COMMONWEALTH ALUMINUM CORPORATION V. JAMES L. TUCKER; SPECIAL FUND; THOMAS A. NANNEY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: July 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002392-WC
COMMONWEALTH ALUMINUM CORPORATION
V.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-98678
JAMES L. TUCKER; SPECIAL FUND;
THOMAS A. NANNEY, Administrative
Law Judge; and WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION AFFIRMING
* * * * * * * *
BEFORE:
GUDGEL, Chief Judge; McANULTY and MILLER, Judges.
GUDGEL, CHIEF JUDGE:
This matter is before us on a petition for
review of a decision of the Workers' Compensation Board (board).
Appellant Commonwealth Aluminum Corporation contends that the
board erred by affirming a decision of an Administrative Law
Judge (ALJ) which awarded both temporary total and permanent
partial disability benefits to the claimant, appellee James L.
Tucker.
We disagree.
Hence, we affirm.
Tucker incurred several work-related and
nonwork-related injuries and underwent surgeries prior to
sustaining a work-related back injury on June 3, 1996, while he
was employed by appellant.
Tucker reported the injury, went on
vacation, and then continued working until October 1996.
He
underwent back surgery in February 1997, but he never returned to
work.
Evidence was adduced to show that Tucker's orthopedic
surgeon believed that Tucker reached maximum medical improvement
by August 4, 1997, that he suffered from a functional impairment
of 32½%, and that he was permanently and totally disabled.
The
ALJ subsequently found that Tucker was permanently and totally
occupationally disabled as of August 4, 1997, but that 30% of the
disability was noncompensable because it stemmed from the prior
work-related and nonwork-related injuries.
Thus, the ALJ awarded
Tucker benefits for a 70% permanent partial disability for a
period of 520 weeks commencing August 4, 1997.
Further, the ALJ
awarded Tucker temporary total disability (TTD) benefits for the
period from October 15, 1996, to August 4, 1997.
On appeal, the
board affirmed the ALJ’s award, and this petition for review
followed.
Appellant contends that the board erred by determining
that Tucker is entitled to recover TTD benefits stemming from the
June 1996 injury in accordance with the "whole man" theory and
this court's decision in Ingersoll-Rand Co. v. Rule, Ky. App.,
867 S.W.2d 205 (1993).
We disagree.
It is well established in Kentucky, under the "whole
man" theory, that the right to recover compensation as a result
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of a work-related permanent total disability is not diminished by
the existence of a preexisting disabling condition which did not
contribute to that subsequent disability.
Putnam, Ky., 579 S.W.2d 370, 371 (1979).
See Schneider v.
Moreover, this court
held in Rule, supra at 207, that the "whole man" theory also
applies to awards of TTD benefits if the subsequent "injury alone
is sufficient to cause" the TTD, even if the claimant is also
found to have suffered a permanent total disability due to the
combination of the most recent work-related injury and a
preexisting disability.
A review of Rule shows that the underlying facts are
parallel to those in the instant action.
The claimant in Rule
was found to be totally disabled as the
result of a work-related injury she suffered
on January 19, 1990, causing 85 percent
disability in combination with a 15-percent
active disability from a 1976 work-related
injury. After the 1990 injury, she returned
to work on April 25, 1990, and continued to
work until October 11, 1990. In November
1990, she underwent lumbar disk surgery,
reaching her maximum medical improvement in
April 1991, but was never able to return to
work. The ALJ determined that the claimant
was permanently totally disabled as of April
11, 1991, due to her current injury and her
preexisting active disability. The ALJ also
awarded temporary total disability benefits
due to the subsequent injury alone from
January 25, 1990, until the claimant returned
to work on April 25, 1990, and for the period
of time from October 11, 1990, to April 11,
1991.
Id. at 206.
Here, as in Rule, Tucker returned to work for
several months after his injury, but he then became unable to
work even after undergoing surgery, and the ALJ determined that
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he was permanently and totally disabled.
Tucker therefore was
awarded TTD benefits for the period between his last date of work
and the date of his maximum medical improvement, as well as
benefits for permanent partial disability.
Appellant asserts that the ALJ should have reached a
different result based on the precedents established in Young v.
Johnson County Board of Education, Ky., 479 S.W.2d 638 (1972),
Allied Corporation v. Hornsby, Ky. App., 661 S.W.2d 480 (1983),
and Land v. Peabody Coal Co., Ky. App., 619 S.W.2d 501 (1981).
Appellant argues that the ALJ and the board erred both by failing
to find that Tucker's last day of work was the date of the onset
of his permanent total disability, and by finding that he was
entitled to TTD benefits between October 1996 and August 1997.
However, as noted in Rule, supra at 206, the cases cited by
appellant are factually distinguishable from both Rule and the
instant action because none of the cited cases indicate that
evidence existed to show that any of the claimants had a final
injury which was "sufficient alone to have caused a temporary
period of total disability."
Here, by contrast, probative evidence was adduced to
show that Tucker's prior disabling condition was dormant before
the 1996 injury, that Tucker was able to work full time prior to
the 1996 injury, and that the 1996 injury necessitated the
subsequent surgery.
We cannot agree with appellant's contention
that such evidence was insufficient to support a finding that the
1996 injury would have resulted in an award of TTD even if a
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prior partial disability did not exist.
Moreover, although
appellant complains on appeal that the ALJ failed to make
specific findings of fact regarding the "whole man" theory in
awarding TTD benefits, no such objection was timely raised below,
and therefore any such failure to make findings was waived.
Cf.
Eaton Axle Corp. v. Nally, Ky., 688 S.W.2d 334 (1985).
The board's opinion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR JAMES L. TUCKER:
John C. Morton
Samuel J. Bach
Henderson, KY
Max S. Hartz
Owensboro, KY
BRIEF FOR SPECIAL FUND:
David W. Barr
Louisville, KY
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