RENDERED: FEBRUARY 16, 2017
TO BE PUBLISHED

§Supreme Tourf of Benluckg

2016-SC-00024Q-WC

COMMONWEALTH OF KENTUCKY, APPELLANT
UNINSURED EMPLOYERS’ FUND ~

ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2015-CA-001854-WC
WORKERS’ COMPENSATION NO. 11-WC-002 11

KARA SIDEBOTTOM (A/ K/A KARA APPELLEES
HARVILLE); WHITNEY BRAND INC.;

HON. GRANT ROARK, ADMINISTRATIVE

LAW JUDGE; AND WORKERS’

COMPENSATION BOARD

OPINION OF THE COURT BY JUSTICE VENTERS
AFFIRMING
The Commonwealth of Kentucky, Uninsured Employers’ Fund (UEF)
appeals from a decision of the Court of Appeals that upheld an opinion issued
by the Workers’ Compensation Board (Board). The Board determined that the
Administrative LaW Judge (ALJ) had properly calculated Sidebottom’s average
Weekly wage, affirming the conclusion of the ALJ. that Appellee, Kara
Sidebottom, Was a variable Wage employee (salary plus tips) at the time of her

work-related injury and that her Workers’ compensation benefits must,

therefore, be calculated according to KRS 342.140(d), rather than KRS
342.140(1)(a), which applies to claimants who are paid a fixed weekly wage.1

Our review on appeal proceeds under the following standards, “An
award or order of the administrative law judge . . . shall be conclusive and
binding as to all questions of fact . . . .” KRS 342.285. When reviewing a
decision of the Board, we will affirm absent a finding that the Board has
misconstrued or overlooked controlling law or has so flagrantly erred in
evaluating the evidence that a gross injustice has occurred. Westem Baptist
Hospital v. Kelly, 827 S.W.2d 685, 687-688 (Ky. 1992).

We find no significant disagreement about the facts as determined by the
ALJ; the issue in dispute is Whether the ALJ, and hence the Board, applied the
correct statute to those facts in determining Sidebottom’s average weekly wage.

For the reasons stated below, we affirm the Court of Appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

When Kara Sidebottom began her job as a waiter at Whitney’s Diner in
2009, her duties included seating customers, taking orders, serving customers,
stocking the salad bar, bussing tables, and collecting payment from customers,
She was paid $2. 10 per hour plus tips and she generally worked at least forty

hours per Week and often “much more.”

 

1 The Board’s decision, affirmed by the Court of Appeals, also vacated part of
the ALJ’s award not pertinent to this appeal and remanded the matter to the ALJ for
further consideration regarding the application of the three-times multiplier provided
by KRS 342.730(1)(0)1.

Beginning May 1, 2010, the owner of the business gave Sidebottom
increased employment responsibilities in addition to the ordinary duties she
performed as a waiter. Concurrent with the increased responsibilities,
Sidebottom’s pay structure was changed from the hourly rate of $2. 10 plus tips
to a weekly rate of $100.00 plus tips.

Prior to the May 1 transition, Sidebottom’s employer reported her income
from tips to the Internal Revenue Service as required by law. Afterwards,
although Sidebottom continued to report her tips to her employer, the employer
failed to report her income from tips to the IRS. Sidebottom did not learn that
her employer had not reported her tips until she received her 2010 W-2 form.
Sidebottom did not include her unreported tip income on her 2010 personal
income tax return.

On December 3, 2010, seven months after her “promotion,” Sidebottom
fell during the course of her employment and injured her spine. She eventually
underwent spinal fusion surgery. In due course, she filed a workers’
compensation claim in connection with the work-related injury,

In determining Sidebottom’s weekly compensation benefit, the ALJ
applied KRS 342.140(1)(d). This statute sets forth the process for calculating
the average weekly wage for a claimant who, at the time of her injury, was
being paid a wage that varied “by the output of the employee,” Which includes
workers being compensated through tips. The ALJ determined that even

though Sidebottom’s tips at the time of her injury were not reported to the IRS,

she was still at that time a variable Wage employee working on a “Wage plus
tips” arrangement2

The UEF maintained that at the time of her injury Sidebottom was a
salaried, or fixed wage, employee whose average weekly Wage should have been
determined in accordance with KRS 342.140(1)(a) using the amount of $100.00
per week. The calculation advocated by UEF would have yielded a
substantially lower benefit award for Sidebottom. The Board disagreed and
affirmed the ALJ’s application of KRS 342.140(1)(d) for determining
Sidebottom’s average weekly wage. The Court of Appeals affirmed, and the

appeal to this Court ensued.

II. ANALYSIS

In support of its argument that Sidebottom’s average weekly wage should
have been calculated in accordance with KRS 342.140(1)(a) as if she was a
fixed weekly Wage employee, the UEF relies upon KRS 342.140(6). That statute
defines “wages” for purposes of determining workers’ compensation benefits as
follows:

The term “wages” as used in this section and KRS 342. 143 means,

in addition to money payments for services rendered, the

reasonable value of board, rent, housing, lodging, and fuel or
similar advantage received from the employer, and gratuities

 

2 The ALJ initially awarded temporary total disability benefits at the rate of
$172.81 per week from December 2010 through December 2012, and ultimately
awarded permanent partial disability benefits in the amount of $103.69 per week for
425 weeks beginning January 1, 2013. In calculating these benefits, pursuant to the
“most favorable to the employee” look-back provision contained in KRS 342.140(1)(d),
the ALJ used Sidebottom’s wage circumstances prior to her transition from hourly pay
plus tips to weekly pay plus tips because doing so was more favorable to Sidebottom.

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received in the course of employment from others than the employer
to the extent the gratuities are reported for income tax purposes.

(Emphasis added.)

Because Sidebottom’s “gratuities,” or tips, at the time of her injury were
not “reported for income tax purposes,” the UEF contends that they cannot be
considered as part of her “wages” for calculating her average weekly wage to
determine her workers’ compensation benefit. The UEF further argues that
because Sidebottom’s income was reported to the IRS as a fixed salary of
$100.00 per week, the ALJ Was required to calculate her average weekly wage
pursuant to KRS 342.140(1)(a). KRS 342.140(1)(a) provides that when an
injured employee’s “wages [at the time her injury] were fixed by the week, the
amount so fixed shall be the average weekly wage.”

Sidebottom acknowledges the effect of KRS 342.140(6) and agrees that
the unreported tips she received between May 1 and her December 3 injury
may not be used in the computation of her average weekly wage, There is no
doubt that gratuities not reported for tax purposes may not be counted as
income when calculating an injured employee’s average weekly wage
calculation. But as the ALJ concluded, the application of KRS 342.140(6) does
not alter the reality that she is an employee with variable income derived from
gratuities; it does not convert her to an employee earning a fixed weekly wage,

In contrast with KRS 342.140(1)(a), KRS 342.140(1)(d) governs the
calculation of the applicable average weekly wage for employees whose weekly
pay may vary because they are paid by “the day, hour, or by the output of the

employee.” KRS 342.140(1)(d) provides that for such employees
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the average weekly wage shall be the wage most favorable to the
employee computed by dividing by thirteen (13) the wages (not
including overtime or premium pay) of said employee earned in the
employ of the employer in the jirst, second, third, or fourth period of
thirteen (13) consecutive calendar Weeks in the fifty-two (52) weeks
immediately preceding the injury,

(Emphasis added.)

Under KRS 342.140(1)(d), the 52-week year preceding the injury is
divided into thirteen-Week quarters. The average Weekly earnings for each
quarter is then calculated and the quarter With the highest (“most favorable”)
average weekly wage is the one used to compute the weekly compensation
benefit for the injured employee, The ALJ used that method to determine
Sidebottom’s average weekly wage.

Of course, Sidebottom’s actual income for the entire 52 weeks that
preceded her injury included her tips. But because KRS 342.140(6) forbids
consideration of unreported tips, the ALJ included her tip income only for the
weeks that preceded May 1 because those are the only weeks for which tip
income was reported for tax purposes. The tips earned by Sidebottom after
May 1 were not reported, and were therefore excluded. Despite the fact that
she may have actually been taking home more earnings after May 1 than
before, with the exclusion of unreported tips after May 1, 2010, it naturally
follows that her quarter of most advantageous earnings would have occurred
before May 1, 2010,

Nevertheless, the UEF contends that because the only income being

reported for Sidebottom after May 1 was $100.00 per week, with nothing extra

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in tips, she is bound to that amount as her average weekly wage. In effect,
UEF argues that the income being reported to the IRS at the time of the injury
is dispositive of the average weekly wage to be used in calculating Sidebottom’s
workers’ compensation benefits. We conclude that a proper application of KRS
342.140(6) does not produce that result. We agree with the Board and Court of
Appeals that the ALJ properly calculated Sidebottom’s average weekly wage
based upon KRS 342.140(1)(d) rather than KRS 342.140(1)(a).

The average weekly wage of an injured Worker must be decided on a
case-by-case basis, and must take into account the unique facts and
circumstances of each case. Huff v. Smith Trucking, 6 S.W.3d 819, 822 (Ky.
1999). Ultimately, the goal in calculating the average weekly Wage is to ensure
that the claimant’s benefit rate is based upon what the worker would have
expected to earn had the injury not occurred. Desa International, Inc. v.
Barlow, 59 S.W.3d 872, 875 (Ky. 2001).

It is not disputed that Sidebottom was compensated by tips from
customers up until the date of her injury and that those tips were a significant
share of her actual earnings. The fact that Sidebottom’s tip income was not
reported for tax purposes does not alter the reality that she was paid a variable
wage based upon a “wage plus tips” arrangement The UEF’s position Would
require us to ignore that reality.

_ By excluding unreported income from a worker’s average weekly wage
calculation, KRS 342.140(6) reduces the amount of earnings that can be

considered; it does not change the nature of the worker’s pay or the method to

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be used for calculating the average weekly wage based upon the nature of the
worker’s pay. The application of the UEF’s theory of this case would
unjustifiany expand the rule beyond the Words of the statute, which require
only the exclusion of unreported income, and extend it to create the legal
fiction that one who is actually paid a variable wage is instead deemed to be a
fixed weekly wage employee,

In strict compliance with KRS 342.140(6), the ALJ did not include
Sidebottom’s unreported tip income in his calculation of her average weekly
wage, Thus, Sidebottom is properly deprived of the benefit she could otherwise
have gained by applying the potentially higher total income she received after
the May 1, 2010 transition.3 Concurrently, the UEF received a corresponding
advantage in the form of a lower payment obligation.

We reject UEF’s argument that as an additional consequence of the tax
reporting rule, the ALJ was further compelled to disregard Sidebottom’s true
status as a variable wage employee and calculate Sidebottom’s average weekly
wage as if she was a fixed weekly wage employee. We do not perceive the
adoption of that legal fiction as a necessary and statutorily-mandated
consequence of the tax reporting rule of KRS 342.140(6). See Jones v.

Crummies Creek Coal Co., 264 S.W.2d 294, 296 (Ky. 1953) (“It is a familiar rule

 

3 As a component of its argument UEF asserts that “an employee should not
benefit from his own wrongdoing.” However, again, Sidebottom was punished for her
wrongdoing by not being allowed to calculate her income based upon her post-raise
earnings, which would have resulted in a higher award. Presumably she also suffered
adverse consequences imposed by the IRS for failing to report her tips on her 2010 tax
return.

of construction that the Workmen’s Compensation law should be liberally
construed in favor of injured employees and their dependents.” (citations
omitted)).

After properly excluding all unreported earnings, the ALJ correctly
utilized Sidebottom’s wage data from the most advantageous quarter of the 52-
week period preceding her injury, pursuant to KRS 342.140(1)(d), and
calculated her average weekly wage accordingly. The Board and the Court of

Appeals properly affirmed that decision.

III. CONCLUSION

For the foregoing reasons the opinion of the Court of Appeals is affirmed.
Pursuant to that opinion, this matter is remanded to the ALJ for additional
findings relating to the three-times multiplier as set forth in the decision of the
Workers’ Compensation Board,

All sitting. All concur.

COUNSEL FOR APPELLANT COMMONWEALTH OF KENTUCKY, UNINSURED
EMPLOYERS’ FUND:

Charles Davis Batson

Assistant Attorney General

Uninsured Employers’ Fund

COUNSEL FOR APPELLEE KARA SIDEBOTTOM, A/ K/A KARA HARVILLE:
Tamara Todd Cotton

Stephanie Nicole Wolfinbarger

Cotton Wolfinbarger & Associates PLLC

COUNSEL FOR APPELLEE WHITNEY BRAND INC.:

Not Represented By Counsel

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