ROBERT L. WHITTAKER, Director of SPECIAL FUND v. DONALD PRATER; PHELPS RESOURCES, INC., D/B/A BLACKFIELD COAL COMPANY, INC.; IRENE STEEN, Administrative Law Judge; ISLAND FORK CONSTRUCTION COMPANY; and WORKERS' COMPENSATION BOARD
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RENDERED:
November 19, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-000316-WC
ROBERT L. WHITTAKER,
Director of SPECIAL FUND
v.
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-00404
DONALD PRATER; PHELPS RESOURCES, INC.,
D/B/A BLACKFIELD COAL COMPANY, INC.;
IRENE STEEN, Administrative Law
Judge; ISLAND FORK CONSTRUCTION COMPANY;
and WORKERS’ COMPENSATION BOARD
AND
APPELLANT
APPELLEES
NO. 1999-CA-000320-WC
PHELPS RESOURCES D/B/A
BLACKFIELD COAL COMPANY, INC.
APPELLANT
v.
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-97-00404
DONALD PRATER; ISLAND FORK
CONSTRUCTION COMPANY; IRENE STEEN,
Administrative Law Judge;
ROBERT WHITAKER, Director of SPECIAL
FUND; and WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING IN PART, REVERSING IN PART
AND REMANDING WITH DIRECTIONS
** ** ** ** **
BEFORE:
HUDDLESTON, BUCKINGHAM and SCHRODER, Judges.
HUDDLESTON, Judge:
Phelps Resources, Inc., d/b/a Blackfield Coal
Company, Inc. (Blackfield), seeks review of a decision of the
Workers’ Compensation Board.
The issues presented in Blackfield’s
petition are: (1) whether the Administrative Law Judge erred by
reopening Donald Prater’s 1985 and 1986 injury claims against
Blackfield; (2) whether the ALJ’s finding that Prater’s condition
was the result of an exacerbation of his previous injuries was
supported by substantial evidence; and (3) whether the Board erred
in awarding Prater compensation for 100% occupational disability.
Robert L. Whittaker, as Director of the Special Fund, also filed a
petition to review the decision of the Board.
The Special Fund
contests the Board’s award and argues that the Board exceeded its
authority by granting relief in excess of that requested by Prater.
In October 1985, Prater, an underground coal miner,
injured his back in the course of his employment at Blackfield.
As
a result of his injury and subsequent surgery, Prater filed a claim
with the Kentucky Department of Workers’ Claims (the Department).
Prater ultimately settled his claim for 17% permanent partial
disability.
Prater then returned to work for Blackfield and
injured his back again in October 1986.
Prater endured a second
surgery and filed another claim with the Department, which was
later settled for 20% permanent partial disability.
-2-
In 1993,
Prater
received
a
third
settlement
of
5%
permanent
partial
disability due to a neck injury sustained while working for B & G
Mining.
Finally, in 1996, Prater suffered a back injury while
riding in a scoop bucket in the course of his employment with
Island Fork Construction Company.
As a result of the incident,
Prater filed an application for adjustment of claim with the
Department in February 1997.
In response, Island Fork filed a motion to consolidate
the claim with Prater’s 1985 and 1986 claims and a motion to join
Blackfield as a party defendant.
At the same time, Prater filed a
motion to reopen the 1985 and 1986 claims against Blackfield.
After a hearing, the ALJ found Prater’s condition to be the result
of an exacerbation of his previous injuries rather than a new
injury; his occupational disability had increased to 100%; and even
though he settled the 1985 and 1986 claims for a total of 37%
permanent partial disability, his prior occupational disability was
actually 50%. The ALJ awarded Prater compensation for the increase
in his occupational disability.
Blackfield appealed the ALJ’s
opinion and award to the Board.
Prater cross-appealed on the
grounds that the ALJ had incorrectly calculated his disability
award.
On
January
19,
1999,
the
Board
affirmed
the
ALJ’s
findings that Prater did not suffer a new injury in the 1996
incident; that Prater’s occupational disability had increased and
he was now totally disabled; and that it was proper to reopen the
1985 and 1986 claims.
As for Prater’s cross-appeal, the Board
reversed the ALJ’s disability award and remanded for an award
-3-
consistent with the finding that Prater was 100% occupationally
disabled.
This appeal followed.
The standard this Court employs when reviewing a workers'
compensation decision is set forth in Western Baptist Hosp. v.
Kelly, Ky., 827 S.W.2d 685, 687 (1992):
The [Workers’ Compensation Board] is entitled to the same
deference for its appellate decisions as we intend when
we exercise discretionary review of Kentucky Court of
Appeals decisions in cases that originate in circuit
court.
The function of further review of the [Board] in
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.
Kentucky Revised Statute (KRS) 342.125(1)(d) allows for
the reopening and review of any award or order if there is a
"[c]hange of disability as shown by objective medical evidence of
worsening or improvement of impairment due to a condition caused by
the injury since the date of the award or order."
substantial
evidence
to
support
the
ALJ’s
The Board found
determination
Prater’s occupational disability had increased.
that
Specifically, the
Board pointed to Dr. Joseph Rapier’s medical evaluations of Prater.
Dr. Rapier examined Prater after his 1986 injury and gave
him a functional impairment rating of 20%.
Prater
again
in
1998,
and
using
the
Dr. Rapier examined
same
American
Medical
Association guidelines as before concluded that Prater’s impairment
-4-
rating had increased to 21.5%.
Blackfield suggests that the
increase in Prater’s impairment rating can be explained by the
subjective nature of the range of motion test.
As Dr. Rapier
explained, the test does have a "subject component" to the extent
that one must "assume the patient is doing the best he can."
What
Blackfield wants this Court to assume is that Prater was not
performing to the best of his ability during the evaluation.
question
can
be
properly
characterized
as
one
involving
This
the
credibility of the witness, and it is well established that the
duty of weighing the evidence and assessing the credibility of
witnesses is placed squarely at the feet of the ALJ.
Tipton,
Ky.,
862
S.W.2d
308
(1993);
Smyzer
v.
Square D v.
B.F.
Goodrich
Chemical, Ky., 474 S.W.2d 367 (1971).
Next, Blackfield argues that the 1996 incident caused a
new injury rather than an exacerbation of Prater’s 1985 and 1986
injuries.
We disagree.
Dr. O.M. Patrick examined Prater in March
1988 and again in May 1997 and opined that the 1996 incident "did
produce an exacerbation of . . . his pain from his pre-existing
problem."
In review, the Board relied on the testimony of Dr.
Patrick and Dr. Robert Goodman, who found no permanent harmful
change was caused by the 1996 incident.
This Court does not
believe the Board’s assessment of the evidence was so flagrant as
to cause a gross injustice.
Western Baptist Hosp. v. Kelly, supra
at 687.
Finally, Blackfield and the Special Fund argue that the
Board
awarded
Prater
compensation
at
an
incorrect
rate.
In
Prater’s cross-appeal to the Board, he argued that he was entitled
-5-
to be compensated for the whole of his disability, less any noncompensable
difference
disability,
between
the
which
two
he
prior
calculated
to
settlements
be
with
13%
(the
Blackfield
totaling 37% and his actual prior occupational disability found by
the ALJ to be 50%).
that
Prater
was
The Board reversed the ALJ’s award and found
entitled
to
be
compensated
for
his
total
disability.
We believe that the Board erred in awarding Prater
compensation for 100% occupational disability. While we agree with
the Board that Fleming v. Windchy, Ky., 953 S.W.2d 604 (1997), and
Campbell v. Sextet Mining Co., Ky., 912 S.W.2d 25 (1996), stand for
the proposition that an injured worker should be compensated for
the full amount of his disability, we must also be cognizant of the
importance
of
encouraging
settlements
between
employers
employees, Newberg v. Weaver, Ky., 866 S.W.2d 435 (1993).
initial
opinion
and
award,
the
ALJ
found
that
and
In her
Prater’s
"occupational disability subsequent to the 1985 and 1986 injuries
actually resulted in an occupational disability of 50%."
In her
order on petition for reconsideration, the ALJ clarified this
finding in light of Prater’s 1993 settlement of 5% permanent
partial disability by stating:
Although specifically not itemized in my earlier finding
of an occupational disability of 50% immediately prior to
the 1996 incident, it is, however, my finding, to be more
explicit at this time, that the 5% was indeed included in
the overall 50% occupational disability, as this 1993
injury also had affected Plaintiff’s neck and back.
-6-
Thus, there is an 8% difference between Prater’s three settlements
of 17%, 20% and 5% and the finding that he was 50% disabled
immediately prior to the 1996 incident.
In one or more of the
settlements, Prater settled for less than his actual occupational
disability.
There is no question that re-openings should be used
to increase a claimant’s benefits upon a finding of a worsening of
their condition; however, re-opening a settlement and awarding the
claimant
compensation
for
occupational
disability
that
he
negotiated away in a "bad bargain" would certainly undermine the
purpose of entering into a settlement to begin with.
Accordingly,
Prater is not entitled to recover the 8% occupational disability
that he bargained away, but he should be compensated for the
remaining 92%.
Prater filed his motion on July 25, 1997, and is entitled
to compensation for 92% of his permanent total disability from the
time he made his motion.
Whittaker v. Allen, Ky., 966 S.W.2d 956,
1958 (1998); Hayden v. Elkhorn Coal Corp., Ky., 238 S.W.2d 138
(1951); Lincoln Coal Co. v. Watts, Ky., 275 Ky. 130, 120 S.W.2d
1026 (1938).
Blackfield is also entitled to a credit for the
amount paid under the terms of the 1985 and 1986 settlements. The
record reveals the terms and conditions of the 1985 settlement, but
the record does not contain the 1986 settlement. Therefore, we
remand this case for a calculation of Blackfield’s credit in
accordance with the principles announced in Hayden v. Elkhorn Coal
Corp., supra.
-7-
For the reasons stated above, the Board’s decision is
affirmed in part and reversed in part, and this case is remanded to
the Board for proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR ROBERT L. WHITTAKER,
Director of SPECIAL FUND:
BRIEF FOR DONALD PRATER:
Robert J. Greene
Pikeville, Kentucky
Joel D. Zakem
Louisville, Kentucky
BRIEF FOR PHELPS RESOURCES,
INC.:
Jeffrey D. Damron
Prestonsburg, Kentucky
-8-
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