W.M.N. COAL v. ROGER D. BELL, Deceased; DIANE S. BELL, Widow; THE SPECIAL FUND, HONORABLE ROBERT E. SPURLIN, Director; HONORABLE IRENE STEEN, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
November 21, 1997; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-0269-WC
W.M.N. COAL
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-86-38107
ROGER D. BELL, Deceased;
DIANE S. BELL, Widow; THE
SPECIAL FUND, HONORABLE ROBERT
E. SPURLIN, Director;
HONORABLE IRENE STEEN,
Administrative Law Judge;
and WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
**
BEFORE:
**
**
**
ABRAMSON, KNOPF, and MILLER, Judges.
MILLER, JUDGE:
W.M.N. Coal, Inc. (WMN), asks us to review an
opinion of the Workers' Compensation Board (board) rendered January
3, 1997.
Ky. Rev. Stat. (KRS) 342.290.
We affirm.
On November 19, 1986, Roger D. Bell (Roger), sustained a
work-related injury while in the employ of WMN.
resulted in blindness to his left eye.
This injury
He settled his claim with
WMN on November 5, 1987, wherein it was agreed that he suffered a
30% permanent partial disability.
In March 1989, Roger reopened
his claim and ultimately settled for an increase of 17.38% in his
disability rating.
Starting in 1990, Roger was hospitalized for psychiatric
problems at Charter Ridge Hospital (Charter Ridge) on four separate
occasions.
Consequently, WMN voluntarily paid him temporary total
disability (TTD) payments until he died on November 14, 1993.
On February 22, 1995, some fifteen months after Roger's
death, Diane S. Bell (Diane), his widow, filed a motion to reopen.
She claimed that Roger had been totally and permanently disabled at
the time of his death.
The ALJ sustained the motion, and on July
23, 1996, she found that Roger was totally and permanently disabled
at the time of his death "due to his eye injury and psychiatric
disabilities as a result therefrom . . . ."
The ALJ further found
that Diane was entitled to "receive benefits as if her husband had
been declared 100% occupationally disabled at the time of his
death."
WMN appealed to the board, which, in turn, affirmed the
ALJ's decision.
This appeal followed.
WMN maintains that because Roger's disability was nonwork related, Diane was not entitled to benefits. WMN specifically
sets forth the following arguments:
1) that Roger's disability,
specifically his headaches, was caused by a condition referred to
as "obstructive sleep apnea"; 2) that Roger's disability was caused
by the combination of his alleged drug problem and his obstructive
sleep apnea; and 3) that Roger's disability was caused by his own
reckless behavior.
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Under the precepts of Western Baptist Hospital v. Kelly,
Ky., 827 S.W.2d 685 (1992), we believe the board committed no error
in holding that there was substantial evidence on which to base the
ALJ's decision that Roger's disability was work related.
Dr.
Bunch, Roger's treating psychiatrist since 1988, testified that
Roger's psychological problems rendered him totally disabled at the
time of his death. Dr. Bunch believed these problems resulted from
Roger's 1986 eye injury.
Drs. Pursley and Kennedy testified that
Roger was 100% disabled as a result of his headaches and that his
headaches were caused by his eye injury.
We believe this evidence
sufficient to support the ALJ's conclusion that Roger's permanent
total disability was caused by the 1986 work-related injury.
WMN also makes several arguments concerning the cause of
Roger's death, found by the ALJ to be caused "by sleep apnea in
conjunction with narcotics with a breathing depressant feature." We
are urged to apply KRS 342.610(3) to the facts at hand.
KRS
342.610(3) reads:
Liability for compensation shall not apply
where injury, occupational disease, or death
to the employee was proximately caused primarily by his intoxication or by his willful
intention to injure or kill himself or another.
It is our opinion that KRS 342.610(3) relates only to the compensable condition in question and has no application to the case at
bar.
See Advance Aluminum Company v. Leslie, Ky., 869 S.W.2d 39
(1994).
The compensable condition is not Roger's death but rather
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his eye injury and related headaches and psychological problems.
Thus, cause of death is not herewith relevant.
WMN next maintains that, contrary to the ALJ's decision,
Roger's condition had not worsened, pursuant to KRS 342.125, and
his percentage of disability had not changed.
On this issue, we
agree with the board that there was substantial evidence supporting
the ALJ's findings. Roger worked sporadically following his second
settlement with WMN, but after five months could not continue.
Furthermore,
beginning
in
1990,
he
separate occasions at Charter Ridge.
was
hospitalized
on
four
We note also the testimonies
of Drs. Pursley and Kennedy who opined that Roger was 100% disabled
at the time of his death.
We believe this evidence sufficient to
support the ALJ's finding.
WMN contends that Diane did not timely revive the action
herein as a motion to reopen should have been made within a year of
Roger's death.
Diane waited fifteen months after Roger's death to
move to reopen.
Pursuant to KRS 395.278, an application to revive
an action must be made within one year after the death of a party.
This is a statute of limitation.
S.W.2d 70 (1989).
This time limitation is mandatory unless waived
by the opposing party.
S.W.2d 661 (1972).
Snyder v. Snyder, Ky. App., 769
See id. and Young v. Tackett, Ky., 481
Failure to assert it as an affirmative special
defense constitutes waiver.
See id.; Ky. R. Civ. P. 8.03.
-4-
803
Ky.
Admin.
Regs.
(KAR)
25:011
§5(3)1
states
as
follows:
If any defendant in an application for adjustment of injury claim relies upon an affirmative special defense, he shall plead the
defense in a special answer filed within
twenty days after the date of issuance of the
scheduling order with the Department of Workers Claims, or within ten days after the
defense is discovered if the defense could not
have been discovered earlier in the exercise
of reasonable diligence.
A review of the record indicates that this defense was
never pled in a special answer as required by 803 KAR 25:011 §5(3).
We agree with the board that the ALJ was correct to conclude that
the defense had been waived.
For the foregoing reasons, the decision of the Workers'
Compensation Board is affirmed.
ALL CONCUR.
1
803 Ky. Admin. Regs. 25:011 §5(3) was repealed on June 15,
1995.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE/BELL:
Edward A. Siemon
Harlan, KY
Reuben G. Walker Jr.
Susan E. Dabney
Richmond, KY
BRIEF FOR APPELLEE/FUND:
Joel Zakem
Labor Cabinet
Louisville, KY
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