A sales clerk was awarded disability benefits after falling off a ladder at work. The award was multiplied three times because she was unable to return to work and do the exact same job functions. But the store owner argued, even after the injury, she’d be able to do the essential functions of the job. How did the court rule?
Jacqueline Lunte was employed by Two Chicks LLC, as a sales clerk. Two Chicks is a Kentucky boutique store that sells gifts, jewelry, purses and furniture.
Lunte’s job involved straightening the store, stocking shelves, pricing items, writing sales tickets, assisting customers and helping out when needed. She frequently had to use a step stool or ladder to reach merchandise.
On Oct. 29, 2011, a customer asked Lunte to get an ornament on a Christmas tree. Lunte used a step stool to grab the ornament and, as she was stepping down, she fell and suffered a right tibial plateau fracture.
Lunte underwent surgery and filed for workers’ comp. She hasn’t returned to work at Two Chicks, and she said she doesn’t think she could return to her pre-injury job without an accommodation.
Lunte’s doctor concluded she had an 8% whole person impairment and, as a result of the accident, she’s unable to climb stairs or ladders and do repetitive knee bending, squatting or heavy lifting.
The administrative law judge (ALJ) awarded Lunte temporary total disability benefits and permanent partial disability benefits enhanced by the three multiplier.
Kentucky law states that:
“If, due to an injury, an employee does not retain the physical capacity to return to the type of work that the employee performed at the time of injury, the benefit for permanent partial disability shall be multiplied by three times . . .”
The ALJ said Lunte wouldn’t be able to do the job functions as sales clerk given the doctor’s restrictions, which warranted the three multiplier.
Two Chicks appealed the finding. Karen Mayes, the store owner, said climbing isn’t an essential function of the sales clerk’s job because the same items are usually found in multiple locations.
Mayes also testified that clerks were never required to climb to retrieve items. If climbing was necessary, a clerk could ask a co-worker for help, have the customer get it, have the customer return later to pick it up, or call the handyman or her husband to come in the next day.
Mayes added that Two Chicks would be willing to accommodate Lunte’s restrictions if she returned to work.
The ALJ denied Two Chicks’ appeal. After appeals to the state Workers’ Compensation Board and Court of Appeals, the case reached the Supreme Court of Kentucky.
The state supreme court said the ALJ didn’t misapply the law in finding that Lunte is entitled to the three multiplier.
The court wrote:
“While Mayes (the owner) stated that the job of being a sales clerk at Two Chicks does not require climbing or reaching for items in high areas, Lunte’s testimony rebuts Mayes. The ALJ was within his discretion to believe Lunte. We also note that even if Lunte can perform some of the tasks of being a sales clerk, the three multiplier has been applied when the claimant returns to the same job classification but is precluded from performing some of the tasks associated with it.”
The state supreme court ruled that Lunte could receive disability benefits with the three multiplier.
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(Two Chicks v. Jacqueline Noelle Lunte, Supreme Court of Kentucky, No. 2015-SC-000407-WC, 6/16/16)