VALLEY DEVELOPMENT MINING v. JAMES ENDICOTT; SPECIAL FUND; HON. RONALD W. MAY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: May 14, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002334-WC
VALLEY DEVELOPMENT MINING
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-88-036775
v.
JAMES ENDICOTT; SPECIAL FUND;
HON. RONALD W. MAY, Administrative Law
Judge; and WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, COMBS, and McANULTY, Judges.
COMBS, JUDGE:
The appellant, Valley Development Mining (Valley),
appeals from the judgment of the Workers’ Compensation Board
affirming the order of the Administrative Law Judge which found
James Endicott totally, occupationally disabled upon reopening.
Valley contends on appeal that Endicott did show by objective
medical evidence a change in his occupational disability.
We
disagree and affirm the decision of the Board.
In September of 1988, Endicott sustained a work-related
injury to his back while in the employment of Valley.
He
subsequently filed a claim for workers’ compensation benefits,
and in April 1992, he was found 70% disabled and was awarded
benefits accordingly.
On March 18, 1997, Endicott filed a motion
to reopen his claim, alleging that his condition had worsened.
The ALJ entered his opinion and order on April 8, 1998, finding
that Endicott’s disability had increased to the extent that he
was now totally, occupationally disabled.
Valley appealed the
ALJ’s decision to the Board.
On August 17, 1998, the Board
affirmed the ALJ’s decision.
This appeal followed.
Valley argues on appeal that the ALJ applied the
incorrect standard on the reopening of Endicott's claim.
It
asserts that the amendments to KRS 342.125 (the reopening
statute), effective December 12, 1996, govern the standard under
which Endicott's motion to reopen should have been considered.
The 1996 amendments to KRS 342.125 altered the standard under
which motions to reopen are considered, requiring the claimant to
show a change in disability by objective medical evidence.
342.125(1)(d).
KRS
Valley contends that Endicott failed to establish
through objective medical evidence that his condition had
worsened.
"[N]o statute shall be construed to be retroactive,
unless expressly so declared."
KRS 446.080(3).
The law in
effect on the date of injury generally determines the rights of
the injured worker and the obligations of the defendant regarding
income benefits for that injury.
Maggard v. International
Harvester, Inc., Ky., 508 S.W.2d 777 (1974).
However,
legislation has been applied to causes of action
arising before
its effective date in certain instances where the courts have
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determined that the provision was remedial or procedural in
nature and that retroactive application of the provision was
consistent with the legislative intent.
Ky., 941 S.W.2d 473 (1997).
Benson's Inc. v. Fields,
The Kentucky Supreme Court explained
this distinction in Peabody Coal Co. v Gossett, Ky., 819 S.W.2d
33, 36 (1991), quoting 73 AmJur 2d Statutes § 354 (1974)
(footnotes omitted):
A retrospective [sic] law . . . is one which
takes away or impairs vested rights acquired
under existing laws, or which creates a new
obligation and imposes a new duty, or
attaches a new disability, in respect to
transactions or considerations already past.
Therefore, despite the existence of some
contrary authority, remedial statutes, or
statutes relating to remedies or modes of
procedure, which do not create new or take
away vested rights, but only operate in
furtherance of the remedy or confirmation of
such rights, do not normally come within the
legal conception of a retrospective law, or
the general rule against retrospective
operation of statutes. In this connection it
has been said that a remedial statute must be
so construed as to make it effect the evident
purpose for which it was enacted, so that if
the reason of the statute extends to past
transactions, as well as to those in the
future, then it will be so applied although
the statute does not in terms so direct,
unless to do so would impair some vested
rights or violate some constitutional
guaranty.
KRS 342.0015, effective December 12, 1996, specifically
provides that KRS 342.125(8) is remedial and, therefore,
retroactive.
However, KRS Chapter 342 in general contains no
express declaration as to whether the other 1996 amendments to
KRS 342.125 are remedial as well.
Pertinent to this appeal, KRS
342.125(1), as amended in December 1996, provides:
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Upon motion by any party or upon an
arbitrator's or administrative law judge's
own motion, 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.
The 1996 amendments did not change three of the grounds for
reopening a claim, but they did alter the standard for evaluating
motions based upon a change in disability.
The claimant must now
prove a change in disability based upon the heightened standard
of objective medical evidence — clearly an additional duty or
obligation imposed upon him rendering more cumbersome his right
to reopen the claim as it existed at the time of his original
injury.
We agree that the provisions contained at KRS
342.125(1)(a),(b), and (c) are wholly procedural.
But KRS
342.125(1)(d) cannot be deemed to be solely procedural under the
circumstances of this case since it does adversely encumber a
right that existed at the time of the injury.
Thus, while it is
argued that it is wholly procedural and therefore susceptible of
retroactive application, we hold to the contrary: that its
substantive import in this case is not remedial in nature nor is
it consistent with the beneficent purpose underlying the Workers’
Compensation legislation in effect at the time of the injury.
Therefore, pursuant to Peabody, this portion of the statute is
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not the kind of retrospective law that can be accorded
retroactive application.
The standard for appellate review of decisions by
the Workers' Compensation Board is set forth in Western Baptist
Hospital v. Kelly, Ky., 827 S.W.2d 685, 687 (1992):
The function of further review of the
[Workers' Compensation Board] in the Court of
Appeals is to correct the Board only where
the 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.
Even if the Board and the ALJ had applied the incorrect
standard (which we have just held that they did not), we find
that they did not assess the evidence in a manner so flagrant as
to result in gross injustice.
The record shows that Endicott did
indeed show by objective medical evidence that his condition had
worsened and that the ALJ based his findings upon this evidence.
Objective medical evidence is defined in KRS
342.0011(33) as "information gained through direct observation
and testing of the patient applying objective or standardized
methods."
In concluding that Endicott was now totally
occupationally disabled, the ALJ relied heavily upon the
examination reports of Dr. Kenneth Graulich and Dr. Joseph
Rapier.
The two doctors examined Endicott initially in 1991 and
again in 1997.
Both doctors reported significant decreases in
Endicott's range of motion in the lumbosacral spine — as well as
decreases in flexion and in full, right-and-left side bending.
Additionally, Dr. Graulich and Dr. Rapier imposed severe
restrictions based upon their respective examinations of Endicott
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in 1997.
Significantly, Dr. Graulich had restricted Endicott to
lifting weight of no more than 75 pounds in 1991.
However, more
recently, he has restricted Endicott to lifting weight no greater
than 25 pounds.
Thus, the record contains "objective medical
evidence" that Endicott's disability has changed.
We find no
error on appeal.
Valley also raises the issue of whether upon remand the
ALJ could find that Endicott is entitled to an additional award
based upon mistake.
In his opinion, the ALJ noted that Endicott
"might prevail on reopening on the basis of mistake."
However,
this point is moot in light of the fact that Endicott established
a change in his condition by objective medical evidence — the
retroactive issue notwithstanding.
For the foregoing reasons, we affirm the judgment of
the Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE JAMES
ENDICOTT:
Roberta K. Kiser
Lexington, KY
Jeffery Hinkle
Inez, KY
BRIEF FOR APPELLEE SPECIAL
FUND:
David W. Barr
Louisville, KY
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