RONALD ROBINSON v. BAILEY MINING COMPANY; CONSOL OF KENTUCKY, INC.; HON. RON CHRISTOPHER, DIRECTOR OF SPECIAL FUND; HON. ZARING P. ROBERTSON, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED:
September 18, 1998; 2:00 p.m.
TO BE PUBLISHED
MODIFIED: October 9, 1998; 10:00 a.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-000754-WC
RONALD ROBINSON
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-95-40929
BAILEY MINING COMPANY; CONSOL
OF KENTUCKY, INC.; HON. RON
CHRISTOPHER, DIRECTOR OF
SPECIAL FUND; HON. ZARING P.
ROBERTSON, ADMINISTRATIVE LAW
JUDGE; and WORKERS’
COMPENSATION BOARD
and
NO. 1997-CA-000984-WC
BAILEY MINING COMPANY
v.
APPELLEES
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-95-40929
RONALD ROBINSON; CONSOL OF
KENTUCKY, INC.; HON. RON
CHRISTOPHER, DIRECTOR OF
SPECIAL FUND; HON. ZARING P.
ROBERTSON, ADMINISTRATIVE LAW
JUDGE; and WORKERS’
COMPENSATION BOARD
CROSS-APPELLEES
and
NO. 1997-CA-001094-WC
HON. RON CHRISTOPHER, DIRECTOR
OF SPECIAL FUND
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-95-40929
v.
RONALD ROBINSON; BAILEY MINING
COMPANY; CONSOL OF KENTUCKY,
INC.; HON. ZARING P.
ROBERTSON, ADMINISTRATIVE LAW
JUDGE; and WORKERS’
COMPENSATION BOARD
CROSS-APPELLEES
OPINION
AFFIRMING
*
BEFORE:
*
*
*
*
GARDNER, JOHNSON and MILLER, Judges.
JOHNSON, JUDGE:
Ronald Robinson (Robinson) petitions and Bailey
Mining Company (Bailey) and the Special Fund cross-petition this
Court for review of a February 28, 1997 opinion of the Workers'
Compensation Board (Board) which affirmed in part and reversed in
part the Administrative Law Judge's (ALJ) opinion and award.
Robinson argues that based upon the ALJ’s determination that he
is totally and permanently disabled from two separate injuries at
two different employers, he is entitled to lifetime total
disability benefits payable from the two employers even though
the first injury was settled 13 years before the second injury
occurred and even though the ALJ determined that Robinson's
occupational disability from the first injury had actually
decreased.
Finding no error, we affirm the opinion of the Board.
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In 1980, Robinson's left arm was severed between the
wrist and elbow when it was caught in a roof bolting machine
while he was working for Bailey.
Re-attachment was impossible
and Robinson has since used a prosthesis.
As a result of the
settlement of his workers’ compensation claim, Bailey was paid 14
weeks of temporary total disability and a lump sum payment of
$45,000 based on a 78.268% occupational disability.
Robinson's
average weekly wage at that time was $422.60.
After returning to work for Bailey, Robinson was
reassigned to his previous underground mining job.
However,
Robinson experienced fear and uneasiness and was transferred to
work aboveground even though all of his experience and training
had been in underground mining.
When the Bailey mine shut down,
Robinson found other coal mining work and returned to underground
mining as a shift foreman.
He served as mine superintendent for
two other coal mining companies before going to work for Consol
of Kentucky, Inc. (Consol) in 1991 as a foreman.
On January 8, 1994, while working for Consol, Robinson
reached for a switch to shut down a conveyer belt and slipped and
fell onto the conveyer belt.
Fortunately, another foreman was
able to stop the conveyor before Robinson was injured further.
Robinson hurt his back when he fell, but at the time he did not
believe it to be a serious injury.
In March, Robinson went to
his family physician for medical attention for low back pain
which he believed was caused from the fall onto the conveyer
belt.
The doctor determined the back injury to be relatively
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minor.
However, Robinson indicated to the doctor that he
experienced fear from remembering the fall onto the conveyor belt
and from recalling the other work accident which had severed his
arm.
Robinson continued working, but developed increasing
tightness in his chest.
In July 1994, Robinson left work at Consol because he
thought he was experiencing a heart attack.
However, subsequent
medical tests determined that he only suffered anxiety-related
symptoms, i.e., chest pain, rapid pulse, and high blood pressure.
Robinson returned to work at Consol in September 1994, but since
an aboveground position was not available at that time, he worked
an underground mining job.
However, his anxiety level increased
to the point that by mid-October he could no longer work.
In October 1995, Robinson filed a new workers’
compensation claim for the 1994 injury and a motion to reopen the
1980 claim that had been settled with Bailey.
In his motion to
reopen, Robinson alleged that he had developed "over-use
syndrome" and “post-traumatic stress disorder” which manifested
itself only after the 1994 back injury.
Robinson withdrew the
allegation of "over-use syndrome" and the only allegation left as
a basis to reopen was the claim of post-traumatic stress
disorder.
Several physicians evaluated Robinson and they all
diagnosed him with a minor back injury and little, if any,
functional impairment.
Three psychiatrists evaluated Robinson
and each diagnosed him with depression, anxiety, panic disorder
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and post-traumatic stress syndrome.
Two of the psychiatrists
diagnosed him with a 20% functional impairment and the other
diagnosed him with a 15% impairment.
One of the psychiatrists
specifically concluded that Robinson would be a danger to himself
and others if he returned to underground mining work and that
Robinson's psychiatric conditions had been dormant following the
traumatic amputation of his arm but were aroused by the 1994
injury.
Another of the psychiatrists concluded that Robinson was
unable to work at that time but he gave Robinson a good prognosis
for future improvement.
The ALJ found that Robinson was unable to return to
work and that he was 100% occupationally disabled with 50% being
prior, active disability attributable to his 1980 injury and the
remaining 50% being attributable to psychiatric residuals from
the 1994 injury.
The ALJ also noted that a claim may not be
reopened without a showing of "change of occupational disability"
and that Robinson's occupational disability regarding the 1980
accident had not increased but rather had decreased.
Nonetheless, the ALJ reluctantly determined that under Campbell
v. Sextet Mining Company, Ky., 912 S.W.2d 25 (1995), Robinson was
entitled to lifetime benefits at the maximum benefit rate for the
1994 injury for the combined disability of the 1994 and the 1980
injuries, even though the 1994 disability rate was more than
twice the maximum amount payable for the 1980 injury.
stated as follows:
-5-
The ALJ
The more troublesome issue is the
applicability of the Supreme Court's decision
in Campbell v. Sextet Mining Company, Ky.,
912 S.W.2d 25 (1995). Therein, the plaintiff
had suffered two injuries, having returned to
work after the first. His claims were filed,
consolidated and practiced as one, so that a
single opinion and award issued. . . . The
first injury obviously resulted in partial
disability only, and but for the second
injury, would have only entitled the
plaintiff to a 425-week award under [Kentucky
Revised Statutes] KRS 342.730(1)(b).
However, the plaintiff was found to be
totally disabled as a result of the combined
effects of the first and second injury. The
majority of the Supreme Court therefore
concluded:
As a result of the second
injury, the occupational effect of
the first injury changes from being
partially disabling to being
totally disabling . . . the
combined effect of both of these
injuries has rendered the worker
totally disabled and, therefore,
that worker should be treated the
same as if the worker had suffered
both injuries at the same time.
(Emphasis added [by the ALJ].)
Although the Court acknowledged that the
plaintiff's two claims were litigated at the
same time, it did not suggest that there
would have been a different result had one of
the claims been litigated previously. . . .
The opinion also seems to suggest that the
total disability award should be based upon
the wage rates applicable at the time of the
most recent injury. Thus, while it seems
unbelievably inequitable, the apparent effect
of the Supreme Court's decision is to require
an employer, who settled a claim for a lump
sum fifteen years ago, to now be saddled with
liability for lifetime benefits at more than
double the previous compensation rate.
Reluctantly, I so hold.
-6-
The ALJ ordered Bailey to pay $207.97 per week for a 50%
occupational disability to continue for as long as Robinson is
disabled, Consol to pay $207.97 per week for a 50% occupational
disability for a period based on one-half of Robinson's projected
life expectancy, and the Special Fund to pay $207.97 thereafter
for as long as Robinson is disabled.
Bailey, Consol and Robinson appealed the decision to
the Board.
Bailey contended that the ALJ erred in assessing
additional occupational disability benefits against it based upon
the reopening and the Campbell decision after the ALJ had already
determined that Robinson's occupational disability from the 1980
injury had actually decreased.
Bailey also argued that the ALJ
erred in increasing Bailey's liability with respect to the 1980
injury to the rate payable for injuries in 1994.
Robinson did
not appeal the ALJ’s finding that his occupational disability
associated with the 1980 injury had decreased, but he did file a
protective appeal arguing that if the total disability award were
reversed, he should receive a RIB award.
We need not address
Consol's arguments since those issues are not before us on
appeal.
Relying on KRS 342.125 and Newberg v. Davis, Ky., 841
S.W.2d 164, 166 (1992), the Board ruled that the ALJ had erred in
reopening Robinson's 1980 claim when the ALJ had not found
Robinson's occupational disability to have increased since the
settlement of his original claim.
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The Board stated as follows:
In the instant case, Robinson had settled
his claim with Bailey for his 1980 injury
some 13 years prior to sustaining his
subsequent injury while employed by Consol.
We find nothing in Sextet, supra, that would
expand the grounds for reopening beyond those
set forth in K.R.S. 342.125. That statute
authorizes a reopening upon a showing of
change of occupational disability, mistake or
fraud, or newly discovered evidence. The
latter three showings are not at issue in
this claim nor in our opinion did Robinson
prove a change in occupational disability as
contemplated by K.R.S. 342.125.
In Newberg v. Davis, 841 S.W.2d 164
(1992), the Kentucky Supreme Court addressed
the type of showing of a change of
occupational disability required to reopen a
previous workers’ compensation award in a
case involving a subsequent injury. The
Court stated:
In the case of a subsequent
injury, the test for determining
whether a claimant suffers from an
active disability is how much, if
any, occupational disability he
evidenced immediately before the
subsequent injury. The fact that
the claimant was employed when he
received the subsequent injury does
not preclude a finding of active
disability. Wells v. Bunch, Ky.,
692 S.W.2d 806 (1985). In a claim
for a subsequent injury, the
relevant change, therefore, occurs
during the period which begins
immediately preceding the
[subsequent] injury and ends at the
point at which the worker reaches
maximum medical improvement after
the [subsequent] injury. Any
change in the workers’ actual
occupational disability which may
have occurred between the
settlement and the second injury,
and is attributable to the injury
which was the subject of the
settlement, properly is the subject
-8-
of a motion to reopen that claim.
(Emphasis added [by the Board].)
Id. at 166. The Court went on to note that
in the case before it, there was no evidence
that the claimant’s condition had worsened
since the settlement of his original injury
claim and that the lack of such evidence
precluded a reopening of that claim.
In the instant case, not only is there no
showing of a worsening of Robinson’s
condition since his 1981 settlement
agreement, the ALJ specifically found that
his condition had improved. Therefore, in
our opinion, the ALJ erred in reopening
Robinson’s claim against Bailey and awarding
lifetime benefits for a 50 percent
occupational disability against Bailey as the
result of the 1980 injury. Having determined
that the ALJ erroneously applied the holding
in Campbell v. Sextet, supra, to this claim,
there is no need to further address Bailey’s
other arguments on appeal, all of which were
predicated upon the Board’s having determined
that Sextet did apply.
These petitions for review followed.
We review this case under the standards set forth in
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685 (1992),
wherein the Supreme Court stated that
"[t]he function of further
review of the [Board] in the Court of Appeals is to correct the
Board only where the the [sic] Court perceives the Board has
overlooked or misconstrued controlling statutes or precedent, or
committed an error in assessing the evidence so flagrant as to
cause gross injustice."
Id. at 687-688.
By statute the Legislature has determined that the
following grounds are available to reopen a claim.
-9-
(1) Upon motion by any party . . . an
arbitrator or administrative law judge may
reopen and review any award or order on any
of the following grounds:
(a)
Fraud;
(b) Newly-discovered evidence which could
not have been discovered with the
exercise of due diligence;
(c)
Mistake; and
(d)
Change of disability as shown by
objective medical evidence of worsening
or improvement of impairment due to a
condition caused by the injury since the
date of the award or order.
KRS 342.125.
As the Board pointed out, section (d) is the only
section which could possibly apply to this case and the ALJ found
that Robinson's disability had decreased.
Therefore, it is
apparent that Robinson lacked any ground upon which to reopen the
1980 claim.
Regardless of the problems with reopening the 1980
claim, Robinson argues that since he is totally and permanently
disabled from several separate injuries, he is entitled to
lifetime total disability benefits and that additional liability
may be imposed upon Bailey pursuant to Campbell, supra.
Robinson’s position is that but for the 1980 injury, the 1994
psychiatric condition that caused him to be 100% occupationally
disabled would not have occurred.
Robinson further notes that
the purpose of the Workers' Compensation Act is to wholly
compensate injured workers and he contends that Bailey is now
responsible for that part of his condition caused by the 1980
-10-
accident which in conjunction with the 1994 accident created the
total occupational disability.
In deciding the case before us, we must determine the
applicability of Campbell.
We first observe that the holding in
Campbell has been clarified somewhat by our Supreme Court in
Fleming v. Windchy, Ky., 953 S.W.2d 604 (1997), and Spurlin v.
Brooks, Ky., 952 S.W.2d 687 (1997).
We also take note of Justice
Cooper’s dissent in these two cases and state that we believe his
dissent to be the correct interpretation of the law.
However, by
following the Supreme Court’s opinions in Campbell, Fleming, and
Brooks, as we are required to do, the result of affirming the
Board is the same.
The Supreme Court has made it clear that in Campbell it
was presented “with an extremely narrow issue.”
Fleming, supra,
at 607; and Brooks, supra, at 690 quoting Campbell, supra, at 26.
The case sub judice does not come within this extremely narrow
rule.
Thus, we hold that Campbell is factually distinguishable
from the case before us.
In Campbell, the two injuries were
litigated simultaneously--there was no need to reopen a
previously settled claim.
While KRS 342.120 gives a worker the
absolute right to litigate claims for more than one injury at the
same time, it does not give an injured worker the right to
litigate a settled claim with an unsettled claim absent the
reopening of the settled claim.
As stated previously, Robinson
had no grounds to reopen the settled claim.
-11-
An underlying tenet of our legal system is the doctrine
of finality.
Our Legislature has determined in the Workers'
Compensation Act that relief from an adjudicated claim can be
found through a motion to reopen based upon the limited grounds
of mistake, fraud, newly discovered evidence and a change of
disability.
KRS 342.125.
Bailey's liability for the 1980 injury
was determined in the 1981 settlement and cannot be increased
absent a reopening.
Due to the disposition of this issue, there is no need
to address the protective issues raised in the briefs of Bailey
or the Special Fund.
The opinion of the Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE, ROBINSON:
BRIEFS FOR APPELLEE/CROSSAPPELLANT, BAILEY MINING:
Hon. Phyllis L. Robinson
Hyden, KY
Hon. David H. Neeley
Prestonsburg, KY
Hon. R. Roland Case
Pikeville, KY
BRIEFS FOR APPELLEE/CROSSAPPELLANT, SPECIAL FUND:
Hon. Judith K. Bartholomew
Louisville, KY
BRIEF FOR APPELLEE/CROSSAPPELLEE, CONSOL OF KENTUCKY:
Hon. John W. Walters
Lexington, KY
-12-
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