RENDERED: JUNE 16,2022
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0248-WC
JARVIS HELTON APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. NO. 2020-CA-1589
WORKERS’ COMPENSATION
NOS. 2019-WC-01426, 2019-WC-01427 & 2020-WC-00095
ROCKHAMPTON ENERGY, LLC; APPELLEES
HONORABLE CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
Jarvis Helton appeals from a Court of Appeals’ decision affirming the
Workers Compensation Board’s (Board’s) reversal of an Administrative Law
Judge’s (ALJ) application of the 2x multiplier in Kentucky Revised Statute
(KRS) 342.730(1)(c)2. That provision doubles a claimant’s benefits if the
claimant returns to work after injury at the same or higher wages but then
experiences a cessation of that employment. After suffering a work-related
injury that manifested on November 16, 2018, Helton continued working his
normal job until he was laid off for economic reasons on September 2, 2019.
The ALJ determined that since Helton earned no wage after the lay-off, he
qualified for the 2x multiplier. The Board reversed the ALJ’s application of the
2x multiplier, determining that there was no “return” to work pursuant to KRS
342.730(1)(c)2 because there was never a cessation on Helton’s part followed by
a resumption. The Court of Appeals agreed, and this appeal followed. For the
reasons stated below, we affirm the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
Jarvis Helton began working in the mining industry in 1989 and started
his employment with Rockhampton Energy in 2013 as an underground
electrician and repairman. On September 2, 2019, he was laid off for economic
reasons and started receiving unemployment benefits. Helton filed a workers’
compensation claim on November 19, 2019, alleging cumulative trauma
injuries to his neck and low back he suffered while working for Rockhampton
Energy.1 As of the date of the ALJ’s award, July 7, 2020, Helton was still
receiving unemployment benefits.
A Benefit Review Conference was held on April 15, 2020, and the
contested issues included benefits per KRS 342.730. A final hearing was
conducted on May 13, 2020. The ALJ relied on the medical evidence to
determine that Helton’s back and neck injuries were the result of work-related
1 Helton also filed a claim for occupational hearing loss caused by loud noise
exposure while working for Rockhampton Energy. He later added a claim alleging he
contracted coal workers’ pneumoconiosis from his employment with Rockhampton
Energy. All claims were consolidated. Because the issues on appeal only concern
Helton’s neck and back injuries, we will not discuss the details related to his other
claims.
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cumulative trauma and assessed a 10% impairment rating. The ALJ further
found the date of manifestation of these injuries was November 16, 2018.2
The ALJ determined that Helton retained the physical capacity to return
to the type of work performed on the date of his injury. The ALJ noted that
Helton “was laid-off for economic reasons, not job performance, and that he did
not voluntarily quit.” While Helton’s pain may have increased, there was no
evidence that he would not have kept working if he could. The ALJ determined
the 2x multiplier applied pursuant to KRS 342.730(1)(c)2. That subsection
provides that:
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.
The ALJ stated that “following November 16, 2018, his date of manifestation,
[Helton] worked for another 9.5 months, at his normal rate of pay.” The ALJ
increased the award of permanent partial disability benefits beginning on
September 3, 2019, when Helton was laid off by Rockhampton Energy and
2 In filing his workers’ compensation claim, Helton listed his date of injury as
September 2, 2019, his last day of work. Dr. C. A. Moore informed Helton that his
conditions were work-related on November 16, 2018, and Helton did not notify his
employer until the claim was filed on November 19, 2019. The ALJ determined that
the delay was excusable because Helton did not know his injuries were compensable.
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thus ceased earning an equal or greater wage than his average weekly wage.
The ALJ ordered that from November 16, 2018, to September 2, 2019, Helton
recover from Rockhampton Energy $59.49 per week and $118.98 from
September 3, 2019, until his weekly wage is equal to or greater than his
average weekly wage of $1,400, for a total of 425 weeks.
Rockhampton Energy appealed to the Board and argued, among other
things, that the 2x multiplier was inapplicable. The Board agreed.
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. . . . [T]he 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. February 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.
The Court of Appeals agreed with the Board, finding no error in its
analysis. The appellate court concurred with the Board’s reliance on an
unpublished opinion by this Court, Bryant, 2019 WL 1173003, at *1. In
Bryant, the employee was injured on June 13, 2013, and continued working
until he was terminated in September 2013. This Court held that the 2x
multiplier “only applies if the claimant returns to work after the injury. After
Bryant was terminated, he did not return to work.” Id. at *7. Because Bryant
continued to work until his September discharge, his “continuation of work is
not a return to work under KRS 342.730(1)(c)2. To qualify as such a ‘return,’
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there must be a cessation followed by a resumption.” Id. Applying the
rationale from Bryant, in addition to the plain language of the statute, the
Court of Appeals concluded that because Helton continued working from the
manifestation date of his injury until his layoff, the 2x multiplier was
inapplicable. Helton appealed.
ANALYSIS
Helton argues that the Board and Court of Appeals erred in reversing the
ALJ’s decision to apply the 2x multiplier. He asserts that these determinations
were based on a misunderstanding of the evidence of record. According to
Helton, all of the medical evidence, as well as his own testimony, proves that he
is entitled to the 2x multiplier.
In a workers’ compensation case, the claimant has the burden of proving
every element of her claim. Gibbs v. Premier Scale Co./Ind. Scale Co., 50
S.W.3d 754, 763 (Ky. 2001). We are not bound by the ALJ’s decisions on
questions of law or an ALJ’s interpretation and application of the law to the
facts. Ford Motor Co. v. Jobe, 544 S.W.3d 628, 631 (Ky. 2018). Helton’s claim
of error involves the ALJ’s application of the 2x multiplier statutory provision to
the facts of his claim and therefore our standard of review is de novo. Id.
An obvious purpose of KRS 342.730(1)(c)(2) is to encourage continued
employment. Livingood v. Transfreight, LLC, 467 S.W.3d 249, 257 (Ky. 2015).
Additionally,
[t]he purpose of KRS 342.730(1)(c) 2 is to keep partially disabled
workers in the habit of working and earning as much as they are
able. It creates an incentive for them to return to work at which
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they will earn the same or a greater average weekly wage by
permitting them to receive a basic benefit in addition to their wage
but assuring them of a double benefit if the attempt proves to be
unsuccessful.
Toy v. Coca Cola Enters., 274 S.W.3d 433, 435 (Ky. 2008).
KRS 342.730(1)(c)2 begins with the following language: “[i]f an employee
returns to work . . . .” Here, Helton did not “return” to work because he never
left work. Further, at the time the ALJ entered the Opinion, Award and Order,
Helton was still receiving unemployment benefits.
We agree with the Board and the Court of Appeals that this case is
similar to Bryant, 2019 WL 1173003, at *1. In that case, the claimant was
injured while working as a technician at Jessamine Car Care on June 13,
2013. Id. Despite his injury, the claimant continued to work at his regular job
until September 25, 2013, when he was terminated. Id. Thereafter, the
claimant did not return to work. Id. at *7. The ALJ determined that the
claimant was entitled to the 2x multiplier after his employment was
terminated. Id. at *2. The Board and the Court of Appeals affirmed, but this
Court reversed:
[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.
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Id. at *7.
Helton indisputably continued to perform his regular job after his low
back and neck symptoms arose and worsened to the point where he sought
medical care in late 2018. Helton only ceased working when he was laid off
due to the mine closing on September 2, 2019. Pursuant to KRS
342.730(1)(c)2, no “return” to work occurred because there was no cessation
followed by a resumption. Helton simply continued his regular employment
until he was laid off along with other Rockhampton Energy employees.
We recognize that Helton’s employment with Rockhampton Energy ended
for reasons he could not control. However, the purposes of KRS 342.730(1)(c)2
are to “encourag[e] continued employment,” Livingood, 467 S.W.3d at 257, and
“create[] an incentive . . . to return to work,” Toy, 274 S.W.3d at 435. Helton
continued performing his regular job after his low back and neck symptoms
arose and the ALJ determined that Helton retains the physical capacity to
return to the type of work performed on the date of his injury. Awarding the 2x
multiplier in this instance does not accomplish these recognized objectives and,
more importantly, does not comport with the plain language of the statute.
The legislature has expressly authorized the 2x multiplier only where an
employee “returns to work” and then experiences “a period of cessation of that
employment.” KRS 342.730(1)(c)2.
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CONCLUSION
Because the ALJ misapplied the law to the facts, we affirm the Court of
Appeals’ decision affirming the Board which reversed in part and remanded the
ALJ’s opinion and order as to the application of the 2x multiplier.
Minton, C.J.; Conley, Keller, Nickell, and VanMeter, JJ., sitting. All
concur. Lambert, J., not sitting.
COUNSEL FOR APPELLANT:
McKinley Morgan
W. Gerald Vanover
Dan Scott
Morgan, Collins, Yeast & Salyer
COUNSEL FOR APPELLEE:
Sara May
Jones & Jones PLLC
ADMINISTRATIVE LAW JUDGE:
Hon. Chris Davis
WORKERS’ COMPENSATION BOARD:
Michael Wayne Alvey, Chairman
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