Concurrent Employment: The Statute Means What It Says

The statute means just what it says. Supreme Court rejects Court of Appeals' reasoning on concurrent employment.

On August 20, 2015, the Kentucky Supreme Court issued its published decision in Garrard Co. Fiscal Court v. Camps, 2014-SC-000610-WC, a case dealing with contemporaneous employment and average weekly wage for worker's compensation purposes. Why is this important? Two reasons. First, the Supreme Court went all Hulkamania on Justices Stumbo and Taylor from the Court of Appeals. And it has a big impact on how we calculate benefits in Kentucky workers' compensation.

The Supreme Court reversed the Court of Appeals decision to disregard the plain language of our statute. You see, the Court of Appeals used Arizona law, applied a thin veneer of Kentucky law and tried to sell it to us as Kentucky Proud. The Supreme Court scoffed at the very idea.

In our discussion of the Court of Appeal's decision last year, we noted the clear discrepancy between Arizona's statute and Kentucky's, with Arizona looking at a worker's "average monthly wage." Our Supreme Court did the same, though we doubt they read our posts on LinkedIn.

Claimant worked for Garrard County Fiscal Court ("Garrard Co.") as a paramedic. A mere week before her acute injury she quit her other job as a paramedic in another county. While she was looking for a second job the fact remains that she was only under one contract of employment at the time of her injury.

The ALJ, and the Board, correctly noted that the statute clearly states that concurrent employment must exist "at the time of injury" to count for average weekly wage purposes. The Court of Appeals disagreed, stating that there is a "relevant look back" period; they reversed the Board in a 2-1 decision. Not surprisingly, the Supreme Court applied the plain meaning of the statutory language and affirmed the ALJ's original decision.

So, as you already knew, "at the time" means just that. The world is safe, once again.