things, law on due and timely notice for hearing loss/cumulative trauma injuries.

Lexmark International vs Stan J Roberts etal 200684222.pdf:  Medical fee dispute involving employer’s failure to name indispensable parties (medical providers) to the appeal.

Fox Knob Coal Co Inc vs Michael C Garrett etal 200989842.pdf:  Total disability case where the employer seemed compelled to appeal.  Some of the arguments on appeal are borderline frivolous, but the primary issue for purposes of this reading is the discussion on apportionment of a permanent total disability award for a pre-existing active disability, as set forth in Roberts Bros. Coal Co. vs. Robinson, 113 SW3d 181 (Ky.App. 2003)

Jesse Owens vs Pepsi MidAmerica Co etal 201100579.pdf:  Claimant’s appeal, in part addressing the right of an employer to amend or supplement a Form 111 Notice of Claim Denial.

Wal-Mart Stores Inc vs Agim Aliza etal 201071693.pdf: This could also be called  ”The Case of the Missing Opinion.”  It involves an odd set of facts involving a phantom opinion supposedly written by then ALJ Lawrence Smith, which purportedly contained  an award of a permanent partial disability. That opinion might or might not have been signed but nonetheless was never filed with the DWC and could not be located. When ALJ Smith was appointed to the Workers’ Compensation Board, the claim was reassigned to newly appointed ALJ Allison Jones, who rendered an opinion awarding permanent total disability benefits.  Wal-Mart naturally appealed claiming the evidence did not support an award of total disability and that  ALJ Jones could not render an opinion in the absence of a new hearing. The Board upheld Jones’ decision finding a re-hearing was not required and the ALJ’s decision was supported by substantial evidence.

Senior Care Inc vs Janet Hayes etal 201091568.pdf:  This opinion essentially involves the same issue set forth in the Rice Drugs decision summarized above, with the additional issue of the ALJ’s ability to correct an earlier ruling on admissibility of evidence.  The Board affirmed the ALJ’s decision.

Perry County Fiscal Court vs John Caudill etal 201085694.pdf:  This is the employer’s appeal of a permanent total disability award, alleging inadequate findings of fact and essentially asking the Board to restrict the discretion of the ALJ as sole fact-finder. There is nothing novel to the employer’s argument.

Ryan Eaglin vs Comair etal 201001574.pdf:  This is claimant’s appeal challenging (1) the ALJ’s determination that the employer provided good cause for its failure to file a timely Form 111 – Notice of Claim Denial and (2) the ALJ’s reliance on one expert over the other, and (3) the ALJ’s reliance on one physician’s assessment of pre-existing impairment based on a mathematical ratio of pre-existing active impairment to the whole body impairment. Namely, one of the testifying physicians said that 75% of claimant’s impairment was pre-existing active instead of assigning a specific impairment percentage to the pre-existing active condition and another percentage to the compensable, work-related condition.  The Board affirmed ALJ decision on all issues.

Pinnacle Environmental and Design Services vs Donald Morris etal 200395427.pdf:  Here the employer failed to file a motion to name an indispensable party ( a physician) in a medical fee dispute and further failed to name that same physician in its appeal of the ALJ’s decision. As it should have, the Board found the employer’s failure to have the physician whose treatment was the subject of the dispute named a party in the medical fee dispute and the appeal prevented it from granting any relief on appeal.

Affiliated Computer Services vs Sheila Ball etal 200988425 and 200799372.pdf: Interesting and complicated set of procedural facts and arguments raised by the employer following a decision on a consolidated claim involving (1) a motion to reopen a 2006 injury resolved by  settlement agreement and (2) a new application for benefits for a 2009 injury with the same employer.   As to the reopened claim, Employer claimed the ALJ’s award of benefits for an injury (cervical spine) not specifically alleged in the original application for benefits for the reopened claim was based on insufficient findings of fact. The Board agreed the ALJ’s findings of fact were insufficient as to why he found the cervical injury compensable. The ALJ also awarded benefits for an injury (again the cervical spine) not alleged in the application for benefits relative to the 2009 injury. However, for that claim the Board rejected the employer’s arguments that the ALJ was forestalled from awarding benefits for an injury not specifically set forth in the application for benefits because the employer was aware of the allegations as submitted via lay and medical testimony, the employer raised  the compensability of the cervical injury as an issue and the ALJ had discretion to conform the pleadings to the evidence.

Commonwealth of Ky UEF vs Jesse Fletcher etal 201001440.pdf:  This is an average weekly wage case involving a claimant paid in cash by an Employer whom the Board described as operating “a highly questionable business in that it paid the employees in cash, reported nothing and withheld nothing from the wages of its employees.” The opinion contains a good summary and discussion of Abel Verdon Construction and Acuity Insurance v. Rivera, 348 S.W.3d 749 (Ky. 2011) addressing the wage calculation issues of cash-paid employees.

KES Acquisition Co vs Dannie Shumate etal 201100684.pdf:  This is a hearing loss claim with the employer appealing alleging (1) claimant did not establish an injurious exposure and (2) that the claim was barred by the statute of limitations.  The Board affirmed the ALJ on his finding of injurious exposure, noting:  “If the character of the exposure Shumate received while employed  by KES is such that it would have caused an occupational hearing loss if continued for an indefinite time, then Shumate received an injurious exposure.”  The Board did not address the Employer’s statute of limitations argument noting the employer did not properly preserve the statute of limitations issue for appeal.

Sequoia Energy vs James P Turners etal 201100458.pdf: This is another hearing loss case, but here the employer alleged claimant suffered an injurious exposure with a subsequent employer.  The Board affirmed the ALJ’s finding that claimant did not suffer an injurious exposure with the subsequent employer.  The Board provides a case review of past decisions addressing what constitutes injurious exposure, distinguishing those cases from the claim before it.

Midland Electric Co Inc vs Daniel Mattingly etal 201081293.pdf: This claim involved the employer’s appeal of the ALJ’s application of the x3 multiplier under a Fawbush analysis.  Employer argued only the x2 factor was applicable as claimant did not establish he would not be able to earn equal/greater wages into the indefinite future. The employer also argued the ALJ based his rejection of the x2 multiplier (versus the x3) on economic circumstances, not the effects of the disabling injury as required under Chrysalis House, Inc. v. Tackett, 283 S.W.3d 671 (Ky. 2009).  The Board affirmed the ALJ, finding he had conducted the appropriate analysis in awarding the x3 enhancement of KRS 342.730(1)(c)1.

UPDATED:  Chrysalis House was eventually overturned in Livingood v. Transfreight, 2014-SC-000100-WC (Ky. 2015).

Under KRS 342.730(1)(c)2 if an employee returns to work at a wage  equal or greater to his pre-injury wage and then experiences a period of cessation of that employment (temporary or permanent) for any reason, with or without cause, his weekly benefits shall double.  The phrase “for any reason, with or without cause,” has been consistently interpreted to mean just that.  Enter the Kentucky Supreme Court in Chrysalis House v. Tackett, 2008-SC-000221-WC, a to-be-published decision, addressing the plain meaning of KRS 342.730(1)(c)2 by re-defining just what “plain meaning” means .

In Tacket, the injured worker had returned to work at a wage equal or greater to his pre-injury wage.  He then ceased working when his employer terminated him for stealing.    He sought and obtained new employment, but at a lower wage.  He reopened his claim alleging entitlement to the x2 factor under KRS 342.730(1)(c)2.  The employer argued that Tacket was not entitled to double benefits because the cessation of work was attributable to a criminal act.  The ALJ acknowledged that a criminal act was committed, but did not necessarily feel that the termination was related to the criminal act.  Nonetheless,  he found it irrelevant for purposes of application of the x2 multiplier.

The matter made it to the Supreme Court with Chrysalis House still arguing Ticket was not entitled to the x2 factor.  The Supreme Court held:

KRS 342.730(1)(c)2 appears at first blush to provide clearly and unambiguously for a double benefit during a period of cessation of employment at the same or a greater wage “for any reason, with or without cause.” It is, however, a subsection of KRS 342.730(1), which authorizes income benefits to be awarded for “disability” that results from a work-related injury. We conclude for that reason that, when read in context, KRS 42.730(1)(c)2 permits a double income benefit during any period that employment at the same or a greater wage ceases “for any reason, with or without cause,” provided that the reason relates to the disabling injury.

In so finding, the court remanded the case to the ALJ for “a finding concerning whether employment at the same or a greater wage ceased for reasons related to his injury.”

Kentucky workers’ compensation practitioners were shocked by this decision, and realize they will now have to pursue an entirely new component of litigation in every claim involving potential application of the x2 factor, which will no doubt drive up workers’ compensation costs and stretch already overly burdened resources — at least until the Kentucky legislature addresses the matter.


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