J. MILTON'S STEAK BUFFET v. WILLIAM POSEY; HON. J. LANDON OVERFIELD, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
AUGUST 25, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1999-CA-002743-WC
J. MILTON'S STEAK BUFFET
v.
APPELLANT
PETITION FOR REVIEW
OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
WC-97-63366
WILLIAM POSEY;
HON. J. LANDON OVERFIELD,
Administrative Law Judge; and
WORKERS COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
* * * * * * * * * * * * * * * * *
BEFORE:
BUCKINGHAM, JOHNSON, and TACKETT, Judges.
BUCKINGHAM, JUDGE.
J. Milton’s Steak Buffett petitions for our
review of an opinion of the Workers’ Compensation Board (Board)
which affirmed an opinion by an administrative law judge (ALJ)
awarding benefits to William Posey based on a finding of total
occupational disability.
Having considered the record and
Milton’s arguments,1 we affirm.
While working for Brownies Creek Collieries in 1982,
Posey suffered a low back injury.
His claim was settled for
$13,026.83 for 20% permanent partial disability.
On October 11,
1997, while working as a dishwasher at Milton’s, Posey again
injured his low back.
On November 26, 1997, Dr. James R. Bean
performed lumbar disk surgery at the L-4/5 level.
The ALJ
determined that Posey was totally occupationally disabled and
awarded benefits.
After Milton’s appeal of the ALJ’s ruling to
the Board was rejected, this petition for review followed.
Milton’s first argument is that the ALJ and the Board
erred by not reducing the award by the income benefits Posey
received in the settlement of his first claim.
KRS 342.730(2)
provides that
[t]he period of income benefits payable under
this section on account of any injury shall
be reduced by the period of income benefits
paid or payable under this chapter on account
of a prior injury if income benefits in both
cases are for disability of the same member
or function, or different parts of the same
member or function, and the income benefits
payable on account of the subsequent
disability in whole or in part would
duplicate the income benefits payable on
account of the pre-existing disability.
In rejecting Milton’s argument, the ALJ held as follows:
4.
Defendant Employer also argues
that, pursuant to KRS 342.730(2) it is
entitled to a credit for the amounts paid in
1
Posey did not file a brief.
-2-
the previous settlement. KRS 342.730(2) has
been determined to relate to overlapping
benefits, in other words, benefits paid for
the same period of time for the same body
part. Plaintiff’s settlement was based on a
19[82] injury and was based on payments for
425 weeks. The benefit period for the
previous settlement had long expired prior to
Plaintiff’s October 11, 1997 injury.
Therefore, Defendant Employer is entitled to
no credit for Plaintiff’s previous
settlement.
We adopt the Board’s opinion affirming the ALJ in this regard:
In this instance, the period of income
benefits payable for the 1982 injury expired
long before the October 1997 injury. Since
there is no overlap of the periods for the
two injuries, no portion of the income
benefits payable on account of the subsequent
disability duplicates the income benefits
payable on account of the preexisting
disability. Additionally, it is important to
note the ALJ determined Posey’s total
disability was the result of the 1997 injury.
His prior claim resulted in a settlement.
That claim was not reopened and there has
been no adjudication of the extent of the
prior disability, if any. Since the ALJ
determined the 1997 injury resulted in the
total disability and since there was no
overlap of the periods of benefits, we find
no error in the ALJ’s determination that
Milton’s is entitled to no credit for the
1982 settlement.
Milton’s second argument is that the record does not
support the ALJ’s finding that Posey was totally occupationally
disabled.
Medical records from Dr. Bean indicated he anticipated
Posey would have a 5% functional impairment rating.
Dr. James
Templin testified that he determined Posey had a 10% functional
impairment rating under the DRE of the AMA Guidelines.
He
further testified that, using the range of motion model which he
-3-
thought was more appropriate, Posey would have a 23% functional
impairment.
Dr. Ballard D. Wright assigned a 20% functional
impairment rating under the AMA Guidelines.
The Board held that
evidence from these doctors and from Posey was substantial
evidence to support the ALJ’s finding that Posey is totally
occupationally disabled.
The Board further held that evidence
from the doctors and from Posey was sufficient to establish the
1997 injury as the cause of that disability.
Under Western Baptist Hospital v. Kelly, Ky., 827
S.W.2d 685 (1992), the function of this court “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 687-88.
We perceive no error in
this case and conclude that there was sufficient evidence to
support the finding that Posey was totally occupationally
disabled.
The Board’s opinion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Charles W. Berger
Harlan, KY
None filed
-4-
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