CLEAN ENERGY MINING COMPANY v. RONALD PRATER; JOHN B. COLEMAN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD and RONALD PRATER v. CLEAN ENERGY MINING COMPANY; JOHN B. COLEMAN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
OCTOBER 12, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000838-WC
CLEAN ENERGY MINING COMPANY
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-66101
v.
RONALD PRATER;
JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
AND:
APPELLEES
CROSS APPEAL NO. 2000-CA-000869-WC
RONALD PRATER
v.
APPELLANT
CROSS-APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-97-66101
CLEAN ENERGY MINING COMPANY;
JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge, BUCKINGHAM and McANULTY, Judges.
BUCKINGHAM, JUDGE: Appellant, Clean Energy Mining Company, and
cross-appellant, Ronald Prater, petition for our review of an
opinion of the Workers’ Compensation Board (Board) rendered March
3, 2000, affirming an opinion and award rendered November 12,
1999, by an administrative law judge (ALJ) granting Prater
temporary total disability (TTD) benefits as paid and permanent
partial disability (PPD) benefits of $271.57 per week for 520
weeks beginning January 26, 1998.
We affirm.
Prater was injured on October 6, 1997, while moving a
miner cable as an employee of Clean Energy.
Prater has not
worked since that injury and underwent a cervical discectomy on
February 24, 1998.
Prater sought permanent disability benefits
based on evidence of both physiological and psychological
impairment.
As to Prater’s injuries, the ALJ considered evidence
from several doctors who treated Prater.
The ALJ adopted the
findings of Dr. James Templin with regard to a 19% physiological
impairment rating and Dr. William Weitzel’s 8% psychological
impairment rating for a total impairment rating of 27%.
Pursuant
to Kentucky Revised Statues (KRS) 342.730(1)(b),1 the ALJ
multiplied Prater’s impairment by a factor of 2 for a 54%
impairment.
Finally, pursuant to KRS 342.730(1)(c)1, the ALJ
multiplied Prater’s benefit by 1.5 since Prater could not perform
the same type of work he could prior to the injury.
1
Both Prater
All references in this opinion to the statutes are to
those in effect prior to the 2000 amendments.
-2-
and Clean Energy appealed to the Board which issued an opinion
affirming the ALJ’s decision.
These petitions for review
followed.
Appeal No. 2000-CA-000838-WC
Clean Energy contends on appeal that the Board erred in
failing to carve out a portion of Prater’s award to allow for the
natural aging process as required by KRS 342.0011(1).2
Dr.
Templin’s report stated that 50% of Prater’s impairment was due
to the arousal of a pre-existing dormant degenerative condition
attributable to the natural process of aging.
However, Dr.
Templin’s report also indicated that the dormant condition had no
effect until aroused by the work-related injury.
The Board acknowledged that it had struggled with the
natural aging carve-out issue in the past.
The Board reasoned
that the American Medical Association (AMA) guidelines used to
determine impairment already allow for the natural effects of
aging.
The Kentucky Supreme Court recently addressed the natural
aging carve out issue of KRS 342.0011(1) in McNutt
Construction/First General Services v. Scott, Ky., 40 S.W.3d 854
(2001).
We view the McNutt court’s analysis of this question as
directly on point and quote therefrom:
As we construe the definition of “injury,”
the critical question is one of causation.
Although KRS 342.0011(1) clearly indicates
that the effects of the natural aging process
are not considered to be an “injury,” it also
clearly indicates that work-related trauma
“which is the proximate cause producing a
harmful change in the human organism” is an
2
KRS 342.0011(1) provides in pertinent part that “‘Injury’
does not include the effects of the natural aging process. . . .”
-3-
“injury.” When the two provisions are
considered in concert, it appears that their
purpose is to emphasize that only those
harmful changes which are proximately caused
by work-related trauma are compensable
pursuant to Chapter 342. Where work-related
trauma causes a dormant degenerative
condition to become disabling and to result
in a functional impairment, the trauma is the
proximate cause of the harmful change; hence,
the harmful change comes within the
definition of an injury. [footnote omitted]
Id. at 859.
A review of the medical evidence indicates there was
no impairment prior to the work-related injury.
Therefore, we
believe the ALJ did not err in failing to reduce Prater’s award
for the natural effects of aging and the Board did not err in
affirming the ALJ.
We thus affirm the Board on this issue.
Cross-Appeal No. 2000-CA-000869-WC
Prater argues on cross-appeal that (1) the ALJ erred in
the way he applied KRS 342.730(1)(d) to his benefit calculation
and (2) that KRS 342.730(1)(b) violates sections 29 and 60 of the
Kentucky Constitution.
With regard to Prater’s first claim of error, we
disagree that there was any error in calculating Prater’s
benefit.
The Board affirmed the ALJ’s
calculation method as it
followed the method spelled out by the Board in Kiah Creek Mining
v. Stewart, Claim No. 97-76965, rendered September 3, 1999.
Both
this court and the Kentucky Supreme Court have since affirmed the
Board’s calculation method in Stewart v. Kiah Creek Mining, Ky.,
42 S.W.3d 614 (2001).
The court in Stewart held that to
calculate PPD benefits the impairment percentage is multiplied by
either 66 2/3% of the worker’s average weekly wage or 75% of the
state’s average weekly wage, whichever is less.
-4-
Id. at 618.
Prater argues that because he cannot return to the same type of
work, 100% and not 75% of the state’s average weekly wage is the
figure to apply in KRS 342.730 (1)(b).
However, the 100% figure
is only relevant in determining the maximum amount of benefit
allowed under KRS 342.730(1)(d).
Finally, Prater contends that the portion of KRS
342.730(1)(b) that requires calculating PPD awards based on the
latest edition of the AMA’s guide to evaluation of permanent
impairment is an unconstitutional delegation of legislative
authority.
The Board did not review this issue as it is without
jurisdiction to address constitutional issues.
disagree with Prater’s assertion.
Put simply, we
Prater relies on the Kentucky
Supreme Court’s holding in Legislative Research Com’n v. Brown,
Ky., 664 S.W.2d 907 (1984), prohibiting the General Assembly from
delegating broad legislative powers.
Legislative Research is misplaced.
Prater’s reliance on
Legislative Research dealt
with the separation of powers issue in terms of encroachment on
one of the other three branches of government as opposed to this
type of situation.
While it is clearly established that the legislature
cannot delegate is legislative power, this is not a rule without
exceptions. Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387
(1940).
As stated in Bloemer and reaffirmed in Holsclaw v.
Stephens, Ky., 507 S.W.2d 462 (1973), the legislature can “make a
law to delegate a power to determine some fact or state of things
upon which the law makes, or intends to make, its own action
depend.”
Holsclaw, 507 S.W.2d at 471.
-5-
We believe there is
clearly no constitutional violation in the legislature adopting
the expertise of the American Medical Association as part of the
law in KRS 342.730(1)(b).
For the foregoing reasons, the opinion of the Board is
affirmed.
Additionally, we hold that KRS 342.730(1)(b) does not
violate the Kentucky Constitution.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEES CLEAN ENERGY COAL
COMPANY:
BRIEF FOR APPELLEE/CROSSAPPELLANTS RONALD PRATER:
A. Stuart Bennett
Lexington, Kentucky
Kelsey E. Friend
Pikeville, Kentucky
-6-
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