                                             RENDERED: FEBRUARY 18, 2016
                                                        TO BE PUBLISHED

               oihtintutt        Courf of
                              2015-SC-000268-WC              .pr




JOHN FUERTES                                                           APPELLANT



                   ON APPEAL FROM COURT OF APPEALS
V.                    CASE NO. 2014-CA-000280-WC
                  WORKERS' COMPENSATION NO. 03-64300


FORD MOTOR CO.;
HONORABLE JAMES KERR,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                            APPELLEES



                           OPINION OF THE COURT

                        REVERSING AND REMANDING


      Appellant, John Fuertes, appeals a Court of Appeals decision which
affirmed the Administrative Law Judge's ("ALJ") fmding that his workers'

compensation award should not be enhanced by the two multiplier pursuant to

KRS 342.730(1)(c)2. Because of this Court's decision in Livingood v.
Dransfreight, LLC, 467 S.W.3d 249 (Ky. 2015), we reverse the Court of Appeals

and remand this matter for further proceedings.

      Fuertes suffered a work-related accident while employed by Appellee,
Ford Motor Company, on October 30, 2003. He filed for workers'

compensation. Before his claim could be resolved, Fuertes was fired by Ford
for "performance related issues." Fuertes contends that he was fired because

of his work-related injuries. Specifically, Fuertes states that he missed a lot of

work to undergo rehabilitation or physical therapy. He also was under work

restrictions which limited his ability to perform his job.

         After a review of the evidence, the ALJ found that Fuertes suffered a

work-related injury to his right shoulder, right knee and neck.' Workers'

compensation was awarded accordingly. The ALJ declined to apply a multiplier

to Fuertes's award. He stated that a[t]here is no evidence that [Fuertes's]

cessation of employment was the result of his work-related injury."         See

Chrysalis House, Inc. v. Tackett, 283 S.W.3d 671 (Ky. 2009). However, the ALJ

failed to specifically address the application of KRS 342.730(1)(c)2, the two

multiplier. Fuertes filed a petition for reconsideration asking the ALJ to

reconsider his finding that there was no evidence to indicate his termination

was the result of his work-related injury and that the ALT make a

determination as to the reason Fuertes was fired. The petition for

reconsideration was denied.

         Fuertes appealed to the Workers' Compensation Board ("Board"). The

Board issued an opinion affirming in part, reversing in part, and remanding.

The Board found that the ALJ did not address Fuertes's request in his petition

for reconsideration for a determination as to the reason why he was terminated

from Ford. Fuertes then appealed to the Court of Appeals requesting a remand



1   Fuertes later was found to have suffered work-related hearing loss and he was
     awarded workers' compensation.


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to the ALJ for findings regarding his entitlement to the two multiplier per KRS

342.730(1)(c)2. The Court of Appeals found that the ALJ did address the

applicability of the two multiplier, but remanded the matter to the Board for

consideration of whether the ALJ erred in finding that substantial evidence did

not support application of the multiplier. On remand, the Board stated that,

`the evidence did not compel a finding Fuertes was entitled to enhancement by

the two multiplier at the time of the ALJ's decision!' The Board further stated

that Fuertes' speculative testimony did not compel the ALJ to find that the

work-related injury led to his termination. Fuertes again appealed to the Court

of Appeals which affirmed the Board. This appeal followed.

      The Board's review in this matter was limited to determining whether the

evidence is sufficient to support the ALJ's findings, or if the evidence compels a

different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).

Further, the function of the Court of Appeals is to "correct the Board only where

the 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 injustic' Id. at 687-88. Finally, review by this

Court"is to address new or novel questions of statutory construction, or to

reconsider precedent when such appears necessary, or to review a question of

constitutional magnitude!' Id. The ALJ, as fact-finder, has the sole discretion

to judge the credibility of testimony and weight of evidence.   Paramount Foods,

Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).
      Fuertes argues that the Board and Court of Appeals erred by usurping

the ALJ's role as fact finder and interpreter of the evidence concerning

application of the two multiplier to his award. Fuertes also contends that the

ALJ erred when he found that there was no evidence the termination was

related to the work-related injury. However, we need not address the merits of

Fuertes's arguments because this matter must be remanded for further fact

finding.

      Since the ALJ issued the opinion and order on remand and the opinion

and order on reconsideration, this Court has reversed the portion of Chrysalis

House, 283 S.W.3d 671, which held that the claimant's failure to earn the same

or greater wages must be related to the work-related injury before the two

multiplier may be awarded. Livingood, 467 S.W.3d at 249. Instead this Court

now holds that"KRS 342.730(1)(c)2 permits a double income benefit during any

period that employment at the same or a greater wage ceases for any reason,

with or without cause,' except where the reason is the employee's conduct

shown to have been an intentional, deliberate action with a reckless disregard

of the consequences either to himself or to another." Id. at 259

      In this matter, no finding has been made whether Fuertes's conduct at

Ford satisfies this new standard so as to justify the denial of the application of

the two multiplier. On remand, the ALJ should make a finding of whether

Fuertes engaged in conduct as outlined in Livingood that led to the reduction of

hours he worked and ultimate termination. We note that this is a high

standard and basic bad behavior will not bar application of the two multiplier.



                                         4
If Fuertes did not engage in such conduct, the two multiplier may be applied to

his award.

      Fuertes has additionally requested that this Court decide whether the

claimant or employer has the burden of proof to show the employee was fired

due to the type of misconduct as described in Livingood. To prove that the

claimant was fired because he committed that type of misconduct, evidence

must be provided which supports the conclusion the claimant acted

inappropriately. Obviously it is unlikely that the claimant would admit to

misconduct. Because of this, and since proving that type of misconduct

occurred is a defense against application of the two multiplier, the burden of

proof is upon the employer to show the claimant's termination was caused by

the type of behavior described in Livingood.

      Thus, we reverse the decision of the Court of Appeals and remand the

matter to the ALJ for proceedings consistent with this opinion.

      All sitting. All concur.




                                        5
COUNSEL FOR APPELLANT,

JOHN FUERTES:

Charles E. Jennings


COUNSEL FOR APPELLEE,
FORD MOTOR CO.:

Peter J. Glauber
Philip J. Reverman, Jr.
Elizabeth M. Hahn


COUNSEL FOR AMICUS CURIAE,
THE KENTUCKY CHAPTER OF AMERICAN
FEDERATION OF LABOR AND CONGRESS
OF INDUSTRIAL ORGANIZATIONS:

Justin Lee Lawrence




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