ROBERT L. WHITTAKER, Acting Director of SPECIAL FUND V. SILAS PATRICK; MILLER BROTHERS CONSTRUCTION COMPANY; and WORKERS' COMPENSATION BOARD AND MILLER BROTHERS CONSTRUCTION COMPANY v. SILAS PATRICK; THOMAS A. DOCKTER, Administrative Law Judge; SPECIAL FUND; and WORKERS' COMPENSATION
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RENDERED:
December 30, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000760-WC
ROBERT L. WHITTAKER, Acting
Director of SPECIAL FUND
V.
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
ACTION NOS. WC-90-36354 AND WC-95-48386
SILAS PATRICK; MILLER BROTHERS
CONSTRUCTION COMPANY; and
WORKERS' COMPENSATION BOARD
AND
APPELLEES
NO. 1998-CA-000761-WC
MILLER BROTHERS CONSTRUCTION
COMPANY
v.
APPELLANT
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS’ COMPENSATION BOARD
ACTION NOS. WC-90-36354 AND WC-95-48386
SILAS PATRICK; THOMAS A. DOCKTER,
Administrative Law Judge; SPECIAL
FUND; and WORKERS’ COMPENSATION
BOARD
APPELLEES
OPINION AFFIRMING
* * * * * * * *
BEFORE:
GUDGEL, Chief Judge; GARDNER and MILLER, Judges.
GUDGEL, CHIEF JUDGE:
These matters are before us on petitions
for review of an opinion of the Workers’ Compensation Board
(board).
The board reversed and remanded for further findings an
Administrative Law Judge’s (ALJ’s) decision to the extent it
dismissed a reopening proceeding, but it affirmed the ALJ’s
decision dismissing a new claim.
On appeal, appellant employer
and the Special Fund contend that in the reopening proceeding,
the appellee employee, Silas Patrick, failed to meet his burden
of proof justifying an award of benefits, and that the board
therefore erred by reversing the decision for further findings.
We disagree with appellants’ contentions.
Hence, we affirm.
Patrick was awarded retraining incentive benefits (RIB)
in 1991.
At that time, all of the medical reports filed in the
record indicated that although Patrick had contracted
pneumoconiosis, his pulmonary function studies revealed normal
breathing capacity.
Subsequently, Patrick filed a KRS
342.125(2)(a)1 motion to reopen, alleging that his disease had
progressed from Category 1 to Category 2, and that his
respiratory capacity had decreased to less than 80% of predicted
normal values.
The ALJ denied the motion to reopen, finding that
although Patrick had shown a progression of the disease from
1
Subsequent to the filing of Patrick’s motion to reopen and
new claim, KRS 342.125(2)(a) and (b) were amended and renumbered
as KRS 342.125(5)(a) and (b).
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Category 1 to Category 2, he had failed to show that, utilizing
the highest available ventilatory studies as required by existing
case law, his pulmonary capacity was less than 80% of predicted
normal values.
According to the ALJ, it was not significant that
some of the recent studies showed breathing capacity of less than
80% of predicted normal values.
The ALJ’s reopening decision was
reversed on appeal because, pursuant to KRS 342.732 and the
holding in Campbell v. Universal Mines, Ky., 963 S.W.2d 623
(1998), appellee would be entitled to a total disability award if
the ALJ found on remand that he suffered from Category 2 rather
than Category 1 pneumoconiosis.
The ALJ was directed on remand
to make an appropriate finding in this vein, and to render a
decision in conformity therewith.
This appeal followed.
Appellants essentially contend that the board erred by
reversing the ALJ because the language of KRS 342.125(2)(a)
prevented a claimant from receiving an award on reopening unless
he or she demonstrated not only that the pneumoconiosis had
progressed to a higher category, but also that the highest
available ventilatory studies showed results of less than 80% of
predicted normal values.
We disagree.
As we view it, this case is governed by the supreme
court’s decision in Campbell, supra.
There, as here, the worker
first received a RIB award although his pulmonary function
studies did not show results of less than 80% of predicted normal
values.
Subsequently, as here, the worker filed a motion to
reopen which was accompanied by medical reports showing that his
disease had progressed from Category 1 to Category 2.
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Further,
like the case now before us, the motion to reopen was denied
because the worker’s increase in respiratory impairment was less
than that required for an award of benefits pursuant to KRS
342.732(1)(b) and (c).
In reversing the ALJ’s denial of the
motion to reopen, the supreme court stated as follows:
The legislature may impose any
conditions it sees fit to permit a party to
reopen a previously final award. However, it
is not our function to impose conditions
which the legislature has omitted. Unlike
KRS 342.732(1)(b) and (c), which use the
AMA’s Guides to establish irrebuttable
presumptions of disability, KRS 342.125(2)(a)
makes no reference to the Guides or the
presumptions, but permits a reopening of a
pneumoconiosis claim upon the mere showing of
progression of the underlying disease and
either the development or a progression of
respiratory impairment. Thus, the worker is
not required to show both category 2
pneumoconiosis and compensable respiratory
impairment in order to reopen, but only a
progression of the disease and a development
or progression of impairment, so long as
either the disease or the impairment has
progressed to the point of compensability.
To require progression of both the disease
and the impairment to the point of
compensability would be illogical, since the
worker could not receive compensation for
both. McCoy Elkhorn Coal Corp. v. Sullivan,
Ky., 862 S.W.2d 891 (1993).
Campbell made the required prima facie
showing that his underlying pneumoconiosis
had progressed from category 1 to category 2,
satisfying the threshold of compensability
set forth in KRS 342.732(1)(d). He also
presented evidence of progression of
pulmonary impairment, although not to the
extent that it would be compensable under KRS
342.732(1)(b) or (c). That was all that was
required of him under KRS 342.125(2)(a).
963 S.W.2d at 625.
We are unable to distinguish the operative facts herein
from those set out in Campbell.
Thus, we perceive no error in
-4-
the board’s reversal and remand for additional findings.
Indeed,
consistent with Campbell and as directed by the board on remand,
it will be
within the ALJ’s discretion to conclude that
Patrick had satisfied his burden of proof to
establish the existence of the occupational
disease, Category 2, entitling him to total
occupational disability benefits. Although
the ALJ here alluded to evidence that would
support such a finding, he made no specific
determination of the category of the disease.
It is therefore necessary upon remand for the
ALJ to determine whether Patrick satisfied
this burden or whether the more credible
evidence was that from physicians who
interpreted x-rays as being Category 1. If
the ALJ believes the latter, then in
accordance with KRS 342.732 he is obligated
to accept the highest FEV-1 and FVC, both of
which are above 80% of predicted, and no
benefits would be awarded.
Finally, we note that Patrick did not file a cross
petition for review.
Hence, we need not address the
constitutional arguments regarding KRS 342.125(2)(a) which are
set forth in his response to appellants’ petitions for review.
See CR 76.25(9).
The board’s opinion is affirmed.
ALL CONCUR.
BRIEF FOR ROBERT L. WHITTAKER,
Acting Director of SPECIAL
FUND:
BRIEF FOR SILAS PATRICK:
J. Drew Anderson
Prestonsburg, KY
David W. Barr
Louisville, KY
BRIEF FOR MILLER BROTHERS
CONSTRUCTION COMPANY:
Effie Layne Stidham
Hazard, KY
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