WINN TRANSPORTATION v. BOBBY D. DOSS; SHEILA C. LOWTHER, Administrative Law Judge; WORKERS' COMPENSATION BOARD
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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NOT TO BE PUBLISHED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-000909-WC
WINN TRANSPORTATION
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-96-008571
v.
BOBBY D. DOSS; SHEILA C. LOWTHER,
Administrative Law Judge; WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, COMBS, and KNOPF, Judges.
COMBS, JUDGE:
In this petition for review of a decision of the
Workers' Compensation Board ("Board"), Winn Transportation argues
that the provisions of KRS 342.732(1)(a), as construed in Arch of
Kentucky, Inc. v. Halcomb, Ky., 925 S.W.2d 460 (1996), preclude
an award of benefits to Bobby Doss.
In reviewing the briefs and
the record, we agree that the opinion of the Board appropriately
addressed the single issue presented to this court by the
appellant.
As a result, we adopt the Board's opinion in full as
follows:
Winn Transportation ("Winn") appeals from the decision
of Hon. Sheila C. Lowther, Administrative Law Judge
("ALJ"), rendered August 29, 1997 and from her order dated
October 29, 1997 overruling its petition for reconsideration.
Bobby D. Doss ("Doss"), born September 8, 1940, completed the
eighth grade and has no specialized or vocational training. He
has been employed in and around the mining industry for
approximately 28 years. His last employment was on June 11, 1994
with Winn. On that date, Doss was driving a coal truck which was
involved in an accident and he sustained a significant injury to
his back. Doss filed a workers' compensation claim seeking
benefits as a result of those injuries. A compromise settlement
was reached wherein Winn paid Doss a lump sum of $40,000.00 and
the Special Fund paid a lump sum of $20,000.00. The agreement
indicated the extent and duration of Doss' permanent occupational
disability remained in dispute. Doss filed his claim for
retraining incentive benefits in December 1996.
Doss testified by deposition. He has not worked since June 1994.
He currently receives Social Security disability benefits. Doss
stated he is precluded from returning to gainful employment
because of his health problems. He further stated that if
awarded retraining incentive benefits he did not plan to enroll
in any type of vocational training program.
Based upon evidence from Drs. Robert Powell and Emery Lane, the
ALJ found Doss had satisfied his burden of demonstrating the
existence of Category 1 pneumoconiosis without pulmonary
impairment. This finding has not been appealed and, therefore,
the medical evidence will not be summarized.
After summarizing the evidence, the ALJ entered the following
finding relevant to this appeal:
2. Having found that the plaintiff has
demonstrated the existence of the
disease, the next question which must
be considered concerns his entitlement
to retraining incentive benefits. The
employer in this proceeding argues that
Mr. Doss is permanently and totally
occupationally disabled because of his
1994 accident. Therefore, it asserts
that pursuant to Arch of Kentucky, Inc.
vs. [sic] Halcomb, Ky., 925 SW2d [sic]
460 (1996), the plaintiff is not
entitled to benefits. That claim
concerned a coal miner who had
sustained a back injury. In the injury
claim, the Administrative law [sic]
Judge found the plaintiff to be totally
and permanently occupationally
disabled. Subsequently, Mr. Halcomb
filed a claim for retraining incentive
benefits. The Supreme Court held that
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while the Workers' Compensation Act
does not require that a RIB be used for
retraining, Mr. Halcomb was not
entitled to these benefits. The Court
explained that it would be absurd to
award RIB benefits to a worker who was
no longer employer [sic] in the mining
industry due to an injury, who was
receiving benefits for total
disability, and who was incapable of
rehabilitation. The Court further
noted that the judicial and legislative
history of KRS 342.732(1)(a)
demonstrate that its primary purpose is
to provide an inducement to encourage
affected workers to seek employment
outside the mining industry.
Consequently, a claimant who is totally
disabled due to an injury, and who has
left the mining industry because of
that injury, is not entitled to
retraining incentive benefits. Eastern
Coal Corp. vs. [sic] Blankenship, Ky.,
813 SW2d [sic] 808 (1991).
In light of the foregoing, it is
obvious that if Mr. Doss were totally
disabled as a result of the 1994
injury, he would not be entitled to
retraining incentive benefits.
However, this gentleman compromised his
claim and settled it on the basis of a
permanent partial disability. The
Administrative Law Judge recognizes
that in the context of reopenings, such
a settlement is not res judicata.
However, this is not a reopening. The
Administrative Law Judge does not
believe that she has the authority nor
does she consider it appropriate to now
attempt to look behind this settlement,
speculate that the plaintiff in fact
was totally disabled, and hence find
him ineligible for retraining incentive
benefits. In light of this, she must
reject the defendant's argument that
Halcomb precludes an award of benefits.
The Administrative Law Judge finds no
impediment to Mr. Doss receiving the
retraining incentive benefits for which
he is otherwise qualified by virtue of
the existence of category 1
pneumoconiosis.
-3-
On appeal, Winn argues that Doss is not entitled to
retraining incentive benefits as a matter of law. Winn
argues that Doss is totally disabled and therefore[,]
pursuant to Arch of Kentucky, Inc. vs. [sic] Halcomb,
Ky., 925 SW2d [sic] 460 (1996)[,] he is not entitled to
retraining incentive benefits. Winn contends the only
evidence of record concerning the issue of whether Doss
is totally disabled in Doss' own testimony that he
believed he was unable to return to any type of work
and had no intention of returning to work or being
retrained.
The plain language of KRS 342.732(1)(a) provides that
retraining incentive benefits may be paid directly to
the worker only if the worker is not working in the
mining industry. However, the statute establishes no
other criteria or requirements, aside for employment
status, which must be met before a worker no longer
employed in the mining industry is qualified for direct
payment of retraining incentive benefits. Therefore,
there is no statutory support for Winn's contention
that the ALJ should make a determination of whether of
whether Doss is totally disabled.
There being no statutory support for Winn's argument,
we must review judicial precedent to determine whether
there is any support for Winn's position. In our
opinion, Winn's reliance on Halcomb is misplaced. The
court in that case indicated that KRS 342.732(1)(a) has
never required retraining of those retraining incentive
benefits recipients who have left the mining industry
and that the worker's ability to be rehabilitated is
not dispositive of his entitlement to a retraining
incentive benefits award. The court stated the
ultimate legislative purpose was not retraining but
providing affected workers with the means to leave the
mining industry and to seek employment elsewhere.
Halcomb had been found to be totally occupationally
disabled as a result of a work-related injury and preexisting active disability. Because of his disability,
Halcomb was no longer able to work in the mining
industry. As result of that prior adjudication of
Halcomb's total disability, the court stated that an
award of benefits, the purpose of which was to
encourage him to leave the mining industry, would be
absurd. In the instant case, there has been no
determination that Doss is totally occupationally
disabled or that he is incapable of returning to the
mining industry. As noted by the ALJ, the prior claim
resulted in a compromised settlement agreement with the
extent of disability remaining in dispute. Further,
the ALJ noted that the prior claim had not been
reopened. Nothing in Halcomb indicates that the ALJ
should undertake an independent consideration of
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whether the claimant is totally disabled in those cases
where there has been no prior determination. To
require the claimant to additionally show that he is
not totally disabled would be adding a condition to KRS
342.732(1)(a) which the Legislature did not provide in
that statute. In our opinion, the ALJ properly
rejected Winn's argument that Halcomb precluded an
award of benefits.
(Emphasis added.)
Accordingly, the opinion of the Workers' Compensation
Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE BOBBY D.
DOSS:
John C. Talbott
Louisville, KY
Jerry P. Rhoads
Madisonville, KY
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