RENDERED: MAY 28, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1589-WC
JARVIS HELTON APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NOS. WC-20-00095, WC-19-01427 AND WC-19-01426
ROCKHAMPTON ENERGY, LLC;
HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.
ACREE, JUDGE: Jarvis Helton appeals the Workers’ Compensation Board’s
(“Board”) November 13, 2020 opinion affirming in part, and reversing in part, the
Administrative Law Judge’s (“ALJ”) award of permanent partial disability
(“PPD”) benefits. For the reasons stated herein, we affirm.
BACKGROUND
Helton has been a coal miner since 1998. He began working for
Rockhampton Energy, LLC (“Rockhampton”) in 2013, as an electrician/repairman.
On September 2, 2019, he was laid off.
Helton filed a Form 101 on November 19, 2019, alleging injuries to
his neck and low back caused by cumulative trauma while working for
Rockhampton.1 A final hearing was held on May 13, 2020. The ALJ found
Helton’s back and neck injuries were the result of work-related cumulative trauma.
He was assigned a 10% impairment rating. The ALJ further found the date of
manifestation of these injuries was November 16, 2018, and this was the date from
which Helton’s benefits were to commence.
The ALJ then addressed the applicability of multipliers. He
determined that Helton retained the physical capacity to return to the type of work
performed on the date of his injury. Thus, the 3x multiplier did not apply. KRS2
342.730(1)(c)1. However, he did determine that the 2x multiplier applied under
KRS 342.730(1)(c)2. Specifically, the ALJ said, “[F]ollowing November 16,
2018, his date of manifestation, [Helton] worked another 9½ months, at his normal
1
Helton brought multiple claims. These claims were consolidated; the only issues on appeal
relate to his neck and back.
2
Kentucky Revised Statutes.
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rate of pay.” (Record “R.” at 337). And, because he earned no income following
his September 2, 2019 layoff, his benefits beyond this date were to be multiplied
by two in accordance with KRS 342.730(1)(c)2.
Rockhampton appealed to the Board, arguing among other things that
the 2x multiplier was not applicable. The Board agreed. Specifically, it noted:
It is undisputed Helton continued to perform his regular
job after his low back and neck symptoms arose and
worsened to the point he sought medical care. Helton only
ceased working when he was laid off due to the mine
closing on September 2, 2019. Helton has not returned to
any work since the date of the layoff. . . . the ALJ found
the two-multiplier applicable beginning September 3,
2019, when Helton stopped earning any wages due to the
layoff. As in [Bryant v. Jessamine Car Care, No. 2018-
SC-000265-WC, 2019 WL 1173003 (Ky. Feb. 14, 2019)],
there was no “return” to work pursuant to KRS
342.730(1)(c)(2) because there was no cessation followed
by a resumption. Helton simply continued in his regular
employment until he was laid off. Therefore, we reverse
the ALJ’s determination that the two-multiplier is
applicable beginning September 3, 2019.
(R. at 404-05). This appeal followed.
ANALYSIS
Our review of an opinion of the Workers’ Compensation Board is
limited. We only reverse the Board’s opinion when “the Board has overlooked or
misconstrued controlling statutes or precedent, or committed an error in assessing
the evidence so flagrant as to cause gross injustice.” W. Baptist Hospital v. Kelly,
827 S.W.2d 685, 687-88 (Ky. 1992). In reviewing the Board’s opinion, we look to
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the ALJ’s opinion. The ALJ’s findings of fact will not be disturbed if supported by
substantial evidence. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App.
1984).
Helton’s sole argument on appeal is that the Board erred in reversing
the ALJ’s application of the 2x multiplier.3 We find no error.
KRS 342.730(1)(c)2 states:
If an employee returns to work at a weekly wage equal to
or greater than the average weekly wage at the time of
injury, the weekly benefit for permanent partial disability
shall be determined under paragraph (b) of this subsection
for each week during which that employment is sustained.
During any period of cessation of that employment,
temporary or permanent, for any reason, with or without
cause, payment of weekly benefits for permanent partial
disability during the period of cessation shall be two (2)
times the amount otherwise payable under paragraph (b)
of this subsection. This provision shall not be construed so
as to extend the duration of payments.
KRS 342.730(1)(c)2 (emphasis added).
The Board relied upon our Supreme Court’s unpublished opinion in
Bryant v. Jessamine Car Care, No. 2018-SC-000265-WC, 2019 WL 1173003 (Ky.
Feb. 14, 2019). The claimant in Bryant was injured on June 13, 2013 and, like
3
Helton also states, “If anything, Helton is entitled to the x3 multiplier has [sic] he has not
returned to work in any capacity, nor is he earning any wages.” In addition, the bulk of his brief
is spent discussing medical testimony supporting his inability to return to work. We simply note
that this issue was not raised before the Board. Therefore, it is waived.
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Helton, continued to work until his termination date in September 2015. Our
Supreme Court noted:
[T]he ALJ erred in determining the 2 multiplier applied
under KRS 342.730(1)(c)(2). That multiplier only applies
if the claimant returns to work after the injury. After
Bryant was terminated, he did not return to work. ALJ
Coleman cited to Bryant’s June 2013 injury but that he
continued to work until September. However, this
continuation of work is not a return to work under KRS
342.730(1)(c)(2). To qualify as such a “return,” there must
be a cessation followed by a resumption. Bryant simply
continued on in his regular employment until he was
discharged. Since that time, ALJ Coleman made no
finding of a “return” to employment at a wage equal to or
greater than his average weekly wage at the time of injury.
The 2 multiplier has no bearing on Bryant’s case.
Bryant v. Jessamine Car Care, No. 2018-SC-000265-WC, 2019 WL 1173003, at
*7 (Ky. Feb. 14, 2019) (footnote omitted). This rationale is consistent with the
plain language of the statute.
Helton contends the Board erred because it misunderstood the medical
evidence. However, the evidence cited in his brief is not relevant to application of
the 2x multiplier. The only fact relevant to this issue is that Helton continued
working from the date of manifestation until his layoff. Accordingly, there was no
cessation followed by a resumption, constituting a “return to work.”
CONCLUSION
Based on the foregoing, we affirm the Workers’ Compensation
Board’s November 13, 2020 opinion.
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ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE
ROCKHAMPTON ENERGY, LLC:
McKinnley Morgan
London, Kentucky J. Gregory Allen
Pikeville, Kentucky
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