STURGEON, INC. v. ERNIE MORRIS; STURGEON MINING COMPANY, INC.; J. LANDON OVERFIELD, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD
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RENDERED:
AUGUST 10, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001083-WC
STURGEON, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-63371
ERNIE MORRIS;
STURGEON MINING COMPANY, INC.;
J. LANDON OVERFIELD, ADMINISTRATIVE LAW JUDGE;
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, MILLER, AND SCHRODER, JUDGES.
MILLER, JUDGE: Sturgeon, Inc. asks us to review a decision of the
Workers' Compensation Board (Board) rendered March 31, 2000.
Kentucky Revised Statutes (KRS) 342.290.
We affirm.
In 1996, Morris simultaneously worked for Sturgeon
Mining Company, Inc. (Sturgeon Mining) and Sturgeon, Inc.
Sturgeon Mining was in the business of coal mining, and Morris
worked as a coal truck driver.
Sturgeon, Inc. was in the
business of commercial construction, and Morris worked as a “lowboy” truck driver.
The companies share a board of directors and
officers.
When Morris worked for Sturgeon Mining, he was paid
per load of coal transported.
When he worked for Sturgeon, Inc.,
he was paid hourly.
In October 1997, while working for Sturgeon, Inc.,
Morris fell from the low-boy truck and sustained an injury to his
lower back.
On December 21, 1998, he filed a claim against both
Sturgeon, Inc. and Sturgeon Mining as a result of this injury.
An arbitrator determined Morris' employer at the time of the
accident to be Sturgeon, Inc.
The case was then transferred to
an Administrative Law Judge (ALJ).
2000.
A hearing was held on July 7,
At the hearing, Patricia Cable, secretary and office
manager for Sturgeon, Inc. and Sturgeon Mining, testified that
Morris was working for Sturgeon Mining at the time of his injury.
A letter from Everett Currier, corporate secretary for both
Sturgeon, Inc. and Sturgeon Mining, was submitted by agreement of
the parties.
Currier's letter stated Morris was involved in a
mining-related activity when he fell from the low-boy.
The ALJ
affirmed that Morris' employer was Sturgeon, Inc.
As to Morris' injuries, the ALJ considered evidence
from doctors who treated Morris.
Dr. Vicky Young, Morris'
primary physician, assigned a ten percent impairment rating and
imposed several physical restrictions.
Dr. Leon Ravvin, who
performed surgery on Morris, likewise imposed several
restrictions.
Dr. Ravvin attributed half of Morris' impairment
to the natural aging process.
Dr. Craig Cartia, a pain
specialist, assigned a ten percent impairment rating, and like
Dr. Ravvin, attributed half of Morris' impairment to aging.
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Morris also suffered depression as a result of his physical
injuries and was seen by Dr. Stuart Cooke.
Dr. Cooke assigned a
fifteen percent impairment rating as a work-related injury.
From
the evidence, the ALJ concluded Morris was totally disabled.
A
Petition for Reconsideration by Sturgeon, Inc. was overruled.
appeal to the Board followed.
An
The Board affirmed the ALJ by
opinion rendered March 31, 2000, thus precipitating our review.
Sturgeon, Inc. asserts the Board erred by determining
that statements made by a Sturgeon Mining employee and a Sturgeon
Mining officer were not judicial admissions.
Determining the
statements to be judicial admissions would have meant Morris was
working for Sturgeon Mining when he fell from the low-boy.
A
judicial admission is:
[A]
the
the
the
formal act of a party (committed during
course of a judicial proceeding) that has
effect of removing a fact or issue from
field of dispute . . . .
R. Lawson, The Kentucky Evidence Law Handbook, § 8.15 (3d ed.
1993); see also Sutherland v. Davis, 286 Ky. 743, 151 S.W.2d 1021
(1941).
[U]nless all such circumstances and
conditions give rise to the probability of
error in the party's own testimony, he should
not be permitted to avert the consequences of
his testimony by the introduction of, or
reliance on, other evidence in the case.
(Emphasis added.)
Id at 1024.
caution.
The rule of judicial admissions must be applied with
See Bell v. Harmon, Ky., 284 S.W.2d 812 (1955).
The Board noted that since Cable and Currier worked for
both Sturgeon Mining and Sturgeon, Inc., a conflict of interest
existed.
As such, the Board held that there was a sufficient
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enough "probability of error" to prevent use of the statements as
judicial admissions.
We do not believe the Board erred in
rejecting the admissions that would have placed liability upon
Sturgeon Mining in lieu of Sturgeon, Inc.
Next, Sturgeon, Inc. asserts that the ALJ erred in
finding Morris totally disabled without proof of complete and
permanent inability to perform any type of work.
Specifically,
Sturgeon, Inc. asserts that the Board improperly affirmed the ALJ
under the factors for finding disability set out in Osborne v.
Johnson, Ky., 432 S.W.2d 800, 803 (1968), which reads:
(1) What kind of work normally available on
the local labor market was the man capable,
by qualifications and training, of performing
prior to injury; (2) what were the normal
wages in such employment; (3) what kind of
work normally available on the local labor
market is the man capable of performing since
his injury; and (4) what are the normal wages
in such employment?
Sturgeon, Inc. claims the 1996 revision of the workers'
compensation law overruled Osborne and limits the ALJ to the
definition in KRS 342.0011(11)(c), which reads:
“Permanent total disability” means the
condition of an employee who, due to an
injury, has a permanent disability rating and
has a complete and permanent inability to
perform any type of work as a result of an
injury. . . .
This issue was addressed by the recent Kentucky Supreme Court
case, McNutt Construction/First General Services v. Scott, Ky.,
40 S.W.3d 854, 859 (2001), from which we quote:
Pursuant to the 1996 amendments, awards for
permanent, partial disability are a function
of the worker's AMA impairment rating, the
statutory multiplier for that rating, and
whether the worker can return to the pre-4-
injury employment; thus, it is clear that the
ALJ has very limited discretion when
determining the extent of a worker's
permanent, partial disability. See, KRS
342.730(1)(b) and (c). However, determining
whether a particular worker has sustained a
partial or total occupational disability as
defined by KRS 342.0011(11) clearly requires
a weighing of the evidence concerning whether
the worker will be able to earn an income by
providing services on a regular and sustained
basis in a competitive economy. For that
reason, we conclude that some of the
principles set forth in Osborne v. Johnson,
supra, remain viable when determining whether
a worker's occupational disability is partial
or total. (Citations omitted.)
In the case sub judice, the medical evidence in the
record clearly indicates Morris suffers severe physical and
psychological limitations.
Additionally, Morris' own testimony
sets out his various difficulties.
As such, we perceive no error
on the part of the Board in affirming the ALJ under Osborne.
Sturgeon, Inc.'s final assignment of error is that the
Board erred in affirming the ALJ's refusal to exclude from
compensation benefits that portion of Morris' condition
attributed to the natural aging process.
S.W.3d 854, as directly on point.
We view McNutt, 40
In McNutt, medical evidence
indicated one-half of the claimant's impairment was caused by a
dormant degenerative condition, which was part of the natural
aging process.
The Court held that disability resulting from
arousal of a prior dormant condition by a work-related injury is
compensable within the definition of “injury” in KRS 342.0011(1),
even when it is caused by the natural aging process.
In the
instant case, the record indicates one-half of Morris' impairment
was attributable to the natural aging process.
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The medical
evidence revealed, however, that the condition had been dormant.
Both treating doctors testified they would have assigned a preinjury functional impairment rating of zero.
McNutt to be dispositive.
Thus, we believe
We are of the opinion the ALJ did not
err in awarding workers' compensation benefits to Morris.
Upon
the whole, we perceive no error on the part of the Board in
affirming the ALJ.
For the foregoing reasons, the opinion of the Workers'
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, ERNIE
MORRIS:
Ronald J. Pohl
Lexington, Kentucky
John Cornett
Georgetown, Kentucky
BRIEF FOR APPELLEE, STURGEON
MINING COMPANY, INC.:
W. Barry Lewis
Hazard, Kentucky
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