Kentucky High Court Says “Concurrent” Wages May Only Be Considered for AWW Computation if Concurrent Employment Existed on DOI

Where an injured employee had but one employer on the date of injury, the employee’s average weekly wage must be computed by considering only the wages from that employer; “concurrent” wages earned during the relevant “look-back” period of time normally used to calculate the employee’s average weekly wage were not relevant, held the Supreme Court of Kentucky [Garrard County Fiscal Ct. v. Camps, 2015 Ky. LEXIS 1767 (Aug. 20, 2015)]. Reversing the state’s Court of Appeals, the Supreme Court held that Ky. Rev. Stat. Ann. § 342.140(5) specifically defined concurrent employment and that under the plain language of the statute, the wages to be considered must be the ones the employee earned at the moment she was injured.

Background

Camps worked as a full time paramedic for the Garrard County Fiscal Court. For almost the entire year leading up to her work-related injury, she was concurrently employed as a paramedic with Clark County EMS. Garrard County was aware of Camps’s concurrent employment. Camps quit her job with Clark County on May 6, 2011, intending to obtain another paramedic job closer to her home. However, before she could obtain a new second job, Camps suffered an acute ankle sprain while working for Garrard County on May 13, 2011. Her injury required reconstructive surgery for a complete lateral ligament tear. Camps filed for workers’ compensation based on an AWW calculation including her wages from both Garrard County and Clark County.

The ALJ found that Camps made a compelling argument to support her inclusion of wages from Clark County, but the ALJ indicated the situation was controlled by Wal-Mart v. Southers, 152 S.W.3d 242, 246–47 (Ky. App. 2004). The ALJ rejected Camps’s recommended method of calculating her AWW and the Board affirmed. Camps appealed to the Court of Appeals.

Court of Appeals Decision

The Court of Appeals, in a two to one decision, reversed the Board. The majority held that Southers “in-artfully worded the requirements” for a person to claim concurrent employment. According to the Court of Appeals, the elements to establish concurrent employment were determined by interpreting KRS 342.140 as a whole to maximize the compensation an injured worker received for the loss of earning capacity. Accordingly, the Court of Appeals concluded that KRS 342.140(5) required the following two elements to establish concurrent employment: “proof the claimant was working under contracts with more than one employer during the relevant look-back period following an injury and proof the defendant employer had knowledge of the employment.” The dissent, written by Judge Taylor, stated that Southers was controlling and that the Board should be affirmed.

Supreme Court Reverses

The Supreme Court unanimously disagreed. Under the clear wording of the statute, the employee must be working under concurrent contracts at the time of injury and the employer at which the claimant was injured must be aware of the second job. The Court observed that the Court of Appeals had cited to Lowry v. Industrial Comm’n of Ariz., 195 Ariz. 398, 989 P.2d 152, 155 (1999), as support for its interpretation of KRS 342.140. In that case, the Arizona Supreme Court found that an employee’s “average monthly wage” calculation should include earnings from concurrent employment held within thirty days prior to, but not necessarily on the date of, a work injury. The Kentucky high court indicated, however, that Arizona workers’ compensation law differed from the Kentucky statutory scheme. Specifically, Arizona did not have a statute that defined the circumstances when concurrent employment applied to an AWW calculation.

At the time of Camps’s injury she was no longer under a contract for hire with Clark County. Camps could not, therefore, satisfy the first prong of the Southers test, and accordingly was not concurrently employed for purposes of her AWW.