BIG BOTTOM COAL COMPANY, INC. v. WILLIAM B. BALL, JR; ROBERT L. WHITAKER, DIRECTOR OF SPECIAL FUND; HON. DONNA H. TERRY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 28, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000806-MR
BIG BOTTOM COAL COMPANY, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 90-33845 & 91-46439
v.
WILLIAM B. BALL, JR;
ROBERT L. WHITAKER, DIRECTOR
OF SPECIAL FUND;
HON. DONNA H. TERRY,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, KNOPF, AND McANULTY, JUDGES.
KNOPF, JUDGE:
Big Bottom Coal Company, Inc. (Big Bottom Coal),
has petitioned for review of an opinion and order of the Workers’
Compensation Board (Board).
The Board affirmed an opinion and
award on reopening by the Administrative Law Judge (ALJ) based
upon a finding that the appellee, William B. Ball, Jr., has a
total and permanent occupational disability.
Big Bottom Coal
argues that the ALJ’s finding was not supported by substantial
evidence, and that the 1996 amendment to KRS 342.730(4) required
that any benefits awarded should have terminated on the date Ball
became eligible for Social Security retirement benefits.
Finding
no support for either contention, we affirm.
Ball’s past work experience consists primarily of
employment in underground coal mines and as an assembly line
worker.
In 1990, Ball suffered an injury to his low back while
in the employ of Big Bottom Coal.
since this time.
He has not returned to work
Following this incident, he filed an
application for adjustment of injury claim, alleging injury to
his low back and a secondary psychological overlay.
At the same
time, he filed an application seeking benefits due to his coal
workers pneumoconiosis.
In 1992, Ball was awarded retraining incentive benefits
(RIB) pursuant to KRS 342.732(1)(a).
In addition, the ALJ in
that proceeding further determined that Ball was suffering from
an occupational disability of 40%.
In making this ruling, the
ALJ determined that Ball probably would be unable to return to
work in underground coal mines.
However, the ALJ concluded that
there were some jobs in the local labor market which Ball could
perform within his restrictions.
On February 14, 2000, Ball filed a motion to reopen his
claim.
After reviewing the testimony and medical evidence, the
ALJ rendered an opinion and award in Ball’s favor, finding that
he was now totally occupationally disabled.
On appeal, the Board
concluded that this finding was supported by substantial
evidence.
Furthermore, both the ALJ and the Board found that
Ball’s award is governed by the law in effect on the date of the
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injury.
Consequently, the ALJ and the Board each concluded that
Ball’s award was not affected by the 1996 amendment to KRS
342.730(4).
Big Bottom Coal now seeks review by this Court.
Because Ball bore the burden of proof on reopening and
he prevailed on the claim before the ALJ, the determinative issue
is whether there was substantial evidence to support the award1.
After thoroughly reviewing the evidence and applying the
applicable law, the Board affirmed the ALJ on this issue.
This
court’s function in workers' compensation cases is to intervene
only if there has been a flagrant misconception of the evidence
resulting in gross injustice.2
Our review of the evidence does
not indicate that the Board committed reversible error when it
concluded that the ALJ had relied on evidence of substance in
making her determination.
Big Bottom Coal next argues that the current version of
KRS 342.730(4) precludes any further award of benefits to Ball.
In 1996, the General Assembly amended KRS 342.730(4) to provide
that "[a]ll income benefits payable . . . shall terminate as of
the date upon which the employee qualifies for, normal old-age
Social Security retirement benefits. . . ."
Since Ball has
become eligible for Social Security retirement benefits, Big
Bottom Coal contends that he was not entitled to any additional
award on reopening.3
1
Special Fund v. Francis, Ky., 708 S.W.2d 641 (1986).
2
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685 (1992).
3
Although Big Bottom Coal raised this issue before the ALJ and the Board, it has yet to
(continued...)
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The general rule in workers compensation cases is that
the law in effect on the date of the injury controls the rights
of the parties with regard to the claim.4
As the Board noted,
there is no evidence that the legislature intended for the 1996
amendment to KRS 342.730(4) to apply retroactively.
Furthermore,
our Supreme Court has held that the prior version of KRS
342.730(4), which provided for a tier-down of benefits when a
claimant begins to receive social security retirement benefits,
did not apply to claims arising from an injury which occurred
before that statute’s effective date.5
Therefore, the ALJ and
the Board correctly concluded that the 1996 version of KRS
342.730(4) does not affect the amount of Ball’s reopened award.
Accordingly, the opinion and order of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
WILLIAM B. BALL, JR:
A. Stuart Bennett
Jackson & Kelly, PLLC
Lexington, Kentucky
R. Roland Case
Pikeville, Kentucky
BRIEF FOR APPELLEE
SPECIAL FUND OF KENTUCKY:
John Burrell
Frankfort, Kentucky
3
(...continued)
cite any authority supporting its position that KRS 342.730(4) was intended to apply
retroactively.
4
Meade v. Reedy Coal Co., Ky., 13 S.W.3d 619, 620 (2000).
5
Leeco, Inc. v. Crabtree, Ky., 966 S.W.2d 951, 953 (1998); See also Spurlin v. Adkins,
Ky., 940 S.W.2d 900, 902 (1997).
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