SOUTHERN GAS/ENERGY MANAGEMENT CORPORATION v. MAC ARTHUR BEGLEY; SPECIAL FUND; HON. ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
AUGUST 23, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002775-WC
SOUTHERN GAS/ENERGY MANAGEMENT CORPORATION
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-90-47122
v.
MAC ARTHUR BEGLEY; SPECIAL FUND;
HON. ROGER D. RIGGS,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, COMBS, AND JOHNSON, JUDGES.
BARBER, JUDGE:
Appellant, Southern Gas/Energy Management
Corporation (“the employer”), asks us to review an opinion of the
Workers’ Compensation Board, affirming the ALJ’s award of
increased benefits upon reopening.
Finding no error, we affirm.
On November 8, 1990, the Appellee, Mac Arthur Begley
(“Begley”), sustained a work-related injury.
proceeding, the evidence was in conflict.
In the original
The employer’s proof
included the medical report of Dr. William Brooks, a neurologist,
who assigned 0% impairment based upon the AMA Guidelines and the
medical report of Dr. Jeffrey W. Parr who recommended that Begley
return to work.
On April 14, 1993, the ALJ awarded Begley
benefits for a 50% permanent partial disability.
The award was
apportioned 50-50 between the employer and the Appellee, Special
Fund.
That decision was not appealed.
On April 26, 2000, Begley filed a motion to reopen
alleging that his condition had worsened and that he was “now
totally occupationally disabled based upon the change of
condition since April 14, 1993.”
On May 21, 2001, the ALJ rendered an opinion and award
upon reopening.
The ALJ found that Begley had been “judicially
determined” to be 50% occupationally disabled in 1993.
The ALJ
concluded that Begley was now 100% occupationally disabled, based
upon Begley’s own testimony as well as the “credible testimony”
of Dr. Muffley and Dr. Sweazy, under the guidelines of Osborne v.
Johnson, Ky. App., 432 S.W.2d 800 (1968).
The employer appealed to the Board and argued that (1)
the ALJ’s finding of total occupational disability was not
supported by substantial evidence; and (2) that the December 12,
1996 amendments to KRS 342.125 — specifically subsection (1)(d)
which changed the criteria for reopening — applied to this claim,
requiring Begley to demonstrate a “[c]hange of disability as
shown by objective medical evidence of a worsening . . . of
impairment due to a condition caused by the injury since the date
of the award or order.”
In an opinion rendered November 28,
2001, the Board unanimously affirmed the ALJ, stating that:
Dr. Scariano placed restrictions on Begley in
1991 of lifting no more than fifty pounds
maximum or twenty-five pounds frequently.
Dr. Muffly stated that the appropriate
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restrictions in 2001 would be lifting no more
than twenty pounds maximum. We believe this
alone would be sufficient to support a
finding of an increase in occupational
disability. . . . . Given Begley’s
education, work experience and the physical
restrictions placed on him by Dr. Muffly, we
believe there is substantial evidence
supporting a finding of total occupational
disability under the criteria of Osborne v.
Johnson, Ky. App., 432 S.W.2d 800 (1968), and
the definition of “disability” that applied
at the time of Begley’s injury.
We are . . . not persuaded by Southern’s
argument that Dr. Muffly’s testimony
regarding a change in functional impairment
must be disregarded because he relied upon
the Fourth Edition of the AMA Guides rather
than the edition in effect on the date of
Begley’s injury. . . . . The testimony from
Dr. Muffly regarding Begley’s impairment
under the Fourth Edition of the AMA Guides in
1992 and 2001 is relevant and probative
regarding whether there has been a change in
Begley’s physical condition. . . . .
. . . . Southern contends that under the
holding in Peabody Coal Co. v. Gossett, Ky.,
819 S.W.2d 33 (1991), the amendments to KRS
342.125(1) should be held to be retroactive.
. . . .
We do not believe the reasoning set forth in
Peabody Coal Company v. Gossett, supra, is
applicable in this case. It is generally the
rule that the law in effect on the date of
the claimant’s injury is the law to be
applied to the claim. Maggard v.
International Harvester, Inc., Ky. App., 508
S.W.2d 777 (1974). Furthermore, a
legislative enactment generally may not be
given retroactive effect unless the
legislature specifically so declared. KRS
446.080. The legislature has not
specifically declared the grounds for
reopening under KRS 342.125(1) to be
retroactive. Where the modification of a
statute is found to be “remedial,” however,
it may be given retroactive effect. See
Peabody Coal Co. v. Gossett, supra;
Thornsbury v. Aero Energy, Ky., 908 S.W.2d
109 (1995).
. . . .
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. . . .
. . . . In Peabody, the Supreme Court stated
that the purpose behind the 1987 amendment to
KRS 342.125 was merely to bring the standards
for reopening in line with the standards for
an original award. In this sense, the 1987
amendments were clearly remedial in that they
were designed to correct imperfections in the
prior law.
The 1996 amendments to KRS 342.125 did not
attempt to cure any imperfections that
existed in the law. Prior to 1996, workers’
compensation benefits were awarded based upon
occupational disability. Likewise, reopening
could be had upon a mere showing of a change
in occupational disability. The 1996
amendments to KRS Chapter 342.730 provided
for PPD benefits to be based upon a
percentage of functional impairment as
determined under the AMA Guides and likewise
provided for reopening only upon
demonstration by objective medical evidence
of a change in impairment. Thus, the
modifications of KRS 342.123 were not
designed to bring the standards for reopening
in line with other sections as they existed
prior to December 12, 1996, but were part of
the general overhaul of the benefits system
made in the 1996 legislation. In that sense,
therefore, the amendments to KRS 342.125
cannot be considered remedial.
Furthermore, as pointed out in Peabody, even
a remedial statute may not be applied
retroactively if to do so would impair some
vested right. Since Begley’s injury occurred
prior to the date of the 1996 amendments, the
parties to this claim had a vested right to
reopen the award upon a simple showing of a
change in occupational disability without
regard to a change in impairment. Since the
1996 amendments to KRS 342.125 made the
grounds for reopening more stringent, it is
clear that the parties’ reopening rights
would be impaired if the amendments were
applied retroactively. Thus, even if the
1996 amendments could be considered remedial,
they may not be applied retroactively. We
therefore find no error with the ALJ’s
failure to apply the 1996 version of KRS
342.125(1) to this claim.
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On December 27, 2001, the employer filed a petition for
review on appeal to this Court.
On appeal, the employer raises
the same issues as it raised before the Board.
The WCB is entitled to the same deference for
its appellate decisions as [the Supreme Court
intends when it exercises] . . .
discretionary review of Kentucky Court of
Appeals decisions . . . . The function of
further review . . . 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 committed an error in assessing
the evidence so flagrant as to cause gross
injustice.
Western Baptist Hosp. v. Kelly, Ky.,
(1992).
We perceive no such error.
827 S.W.2d 685, 687-688
The ALJ’s finding of
increased occupational disability has a substantial evidentiary
basis and will not be disturbed on appeal.
Moreover, we concur
with the Board’s conclusion that the December 12, 1996 amendment
to KRS 342.125(1)(d) is not remedial and does not apply
retroactively.
KRS 342.0015, entitled Application of 1996 (1st
Extra. Sess.) Ky. Acts ch.1, effective December 12, 1996,
provides:
The substantive provisions of 1996 (1st
Extra. Sess.) Ky. Acts ch. 1 shall apply to
any claim arising from an injury or last
exposure to the hazards of an occupational
disease occurring on or after December 12,
1996. Procedural provisions of 1996 (1st
Extra. Sess.) Ky. Acts ch. 1 shall apply to
all claims irrespective of the date of injury
or last exposure, including, but not
exclusively, the mechanisms by which claims
are decided and workers are referred for
medical evaluations. The provisions of KRS
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342.120(3); 342.125(8)1; 342.213(2)(e),
342.265, 342.270(3), 342.320, 342.610(3),
342.760(3) are remedial.
“It is a primary rule of statutory construction that
the enumeration of particular things excludes the idea of
something else not mentioned.”
S.W.2d 322,323 (1957).
Smith v. Wedding, Ky. App., 303
Clearly, KRS 342.125(1)(d), as amended
December 12, 1996, is not remedial and does not have retroactive
application to Begley’s claim.
We affirm the Board’s November
28, 2001 opinion affirming.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, MAC ARTHUR
BEGLEY:
W. Barry Lewis
Lewis and Lewis Law Offices
Hazard, Kentucky
Ronald C. Cox
Harlan, Kentucky
BRIEF FOR APPELLEE, WORKERS’
COMPENSATION FUNDS:
Joel D. Zakem
Frankfort, Kentucky
1
The 12-12-96 version of KRS 342.125(8) deals with time limitations for
reopening.
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