ROBERT L. WHITTAKER, Director of SPECIAL FUND v. SILAS PATRICK (Deceased); MAVIS PATRICK (Widow of Silas Patrick); ESTATE OF SILAS PATRICK through Administratrix, Sharon Smith, daughter); MILLER BROTHERS CONSTRUCTION; ROGER D. RIGGS, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: November 3, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000809-WC
ROBERT L. WHITTAKER,
Director of SPECIAL FUND
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NOS. WC-90-36354 & WC-95-48386
v.
SILAS PATRICK (Deceased);
MAVIS PATRICK (Widow of Silas Patrick);
ESTATE OF SILAS PATRICK through
Administratrix, Sharon Smith, daughter);
MILLER BROTHERS CONSTRUCTION;
ROGER D. RIGGS, Administrative Law Judge;
and WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; COMBS and McANULTY, Judges.
COMBS, JUDGE:
Robert L. Whittaker, Director of Special Fund
(Fund), asks us to review an opinion of the Workers' Compensation
Board (Board) rendered March 3, 2000.
(KRS) 342.290.
Kentucky Revised Statutes
We affirm.
This claim has been much litigated.
In 1991, Silas
Patrick was found to be entitled to an award of retraining
incentive benefits.
Contending that he could establish a
decrease in pulmonary capacity and that he was thus entitled to
an award based upon his total disability, Patrick reopened his
claim was reopened in May 1995.
After a hearing on the
reopening, a decision from the Administrative Law Judge, and an
appeal to the Board, this court examined the claim in light of
the Kentucky Supreme Court's holding in Campbell v. Universal
Mines, Ky., 963 S.W.2d 623 (1998).
Following our analysis, we
remanded for a finding of whether Patrick suffered from category
two rather than category one pneumoconiosis.
Silas Patrick died
while the case was pending before the ALJ on remand.
The ALJ issued a final order, opinion, and award on
September 24, 1999, and thereafter issued several orders on
petitions for reconsideration.
The ALJ's last order — rendered
November 15, 1999 — found that Patrick's death was not workrelated and that benefits were payable pursuant to KRS 342.732.
He found that the tier-down provisions of KRS 342.730(4) were
inapplicable since the original award was the result of a 1990
claim.
He also ordered that all benefits were payable to Mavis
Patrick, Silas Patrick's widow, who had been substituted as a
party.
The award of total benefits was ordered payable at the
full rate from the time of the reopening on May 5, 1995, until
the date of Patrick's death on February 9, 1999.
Thereafter, the
award was payable to the widow at 50% of the total award pursuant
to KRS 342.730(3).
The ALJ directed that Miller Brothers
Construction, Patrick's employer, would pay the first 25% and
that the Special Fund would pay the remaining 75% for both the
full-rate award and the reduced-rate award to the widow.
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On
appeal, the Board affirmed in part, and reversed and remanded in
part.
The Fund seeks review.
The extent of Patrick's disability is not at issue on
appeal.
Instead, the Fund contends that the ALJ erred in his
apportionment of liability between Patrick's motion to reopen and
the date of his death.
Relying on Williamson v. Island Creek
Coal Co., Ky. App., 899 S.W.2d 499 (1995), the Fund contends that
it should not be liable for any benefits accruing during the
interval.
It insists that these benefits were due and owing
during the employer's payment period and, as a result, were the
responsibility of Miller Brothers Construction alone.
The Fund
explains as follows:
[T]he decedent had a life expectancy of 910 weeks as of
the date of the motion to reopen. The employer owed
the first 25%, or 227, weeks of that 910-week period.
In other words, the employer would have owed benefits
to the decedent through approximately November 1999,
and the Special Fund would have owed benefits
thereafter if the decedent had lived to collect the
same.
We do not agree that the ALJ was required to make the entire
award payable by the employer —
nor do we believe that the ALJ
erred by requiring the Fund to make its payment of benefits
before the employer had exhausted its liability to the payees.
On the contrary, we believe that the ALJ correctly apportioned
the benefits.
Because Williamson is factually different from the
case before us, we have found no error.
The Fund also asks us to clarify whether benefits
payable for the period prior to Patrick's death are to be paid to
his estate.
We read the Board's opinion as indeed requiring
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payment of these benefits to the estate.
We find no error in
this conclusion.
For the foregoing reasons, the opinion of the Workers'
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES PATRICK:
David R. Allen
Frankfort, KY
J. Drew Anderson
Prestonsburg, KY
BRIEF FOR APPELLEE MILLER
BROTHERS CONSTRUCTION COMPANY:
Monica J. Rice
Hazard, KY
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