WORKERS COMP 3X MULTIPLIER: SQUARE D CO. V. MILLER (COA 5/4/07)

SQUARE D CO.   V. MILLER
WORKERS COMP:  Triple multiplier (unable to return to type of work before injury)
2006-CA-001417
PUBLISHED: REVERSING (VANMETER)
DATE RENDERED: 5/4/2007

The claimant underwent a back surgery as a result of an injury at work, and returned to his job with some modifications of his work. He also did not perform the same amount of overtime as previously, resulting in lower average pay than before his injury. He argued that he was entitled to the triple multiplier because he was unable to return to the type of work he was performing at the time of his injury. The ALJ had decided that he could return to the same job, and was not entitled to the triple multiplier. However, on appeal to the Workers’ Compensation Board, the ALJ’s decision was reversed in order to determine if the claimant was able to return to the same tasks post-injury as he performed at the time of the injury. The Court of Appeals reversed relying on Lowes #0507 v. Greathouse, 182 SW3d 524 where the triple multiplier was denied because the claimant could return to a primary job, but not a secondary job, because of an injury. The Court here considered the overtime a secondary job, and holding that being unable to return to the overtime did not entitle him tom the triple multiplier regarding the regular forty hour week. What is unclear in this decision is whether the claimant had any physical restrictions from a doctor which limited his ability to perform the work. Probably, that is what the Board had remanded in order to clarify.

Digested by Peter Naake. 

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