Pc Metro Bottling (Pepsico) v. Lonnie Feltner ( 2021 )

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NOT TO BE PUBLISHED OPINION
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RENDERED: JUNE 17, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0498-WC
PC METRO BOTTLING (PEPSICO) APPELLANT
ON APPEAL FROM COURT OF APPEALS
NO. 2019-CA-1768
V. WORKERS’ COMPENSATION BOARD
NO. 2016-WC-77912
LONNIE FELTNER; APPELLEES
HONORABLE ROLAND CASE,
ADMINISTRATIVE LAW JUDGE
AND WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
PepsiCo appeals from the Court of Appeals’ decision affirming the
Workers’ Compensation Board (the “Board”) determination upholding Lonnie
Feltner’s award for double benefits pursuant to KRS1 342.730(1)(c)2 resulting
from a negative change in his average weekly wages (AWW) following his injury.
For the following reasons, we affirm.
I. Factual and Procedural Background
While working as a bay driver for Appellant PepsiCo in June 2016,
Feltner injured his left shoulder. Because of his injury, Feltner underwent
1 Kentucky Revised Statutes.
surgery for a torn labrum in his left shoulder. Feltner did not return to work
until April 2017. Upon his return, Feltner resumed his duties as a bay driver,
which included strenuous physical activities such as unloading the truck and
stacking PepsiCo products.
In December 2017, Feltner bid on, and was awarded, a new position as
an account manager. Feltner testified that he took the new position, in part,
because the job required far less from him physically. However, following the
shift in job description, Feltner’s average wages decreased to below his pre-
injury income. A year later, Feltner sought a resolution to his workers’
compensation claim. After conducting a hearing, the ALJ2 concluded that
Feltner suffered a 6.8% permanent partial disability rating, and that the
reduction in his AWW triggered KRS 342.730(1)(c)2’s double benefit provision
for as long his income remained less than his pre-injury average.
PepsiCo filed a petition for reconsideration and appealed the ALJ award
when its petition was denied. The Board affirmed, and in turn, so did the
Court of Appeals.
II. Standard of Review
Our standard of review in workers’ compensation cases is well settled.
Appellate courts review the Board’s decision only to correct instances in which
“[t]he [B]oard has overlooked or misconstrued controlling statutes or precedent
or committed an error in assessing the evidence so flagrant as to cause gross
2 Administrative Law Judge. The administrative law judge in this case was
Roland Case.
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injustice.” Tryon Trucking, Inc. v. Medlin, 586 S.W.3d 233, 237-38 (Ky. 2019)
(citing W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992)). However,
because Feltner’s claim is before this Court purely on questions of statutory
interpretation, we are not bound by either the decision of the Court of Appeals
or the Board, and our review is de novo. Ford Motor Co. v. Jobe, 544 S.W.3d
628, 631 (Ky. 2018).
III. Analysis
At the core of PepsiCo’s appeal is whether KRS 342.730(1)(c)2 requires
actual termination, or instead whether a downward shift in wages is sufficient
to trigger the statute’s double benefits provision. The relevant statutory
language is:
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.
KRS 342.730(1)(c)2. PepsiCo argues that the plain meaning of “cessation”
predicates the relationship between the company and Feltner had to cease
completely, if only temporarily, for the provision to apply. We disagree.
In Toy v. Coca Cola Enterprises, we discussed the legislative intent in
passing KRS 342.730 as having twin goals. The first, being to encourage a
partially disabled worker to remain “in the habit of working and earning as
much as they are able[,]” while simultaneously incentivizing employers not to
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relegate injured employees to lesser paying positions. 274 S.W.3d 433, 435
(Ky. 2008); see also AK Steel Corp. v. Childers, 167 S.W.3d 672, 676 (Ky. 2005)
(stating “one of the primary purposes of Chapter 342 is to encourage an injured
employee to return to work”). As we discussed in Toy, the obvious legislative
preference is for workers to return to the same job and wages as they held prior
to their injury. 274 S.W.3d at 676. However, because partially disabled
workers will not always be capable of fulfilling the same duties, the legislature
crafted a scheme in which the trigger for enhanced benefits was wages. Id.
The result of the legislature’s definitional decision is that employment, as the
Toy court notes, is not simply decided by asking who signs the injured worker’s
check. Id. Instead, the appropriate inquiry involves asking whether the
employee is earning the same or more, on average, as they did prior to being
injured. Id.
Our analysis of KRS 342.730 requires us to reject PepsiCo’s proffered
definition of “cessation,” requiring a severing of the employee/employer
relationship to trigger double benefits. Our conclusion is driven by our
understanding of the purpose of KRS 342.730 to encourage the reentry of
injured workers to the workforce, and the concomitant duty of employers not to
penalize employees for injuries sustained while on the clock. If we adopted
PepsiCo’s definition the statute would become largely ineffectual because all
companies would have to prove to avoid paying out is that the claimant
remained, in some capacity, on their payroll. We decline to do so. Instead, we
recognize, as we did in Toy and Childers, that by crafting a rule predicated on
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wage comparison, the statute necessarily cannot require completely severing
the employment relationship.
Having resolved the definitional question posed by PepsiCo, we must now
determine whether Feltner was entitled to a double benefit. The relevant facts
have been stipulated. Prior to being injured, Feltner’s AWW was $1,194.61.
When Feltner initially returned to work his AWW was $1,237.69; well above his
pre-injury income. However, Feltner’s wage decreased in December 2017,
when his job duties shifted, to below his pre-injury AWW and never matched or
exceeded his pre-injury wages. PepsiCo argues that because Feltner originally
enjoyed higher post-injury wages, we should turn a blind eye to the downward
shift in his income after December 2017. Its position is belied by the plain
language of the statute.
In Ball v. Big Elk Creek Coal Co., we laid out the applicable procedure for
determining how KRS 342.730(1)(c)2 should be applied. 25 S.W.3d 115 (Ky.
2000). We reasoned that “pre-and post-injury average weekly wages should be
compared[.]” Id. at 118. While the statute does not explicitly require weekly
reviews of a worker’s income, the process must still be responsive to the
injured employees working conditions. See id. at 117. This position is
consistent with the plain language and purpose of the statute. As we explained
in Ball, the award of “income benefits to injured workers is to provide an
ongoing stream of income to enable them to meet their essential needs and
those of their dependents.” Id. If employers could sidestep their statutory
responsibilities by simply taking a “snapshot” of an injured employee’s wages,
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KRS 342.730(1)(c)2 would be entirely ineffectual. Consequently, the ALJ in
Feltner’s case appropriately concluded that Feltner’s wages had decreased after
December 2017 and awarded him double benefits pursuant to KRS
342.730(1)(c)2.
Finally, PepsiCo makes an ancillary argument that our decision here will
have a chilling effect on employers’ willingness to bring back injured
employees. We reject that argument. Nothing is inherently “unfair[,]” to
borrow PepsiCo’s term, about requiring an employer to maintain an employee’s
pre-injury wages if it wants to avoid the double benefit in KRS 342.730(1)(c)2.
The employer retains full autonomy over its business decisions, the only issue
being the costs associated with those choices. Regardless, the legislature has
spoken clearly on the matter, and our role is not to ignore its explicit policy
preferences. See Toy, 274 S.W.3d at 434 (“[t]he essence of statutory
construction is to determine and effectuate the legislative intent[]”).
IV. Conclusion
For the reasons stated above, we affirm the Court of Appeals’ decision.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Catherine Ann Poole
Goodrum & Downs, PLLC
COUNSEL FOR APPELLEE
LONNIE FELTNER:
Ronnie Merel Slone
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COUNSEL FOR APPELEE,
HON. ROLAND CASE, ADMINISTRATIVE
LAW JUDGE:
Not represented by counsel
COUNSEL FOR APPELLEE,
WORKERS’ COMPENSATION BOARD:
Michael Alvey
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