348 S.W.3d 749
Ky.2011Background
- claimant, a fifteen-year-old unauthorized alien, sustained a July 8, 2005 injury at Verdon Construction site; he recovered partially but with permanent impairments; Cabinet for Health and Family Services paid his medical expenses; ALJ found employment relationship, wage, and TTD; Board remanded to consider safety-violation evidence; Court of Appeals affirmed in part and affirmed remand decision while rejecting some safety testimony.
- ALJ awarded TTD from July 9, 2005 to December 20, 2006, based on a 44% impairment and a wage of $150/week; safety expert Wirth was not certified as an expert; safety-violation evidence was remanded for further findings under KRS 342.165(1).
- Claimant sought workers’ compensation benefits notwithstanding IRCA immigration-status issues; Verdon argued IRCA preempts Chapter 342; the Court rejected preemption and upheld Chapter 342’s application to unauthorized aliens.
- Court addressed average weekly wage for <13 weeks, concluding $150/week is reasonable under KRS 342.140(1); TTD ended on earliest permanent impairment rating date per AMA Guides; safety-violation remand was proper to determine applicable fall-protection regulation and causation.
- The decision affirmed the Board remand directing further factual development on the alleged safety violation; Kentucky OSH regulations and expert testimony issues were analyzed without requiring expert testimony under KRS 342.165(1).
- The case proceeded under Kentucky law assessing employment, wage, and disability determinations for an unauthorized alien, with the IRCA not preempting Chapter 342, and the safety-violation issue remanded for further findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| IRCA preemption of Chapter 342 | Verdon | Verdon | IRCA does not preempt Chapter 342 |
| Existence of employment relationship | Rivera | Verdon | Employment relationship existing |
| Average weekly wage for <13 weeks | Rivera | Verdon | AW wage set at $150/week as reasonable |
| Duration of temporary total disability | Rivera | Verdon | TTD ended on earliest permanent impairment date |
| Remand for safety-violation findings | Rivera | Verdon | Remand proper to assess safety regulation applicability |
Key Cases Cited
- Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137 (U.S. Supreme Court 2002) (IRCA preemption principles discussed)
- English v. General Electric Co., 496 U.S. 72 (U.S. 1990) (preemption framework and implied conflict)
- Crosby v. National Foreign Trade Council, 530 U.S. 363 (U.S. 2000) (preemption analysis framework)
- Burton v. Foster Wheeler, Corp., 72 S.W.3d 925 (Ky. 2002) (ALJ must analyze evidence of safety for KRS 342.165(1))
- Chaney v. Dags Branch Coal Co., 244 S.W.3d 95 (Ky. 2008) (causation and regulatory analysis in safety cases)
- Nesco v. Haddix, 339 S.W.3d 465 (Ky. 2011) (precedent on evidence and wage/TTD computations)
- Ratliff v. Redmon, 396 S.W.2d 320 (Ky. 1965) (nine factors for employment relationship)
- Magellan Behavioral Health v. Helms, 140 S.W.3d 579 (Ky. App. 2004) (preemption considerations in Kentucky context)
- KRS 342.285, - ( - ) (statutory framework referenced for evidentiary standards)