concurring in part and dissenting in part.
I concur in the majority opinion’s conclusion that Appellee’s average weekly wage must be calculated in accordance with KRS 342.140(l)(e). However, I dissent from the majority opinion’s conclusion that Appellee can remain employed at a higher weekly wage than he was earning at the time of injury and still qualify for triple the disability benefits otherwise payable to him under KRS 342.730(l)(b).
KRS 342.730(l)(b) is the basic provision for calculation of benefits for permanent partial disability, viz: 66¾% of the employee’s average weekly wage, but no more than 75% of the state average weekly wage, multiplied by the percentage of disability as determined by application of the AMA “Guides.” The majority opinion quotes verbatim the provisions of KRS 342.730(l)(c)(l) and (2). To summarize, if the employee “does not retain the physical capacity to return to the type of work that the employee performed at the time of injury,” he is entitled to triple benefits under subsection (c)(1); or “[i]f an employee returns to work at a weekly wage equal to or greater than the average weekly wage at the time of injury,” subsection (c)(2) provides that he is entitled to benefits payable under subsection (b) while so employed and to double benefits during any periods of cessation of that employment.
Obviously, subsection (c)(2) contemplates a situation, as here, where the employee “does not retain the physical capacity to return to the type of work that the employee performed at the time of injury,” but that, nevertheless, the employee has “return[ed] to work at a weekly wage equal to or greater than the average weekly wage at the time of injury.” Many employees who can no longer perform the duties of a former employment are able to obtain other, less strenuous, employment at a higher wage. If so, then subsection (c)(2) applies; if not, then subsection (c)(1) applies. Fortunately, Appellee, who can no longer frame houses (an employment he engaged in for only four weeks), can perform fighter work which pays a higher wage. Thus, pursuant to subsection (c)(2), in addition to his higher wage, he is permitted to draw normal disability benefits under subsection (b) and, during any periods of cessation of that employment, double benefits.
The majority opinion concludes, however, that Appellee is entitled to benefits under subsection (c)(1), ie., he can not only earn a higher wage than before his injury but also draw triple the benefits otherwise payable under subsection (b). Because that conclusion renders subsection (c)(2) a complete nullity, I dissent.
GRAVES, J., joins this opinion, concurring in part and dissenting in part.