Lowe's No. 0507 v. Greathouse

Dissenting opinion by

Justice GRAVES.

Most recently, a majority of this Court reiterated the underlying remedial purpose of the Workers’ Compensation Act:

Workers’ compensation is a form of social welfare legislation. Its purpose is to require employers to provide necessary medical treatment for workers who are injured in the course of their employment and to replace some of the income they will lose, thereby enabling them to meet their own essential needs and those of their dependents.

Keith v. Hopple Plastics, 178 S.W.3d 463 (Ky.2005) (rendered Nov. 23, 2005, but not yet final). Long standing case law has emphasized that the Act is to be liberally construed in order to achieve its humanitarian design. Because the majority’s holding in this case is inconsistent with the plain meaning commanded by the relevant statutes and the objectives set forth above, I respectfully dissent.

Appellee, James Greathouse, earned his income for many years through concurrent employment. As we observed in Keith v. Hopple Plastics, supra, it is not unusual for workers to derive their income from more than one source (or in this case, from more than one employer) in order to make a living. Indeed, the Act anticipates and endorses this concurrent employment scenario by including all such wages within the computation of an employee’s average weekly wage. KRS 342.140(5). This average weekly wage computation, in turn, was used to determine the amount of permanent partial disability benefits to which Appellee was entitled. KRS 342.730(l)(b).

Although concurrent employment was expressly endorsed and considered when *528computing Appellee’s average weekly wage (and, in turn, his base permanent partial disability benefits pursuant to KRS 342.730(l)(b)), this Court unreasonably concludes that this same concurrent employment shall not be considered when determining whether he is entitled to have his base permanent partial disability benefits enhanced. The sole reason given by the majority for denying Appellee’s entitlement to this enhancement is that KRS 342.730(l)(b) limits the amount of average weekly wage any employee may claim as partial disability benefits to no more than 75% of the average weekly wage of the state.1 Ante, at 525. The majority then reasons that since such a low cap has been placed on the amount of benefits that any employee is entitled to claim, KRS 342.140’s specific endorsement and consideration of concurrent employment must be limited to include only “low-wage” or “part-time” workers. Ante, at 527.

The majority’s analysis cannot be reasonably supported, however, when it is viewed in light of the entire Act. First, although the amount of benefits one may be entitled to under the Act are capped (or otherwise considered low by some living standards), no injured worker may be disqualified from collecting the capped benefits simply because his income at the time of injury exceeded the cap. Second, and more importantly, the cap imposed by KRS 342.730(l)(b) has no relevancy whatsoever to whether an employee’s benefits therein may be enhanced pursuant to KRS 342.730(l)(c)(l). Rather, the relevant question under KRS 342.730(l)(c)(l) is whether the employee retains “the physical capacity to return to the type of work that the employee performed at the time of injury.” When an injured employee lacks the physical capacity to return to the type of work that has previously enabled him to meet his “own essential needs and those of [his] dependents,” Keith v. Hopple Plastics, supra, he is entitled to receive an enhanced benefit to account for this loss of earning capacity. See Marsh v. Mercer Transp., 77 S.W.3d 592, 595 (Ky.2002).

In this case, Appellee depended on both of his jobs for sustenance; however, a workplace injury at the site of one of these jobs prevented his working at the other site. Although Appellee has lost the capacity to earn a substantial portion of his livelihood, he is being penalized for continuing to perform what work he is able to do. The majority’s holding results in a disproportionate sacrifice on those least able to afford it in spite of the specific and clear language set forth in KRS 342.140(5), which recognizes and accommodates the need for some employees to maintain two or more jobs in order to earn a decent and respectable living.2

The majority’s alternate argument is that the language utilized in KRS 342.730(l)(c)(l) only applies to workers who are unable to return to the employment in which the injury occurred. Thus, since Appellee’s injury did not prevent him from returning to Lowes (the job in which the injury occurred), he is barred from receiving an enhanced benefit to account for his loss of earnings capacity in the concurrent employment (the printing press job). When considered in light of the entire Act, this interpretation similarly reveals itself to be misplaced.

*529We have previously said that “[t]he purpose of KRS 342.140 is to estimate the injured worker’s earning capacity.” Marsh, supra at 595. The injured worker’s overall earning capacity is, in turn, employed to determine the total benefits the injured worker is entitled to receive under KRS 342.730. Consistent with their integrated roles, KRS 342.140’s focus on an employee’s overall earning capacity is also reflected in KRS 342.730(l)(c)(l). The statute says nothing about the employee being entitled to an enhanced benefit only if he is unable to return to the specific employer or employment in which he was injured, but rather it simply requires that the injured worker be unable to return “to the type of work that the employee performed at the time of injury.” Thus, when the view commanded by the plain language of its companion statute, KRS 342.140, is considered in conjunction with the plain language of the statute itself, the majority’s view of KRS 342.730(l)(c)(l) is clearly too narrow as it unfairly deflates benefits, thus penalizing those least able to afford a loss of income.

When all the relevant statutes are read in context of the entire Act and in light of the humanitarian and remedial purposes of the Worker’s Compensation Act, I can find no valid grounds on which to justify the majority’s decision. Unfortunately, the result in this case is not only erroneous as a matter of law, but also distorts the purpose and intent of the Act. Accordingly, I must respectfully dissent.

LAMBERT, C.J., and SCOTT, J., join this dissenting opinion.

. The majority notes that as of July 2001, the state’s maximum permanent partial disability benefit of $397 was based on 75% of the state's average weekly wage of $530.07.

. It cannot be said that compensating Appel-lee is unfair to the employer in this instance since it is undisputed that Lowe’s had knowledge of Appellee’s concurrent employments and of KRS 342.140(5).