LOWE’S #0507 V. GREATHOUSE
WORKERS COMP – Triple Multiplier
KRS 342 .730(1)(c)1 permits an injured worker’s income benefit to be tripled if the worker "does not retain the physical capacity to return to the type of work that the employee performed at the time of injury." The claimant was injured while working for the defendant-employer. Although he remained physically capable of performing that job, he lacked the physical capacity to return to his concurrent job for a different employer.
The SC reversed the Court of Appeals in its decision to use the workers’ major source of income which formed his average weekly wage, as the basis for the decision of whether he could do the work which he performed at the time of the injury. The Supreme Court had issued a decision previously in a case which dealt with a volunteer firefighter who could not return to his firefighting job because of his injury in a fire. Highland Heights Volunteer Fire Department v. Ellis. He could return to his job as a stockbroker, where he made the money which formed the basis for his average weekly wage. The Supreme Court held that he did not receive a triple benefit because he was able to reurn to the job he was performing to earn his average weekly wage. Here, the Court of Appeals applied the same logic and applied the triple multiplier because the claimant could not return to his primary job at a printing company where he earned most of his money. He was able to return to his sales job at Lowes, where he was injured. The Supreme Court limited its prior decision to cases in which the claimant is unpaid at the job which produced the injury, a rare situation because volunteer positions are not usually considered employment. It held that in ordinary concurrent employment situations, the worker is only entitled to the triple multiplier when he cannot return to the job he was doing when he was injured because of restrictions caused by the injury.