                                               RENDERED: AUGUST 20, 2015
                                                       TO BE PUBLISHED

              *pirrnir (Court of 'Atritturitv
                             2014-SC-000610-WC


GARRARD COUNTY FISCAL COURT                                       APPELLANT



                  ON APPEAL FROM COURT OF APPEALS
V.                   CASE NO. 2013-CA-002039-WC
                 WORKERS' COMPENSATION NO. 11-87801



JULIE CAMPS;
HONORABLE J. LANDON OVERFIELD,
CHIEF ADMINISTRATIVE LAW JUDGE;
HONORABLE ALLISON E. JONES,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                      APPELLEES



                          OPINION OF THE COURT

                                 REVERSING

     Appellant, Garrard County Fiscal Court, appeals a Court of Appeals

decision which held that wages from Julie Camps's former concurrent . employer

should be included in calculating her average weekly wage ("AWW"). In so

holding, the Court of Appeals reversed the Workers' Compensation Board

("Board") which affirmed an opinion and order by the Administrative Law Judge

("ALJ") that excluded the concurrent employer wages in the AWW calculation.

For the below stated reasons, we reverse the Court of Appeals.
      Camps worked as a full time paramedic for the Garrard County Fiscal

Court. For almost the entire year leading up to her work-related injury, she

was concurrently employed as a paramedic with Clark County EMS. Garrard

County was aware of Camps's concurrent employment. She quit her job with

Clark County on May 6, 2011, intending to obtain another paramedic job

closer to her home. However, before she could obtain a new second job, Camps

suffered an acute ankle sprain while working for Garrard County on May 13,

2011. Her injury required reconstructive surgery for a complete lateral

ligament tear. Camps filed for workers' compensation based on an AWW

calculation including her wages from both Garrard County and Clark County.

      Camps testified in favor of her claim that it was common for paramedics

to have two employers. She said that paramedics were in high demand and it

was easy for them to find jobs. Camps said that it was necessary for her to

have concurrent employment so that she could earn a living wage to support

her family. Garrard County did not contest that Camps suffered a work-related

injury, but disputed the inclusion of her Clark County wages as a part of her

AWW calculation.

      The ALJ reviewed the evidence and awarded Camps workers'

compensation. However, the ALJ rejected Camps's recommended method of

calculating her AWW because it included both her Garrard County and Clark

County wages. The ALJ reasoned:

            Camps makes a very compelling and rationale [sic] argument
      to support her inclusion of wages from Clark County. The ALJ,
      however, is duty bound to follow published authority from the
      higher appellate courts. The AU finds Wal Mart v. Southers, 152
                                                  -




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         S.W.3d 242, 246-47 (Ky. App. 2004), controls the case at hand. In
         this case, the Kentucky Court of Appeals held that: IKRS
         342.140(5)] only lists two elements necessary to establish
         concurrent employment: proof the claimant was working under
         contract with more than one employer at the time of injury, and
         proof the defendant employer had knowledge of the employment.'
                In this case, Camps was not working under contracts with
         more than one employer at the time of the injury. Certainly, she
         had done so in the past and based on her testimony, the ALJ finds
         that Camps[s] intent was to continue to do so in the future.
         However, at the time of injury she had terminated her employment
         with Clark County and had not yet secured a contract for
         employment with another employer. As such, the ALJ is precluded
         from including Camps[s] concurrent wages from Clark County,
         earned in the weeks prior to her injury.
                In many respects, the ALJ recognizes that this is a harsh
         result. Again, however, the ALJ finds current authority clear with
         respects to the requirements for including concurrent wages.
         Those requirements were not satisfied in this claim with respect to
         Camp[s] employment with Clark County.
                As such, the ALJ concludes that the Camps AWW in this
         claim is limited to the wages she earned working for the Garrard
         County. Based on the wage records submitted by Garrard County,
         the ALJ finds that Camps[s] AWW was $470.96.

         Camps filed a petition for reconsideration' arguing the ALJ failed to

make sufficient findings regarding her alleged concurrent employment and that

her AWW should be $1,038.17. The ALJ denied the petition for

reconsideration. The Board affirmed and Camps appealed to the Court of

Appeals.

         The Court of Appeals, in a two to one decision, reversed the Board. The

majority held that Southers "inartfully worded the requirements" for a person to

claim concurrent employment. KRS 342.140 provides the method for




1   Garrard County filed a petition for reconsideration regarding Camps's award of
     vocational rehabilitation benefits. That issue is not before this Court.


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calculating an employee's AWW and when concurrent employment wages

should be included. It states in pertinent part:

      [t]he average weekly wage of the injured employee at the time of the
      injury or last injurious exposure shall be determined as follows:
      (1) If at the time of the injury which resulted in death or disability
      or the last date of injurious exposure preceding death or disability
      from an occupational disease:
      (d) The wages were fixed by the day, hour, or by the output of the
      employee, 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 first, second, third, or
      fourth period of thirteen (13) consecutive calendar weeks in the
      fifty-two (52) weeks immediately preceding the injury;
      (5) When the employee is working under concurrent contracts with
      two (2) or more employers and the defendant employer has
      knowledge of the employment prior to the injury, his or her wages
      from all the employers shall be considered as if earned from the
      employer liable for compensation.

The Court of Appeals held that the elements to establish concurrent

employment are determined by interpreting KRS 342.140 as a whole to

maximize the compensation an injured worker receives for the loss of earning

capacity. The majority held that:

      [w]hen the relevant look-back period of KRS 342.140(1) or (2) is
      incorporated into the wording of KRS 342.140(5), the 'is' in the
      statement lw]hen the employee is working under concurrent
      contracts' refers to the period for looking back to establish AWW as
      set by when the injury occurred, rather than the date of the injury.
      In this manner, 'wages from all the employers shall be considered
      as if earned from the employer liable for compensation' just as if
      the employee was merely working a variety of jobs for a single
      employer, which may or may not have continued the entire
      relevant look back period.

Thus, the Court of Appeals concluded that KRS 342.140(5) requires the

following two elements to establish concurrent employment: "proof the

claimant was working under contracts with more than one employer during the

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relevant look-back period following an injury and proof the defendant employer

had knowledge of the employment." The dissent, written by Judge Taylor,

stated that Southers was controlling and that the Board should be affirmed.

This appeal followed.

      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 injustice." W. Baptist Hosp. v. Kelly, 827 S.W.2d

685, 687-88 (Ky. 1992). In interpreting statutes, we must "ascertain from their

terms, as contained in the entire enactment, the intent and purpose of the

Legislature, and to [sic] administer that intent and purpose."   Lach v. Man

O'War, LLC, 256 S.W.3d 563, 568 (Ky. 2008) (quoting Seaboard Oil Co. v.

Commonwealth, 193 Ky. 629, 237 S.W. 48, 49 (1922)).

      The only issue on appeal is whether the calculation of Camps's AWW

should include the wages she earned while working in concurrent employment

for Clark County. The Court of Appeals majority held, based on their

interpretation of KRS 342.140(5), that Camps's Clark County wages should be

included in her AWW calculation because she worked for Clark County during

the relevant look-back period. We disagree because of the plain language of

KRS 342.140.

      As stated above, KRS 342.140 states that the AWW of the "injured

employee at the time of the injury or last injurious exposure shall be" calculated

according to the statute. (Emphasis added). Thus, the wages to be considered



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are those earned by the employee at the moment she was injured. KRS

342.140(5) then states that "when the employee is working under concurrent

contracts" and the defendant employer knows of that second contract, the

combined wages from both jobs are to be considered as earned from the liable

employer. (Emphasis added). So reading theses two statutes together

indicates that before an employee can be considered to have concurrent

employment, the employee must be working under two contracts for hire at the

time of the injury and the employer at which the claimant was injured must be

aware of the second job. Thus, the analysis provided in Southers is correct and

is controlling in this case.

      The majority of the Court of Appeals cited to Lowry v. Industrial Comm'n

of Arizona, 195 Ariz. 398, 989 P.2d 152, 155 (1999), as support for its

interpretation of KRS 342.140. In that case, the Arizona Supreme Court found

that an employee's "average monthly wage" calculation should include earnings

from concurrent employment held within thirty days prior to, but not

necessarily on the date of, a work injury. But Arizona workers' compensation

law differs from our statutory scheme. Specifically, Arizona does not have a

statute which defines the circumstances when concurrent employment applies

to an AWW calculation. Instead, Arizona defines "monthly wage" as "the

average wage paid during and over the month in which the employee is killed

or injured." A.R.S. §23-1041 (D). Then A.R.S. § 23-1041(A) provides that

employees "shall receive the compensation fixed in this chapter on the basis of

the employee's average monthly wage at the time of injury." Arizona has



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interpreted these two statutes in conjunction to hold that concurrent

employment wages may be applied to an average monthly wage calculation,

even if the employee is not under multiple contracts for hire on the date of the

injury. Because KRS 342.140(5) specifically defines concurrent employment,

we must follow its clear language and find Lowry to be unpersuasive.

      Applying Southers to the facts presented shows that Camps is not

entitled to claim both her Garrard County and Clark County wages in her AWW

calculation. At the time of Camps's injury she was no longer under a contract

for hire with Clark County. Camps cannot satisfy the first prong of the

Southers test, and therefore was not concurrently employed for purposes of her

AWW. Southers, 152 S.W.3d at 246.

      Thus, for the above stated reasons, we reverse the decision of the Court

of Appeals.

      All sitting. All concur.




COUNSEL FOR APPELLANT,
GARRARD COUNTY FISCAL COURT:

John G. Irvin, Jr.


COUNSEL FOR APPELLEE,
JULIE CAMPS:

Jackson W. Watts



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