SPECIAL FUND v. EARL BRIAN GARY; NATIONAL HOUSING PARTNERSHIP; DENNIS S. KLINE, Administrative Law Judge; and WORKERS' COMPENSATION BOARD AND NATIONAL HOUSING PARTNERSHIP v. EARL BRIAN GARY; DENIS KLINE, Administrative Law Judge; SPECIAL FUND; and WORKERS' COMPENSATION BOARD
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RENDERED: June 30, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001405-WC
SPECIAL FUND
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-93-02074
EARL BRIAN GARY; NATIONAL HOUSING
PARTNERSHIP; DENNIS S. KLINE,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
AND
No. 1999-CA-001587-WC
NATIONAL HOUSING PARTNERSHIP
v.
APPELLEES
APPELLEE/CROSS-APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-93-02074
EARL BRIAN GARY; DENIS KLINE,
Administrative Law Judge;
SPECIAL FUND; and WORKERS’
COMPENSATION BOARD
APPELLEES/CROSS-APPELLEES
OPINION
AFFIRMING IN PART;
REVERSING IN PART; and REMANDING
** ** ** ** **
BEFORE:
DYCHE, EMBERTON AND HUDDLESTON, JUDGES.
EMBERTON, JUDGE: This appeal and cross-appeal from an opinion of
the Workers’ Compensation Board challenge the propriety of an
award of increased occupational disability benefits on reopening.
In its appeal, the Special Fund focuses upon the failure of the
Administrative Law Judge to make a finding as to the actual
percentage of the claimant’s disability at the time he settled
his claim before determining the increase in occupational
disability to which the claimant may be entitled upon reopening.
The employer, while adopting the argument of the Special Fund,
also maintains that there are insufficient findings to support
reopening the claim and that the conclusions of the ALJ are based
upon an incorrect statement of the law.
In light of the analysis
set forth by the Kentucky Supreme Court in Whittaker v. Rowland,1
we agree with the Special Fund that it was entitled to a finding
as to the actual percentage of the claimant’s disability at the
time he settled his original claim prior to a determination of
the amount of increase in that disability.
Accordingly we
reverse the opinion of the Board and remand the claim for further
proceedings before the ALJ.
The claimant, Earl Gary, suffered a low back injury in
the course of his employment with National Housing Partnership on
September 30, 1992.
After undergoing three surgeries in 1992 and
1993, he was returned to light duty work in April 1994.
A
workers’ compensation claim was filed as a result of his injury
and was settled on September 15, 1994, for $35,000 lump sum
1
Ky., 998 S.W.2d 479 (1999).
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payment representing, according to the parties’ agreement, an
occupational disability of “approximately 35%.”
Gary
subsequently moved to Florida, and for about four to six months,
did some light maintenance in exchange for rental on the lot on
which his mobile home was located.
Gary testified that he had to
stop this work because of surgery to remove rods which had
previously been implanted in his spine in 1993, replacing them
with artificial bone.
Gary stated that following this surgery,
the pain in his back increased dramatically and that he was no
longer able to do things that he could previously do.
He also
stated that although he had undergone several nerve blocks, he
was having to take increased dosages of Vicodin and Soma for
pain.
In a proceeding to reopen Gary’s claim, the ALJ entered
the following finding:
The initial issue to be addressed is
whether the Plaintiff’s occupational
disability has increased since September 15,
1994. Clearly it has. At that time, he had
been released to return to light duty work by
his treating physician. On the basis of his
opinion, the Plaintiff sought and received a
settlement for permanent partial disability.
Subsequent to the settlement of September 15,
1994, the Plaintiff has undergone a fourth,
and very expensive, low back surgery. The
restrictions placed upon his activities have
increased substantially by his initial
treating physician, Dr. Changaris, and it
does not appear that Plaintiff will be
returning to gainful employment in the near
future. He has sustained his burden of
establishing an increase in his occupational
disability, and I will conclude that he is,
at least at this time, totally occupationally
disabled.
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In its appeal to the Board, the Special Fund argued
that the ALJ erred in not making a specific finding as to the
percentage of Gary’s disability at the time he settled his claim.
It was the Fund’s position that if a claimant settles his claim
for a percentage of disability that is less than his actual
percentage of disability, he is not entitled on reopening to the
difference between the settlement figure and the percentage of
disability.
Although acknowledging that there was some logic in
the Fund’s argument, the Board nevertheless affirmed the ALJ’s
decision as to the amount of increase in Gary’s percentage of
disability.
In this appeal we have the benefit of the opinion of
the Supreme Court in Whittaker v. Rowland,2 which settles the
question of the percentage to be utilized in determining the
amount of any increase in occupational disability on reopening:
The figure for occupational disability
contained in a settlement agreement
represents a compromise and might or might
not equal the worker’s actual occupational
disability at the time; therefore, additional
benefits are authorized at the reopening of
the settled claim only to the extent of an
actual increase in the worker’s occupational
disability. See Newberg v. Davis, Ky., 841
S.W.2d 164, 166 (1992); Newberg v. Chumley,
Ky., 824 S.W.2d 413, 416 (1992). For that
reason, of greater significance than the
figure contained in the agreement to settle
the claim were the ALJ’s findings that
claimant’s actual disability at settlement
was 40% and that his disability at reopening
was 100%. (Emphasis added).
Here, there is no finding as to Gary’s actual
percentage of disability at the time he settled his claim.
2
Ky., 998 S.W.2d 479 (1999).
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We
therefore reverse the portion of the Board’s opinion that is to
the contrary and remand the case for further proceedings.
Turning our attention to the employer’s cross-appeal,
we find no merit in the contention that the ALJ’s award of
increased occupational disability is based upon erroneous
findings of fact and conclusions of law.
There is ample evidence
in this record to support the ALJ’s conclusion that Gary’s
percentage of occupational disability had increased since the
time he settled his claim.
Although the employer complains that
the Board ignored its arguments when it rendered an opinion in
this case, we find implicit in the opinion as a whole a rejection
of the employer’s contentions that the evidence was insufficient
to support increasing Gary’s award.
In any event, our review of
the record convinces us that Gary satisfied his burden of
demonstrating a change in occupational disability as that concept
was explained by the Supreme Court in Peabody Coal v. Gossett.3
Not only did he support his motion to reopen with medical
evidence, but Gary’s own testimony supported the finding that his
occupational disability had increased.
Therefore, aside from the
failure to make the requisite finding as to the actual extent of
disability at the time of settlement, we find absolutely no error
in the decision of the ALJ or the opinion of the Board upholding
that decision.
The opinion of the Workers’ Compensation Board is
reversed in part and the case remanded for a specific finding as
to the extent of Gary’s occupational disability as of the date he
3
Ky., 819 S.W.2d 33 (1991).
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settled his original claim.
In all other respects, the opinion
of the Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE SPECIAL FUND:
BRIEF FOR APPELLEE/CROSSAPPELLANT NATIONAL HOUSING
PARTNERSHIP:
David R. Allen
Frankfort, Kentucky
Grant S. Roark
Louisville, Kentucky
BRIEF FOR APPELLEE/CROSSAPPELLEE EARL BRIAN GARY:
A. Neal Herrington
Louisville, Kentucky
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