STEELES CREEK COAL COMPANY v. DANNY HALL; HON. W. BRUCE COWDEN, JR., ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED:
October 17, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-3460-WC
STEELES CREEK COAL COMPANY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
NO. WC-90-000283
DANNY HALL;
HON. W. BRUCE COWDEN, JR.,
ADMINISTRATIVE LAW JUDGE; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
* * * * *
BEFORE:
DYCHE, EMBERTON and GUIDUGLI, Judges.
GUIDUGLI, JUDGE.
Appellant, Steeles Creek Coal Company (Steeles
Creek) appeals from an opinion of the Workers' Compensation Board
(the Board) entered November 25, 1995, affirming in part and
reversing in part an opinion of the Administrative Law Judge
(ALJ) enterd July 23, 1996, awarding benefits to appellee, Danny
Hall (Hall).
We affirm.
Hall, a congenital deaf mute with an eighth grade
education, was hired by Steeles Creek in 1974.
He was operating
a roof bolter on September 24, 1974, when a rock fell on him.
As
a result of the rock fall, Hall's right clavicle was fractured
and he underwent surgery to repair a crushed trachea.
Following
the rock fall Hall was afraid to return to work but did not seek
psychiatric treatment.
His friends continued asking him to
return to work, and he subsequently did so after two years.
Hall was employed by Maple Ridge Mining Company (Maple
Ridge) in 1982.
On March 17, 1987, Hall refused to go to work
because he had a premonition that an accident would occur.
Coincidentally, there was a rock fall on that date which killed
one of Hall's co-workers.
Hall has not returned to work in the
coal mines since that time.
Hall filed a claim for benefits against Steeles Creek
following the 1974 accident.
His claim was resolved pursuant to
the terms of a settlement agreement approved by the Board on June
27, 1978.
Pursuant to the terms of the settlement agreement,
Hall was assigned a disability rating of 25% for his physical
injuries.
No psychiatric injury was alleged in the 1974 claim.
Hall also filed a claim for benefits against Maple
Ridge and the Special Fund in January 1990 for coal workers'
pneumoconiosis, anxiety syndrome, and post-traumatic disorder
with depression.
Evidence was introduced in support of Hall's
physical and psychiatric claims, but once again a settlement was
reached.
Pursuant to the terms of the settlement agreement which
was approved by the ALJ on November 22, 1990, Hall received a
settlement equal to an occupational disability rating of 50% with
20% apportioned to the Special Fund.
In return for the
settlement, Hall agreed to forever waive "his rights to reopen on
the grounds of worsening of condition on both his occupational
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disease claim and psychological claim."
The settlement agreement
further provided that the settlement embodied "the complete
agreement of the parties, and there are not [sic] other
agreements, warranties, or promises which extend beyond the face
hereof."
On June 29, 1994, Hall filed a motion to reopen his
1974 claim against Steeles Creek alleging a worsening of his
condition and an increase in occupational disability.
In support
of his motion to reopen, Hall attached medical reports pertaining
to his psychiatric condition from Dr. Max Lurie (Dr. Lurie) and
the depositions of Dr. Donald George (Dr. George) and Dr. William
Weitzel (Dr. Weitzel).
This was the same evidence which was
introduced in support of Hall's claim against Maple Ridge.
Dr. Lurie saw Hall on July 26, 1989.
He indicated that
during the two years following the 1974 accident, Hall was
"anxious, apprehensive, scared [and] frightened" and would not
return to work.
Hall eventually returned to work, but began
having premonitions of another accident in 1986.
His feelings
intensified following the 1987 incident, and were accompanied by
frequent and recurrent nightmares and hyperventilation.
Lurie diagnosed post-traumatic syndrome with anxiety.
Dr.
further noted:
Dr. Lurie
Although apparently untreated at the time,
this neurosis apparently developed after
being severely injured in a rock fall in 1974
and interfered with his ability to return to
mining for about two years. Currently this
neurosis has resulted in a total occupational
disability and a 30% psychiatric impairment
from a body functional standpoint under the
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1977 A.M.A. guidelines. Stated differently,
he has a 20% psychiatric impairment stemming
from a pre-existing, dormant and
non-disabling emotional condition which was
triggered into disabling reality by the
accident in March 1987. In addition to this,
there is a 10% psychiatric impairment which
is directly and causally related to the
accident of March 1987.
Dr. George saw Hall on March 2, 1990.
His summary of
Hall's symptoms and psychiatric condition was similar to that of
Dr. Lurie.
Dr. George also diagnosed post-traumatic stress
disorder, and further testified:
This problem has gone back probably to the
first injury in 1974 and gradually got worse
and finally has reached the point that he
became quite phobic and fearful and having
more premonitions and nightmares and that
lead to the final refusal to go back to work
after eleven years in the mines. The fact
that he is a deaf-mute has complicated this
picture and must be considered a pre-existing
and dormant problem since he did have
difficulty in relating to people and
communicating his feelings and that sort of
thing. In my judgment he is probably about
thirty percent disabled to the body as a
whole on the basis of his current posttraumatic stress problem and about half of
this is due to the pre-existing problem of
his being a deaf-mute.
Dr. George also testified that because Hall was deaf and mute, he
would not be able to communicate his fears and anxieties as a
normal person would.
He attributed his diagnosis of
post-traumatic stress disorder to the 1974 accident, "the arousal
of the pre-existing condition, and subsequent employment up to
the time he stopped work."
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Dr. Weitzel saw Hall on June 19, 1990.
He diagnosed
post-traumatic stress disorder and borderline intellectual
functioning.
Dr. Weitzel further stated:
The events of the 1974 seem to be very
traumatic and to have involved an almost
life-threatening injury. This gentleman was
off work for a considerable period of time
and then worked with difficulty the
subsequent 11 years. The death of his friend
in 1987 after a dream which he takes to be a
premonition aroused further the already
pre-existing, active Post Traumatic Stress
Disorder symptoms to such an extent that he
is now afraid to confront his fear and return
to his former employment.
*
*
*
I believe this gentleman has a 25 percent
impairment rating, using the 1977 AMA
guidelines, because of his anxiety disorder
and, specifically, his Post Traumatic Stress
Disorder. I believe that 15 percent of that
impairment is due to the pre-existing, active
Post Traumatic Stress Disorder which he was
regularly struggling with while emplolyed
(sic). Proof of that was that he was being
treated for anxiousness and was regularly
missing work and regularly troubled by
nightmares even prior to the incident of
1987. I think that this pre-existing, active
condition was further aggravated to the
extent of 10 percent by the untimely death of
his friend following a dream in March of
1987.
When asked if Hall's physical handicaps contributed to his
psychiatric problems, Dr. Weitzel indicated that due to Hall's
inability to communicate he would be more prone to develop
post-traumatic stress disorder after the 1974 accident.
Dr. Weitzel clearly felt that the 1974 accident caused the
post-traumatic stress disorder and the 1987 incident aggravated
it.
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At the hearing, Hall indicated that since 1987 he
occasionally works for his step-uncle at James Hall Builders.
His job responsibilities include "picking up" and painting.
works sporadically when he is in need of money.
He
On the average,
Hall works seven days per month.
In the opinion, order and award upon reopening dated
July 23, 1996, the ALJ held that Hall's right to reopen the 1974
claim was not waived by his settlement with Maple Ridge due to
the fact that the medical testimony established that at least
part of his psychological impairment was attributable to the 1974
accident.
The ALJ also ruled that the fact that Hall failed to
allege psychiatric disability in the 1974 claim did not preclude
raising the issue upon reopening pursuant to Fisher Packing Co.
v. Lanham, Ky., 804 S.W.2d 4 (1991).
In response to Steeles Creek's contention that Hall has
failed to show that his condition has worsened, the ALJ held that
Hall was 100% occupationally disabled as a result of the
"psychological and physical ramifications" caused by the 1974
accident.
The ALJ held pursuant to Gunderson v. City of Ashland,
Ky., 701 S.W.2d 135 (1985), that the fact that Hall occasionally
worked for his step-uncle did not negate a finding of 100%
occupationally disability.
The ALJ refused to hold that Hall's
deafness and muteness was a pre-existing active condition.
ALJ further held:
The ALJ takes judicial notice of the fact
that in File No. 90-00283, as noted
previously in this Opinion and Award,
involved a judgment for an occupational
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The
disease claim filed against Maple Ridge
Mining Company alleging coal workers'
pneumoconiosis and anxiety syndrome as well
as post-traumatic stress disorder and
depression. The parties settled for a 50%
occupational disability. The ALJ hereby
ORDERS that the defendant employer, Steeles
Creek Coal Company, receive dollar for dollar
credit for those weeks of benefits that would
overlap between the award being rendered in
1062612 on reopening and the settlement
agreement contained in 90-00283 inasmuch as
the plaintiff cannot be considered greater
than 100% occupationally disabled at any one
time.
The Board affirmed the ALJ's opinion and award, and this appeal
followed.
Steeles Creek first contends that liability for Hall's
psychological condition was settled by the terms of the 1990
settlement agreement between Hall and Maple Ridge.
Steeles Creek
points out that the evidence used by Hall on his motion to reopen
the 1974 claim was the same as that presented in his claim
against Maple Ridge and maintains that Hall's psychiatric
condition in 1974 is indistinguishable from his condition in
1987.
Steeles Creek argues that "[t]he fact that the settlement
agreement in 1990 was between Hall and Maple Ridge and the
original injury was between Hall and Steeles Creek is not
dispositive due to the inextricable intertwining of all
psychological conditions between these two employers and two
dates of injury."
Steeles Creek argues that the effect of the
ALJ's order allows a double recovery for Hall for the same
psychological condition.
We disagree.
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As pointed out by the ALJ and the Board, Steeles Creek
was not a party to the 1990 settlement agreement between Hall and
Maple Ridge.
We agree with the ALJ's statement that "any waiver
of rights to reopen contained in the [1990] settlement
agreement...applies only to the defendant employer, Maple Ridge
Mining Company, and not to Steeles Creek Coal Company[.]"
The
law clearly allows for an injured employee to reach a settlement
with one defendant and continue to maintain an action against
another defendant for its share of liability for the employee's
claim.
Newburg v. Sarcione, Ky., 865 S.W.2d 317, 329 (1993).
See also, Palmore v. Helton, Ky., 779 S.W.2d 196, 197 (1989).
Furthermore, the agreement clearly stated that aside from the
settlement between Hall and Maple Ridge, no other agreement was
contemplated by the parties.
We also disagree with Steeles Creek's contention that
Hall's psychiatric condition in 1974 is indistinguishable from
his condition in 1987.
All of the doctors who testified
regarding Hall's psychiatric problems were able to apportion
their impairment rating between the 1974 accident and his
friend's death in 1987.
Thus, the evidence does not compel a
finding that Hall's 1987 psychiatric condition is
indistinguishable from that of 1974.
Special Fund v. Francis,
Ky., 708 S.W.2d 641, 644 (1986).
As to Steeles Creek's contention that the ALJ's order
resulted in a double recovery for Hall, again the evidence shows
otherwise.
The ALJ specifically provided that Steeles Creek was
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entitled to a dollar for dollar credit for any overlap between
the award and reopening of the 1974 agreement and Hall's
settlement with Maple Ridge.
Steeles Creek also argues that Hall's psychological
claim is barred by the holding of the Kentucky Supreme Court in
Slone v. Jason Coal Co., Ky., 902 S.W.2d 820 (1995).
In Slone,
the plaintiff suffered a work-related back injury and filed for
workers' compensation and social security benefits at roughly the
same time.
While the claim for social security alleged both
physical and psychiatric injury and was accompanied by evidence
demonstrating a psychiatric impairment, a psychiatric injury was
not alleged in his workers' compensation claim.
The plaintiff
ultimately received a workers' compensation award.
Several years later, the plaintiff sought to reopen his
workers' compensation claim, alleging that a dormant mental
condition was manifesting itself as a result of the work-related
accident.
The Court held that the plaintiff could not reopen
his claim, stating "a motion to reopen cannot be based on a
condition known to the claimant during the pendency of his
original action, but which for some reason, he did not choose to
litigate."
Slone, 902 S.W.2d at 822.
The Court focused on the
fact that the plaintiff had sufficient knowledge of his
psychiatric condition which enabled him to file a social security
claim, and held that to allow the plaintiff to use the reopening
procedure to settle a claim which was known to exist at the time
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the original claim was filed but not litigated would result in
piecemeal litigation.
Id. at 821.
This case is easily distinguishable from Slone.
As
noted by the Board:
...there was no evidence that Hall's
psychological condition was known by him
during the pendency of his original claim.
In fact, the psychiatric evidence before the
ALJ compelled a contrary conclusion. While
the medical evidence from Dr. Max L. Lurie,
given July 28, 1989; Dr. Charles J.
Hieronymus given May 14, 1990; Dr. Donald I.
George given April 10, 1990; and Dr. William
Weitzel given July 2, 1990, is consistent
that Hall, following the 19974 injury, was
apprehensive about going back into the mines
and became increasingly phobic after that
accident, he was neither treated, diagnosed
or had knowledge by evidence in this record
of a psychiatric or psychological condition
related to the original 1974 injury.
The psychological medical evidence in connection with the 1974
injury was only developed during the 1989 and 1990 psychiatric
evaluations during the adjudication of Hall's claim against Maple
Ridge. This evidence supports the ALJ's determination that the
psychological condition became manifest following the original
settlement/award for his 1974 injury.
In light of the fact that Hall's psychiatric condition was
undiagnosed and untreated following the 1974 accident, the fact
that no psychiatric disability was alleged in Hall's original
application filed in the 1974 claim does not preclude raising the
issue on reopening.
See Fisher, supra.
Steeles Creek further contends that the ALJ erred in
holding that Hall's psychological and physical condition had
worsened since the 1974 injury.
After reviewing the totality of
the evidence concerning Hall's physical and psychiatric condition
contained in the record, we find that the ALJ's decision is
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supported by substantial evidence and as such is not subject to
further review or reversal.
Francis, 708 S.W.2d at 644.
Steeles Creek argues that the ALJ erred in finding Hall
to be 100% disabled in light of the fact that he occasionally
works for his step-uncle.
We note that it is well-accepted in
Kentucky that the fact that an employee who has been found to be
100% disabled is able to perform some type of work following his
injury does not negate a finding of 100% disability.
See
Gunderson v. Ashland, Ky., 701 S.W.2d 135 (1985); Yocum v. Yates,
Ky., 566 S.W.2d 796 (1978).
The evidence established that Hall's
employment is sporadic at best, and we believe that a reasonable
inference could be made that Hall would not be working at all but
for the compassionate treatment of his step-uncle.
Finally, Steeles Creek contends that the ALJ erred in
not finding that Hall's congenital deafness was a pre-existing
dormant or pre-existing active condition.
In support of its
argument, Steeles Creek relies on Hall's testimony that his
deafness kept him from working and Dr. George's testimony that
half of Hall's 30% disability rating was attributable to Hall
being deaf and mute.
Again, we disagree.
The evidence is clear that Hall was born deaf and mute.
Congenital deformities or handicaps alone are not to be treated
as disease conditions for the purposes of determining
apportionment.
Young v. Wright, Ky., 474 S.W.2d 76, 78 (1971).
Additionally, in determining whether a claimant is suffering from
an active disability, we are to consider "the degree of
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occupational disability which existed immediately prior to the
subsequent injury, without regard to the effect of the subsequent
injury."
Wells v. Bunch, Ky., 692 S.W.2d 806, 808 (1985).
There is no evidence in the record which shows that
Hall's deafness or muteness resulted in any occupational
disability prior to 1974.
Although Dr. George testified that
half of Hall's 30% impairment rating was attributable to his
deafness and muteness, it is clear that Dr. George felt that
Hall's handicaps kept him from communicating his feelings after
the 1974 accident.
Absent any evidence that Hall's deafness and
muteness caused an active disability prior to 1974, we cannot say
that the ALJ erred in finding no active disability.
Having considered the parties' arguments on appeal, the
opinion of the Board entered on November 22, 1996, is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, DANNY
HALL:
J. Gregory Allen
Riley, Walters & Damron,
P.S.C.
Prestonsburg, KY
John Earl Hunt
Sturgill & Hunt Law Offices
Prestonsburg, KY
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