Commonwealth, Uninsured Employers' Fund v. Rogers
2012 Ky. LEXIS 46
| Ky. | 2012Background
- The Board vacated the average weekly wage (AWW) under KRS 342.140(l)(e) for insufficiency of proof and remanded for additional evidence.
- UEF challenged the Board’s remand authority under KRS 342.285(2)(c), arguing it exceeded its power by giving the claimant a second opportunity to prove his burden.
- Claimant contends KRS 342.140(l)(e) controls the AWW calculation since employment lasted less than 13 weeks; seeks $400/week based on a 40-hour week at $10/hour.
- ALJ found credibility in the claimant’s testimony of a $10/hour cash wage and calculated AWW at $400/week, noting lack of evidence for seasonality or full 13 weeks.
- Board affirmed the AWW finding was inadequately supported but remanded to obtain more proof, citing 803 KAR 25:010 for proof-taking timelines.
- Court reverses, holding the Board lacked authority to remand for further proof when the claimant failed to meet the proof burden under KRS 342.140(l)(e).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to remand for more proof | UEF: Board exceeded authority by remanding for additional proof. | Claimant: Board may direct further proof under statute when necessary. | Board exceeded authority; remand for proof improper. |
| Applicability of KRS 342.140(l)(e) for AWW | Claimant asserts l(l)(e) governs AWW because employment <13 weeks. | UEF argues insufficient evidence under l(l)(e); may require seasonal treatment under (2). | KRS 342.140(l)(e) governs; evidence insufficient to fix $400/week. |
| Sufficiency of proof under KRS 342.140(l)(e) | Claimant asserts available hours and wage support $400/week. | UEF: lack of evidence of ongoing employment, hours, and local availability. | Claimant failed to prove all elements; not entitled to second opportunity. |
| Effect of 803 KAR 25:010 timing | Procedural guidance allowed proof-taking; time extensions permitted with motion. | Regulation requires timely motions; not present here. | No basis for extension; rule respected; no second chance. |
Key Cases Cited
- Benito Mining Co. v. Girdner, 271 Ky. 87, 111 S.W.2d 571 (1937) (pre-1990s standard for fixing AWW under earlier chapter)
- Huff v. Smith Trucking, 6 S.W.3d 819 (Ky. 1999) (fact-specific approach to AWW when less than 13 weeks)
- Affordable Aluminum, Inc. v. Coulter, 77 S.W.3d 587 (Ky. 2002) (proof requirements for AWW under proper statute)
- Nesco v. Haddix, 339 S.W.3d 465 (Ky. 2011) (reasonableness and substantial evidence standards)
- Roark v. Alva Coal Corp., 371 S.W.2d 856 (Ky. 1963) (timing and duration considerations in wage determinations)
- Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984) (context on duration and wage calculation)
- Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979) (case law on proof and earnings in wage determinations)