HON. ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND v. GLENN O. MORGAN; COSTAIN COAL, INC. (NOW LODESTAR ENERGY, INC.); HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
OCTOBER 26, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000763-WC
HON. ROBERT L. WHITTAKER,
DIRECTOR OF SPECIAL FUND
APPELLANT
ON REMAND FROM KENTUCKY SUPREME COURT
(2000-SC-001018-WC)
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-95-23949
v.
GLENN O. MORGAN;
COSTAIN COAL, INC. (NOW LODESTAR ENERGY, INC.);
HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION1
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, McANULTY, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
The Special Fund petitions for a review of a
decision of the Workers’ Compensation Board which reversed the
Administrative Law Judge and remanded for calculation of the
credit (pursuant to KRS 342.125(5)(b) and not pursuant to
Whittaker v. Rowland, Ky., 998 S.W.2d 479 (1999)) to be granted
for a previous settlement.
1
We affirm the Board on the grounds
On October 20, 2000, we dismissed the appeal as having been
taken from an interlocutory order. By opinion rendered
August 23, 2001, our Supreme Court (2000-SC-1018-WC) remanded the
case for a decision on the merits.
that KRS 342.125(5)(b) applies to pneumoconiosis awards, whereas
Rowland applies to injury awards.
Glenn O. Morgan was a coal miner who settled a claim
for coal worker’s pneumoconiosis based on tier II benefits.
The
claim was later reopened due to an increase in pulmonary
impairment.
The ALJ ultimately determined that Morgan was
totally occupationally disabled and awarded increased benefits
without credit for the previous award.
The last Board opinion
rendered February 25, 2000, agrees with the award, but reversed
on the credit issue for the previous settlement and remanded to
the ALJ for calculation of credit for the previous settlement
under KRS 342.125(5)(b).
The Fund’s argument is that the credit must be
calculated under Rowland, rather than under KRS 342.125(5)(b).
We disagree.
The methodology adopted in Rowland requires that
the ALJ determine the claimant’s actual occupational disability
at the time of settlement which may be different than that
estimated or compromised in the settlement.
After determining
actual occupational disability, the ALJ would then allow the
employer and the Fund credit for what payments would have been
for actual partial disability, regardless of the dollar amount
paid under the settlement.
(As the Rowland case pointed out, the
rates and limitations on benefits for partial and total
disability are different.)
Rowland dealt with an occupational injury and KRS
342.730(1)(a), (b), (c), and (d) benefits.
KRS 342.730 generally
covers benefits for both occupational injury and occupational
-2-
diseases.
KRS 342.125 covers reopenings.
KRS 342.125(4) deals
with credit on all awards to the extent that sums previously paid
cannot be altered, although the previous award may be ended,
diminished or increased.
However, KRS 342.125(5) is specific and
only deals with occupational pneumoconiosis, allowing reviews of
previous awards and statutorily applying a formula for credit for
prior benefits.
KRS 342.125(5)(b).
There is no statutory credit
formula for injury awards or other occupational disease awards.
That fact distinguishes Rowland from our case.
Rowland does not
cover the pneumoconiosis statutory formula in KRS 342.125(5)(b).
Since we do have a statutory formula for occupational
pneumoconiosis and that statute is unambiguous, we must apply the
statute (credit) as written.
Griffin v. City of Bowling Green,
Ky., 458 S.W.2d 456 (1970); Lincoln County Fiscal Court v. Dept.
of Public Advocacy, Ky., 794 S.W.2d 162 (1990); Commonwealth v.
Harrelson, Ky., 14 S.W.3d 541 (2000).
For the foregoing reasons, the opinion of the Workers’
Compensation Board is affirmed and the matter remanded to the ALJ
for the calculation of credit - pursuant to KRS 342.125(5)(b) for benefits previously paid.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, GLENN O.
MORGAN:
John Burrell
Frankfort, Kentucky
John S. Sowards, Jr.
Lexington, Kentucky
-3-
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