PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-08-91193
The opinion of the court was delivered by: Nickell, Judge:
RENDERED: JANUARY 4, 2013; 10:00 A.M. TO BE PUBLISHED
CROSS-PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-08-91193
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
BEFORE: CLAYTON, NICKELL AND VANMETER, JUDGES.
Pro Services, Inc. petitions for review of a Workers' Compensation Board (Board) decision reversing an opinion of Administrative Law Judge Chris Davis (ALJ) regarding a claim for benefits filed by Roy George Wilson.*fn1 Pro Services contends the Board improperly invaded the province of the ALJ by making its own contrary findings of fact, erroneously overturned the ALJ's properly supported factual findings, and overlooked or misconstrued controlling statutes and precedent with respect to whether concurrent wages should be included in Wilson's average weekly wage (AWW). On cross-petition for review, Wilson alleges the ALJ's failure to make findings of fact on material issues was properly remedied by the Board's decision, the Board incorrectly held that judicial admissions are inapplicable in workers' compensation cases, and the ALJ's finding that Wilson worked only eight hours per week was unsupported by substantial evidence and therefore unreasonable. Following a careful review, we affirm in part, vacate in part and remand.
Wilson was injured in a work-related incident on March 29, 2008. He fell through a hole that had been cut for steps leading to the basement in a house he was helping construct. Wilson was working for Buddy Hughes d/b/a Tri County Builders at the time of the accident. Hughes' testimony revealed Wilson worked approximately eight hours per week-on average-for Tri County Builders and was paid between $10.00 and $12.00 per hour for his work. He was always paid in cash. Further testimony indicated Wilson also worked for Goff Mobile Homes ("Fleetwood") "around the time" of his injury. Although Wilson initially testified he had left his job at Fleetwood to work for Tri County Builders, he later indicated he could not remember whether he was still employed by Fleetwood on the date of his injury. Wilson's son, Chad Wilson, testified he had worked with his father at Fleetwood in the past and stated his beliefs as to Wilson's wages and hours but admitted it had been over a year since the pair had worked alongside one another and that he had not spoken to his father for more than a month prior to the accident.
On the date of the accident, Tri County Builders was sub-contracting for Pro Services who accepted "up-the-ladder" liability for Wilson's claim. Wilson sustained serious injuries to his back, neck, head, jaw, chest, and ribs and he suffered a traumatic brain injury (TBI). As a result of his injuries, Wilson was required to live in an assisted-living community, primarily as a result of the TBI and resulting memory loss. He was unable to return to any type of work after his fall.
Temporary total disability (TTD) payments were paid by Pro Services at a rate of $134.00 per week beginning on March 29, 2008, the date of the injury. Wilson's medical benefits, in excess of $321,000.00, were also paid by Pro Services. Following a Benefit Review Conference and formal hearing, the ALJ ruled Wilson was permanently totally disabled (PTD) and awarded lifetime benefits at a rate of $53.44 per week based on his calculation of Wilson's AWW as $80.00. The ALJ did not include wages earned from any other employment in determining Wilson's AWW. Wilson filed a petition for reconsideration which was denied.
Wilson appealed to the Board alleging the ALJ erred in his finding regarding AWW as he failed to take Wilson's concurrent employment into consideration. The Board agreed with Wilson and remanded the matter to the ALJ for reconsideration of the concurrent employment issue. It concluded the ALJ had properly exercised his discretion in weighing the evidence presented and finding Wilson's and his son Chad's testimony to be speculative, vague, and unreliable on the issue of concurrent wages. However, the Board found the ALJ's analysis was insufficient regarding the issue because the Board believed substantial evidence in support of a finding of concurrent employment had been presented but was not mentioned in the ALJ's Opinion and Award. It remanded the matter for further proceedings to determine whether Wilson had worked full time as a result of his concurrent employment and was entitled to benefits based thereon. The Board additionally found the ALJ erred in awarding PTD benefits in an amount lower than the statutory minimum rate of $134.00 per week pursuant to KRS 342.730(1)(a).*fn2 This appeal followed.
On appeal, Pro Services raises three allegations of error. First, Pro Services contends the Board invaded the province of the ALJ in making its own findings of fact concerning Wilson's concurrent employment. Next, it alleges the ALJ's findings of fact and conclusions of law were supported by substantial evidence and the Board thus erred in vacating the ALJ's decision. Finally, Pro Services argues the Board overlooked or misconstrued controlling statutes and precedents in making its determination that Wilson's concurrent employment should be included in his AWW. On cross-petition, Wilson argues the Board correctly vacated the ALJ's determinations with respect to his AWW and concurrent employment, but erred in deciding that judicial admissions have no place in workers' compensation proceedings. We shall address each issue in turn.
Our function when reviewing a Board decision "is to correct the Board only where the the [sic] Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). Thus, the "standard of review with regard to a judicial appeal of an administrative decision is limited to determining whether the decision was erroneous as a matter of law." McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 860 (Ky. 2001) (citing American Beauty Homes v. Louisville & Jefferson County Planning & Zoning Commission, 379 S.W.2d 450, 457 (Ky. 1964)).
Pro Services first contends the Board invaded the province of the ALJ in making its own findings of fact concerning Wilson's concurrent employment. It argues the Board improperly substituted its judgment for that of the ALJ with respect to the weight ...