ROBERT L. WHITTAKER, Director of Special Fund v. DANNY L. RATLIFF; ISLAND FORK CONSTRUCTION; DONALD G. SMITH, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: MAY 4, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-001001-WC
ROBERT L. WHITTAKER,
Director of Special Fund
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-97-01924
v.
DANNY L. RATLIFF;
ISLAND FORK CONSTRUCTION;
DONALD G. SMITH,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, HUDDLESTON and KNOPF, Judges.
HUDDLESTON, Judge:
The Special Fund appeals1 from an opinion
rendered by the Workers’ Compensation Board.
The Special Fund
contends the Administrative Law Judge failed to give presumptive
weight to the evidence presented by the university physician
appointed pursuant to Kentucky Revised Statute (KRS) 342.315 and
1
Danny L. Ratliff has settled his occupational disease claim
with Island Fork Construction; therefore, the agreed-upon sum
extinguished the employer’s liability.
that it was error for the Board to hold that this provision could
not be applied retroactively to claims where the last exposure
occurred prior to December 12, 1996.2
Additionally, the Special
Fund claims the Board erred in stating that the two awards to Danny
L. Ratliff, one for an injury claim and one for an occupational
disease claim, overlap for 425 weeks.
Finally, the Special Fund
claims the Board erred in determining when the Special Fund’s
payments to Danny Ratliff are to begin.
Facts and Procedural History
The Board has described the facts of this case in detail
in
its
opinion,
rendered
March
24,
2000,
and
we
adopt
its
recitation.
Ratliff [] filed a claim for coal workers’
pneumoconiosis, Form 102, on August 12, 1997, alleging a
last exposure while employed as a foreman for Island Fork
Construction . . . with the last exposure occurring on or
about October 25, 1996. Ratliff asserted therein that he
had been exposed to the hazards of respirable dust on a
daily
basis
for
approximately
28
years.
His
pneumoconiosis filing was assigned Claim No. 97-01924.
Ratliff, as a result of his employment with
Island Fork, also filed two separate claims in addition
to his occupational disease claim.
Ratliff alleged that
he sustained a work-related injury to his back on or
about October 24, 1996, while employed by Island Fork,
2
This is the date that the presumptive weight provision in
KRS 342.315 became effective.
-2-
and he subsequently filed a separate claim for hearing
loss [].
Initially, when these three separate claims
were assigned to an Arbitrator, the three claims were
consolidated.
Because
questions
arose
as
to
the
applicability of various 1996 statutory amendments to our
workers’ compensation statute, the consolidated claims
were placed in abeyance pending a final decision in
Breeding v. Colonial Coal Co., Ky., 975 S.W.2d 914
(1998).
Ratliff,
however,
petitioned
for
a
reconsideration of the abatement order requesting that
his injury claim be bifurcated and resolved while the
pneumoconiosis claim and the hearing loss claim remained
in abeyance.
An Arbitrator’s order of April 15, 1998[,]
bifurcated the injured [sic] claim and on April 28, 1998,
the Arbitrator rendered a benefit review determination in
that claim finding Ratliff 75% occupationally disabled.
However, apparently Island Fork then filed a de
novo appeal to the ALJ on both the injury claim and the
hearing
loss
determination
Arbitrator.
Colonial
claim,
on
the
although
there
had
been
no
hearing
loss
claim
by
the
Further, when the Supreme Court decision in
Coal,
supra,
became
final,
the
Arbitrator
proceeded to render a decision in both the hearing loss
and pneumoconiosis claims on November 10, 1998, since
both claims were still pending before the Arbitrator.
Thirteen days later, however, ALJ Kline rendered an
-3-
opinion in both the injury claim and the hearing loss
claims.
Accordingly, the Arbitrator issued additional
orders to rectify the procedural quandary in which the
parties found themselves.
The Arbitrator rescinded a
portion of the benefit review determination in connection
with Ratliff’s hearing loss claim and vacated same.
Furthermore, the Arbitrator transferred the hearing loss
claim to ALJ Kline as of June 26, 1998, nunc pro tunc.
The Arbitrator issued these orders on December 22, 1998.
In an Opinion and Award issued by ALJ Kline on
November 23, 1998, he dismissed Ratliff’s hearing loss
claim as not work-related.
The last exposure date for
the hearing loss claim had also been alleged as of
October 24, 1996.
In connection with the October 24,
1996[,] back injury claim, ALJ Kline determined that
Ratliff
sustained
disability.
a
40%
permanent
The ALJ apportioned liability 50% to Island
Fork and 50% to the Special Fund.
total
occupational
disability
benefits
from
He awarded temporary
October
26,
1996[,]
through May 24, 1997[,] in the amount of $415.94 per week
and thereafter Island Fork was obligated to pay $62.39
per week for 20% occupational disability for 425 weeks.
The ALJ assessed liability against the Special Fund in
the amount of $62.39 per week for 20% occupational
beginning May 5, 1997[,] for 425 weeks.
In the occupational disease claim before ALJ
Smith, Island Fork and Ratliff settled their dispute
-4-
prior to final adjudication.
On April 29, 1999, ALJ
Smith approved a settlement between Island Fork and
Ratliff for a lump sum of $70,000.00.
Therein, however,
Ratliff reserved his right to proceed against the Special
Fund. That claim was adjudicated to an Opinion and Award
before ALJ Smith.
Whether Ratliff had contracted the
occupational disease of coal workers’ pneumoconiosis was
the primary issue before the ALJ and the medical evidence
submitted to the ALJ was conflicting on this issue.
In
ALJ Smith’s Opinion and Award rendered July 8, 1999, the
ALJ, based upon evidence from Dr. John Myers and Dr.
Robert Powell, found that Ratliff suffers from Category
2/2 coal workers’ pneumoconiosis.
that
Ratliff
is
totally
disabled
The ALJ determined
pursuant
to
KRS
342.732(1)(d).
Since Island Fork had previously settled its
liability as of April 29, 1999, the ALJ awarded Ratliff
75% occupational disability benefits against the Special
Fund.
His award was corrected by an order of September
28, 1999, to reflect the amount of $311.96 per week,
subject to the appropriate tier-down of benefits when
Ratliff reaches his 65th birthday, in accord with KRS
342.730(4), and following his 70th birthday, the ALJ
awarded post life expectancy and post tier-down benefits
to Ratliff thereafter in the amount of $124.78 per week.
Failure to Give Presumptive Weight
-5-
The first question presented by the Special Fund is
whether the ALJ erred in failing to give presumptive weight to the
evidence presented by the university physician appointed pursuant
to KRS 342.315.
Although the Special Fund raised this same issue
in its brief to the Board,
the Board did not address the issue in
its Opinion.
Presumptive weight is to be given to the opinion of the
university evaluator pursuant to KRS 342.315.
The Supreme Court
in Magic Coal Co. v. Fox3 said:
KRS 342.315(2) creates a rebuttable presumption which is
governed by KRE4 301 and, therefore, does not shift the
burden of persuasion.
clinical
findings
and
Pursuant to KRS 342.315(2), the
opinions
of
the
university
evaluator constitute substantial evidence of the workers’
medical condition which may not be disregarded by the
fact-finder unless rebutted. Where the clinical findings
and opinions of the university evaluator are rebutted,
KRS 342.315(2) does not restrict the authority of the
fact-finder to weigh the conflicting medical evidence.
In instances where a fact-finder chooses to disregard the
testimony of the university evaluator, a reasonable basis
for doing so must be specifically stated.5
3
Ky., 19 S.W.3d 88 (2000).
4
Kentucky Rules of Evidence. [Footnote supplied].
5
19 S.W.3d at 97.
-6-
According to ALJ Smith’s Opinion and Award, the report of
Dr. John H. Woodring, the designated university evaluator pursuant
to KRS 342.315(2), was submitted and considered in the fact-finding
process.
However, Drs. Myers and Powell conducted evaluations of
Ratliff and the results of these evaluations were offered to rebut
the findings of Dr. Woodring.
evaluators
the
greatest
The ALJ gave the findings of these
weight.
ALJ
Smith
said
that
these
evaluators “were fairly consistent in their readings as to the
types of nodulation and its location within the lung zones.”
We conclude that the ALJ has articulated a reasonable
basis for disregarding the evidence presented by the university
evaluator’s findings.
address
this
Therefore, although the Board failed to
question,
we
find
no
reason
to
remand
on
this
question.
Award Overlap
The second question presented by the Special Fund is
whether the Board erred in stating that the two awards overlap for
only 425 weeks.
The Board’s contention is that the awards are to
overlap for 455 weeks.
We disagree.
The two awards in this case are: one for the back injury
and one for pneumoconiosis.
a
40%
permanent
occupational
The back injury award was found to be
occupational
disease
claim
disability.
was
found
to
The
be
a
pneumoconiosis
total
(100%)
occupational disability. The payments for the back injury began on
May 5, 1997[,] and were to continue for 425 weeks.
-7-
Payments based
on an occupational disease begin on the date of last exposure.6
Therefore, according to the findings of ALJ Smith, the payments for
pneumoconiosis were to begin on October 24, 1996.
Yet, ALJ Smith
determined these payments were to begin on April 29, 1999.7
The
problem presented is that “a person at any one time may not receive
benefits that exceed total disability benefits[.]”8
This does not
mean that Ratliff cannot receive benefits for both occupational
injury permanent partial disability award and occupational disease
when the occupational disease claim is a total disability award.
As the Supreme court has said:
The dollar amount of the injury claim must be deducted
from the maximum benefit allowed for total disability.
The
balance
of
the
total
disability
allowable
then
becomes the effective amount of the occupational disease
award.9
On remand, the Special Fund is to continue paying the
permanent partial disability for the back injury while applying a
credit for that amount against the occupational disease total
disability that the Special Fund is to pay each week until the 425week period for the permanent partial disability ends.
When the
permanent partial disability payments for the back injury end, the
6
See Beale v. Robinson, Ky., 822 S.W.2d 856, 857 (1991); see
also Newburg v. Parsons, Ky. App., 852 S.W.2d 336, 337 (1992).
7
While the start date for occupational disease benefits
appears to be in error, this issue is not raised by any of the
parties.
8
Parsons, supra, n. 5 at 338.
9
Beale v. Shepherd, Ky., 809 S.W.2d 845, 849 (1991).
-8-
Special Fund will be responsible for making the full payment of the
total occupational disease award without further credit for the
permanent partial disability payments.
The permanent partial disability payments began on May 5,
1997.
The occupational disease total disability payments began on
April 29, 1999.
Therefore, as stated by the Board, beginning May
5, 1997, the Special Fund is to pay $62.39 per week (for the
Special Fund’s portion of occupational disability) for 425 weeks.
The Special Fund is entitled to a credit of $62.39 per week against
the $311.96 per week that was due, beginning April 29, 1999, for
the payment of the occupational disease weekly benefits.
This
credit is applicable against the weekly payment of occupational
disease benefits until the end of the 425-week period of payments
due for the occupational disability benefits.
To summarize, the Special Fund is liable for combined
benefits of $311.96 per week during the 322-week period beginning
April 29, 1999.
After the expiration of the 425-week period of
payments of the occupational disability benefits, the Special Fund
is liable, for the remaining 103-week period, for the occupational
disease benefits of $311.96 per week, its 75% share of the maximum
benefits for total disability.10
Date Payments Are to Begin
The Special Fund argues that payments by the Special Fund
must commence June 30, 2001, the date the employer will extinguish
its liability on the permanent partial disability award. The Board
10
See Coots v. Whittaker, Ky., 998 S.W.2d 491, 493 (1999).
-9-
held that the Special Fund must begin making payment on both awards
as of the date the settlement is approved.
The Special Fund argues
and the Board agreed that KRS 342.120 governs this question.
The
Special Fund asserted that Ratliff’s employer, Island Fork, reached
a settlement agreement with Ratliff only for the occupational
disease claim, not the occupational injury claim.
This is the
basis for the Special Fund’s argument that Island Fork has not
extinguished liability on the permanent partial disability injury
award.
“The
function
of
further
review
of
the
[Workers’
Compensation Board] in the Court of Appeals is to correct the Board
only where the [] Court perceives the Board has overlooked or
misconstrued controlling statutes or precedent, or so flagrant as
to cause gross injustice.”11
Since the Special Fund has not
provided us with a copy of the Settlement Agreement approved on
April 29, 1999, that ALJ Smith refers to in his Opinion and Award,
we cannot decide the question presented.
We cannot discern,
without affirmative proof, that Island Fork has, or has not,
settled Ratliff’s occupational injury claim.
If the Board has
committed an error in assessing the evidence, we do not have the
information necessary to decide the question.
We reverse the Board’s opinion on the question concerning
the award overlap and remand this case to the Board with directions
to order changes in accord with this opinion upon remand to the
ALJ.
11
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
688-89 (1992).
-10-
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David R. Allen
Attorney for Special Fund
Frankfort, Kentucky
Thomas G. Polites
WILSON SOWARDS POLITES &
MCQUEEN
Lexington, Kentucky
-11-
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