Released for Publication July 2, 2015.
ON APPEAL FROM COURT OF APPEALS. CASE NO. 2013-CA-000850-WC. WORKERS' COMPENSATION BOARD NO. 11-WC-00091.
COUNSEL FOR APPELLANT: Charles E. Jennings.
COUNSEL FOR APPELLEE, FORD MOTOR COMPANY: Peter J. Glauber, Phillip J. Reverman, Jr., Elizabeth M. Hahn, Boehl, Stopher & Graves, LLP.
Joseph Jewell (Jewell) appeals from the opinion of the Court of Appeals holding that the administrative law judge (the ALJ) correctly excluded unemployment compensation benefits when calculating Jewell's average weekly wage (AWW). Having reviewed the record and the arguments of the parties, we affirm.
Jewell suffered a work-related injury on December 4, 2009, for which he timely filed a claim. Based on the evidence, the ALJ determined that: Jewell had an AWW of $968.20; he suffered a period of temporary total disability, entitling him to benefits at the rate of $645.47 per week; and he has a 5.95% permanent partial disability rating, entitling him to benefits at the rate of $30.98 per week. The only issue before us is whether the ALJ appropriately excluded unemployment compensation benefits when he calculated Jewell's AWW. Therefore, we only set forth in detail the facts related to that issue.
During layoff periods, Ford completes the necessary paperwork for its employees to receive unemployment compensation benefits. After an employee begins receiving unemployment compensation benefits, Ford makes supplemental or " sub-pay" payments sufficient to increase the amount the employee receives while laid off to 95% of his or her base pay rate.
Kentucky Revised Statute (KRS) 342.140(1)(d) provides that an hourly employee's average weekly wage is based on his or her earnings during the highest quarter in the fifty-two week period preceding the injury. Based on the AWW form supplied by Ford, Jewell's highest quarter was the thirteen-week period immediately preceding the injury. That quarter included one week when Jewell was laid off from work. When calculating Jewell's AWW, Ford added a zero for the lay-off week resulting in an average weekly
wage of $937.43. Jewell, on the other hand, added $400.00 in sub-pay and $373.00 in unemployment compensation benefits for that week, resulting in an average weekly wage of $996.89. The ALJ found that sub-pay should be included in the AWW calculation but that unemployment compensation benefits should not. Thus, the ALJ added ...