MANALAPAN MINING COMPANY, INC. v. JIMMIE DARRELL FRAZIER; ROBERT WHITTAKER, Director of Special Fund; W. BRUCE COWDEN, JR., Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
SEPTEMBER 8, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-002487-WC
MANALAPAN MINING COMPANY, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-98-00070
v.
JIMMIE DARRELL FRAZIER;
ROBERT WHITTAKER,
Director of Special Fund;
W. BRUCE COWDEN, JR.,
Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, KNOPF and MILLER, Judges.
HUDDLESTON, Judge:
On October 14, 1996, Jimmie Darrell Frazier, a
58-year-old high school graduate who had been employed in the coal
mining industry for some 26 years, injured his back while working
for Manalapan Mining Company, Inc. (MMC).
therapy for two months.
He underwent physical
Although he continued to experience back
pain, Frazier returned to full duty earning the same wage as before
his injury.
On April 24, 1997, Frazier again injured his back.
After the second injury Frazier underwent a lumbar laminectomy and
a diskectomy.
He has not returned to work.
On January 5, 1998, Frazier filed an application for
resolution of injury claim seeking workers’ compensation benefits
as
a
result
of
both
work-related
traumatic
events.
An
Administrative Law Judge awarded Frazier temporary total disability
benefits from October 15, 1996, through November 24, 1996, and
13.33%
permanent
partial
disability
(PPD)
benefits
November 25, 1996, and continuing for 425 weeks.
beginning
This award was
apportioned equally between the Special Fund and MMC.
The ALJ
found that as a result of the 1996 and 1997 injuries, Frazier is
totally and permanently occupationally disabled.
He attributed
13.33% of Frazier’s occupational disability to the 1996 injury and
the remainder, 86.67%, to the 1997 injury.
The ALJ held the
Special Fund liable for one-half of the benefits payable as a
result of the 1996 injury, that is one-half of 13.33%, for so long
as Frazier is disabled.
The Workers’ Compensation Board affirmed the ALJ’s award
in all respects save one.
It determined that “the Special Fund has
no obligation beyond its liability for any injuries resulting in
overlapping PPD awards that occurred prior to the enactment of the
1996 [Workers’ Compensation] Act.”
MMC petitions for review of the Board’s decision claiming
that the ALJ erred or exceeded his powers in finding that Frazier
is
100%
affirming
occupationally
the
ALJ’s
correctly apportioned
disabled
finding.
and
MMC
that
also
the
Board
argues
that
erred
in
the
ALJ
one-half of the 13.33% disability award to
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the Special Fund for so long as Frazier is disabled and that the
Board erred in holding that where the injury culminating in total
disability occurred after the effective date of the 1996 amendments
to the Workers’ Compensation Act, after the expiration of the
overlapping period of compensability for the prior PPD award, the
original overlapping dollar amount will become the liability of MMC
for so long as Frazier is disabled.
Frazier
responds
that
we
should
affirm
the
100%
occupational disability award and the Special Fund insists that the
Board correctly placed a time limit on its liability for the
payment of benefits. Initially, however, Frazier argues that we
should dismiss MMC’s petition for review because it does not meet
applicable procedural requirements.
We agree that there are a
number of deficiencies in the petition MMC has filed with this
Court.
Nonetheless, we exercise our discretion and elect to
consider the merits of MMC’s petition.1
There is no need for us to summarize the evidence that
supports
the
ALJ’s
determination
occupationally disabled.
comprehensive opinion.
that
Frazier
is
100%
The Board has done that in a thorough,
Our function in reviewing the opinions of
the Board is "[t]o correct the Board only where [we] perceive
[that]
the
Board
has
overlooked
or
misconstrued
controlling
statutes or precedent, or committed an error in assessing the
1
See Smith v. Goodyear Tire and Rubber Co., Ky. App., 772
S.W.2d 640, 642 (1989) (“Dismissal of this action would therefore
be appropriate only if the damage to those two objectives [deciding
cases on the merits and preserving the right to appeal] were offset
by some contribution to the achievement of an orderly appellate
process”).
-3-
evidence so flagrant as to cause gross injustice."2
The Board’s
function is “to decide whether the evidence is sufficient to
support a particular finding made by the ALJ, or whether such
evidence
as
there
was
before
the
ALJ
should
be
viewed
as
uncontradicted and compelling a different result."3
In
this
case,
the
ALJ
determined,
from
conflicting
evidence, that Frazier was 100% permanently disabled.
Because the
ALJ’s determination is supported by substantial evidence and the
Board has not committed an error in assessing the evidence, neither
erred.
Moreover, the ALJ was not required, as MMC argues, to use
the American Medical Association’s impairment ratings for finding
Frazier permanently totally disabled.
2
KRS 342.730(1)(b)4 requires
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687
(1992).
3
Id.
4
KRS 342.730(1)(b) provides that
disability shall be paid to the employee:
income
benefits
for
For permanent partial disability, sixty-six and two-thirds
percent (66-2/3%) of the employee's average weekly wage but
not more than seventy-five percent (75%) of the state average
weekly wage as determined by KRS 342.740, multiplied by the
permanent impairment rating caused by the injury or
occupational disease as determined by "Guides to the
Evaluation of Permanent Impairment," American Medical
Association, latest edition available, times the factor set
forth in the table that follows: [table omitted].
Any temporary total disability period within the maximum
period for permanent, partial disability benefits shall extend
the maximum period but shall not make payable a weekly benefit
exceeding that determined in subsection (1)(a) of this
section. Notwithstanding any section of this chapter to the
contrary, there shall be no minimum weekly income benefit for
permanent partial disability and medical benefits shall be
paid for the duration of the disability.
-4-
that income benefits shall be paid for permanent partial disability
based in part on AMA impairment ratings.
KRS 342.730(1)(a),5 which
applies to temporary or permanent total disability payments, does
not utilize
the AMA impairment ratings.
The Board did not
misconstrue these statutes.
Kentucky Revised Statute (KRS) 342.120(2) provides that:
The special fund shall have no liability upon any claim
in which the injury occurred, or for cumulative trauma,
the disability became manifest, or, for occupational
disease, if the date of injury or last exposure occurred,
after December 12, 1996.
Frazier was partially permanently disabled from the 1996 injury and
totally disabled from a combination of the 1996 and 1997 injuries.
Because Frazier was not totally disabled prior to December 12,
1996,
the
Board
did
not
err
in
reversing
the
ALJ’s
award
apportioning liability to the Special Fund beyond 425 weeks. After
the Special Fund’s overlapping PPD obligation ends, MMC will be
solely responsible for the payment of Frazier’s total occupational
disability benefits for so long as he remains disabled.
5
KRS 342.730(1)(a) provides:
For temporary or permanent total disability, sixty-six and
two-thirds percent (66-2/3%) of the employee's average weekly
wage but not more than one hundred percent (100%) of the state
average weekly wage and not less than twenty percent (20%) of
the state average weekly wage as determined in KRS 342.740
during that disability.
Nonwork-related impairment and
conditions compensable under KRS 342.732 and hearing loss
covered in KRS 342.7305 shall not be considered in determining
whether the employee is totally disabled for purposes of this
subsection.
-5-
The Board’s decision is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE JIMMIE
DARRELL FRAZIER:
Antony Saragas
HUFF LAW OFFICES
Harlan, Kentucky
Sherry Brashear
Harlan, Kentucky
BRIEF FOR APPELLEE SPECIAL
FUND:
Joel Zakem
Division of Special Fund
Frankfort, Kentucky
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