ROBERT L. WHITTAKER, Director of Special Fund v. HOMER THORNSBERRY; GOLDEN OAK MINING CO., L.P.; ROGER D. RIGGS, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
April 27, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-000759-WC
ROBERT L. WHITTAKER,
Director of Special Fund
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-93-27393
HOMER THORNSBERRY;
GOLDEN OAK MINING CO., L.P.;
ROGER D. RIGGS, Administrative
Law Judge; and WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, HUDDLESTON and KNOPF, Judges.
HUDDLESTON, Judge: The Special Fund appeals a decision of the
Workers’ Compensation Board affirming an opinion and award by the
Administrative Law Judge following multiple remands to the ALJ of
Homer Thornsberry’s injury and occupational disease claims.
For
our summary of the extensive facts in this appeal, we adopt first
the relevant portions of the statement of facts presented in the
Board’s opinion of February 25, 2000 and then adopt relevant
portions of the ALJ’s opinion of September 24, 1999:
In the instant claim, the ALJ ordered the Special
Fund
to
commence
payments
to
the
claimant,
Homer
Thornsberry (“Thornsberry”) for its liability pursuant to
a total occupational disability award to Thornsberry for
the occupational disease of coal workers’ pneumoconiosis
previously rendered on November 12, 1993.
The ALJ
further ordered that the Special Fund’s obligation for
weekly benefits to Thornsberry shall commence on August
11, 1999.
Credit was granted to the Special Fund for
payments
made
Company,
to
L.P.
Thornsberry
(“Golden
by
Oak”)
Golden
for
Oak
temporary
Mining
total
disability (“TTD”) benefits in injury Claim No. 93-27393
and
by
virtue
Thornsberry
and
of
a
Golden
settlement
Oak
in
agreement
the
injury
between
claim
as
approved by the ALJ on July 12, 1994.
This is the third appeal to [the] Board by the
Special Fund in Thornsberry’s award.
In the initial
appeal, the Special Fund had argued that the evidence
below
compelled
a
finding
of
permanent
occupational
disability in connection with Thornsberry’s work-related
injuries, and that the ALJ’s dismissal of Thornsberry’s
claim for permanent partial occupational disability in
the injury claim was in error.
Though the Special Fund
was not successful on that issue in the ultimate appeal
to the Supreme Court of Kentucky, the Court remanded the
matter to the ALJ for purposes of correctly calculating
Special Fund liability.
-2-
To this end, the Court directed
that the injury claim be reinstated, even though for TTD
only; that the injury claim be consolidated with the
occupational disease claim; that the occupational disease
claim be reopened; and, that the combined award of
benefits, incorporating the earlier settlement agreement
between Thornsberry and Golden Oak be affirmed.
In the ALJ’s Opinion and Order on Remand, rendered
September
28,
1998,
Thornsberry’s
dismissed on the merits.
injury
claim
was
However, the ALJ declined to
make further findings in connection with the periods of
TTD, stating that there was no dispute as to any period
of TTD.
In the Special Fund’s second appeal to the
Workers’
Compensation
Board,
we
affirmed
the
ALJ’s
decision in concluding that Thornsberry did not sustain
an injury of appreciable proportions and that the ALJ’s
dismissal of any permanent disability was supported by
substantial evidence. However, we further concluded that
the ALJ, under the evidence submitted, had failed to make
an appropriate finding of fact in connection with the
duration of TTD since [the] Board did not have the
authority to make such findings.
Thus, [the] Board, in its Opinion rendered April 16,
1999,
reversed
on
this
sole
issue
and
remanded
Thornsberry’s claim once again to the ALJ with directions
to undertake his analysis of TTD within the standard
established by our appellate courts, particularly W.L.
-3-
Harper Constr. Co. v. Baker, Ky. App., 858 S.W.2d 202
(1993).
The ALJ rendered his Final Order on Remand on June
11,
1999,
and
made
corrections
therein
by
way
of
subsequent orders on petitions for reconsideration from
which the Special Fund has again appealed.
On remand,
the ALJ determined that Thornsberry was only entitled to
the period of TTD for his injury claim which had been
paid by Golden Oak from June 5, 1992 through July 12,
1992, and from August 10, 1992 through November 14, 1993.
Relevant herein as to the present issue on appeal, was
the fact that Thornsberry’s last exposure to coal dust
occurred on August 10, 1992.
In his finding of TTD, the ALJ relied on evidence
from Dr. Robert P. Goodman, whose opinion reflected that
maximum medical improvement had been achieved and that
light work was possible for Thornsberry. We believe this
was substantial evidence to support the ALJ’s decision.
W.L. Harper Constr. Co. v. Baker, supra.
This determination, however, did not resolve the
issue raised by the Special Fund which it then requested
by petition for reconsideration.
Its primary problem
since day one has been, when does the Special Fund have
to commence payments on its 75% liability for the total
occupational disease award?
How many weeks of credit is
the Special Fund entitled to as a matter of factual
determination and as a matter of law from the TTD paid by
-4-
Golden
Oak
on
Thornsberry’s
injury
award
and
the
settlement agreed to between Thornsberry and Golden Oak
as approved by the ALJ in the injury claim on July 12,
1994?
The Special Fund raised the question of whether
the opinion on remand should be corrected to incorporate
the entirety of the $30,000.00 lump sum payment which
Thornsberry and Golden Oak had entered into in full
settlement
of
the
injury
claim,
with
the
further
agreement that the entirety of the lump sum settlement
would apply and serve as credit for any and all payments
of TTD and benefits which were owed under the injury
claim which was ultimately dismissed.
The ALJ, in his first order on the Special Fund’s
petition for reconsideration, dated August 24, 1999,
incorporated several erroneous findings. One finding had
to do with the commencement date of TTD on June 2, 1991
through July 12, 1992 when, in fact, TTD initially had
not commenced until June of 1992.
However, since this
amount was paid prior to the date of last exposure for
the occupational disease award, the question remained of
whether those weeks could be included for purposes of
calculating the ultimate liability and commencement date
for the Special Fund payments.
In addition, an error as
to
paid
the
total
$55,080.00
amount
which
of
was
TTD
incorrect.
was
reflected
Finally,
utilized a life expectancy of 30.7 years.
the
as
ALJ
Thornsberry
was 46 years of age at the time of his last exposure in
-5-
August
of
1992
and
the
additionally in error.
life
expectancy
table
was
All parties filed petitions for
reconsideration from the ALJ’s order of August 24, 1999.
After the Board summarized the facts, it proceeded to
adopt the opinion of the ALJ in full.
The relevant portions of the
ALJ’s opinion follow:
9.
On or about August 24, 1999 the Administrative
Law Judge entered again a Final Order responding to the
Special Fund’s Petition for Reconsideration.
In this
last Order the Administrative Law Judge added together
the
two
periods
of
temporary
total
disability
paid
voluntarily by the employer from June 5, 1992 through
July 12, 1992 and from August 10, 1992 through November
14,
1993
with
the
calculated
period
of
payments
represented by the lump sum settlement of $30,000.00 and
concluded that to be the total of TTD period paid in this
case.
This
was
an
error.
The
period
of
weeks
represented by the $30,000.00 lump sum payment which is
78.95 weeks is clearly not temporary total disability.
Temporary total disability terminated on November 14,
1993 due to a finding of maximum medical improvement by
Dr. Robert Goodman.
The 78.95 weeks reflected by the
$30,000.00 lump sum payment by the employer on the
“injury claim” must be considered as nothing more than
gratuitous as to the “injury claim” as the Administrative
Law Judge has found that the injury did not result in any
permanent
disability
and
-6-
that
the
plaintiff
reached
maximum
medical
Goodman,
and
improvement
temporary
pursuant
total
to
Dr.
disability
correctly on November 14, 1993.
Robert
terminated
However, the $30,000.00
lump sum payment which equals 78.95 weeks does apply to
the
employer’s
25%
liability
under
the
occupational
disease award.
10.
Payment under the occupational disease award
must begin on the date of last exposure which was August
10, 1992.
11.
the
Further, the settlement agreement reflects that
$30,000.00
will
be
as
an
offset
against
the
occupational disease award and would be so even if it did
not so reflect.
With no injury award having been made,
however, the employer’s obligation was running from the
date of last exposure whether paid or not.
this
case
the
$30,000.00
paid
for
the
However, in
occupational
disease award as well was only a “gratuitous” payment on
the injury claim.
12.
On the date of last exposure the plaintiff was
46 years of age giving him a life expectancy of 28.22
years
(per
table
in
effect
at
that
time)
which
is
1,46[7].44 weeks. 25% of 1,467.44 weeks is 366.86 weeks.
Employer voluntarily paid 66 weeks of temporary total
disability and the $30,000.00 lump sum equals 78.95 weeks
of permanent and total disability payment under the
occupational disease award.
weeks
paid
at
144.95;
-7-
Given the total number of
leaving
221.91
weeks
of
occupational disease award to be paid (beginning May 23,
1995)
before
the
Special
Fund’s
obligation
begins.
Therefore, the employer’s 25% portion of this combined
award should have been paid out on August 11, 1999.
. . .
14.
The total value of the occupational disease
award is $557,627.20. The voluntary payment of temporary
total disability on the injury claim was in the amount of
$25,080.00.
This takes priority over the occupational
disease award and equals 66 weeks of payment on the
combined award.
The lump sum payment of $30,000.00 was
intended in settlement of the injury claim against the
employer but specifically is applicable to a 25% payment
under the occupational disease award and equals 78.95
weeks of payment on the combined award.
The employer is
specifically credited as against its liability on the
combined award all payments made by the time of its
voluntary temporary total disability and the lump sum
settlement, pursuant to Buale [sic] v. Robinson, Ky., 823
S.W.2d 856 (1992). The beginning time for the payment of
the employer’s percentage of liability is the date of
last exposure, which is August 10, 1992; and payment made
by the employer in whatever form must be credited against
the 25% liability on a combined award.
15.
objection
To satisfy the Special Fund’s continuing
this
Order
specifically
reopens
the
occupational disease claim, incorporates the settlement
-8-
agreement and enters a combined award of benefits to the
extent stated herein and with the understanding that the
Administrative Law Judge has by Order of September 25,
1998 dismissed the injury claim for the reasons stated
therein, which reasons are hereby adopted in whole; and
with the further understanding that the Administrative
Law Judge has by Order dated June 11, 1999 determined
that the plaintiff reached maximum medical improvement as
found Dr. Robert Goodman and that the appropriate period
of temporary total disability was as voluntarily paid for
the reasons therein stated, which are hereby adopted as
if set out in whole.
16.
The employer’s obligation ended August 11,
1999.
. . .
It is further ORDERED that the period of benefits
payable begins August 10, 1992 and the employer shall
receive
credit
for
all
payments
made
as
recited
heretofore and the Special Fund’s obligation hereinafter
shall begin on the 11th day of August, 1999 and shall
continue
thereafter
consistent
with
all
applicable
statutory and common law.
. . . .
The issues raised on appeal by the Special Fund are
twofold: (1) whether the Board erred in using the life expectancy
table in effect at the date of Thornsberry’s last exposure to coal
dust,
and
(2)
whether
the
Board
-9-
erroneously
calculated
Thornsberry’s
benefits
which
resulted
in
the
Special
Fund’s
obligation beginning earlier than it should have.
The
expectancy
Special
table
Fund
used
was
Thornsberry’s award.
argues
in
that
the
determining
incorrect
the
duration
life
of
The life expectancy table in effect at the
time of Thornsberry’s exposure calculates that the life expectancy
of a forty-six year old male is 28.22 years.
Subsequent to
Thornsberry’s exposure, the Department of Workers’ Claims adopted
803 Kentucky Administrative Regulation (KAR) 25:036, which provides
that:
If an administrative law judge is required to
compute
the
apportionment
of
benefits
between
the
employer and the Special Fund pursuant to KRS 342.120(3),
the portions shall be based on the life expectancies
contained in the male or female mortality tables in
Appendix A of this administrative regulation. If a claim
is reopened, the table in effect on the date of the
original opinion, award or order approving the settlement
agreement shall continue to be utilized.
Appendix A calculates that the life expectancy for a 46 year old
male is 30.2 years.
The Special Fund urges that, since this is not
a reopening, the table contained in Appendix A should be used
instead of the table in effect at the time of the injury.
Although
the Special Fund is correct in that this case is not a reopening,
the ALJ’s use of the life expectancy table at the time of the
injury was not in error.
“[T]he award of benefits is, as always,
-10-
controlled by the law in effect at the time of the injury.”1
Because
Thornsberry’s
award
has
yet
to
be
made
final,
all
calculations of his award date back to 1992, the year of the
injury.
Therefore, the more recent life expectancy table found in
803 KAR 25:036 should be ignored for purposes of determining
Thornsberry’s life expectancy.
The Board did not err in affirming
the decision of the ALJ to use the life expectancy table in effect
at the time of the injury that reflects a life expectancy of 28.22
years.
The Special Fund’s next argument is that the Board and
the ALJ miscalculated Thornsberry’s award.
In particular, the
Special
obligated
Fund
contends
that
Golden
Oak
was
to
make
payments until August 7, 2000, whereas the ALJ calculated that
Golden Oak’s obligation ended August 11, 1999.
The Special Fund
bases its argument on the Supreme Court’s decision in Beale v.
Robinson.2 In Beale, the claimant was awarded temporary, total
disability for approximately nine months and 30% permanent, partial
disability benefits for 425 weeks thereafter.3
The employer of the
injured worker was liable for this entire award.4
The claimant was
also awarded 50% permanent, partial disability benefits for 425
weeks as a result of pneumoconiosis which was apportioned 75% to
1
Federal Materials Co. v. Baker, Ky., 885 S.W.2d 704, 705
(1994).
2
Ky., 822 S.W.2d 856 (1992).
3
See id. at 856.
4
See id.
-11-
the Special Fund and 25% to the employer.5
The Supreme Court
included the following chart in its appendix to illustrate its
holding:
Injury Claim:
4/2/85
12/24/85
____38 wks.______________|____________________425 wks.______¸
Temp., total
30% perm., partial disability
disab.
Occupational Disease Claim
425 wks. - 50% permanent, partial disability
4/2/85
12/24/85
|____38 wks._____________|___________387 wks.____________¸
(Not paid because
(Paid)
claimant receives
total disability
due to an injury)6
As the Supreme Court pointed out, Kentucky Revised Statute (KRS)
342.316(1)(b) provides that “the beginning of compensation payments
shall be the date of the employee’s last injurious exposure to the
cause of the disease . . . .”
The circumstances in Beale are similar to the facts in
the present claim.
Here, we have two distinct claims, one for a
disability and one for an occupational disease.
Temporary, total
disability benefits were paid to Thornsberry from August 10, 1992,
to November 14, 1993, equaling 66 weeks.7
paid
to
Thornsberry
5
Golden
Oak
as
a
settlement
for
the
See id.
6
by
Also, $30,000.00 was
Id. at 858.
7
Although Thornsberry was compensated for temporary, total
disability from June 5, 1992, through July 12, 1992, the ALJ
correctly held that this period could not be used as a credit and
offset for Golden Oak because the date of Thornsberry’s last
exposure to coal dust was subsequent to these dates, August 10,
1992.
-12-
disability claim.8
Converting the $30,000.00 into weeks at $380.00
a week9 equals 78.95 weeks, which equals 144.95 weeks when added
with the 66 weeks paid by Golden Oak for TTD.10
Thornsberry’s life expectancy at the time of his original
claim was 28.22 years, which equates into 1,467.44 weeks. 1,467.44
weeks
at
$380.00
$557,627.20.
equals
a
total
award
for
Thornsberry
of
Because the injury award and the disability claims
were ordered to be consolidated by the Supreme Court in its June
18, 1998, opinion, the Special Fund became liable for 75% of the
total occupational disease award and Golden Oak became liable for
25% of the total occupational disease award.
The Special Fund argues that the percentages should not
be calculated until the 66 weeks paid by Golden Oak for temporary,
total disability are subtracted from the total 1,467.44 weeks owed
to Thornsberry. According to the Special Fund, if Golden Oak’s 25%
is calculated from the 1,467.44 weeks after the 66 weeks paid for
TTD
are
subtracted
(leaving
1,401.44
weeks),
Golden
Oak’s
obligation to pay $380.00 per week would extend for 350.36 weeks,
with Golden Oak’s obligation to pay extending until August 7, 2000.
However, this analysis is not consistent with Beale.
8
The $30,000.00 settlement, which was approved in June 1994,
was characterized by the ALJ as a “gratuitous” payment on the
injury
claim
because
Thornsberry
reached
maximum
medical
improvement of his temporary injury on November 14, 1993.
9
The weekly benefit due to Thornsberry under the
occupational disease award was $380.00, an amount not in dispute.
10
Golden Oak paid $25,080.00 for temporary total disability
on Thornsberry’s injury claim. When divided by $380.00 a weeks,
the total number of weeks paid is 66.
-13-
According to Beale, the percentages owed by Golden Oak
and the Special Fund are to be calculated from the date of last
exposure, not the date of termination of TTD.11
Thornsberry’s last exposure was August 10, 1992.
Here, the date of
Although Golden
Oak was responsible for TTD until November 14, 1993, Golden Oak is
to be given credit for this amount in regard to the occupational
disease award.
Hence, 25% of the total 1,467.44 weeks equals
366.86 weeks. The ALJ calculated Golden Oak’s obligation to extend
from August 10, 1992, until August 11, 1999.
This calculation was
slightly in error.
The
ALJ
correctly
calculated
2,568.02 days or 7.04 years.
366.86
weeks
to
total
The ALJ apparently rounded off the
number of years to 7, hence ending Golden Oak’s obligation on
August 11, 1999.
weeks.
until
However, .04 years is equal to 14.6 days, or 2.1
Therefore, Golden Oak’s obligation should not have ended
August
26,
1999.
The
following
chart
illustrates
the
compensation period for Thornsberry:
Injury Claim
8/10/92
11/14/93
|________66 wks.___________|
Occupational Disease Claim
1,467.44 wks. - 100% total occupational disability
8/10/92
11/14/93
|________66 wks.___________|__________1,401.44 wks._________¸
(Not paid because
(Paid)
claimant receives
total disability
due to injury)
11
See Beale, supra note 2, at 856.
-14-
This case is remanded to the Board with instructions to
remand to the ALJ with instructions to enter an award consistent
with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE GOLDEN OAK
MINING COMPANY:
David R. Allen
Frankfort, Kentucky
Barkley J. Sturgill, Jr.
FITZPATRICK, OSBORNE &
STURGILL, P.S.C.
Prestonsburg, Kentucky
BRIEF FOR APPELLEE HOMER
THORNSBERRY:
Miller Kent Carter
BRANHAM & CARTER, P.S.C.
Pikeville, Kentucky
-15-
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