ISLAND CREEK COAL COMPANY v. WILLIAM C. LOGSDON; ROBERT WHITTAKER, DIRECTOR OF SPECIAL FUND; HON. THOMAS A. NANNEY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
AUGUST 31, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000433-WC
ISLAND CREEK COAL COMPANY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NOS. WC-94-40696; WC-95-42320; WC-96-01201
WILLIAM C. LOGSDON;
ROBERT WHITTAKER, DIRECTOR OF SPECIAL FUND;
HON. THOMAS A. NANNEY, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Island Creek Coal Company petitions for review
of an opinion of the Workers’ Compensation Board which affirmed
an Administrative Law Judge’s finding that William C. Logsdon was
100% occupationally disabled upon reopening.
Island Creek argues
that the earlier award is res judicata as to the reopening case
and regardless, the evidence did not support a finding of
additional or total disability.
Because compensation cases are
different, res judicata does not apply to reopenings and the
Board did not flagrantly err in assessing the evidence.
affirm.
Thus we
In his original claim, Logsdon alleged he sustained
three lower back injuries and suffered from coal workers’
pneumoconiosis while working for Island Creek.
The ALJ found
Logsdon to be 50% occupationally disabled from the injury claim
and awarded retraining incentive benefits for the occupational
disease claim in an Opinion and Award dated May 27, 1997.
Subsequent to the award, Logsdon was released to return to work
by his physician.
He passed a pre-employment physical and
underwent two days of recertification in mining training at the
mine.
However, upon returning to the mine for work, Logsdon
experienced such an increase in back pain that he had to be taken
from the mine without ever actually working.
On June 17, 1998,
Logsdon had another back surgery which had mixed results.
The
ALJ considered the evidence on reopening and concluded that
Logsdon was now totally occupationally disabled.
Island Creek appealed to the Board which affirmed the
ALJ.
In its appeal, Island Creek had argued that the ALJ’s
earlier findings were res judicata as to Logsdon’s restrictions
as found and relied upon by the ALJ in awarding disability.
The
Board recognized that Logsdon had to show a “change” in
disability to merit a reopening and then stated:
Contrary to the assertions made by Island Creek, we do not
believe the Opinion of the original ALJ is res judicata as to the
restrictions then found and relied upon by the ALJ therein.
While the ultimate decision of the ALJ upon reopening mandates a
finding that there is a greater degree of occupational disability
than existed at the time of the original award, such a decision
need not be made in a vacuum nor is the ALJ without authority to
consider alterations in the moving party’s condition between the
time of the original opinion and the opinion on reopening. To do
so would ignore reality.
-2-
On appeal to this Court, Island Creek contends the Board erred as
a matter of law in not holding the prior award is res judicata.
We agree with the Board that the case of Stambaugh v. Cedar Creek
Mining Company, Ky., 488 S.W.2d 681 (1972) is controlling.
Stambaugh dealt with a reopening of a worker’s compensation claim
and distinguished compensation cases as different:
Compensation cases may be reopened on grounds
that would not be sufficient to authorize the
disturbance of judgments in common law or
equity proceedings. A “change of condition,”
for example, would not overcome the defense
of res adjudicata in a tort case as it does
in a compensation case. Cf. KRS 342.125.
Id. at 682.
See also W. E. Caldwell Co. v. Borders, 301 Ky. 843,
193 S.W.2d 453 (1946).
This “difference” in compensation cases
justifies a complete review of all aspects of the original award
to see if there is in fact, a “change.”
Island Creek’s second argument to this Court is that
the claimant failed to demonstrate a change for the worse in his
condition since the time of the original award of benefits.
We
believe the record supports the ALJ’s conclusions that between
the original decision and the reopening there had been some
deterioration in Logsdon’s condition.
After the award, he passed
the pre-employment physical and actually attempted to return to
work.
He had a medical release to return to work and he believed
he could return.
He was unsuccessful and had another back
surgery, after which his doctor said he was 100% disabled.
True,
there was conflicting evidence, but the ALJ found for Logsdon.
That is the ALJ’s function.
Caudill v. Maloney’s Discount
-3-
Stores, Ky., 560 S.W.2d 15 (1977); McCloud v. Beth-Elkhorn Corp.,
Ky., 514 S.W.2d 46 (1974).
The Board’s review is limited to whether the evidence
is sufficient to support a particular finding made by the ALJ.
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685 (1992).
The Board so found.
The function of the Court of Appeals in
reviewing a decision of the Board is to correct the Board only
where the Court perceives the Board has overlooked or
misconstrued statutes, precedent or has flagrantly erred in
assessing the evidence so as to cause a gross injustice.
687-688.
Id. at
We find no such errors and therefore affirm the
decision of the Workers’ Compensation Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, WILLIAM C.
LOGSDON:
Eileen O’Brien
Lexington, Kentucky
Harry R. Hinton
Madisonville, Kentucky
BRIEF FOR APPELLEE, SPECIAL
FUND:
David R. Allen
Frankfort, Kentucky
-4-
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