Filed: May 08, 2015
Latest Update: May 08, 2015
Summary: NOT TO BE PUBLISHED OPINION TAYLOR , Judge . Scott Johnson petitions this Court to review an Opinion of the Workers' Compensation Board entered May 16, 2014, affirming in part, vacating in part, and remanding an Opinion and Award of the Administrative Law Judge (ALJ). We affirm. Johnson was employed as a mechanic by Troy Reed beginning in October 2009. Johnson suffered a work-related injury to his left eye on March 12, 2010. The injury resulted in the loss of his left eye, and he underwen
Summary: NOT TO BE PUBLISHED OPINION TAYLOR , Judge . Scott Johnson petitions this Court to review an Opinion of the Workers' Compensation Board entered May 16, 2014, affirming in part, vacating in part, and remanding an Opinion and Award of the Administrative Law Judge (ALJ). We affirm. Johnson was employed as a mechanic by Troy Reed beginning in October 2009. Johnson suffered a work-related injury to his left eye on March 12, 2010. The injury resulted in the loss of his left eye, and he underwent..
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NOT TO BE PUBLISHED
OPINION
TAYLOR, Judge.
Scott Johnson petitions this Court to review an Opinion of the Workers' Compensation Board entered May 16, 2014, affirming in part, vacating in part, and remanding an Opinion and Award of the Administrative Law Judge (ALJ). We affirm.
Johnson was employed as a mechanic by Troy Reed beginning in October 2009. Johnson suffered a work-related injury to his left eye on March 12, 2010. The injury resulted in the loss of his left eye, and he underwent three surgeries.
Consequently, Johnson filed a claim for workers' compensation benefits. The ALJ heard the matter, and relevant to this appeal, the ALJ assessed a 20 percent permanent impairment rating and calculated Johnson's average weekly wage as $204.23. Based upon such calculation, Johnson was awarded a weekly benefit of $27.23 for 425 weeks. Being dissatisfied with the ALJ's Opinion and Award, Johnson sought review with the Board. By Opinion entered May 16, 2014, the Board affirmed in part, vacated in part, and remanded. Relevant herein, the Board affirmed the ALJ's calculation of Johnson's average weekly wage as $204.23 and the resulting benefit of $27.23 per week. Johnson seeks judicial review of the issue of proper calculation of his average weekly wage.
To begin, our review of an opinion of the workers' compensation board's is limited. We only reverse the Board's opinion where "the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause a gross injustice." W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). In reviewing the Board's opinion, we necessarily look to the ALJ's opinion. The ALJ's findings of fact may only be disturbed if not supported by substantial evidence. And, the ALJ, as fact-finder, possesses the sole discretion to judge the credibility of testimony and weight of evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).
Johnson argues that the ALJ erred in the calculation of Johnson's average weekly wage while employed by Reed. Specifically, Johnson maintains that the ALJ erroneously determined that Johnson was paid by his "output" and thereby erroneously utilized Kentucky Revised Statutes (KRS) 342.140(1)(d) to calculate the average weekly wage. Rather, Johnson believes that KRS 342.140(1)(f) was applicable because Reed's method of payment "was merely subterfuge for not having to pay [Johnson] an hourly wage for being there . . . from 9:00 [a.m.] to 6:00 [p.m.]" Johnson's Brief at 7. Thus, Johnson maintains that his wages should be based on usual wages for other similarly employed mechanics in the area per KRS 342.140(1)(f).
In reviewing the ALJ's calculation of Johnson's average weekly wage, the Board concluded:
Johnson next argues the ALJ erred in calculating his AWW [average weekly wage] pursuant to KRS 342.140(1)(d). He contends his AWW should have been computed pursuant to KRS 342.140(1)(f), based on the earnings of other mechanics in the area. The evidence was uncontroverted Reed paid Johnson 40% of the labor cost of any work he completed. He occasionally earned additional wages for "shop help," which were paid by the hour. The ALJ concluded Johnson's wages were essentially fixed "by the output" and relied on his actual wage records to determine AWW. As the finder of fact, the ALJ was authorized to consider the available evidence, and to draw reasonable inferences therefrom. We find no abuse of the ALJ's discretion in relying on Johnson's actual wage records, as opposed to reliance on the usual wages for similar services in the area. (Citation omitted.)
We must agree with the Board's analysis. Johnson failed to cite this Court to any case law compelling computation of his average weekly wage under KRS 342.140(1)(f). While this Court sympathizes with Johnson's plight, we believe the ALJ properly utilized KRS 342.140(1)(d) to calculate his average weekly wages.
Upon the whole, we are unable to say that the Board misconstrued controlling statutes or erred in its assessment of the evidence. See W. Baptist Hospital, 827 S.W.2d 685.
For the foregoing reasons, we affirm the Opinion of the Workers' Compensation Board.
ALL CONCUR.
