KENTUCKY RIVER ENTERPRISES, INC. v. JERRY OTIS ELKINS; LLOYD. R. EDENS, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
JUNE 28, 2002; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-002776-WC
KENTUCKY RIVER ENTERPRISES, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-00-67419
v.
JERRY OTIS ELKINS;
LLOYD. R. EDENS,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, HUDDLESTON and McANULTY, Judges.
HUDDLESTON, Judge:
a
Workers’
Kentucky River Enterprises, Inc. appeals from
Compensation
Board
opinion
that
affirmed
an
administrative law judge’s opinion and award finding that Jerry
Elkins suffered a work-related injury, awarding him permanent
partial disability benefits based on a 9.5% functional impairment
and multiplying his weekly benefit by three pursuant to Kentucky
Revised Statutes (KRS) 342.730(1)(c)(1) as he cannot return to the
type of work he was performing at the time of the injury.
On
appeal, Kentucky River argues that the evidence does not support
the finding that a work-related injury occurred, that the ALJ erred
in relying upon an impairment rating that is not based on the
Diagnostic Related Estimates (DRE) Model in the American Medical
Association (AMA) Guides and that the ALJ improperly applied the
times three multiplier as Elkins returned to work at a wage equal
to or greater than his wage at the time of the injury.
Elkins
earned
an
associate
degree
from
Southeast
Community College and also has a commercial driver’s license (CDL).
His employment history includes fourteen years of experience as a
truck driver, twelve of which were spent operating a coal truck.
Elkins began his employment with Kentucky River as a coal truck
driver on January 1, 1996.
At the time of the alleged injury, he
was working as a mechanic and heavy equipment operator.
On
September 8, 2000, he was working in that capacity when he felt
pain in his lower back and a tingling sensation in his left leg
while servicing a large truck with another employee. Specifically,
he was carrying a five-gallon can of oil to the truck at the time.
Although Elkins completed his shift, his fellow employee, Benny
Bentley, performed the remainder of the required lifting.
According to Elkins, he informed his supervisor of the
incident that day. On the following Sunday, he called his employer
and explained that he could not return to work due to his back
injury.
Elkins ultimately underwent low back surgery which was
performed by Dr. Mukut Sharma, an orthopedic surgeon.
On December
6, 2000, Elkins returned to work in a supervisory capacity and, at
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the time of the hearing, he continued to earn a wage equal to his
preinjury wage.1
Elkins testified both by deposition and at the hearing.
In his testimony, he indicated that he continues to experience pain
in his lower back and left leg.
He does not believe that he is
able to return to his prior employment. Elkins previously suffered
a lower back injury while changing a tire on a tractor-trailer in
1989.2
He underwent surgery on his lower back in November 1990.
While he acknowledges that he continued to have difficulties with
his back following that procedure, he was last seen for medical
treatment of those injuries in late 1991. According to Elkins, his
lower back pain was resolved and he continued to work without
further difficulty until his most recent injury.
In the opinion which prompted the present appeal, the
Board accurately summarized the lay and medical testimony as
follows:
In
support
of
his
claim,
Elkins
submitted
testimony from Dr. Mukut Sharma, his treating orthopedic
surgeon.
14, 2000.
Dr. Sharma began treating Elkins on September
In his records from the initial visit, Dr.
Sharma indicated Elkins reported having low back pain for
1
The parties stipulated to the fact that Elkins returned
to work at the same wage he earned at the time of his injury at the
benefit review conference as documented in the ALJ’s opinion.
2
Elkins filed a claim as the result of two injuries that
allegedly occurred on April 6 and June 5, 1989. With respect to
the former injury, the claim was dismissed for failure to prove the
existence of a work-related injury, while his failure to give due
and timely notice of the latter injury resulted in the dismissal of
that portion of the claim.
-3-
approximately five weeks and denied any recent injury.
The doctor stated that after a conversation with Elkins
on November 7, 2000, he amended his report to reflect
that Elkins indicated a history of five days of low back
pain on the initial visit.
Dr. Sharma diagnosed a
herniated disc at L5-S1 with degenerative changes at L4L5.
2000.
He performed a discectomy on Elkins on October 25,
He stated that Elkins had a good result from that
surgery.
Dr. Sharma reviewed records from Dr. Kennedy,
the orthopedic surgeon that performed Elkins’[s] low back
surgery in 1990.
Dr. Sharma stated that Dr. Kennedy
performed essentially the same type of procedure at the
L4-L5 level in 1990 as he had performed in 2000 at the
L5-S1 level.
Dr. Sharma stated that Elkins’[s] functional
impairment following the 2000 injury would be something
less
than
10%,
perhaps
7%
or
8%.
He
stated
this
impairment was made using the Range of Motion Model.
When
asked
about
the
DRE
Model,
he
stated
that
radiculopathy would indicate a 10% impairment, but still
estimated Elkins’[s] impairment would be less than 10%.
Dr. Sharma acknowledged that the AMA Guides indicate that
a preexisting impairment to the same anatomic system
should be subtracted from the current impairment to
determine the impairment related to the most recent
injury. When asked whether the impairment related to his
1990 injury should be subtracted from the 2000 injury,
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Dr. Sharma stated “the answer is yes or no.”
Elkins
might
impairment
have
improved
following
his
to
1990
the
point
surgery.
He stated
he
had
no
He
stated,
however, that he had no reason to disagree with Dr.
Kennedy’s assessment of a 14% impairment in 1990.
Dr.
Sharma was uncertain how to apply the language from the
Guides indicating that a preexisting impairment should be
subtracted from the current impairment when the injuries
are to two different disc levels in the low back.
Elkins also submitted testimony from Dr. James
Templin, a specialist in pain management and occupational
medicine. Dr. Templin diagnosed an L5-S1 disc herniation
with subsequent laminectomy and discectomy at L5-S1;
chronic
low
radiculopathy.
back
pain
syndrome;
and
left
leg
He noted Elkins’[s] history of a prior
L4-L5 disc herniation with surgery. Dr. Templin assessed
a 10% impairment for Elkins’[s] low back problems using
the DRE model in the AMA Guides, Fourth Edition.
He
noted the presence of scar tissue from the previous
surgery and some degenerative disc changes; the arousal
of
which
he
felt
contributed
to
Elkins’[s]
current
condition. Dr. Templin stated Elkins felt that 5% of his
left leg radiculopathy problems were due to his previous
injury, while the remaining 95% were due to his current
condition.
On that basis, Dr. Templin apportioned 5% of
his 10% impairment (i.e., .5%) to a preexisting active
condition, and the remaining 9.5% to the 2000 injury.
-5-
Kentucky River submitted records from the Whitesburg
ARH, which included records from Dr. Tidal and Dr.
Sharma. Dr. Tidal saw Elkins on September 11, 2000, just
after the alleged injury.
There was no mention of a
work-related injury at that time, only a mention of longstanding low back pain.
Sharma,
dated
September
The initial record of Dr.
14,
2000,
as
noted
above,
indicated Elkins gave a history of a recurrence of low
back pain about five weeks prior with no history of
recent injury.
Kentucky River also submitted testimony from Dr.
Leon Ensalada, a specialist in occupational medicine.
Dr. Ensalada reviewed Elkins’[s] medical records.
He
concluded that Elkins had not suffered an injury on
September 8, 2000.
Whitesburg
ARH
He based this conclusion on the
records
and
Dr.
Sharma’s
records
indicating a history of five weeks of low back pain. Dr.
Ensalada
also
concluded
that
Elkins
suffered
a
10%
impairment under the AMA Guides prior to September 2000
and this was due to the 1989 injury.
Dr. Ensalada also
concluded that Elkins had no impairment as the result of
any
September
2000
injury
and
has
suffered
no
occupational consequences as a result of such an injury.
Dr. Ensalada stated Elkins should have had permanent
restrictions
of
occasionally
or
lifting
no
twenty-five
more
than
pounds
fifty
pounds
frequently
avoiding repetitive bending, stooping and twisting.
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and
He
believed these restrictions would also be appropriate
subsequent to the 2000 discectomy surgery.
Kentucky River also submitted testimony from Dr.
Richard Sheridan, an orthopedic surgeon.
Dr. Sheridan
also believed Elkins had not suffered an injury on
September 8, 2000.
He stated the L5-S1 herniation was
due to increased stresses at that disc space occurring
over a ten year period subsequent to the prior low back
injury at L4-L5.
He assessed a 10% impairment under the
AMA Guides using the DRE Model and believed Elkins also
would have had a 10% preexisting active impairment due to
the L4-L5 disc injury.
He believed there was no need to
place any restrictions on Elkins’[s] physical activities.
Lay testimony was submitted from Benny Bentley, a
co-worker
of
Elkins’[s].
Bentley
testified
working with Elkins on September 8, 2000.
he
was
He stated
Elkins carried a five-gallon can of oil to the truck they
were working on, and he indicated he had hurt his back
and could not lift the oil.
Bentley stated he performed
all the lifting and completed servicing the truck.
stated
Elkins
returned
to
work
in
[a]
He
supervisory
capacity following his surgery and did no heavy work.
Relying
on
the
unrebutted
testimony
of
Elkins
and
Bentley, the ALJ concluded that Elkins did in fact suffer a workrelated injury on September 8, 2000, namely the large herniation at
L5-S1 as reflected by the magnetic resonance imaging (MRI) scan
performed by Dr. Sharma. The ALJ was also “persuaded by [Elkins’s]
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testimony, in conjunction with that of Dr. Templin, that the
herniation was the result of the work incident[,]” ultimately
saying:
“Therefore, I find [Elkins’s] herniation was an injury as
defined by the aforementioned statute.”3
Regarding the extent and
duration of Elkins’s current disability, the ALJ found as follows:
The
final
duration,
issues
for
pre-existing
determination
active
and
are
extent
temporary
and
total
disability benefits. Drs. Templin, Sheridan and Ensalada
assigned [Elkins] a 10% functional impairment due to the
condition of his low back.
Drs. Sheridan and Ensalada
were of the opinion that the entire 10% was pre-existing
active.
[Elkins] returned to work following his injury
and continued to work as a coal truck driver, and at the
time
of
mechanic.
the
most
recent
injury,
was
working
as
a
I am, therefore, persuaded by the opinion of
Dr. Templin and apportion .5% to the 1989 injury and 9.5%
to the current injury. Pursuant to KRS 342.730(1)(b), as
amended July 14, 2000, the 9.5% functional impairment is
multiplied by a factor of .85 yielding a permanent
disability of 8.08%. At the time of the injury, [Elkins]
was servicing a large truck and was carrying a 5 gallon
bucket of oil.
His work at that time was as a mechanic
and operator of heavy equipment.
3
Based upon [Elkins’s]
Under Ky. Rev. Stat. (KRS) 342.0011(1), an injury is
defined as: “. . . any work-related traumatic event or series of
traumatic events, including cumulative trauma, arising out of and
in the course of employment which is the proximate cause producing
a harmful change in the human organism evidenced by objective
medical findings.” An injury does not include the effects of the
natural aging process.
-8-
testimony
concerning
his
condition,
as
well
as
the
restrictions placed upon him by Dr. Templin, I find that
he cannot return to the type of work he was performing at
the time of his injury.
shall
be
multiplied
Accordingly, his weekly benefit
by
3
pursuant
to
KRS
342.730(1)(c)(1).
On appeal to the Board, Kentucky River took issue with
the ALJ’s findings as to work-relatedness and causation, arguing
that they are not supported by substantial evidence. In addressing
these contentions, the Board engaged in the following analysis:
Kentucky River points out that evidence from Elkins’[s]
1990 claim indicates he suffered from low back pain and
left leg symptoms similar to those he complained of
following the September 2000 injury. Kentucky River also
points out that Dr. Kennedy, the orthopedic surgeon that
treated Elkins in 1990, read a January 1990 MRI as
indicating an L5-S1 disc herniation.
Kentucky River
asserts that the ALJ erred in relying upon evidence of
causation that was not supported by “objective medical
findings.”
It also contends the definition of injury
found in KRS 342.0011(1) requires that in order to
qualify as an injury, evidence of causation must be
supported by objective medical findings, citing Gibbs v.
Premier Scale Co.4
4
Ky., 50 S.W.3d 754, 761 (2001).
KRS 342.0011(1) makes it clear that not all
(continued...)
-9-
We
cannot
agree
with
Kentucky
River’s
characterization of Elkins’[s] condition being due solely
to preexisting conditions.
We note that Dr. Kennedy, in
his deposition, only mentioned a diagnosis of an L4
herniation.
He
made
no
mention
herniation in the deposition.
of
an
L5-S1
disc
A report attached to the
deposition indicated that Dr. Kennedy read a CT scan as
indicating a very mild disc herniation at the L5 level,
which was of no clinical significance.
Dr. Kennedy did
state that the L4-L5 disc herniation was very large and
could well be involving the L5-S1 nerve roots.
Clearly,
when he gave his deposition in 1990, Dr. Kennedy believed
4
(...continued)
work-related harmful changes are compensable. Therefore,
we are constrained to conclude that although a worker may
experience symptoms and although a physician may have
diagnosed a work-related harmful change, the harmful
change must be evidenced by objective medical findings as
that term is defined by KRS 342.0011(33). Otherwise, it
is not compensable as an “injury.” KRS 342.0011(1).
KRS 342.0011(33) limits “objective medical
findings” to information gained by direct observation and
testing applying objective or standardized methods.
Thus, the plain language of KRS 342.0011(33) supports the
view that a diagnosis is not an objective medical finding
but rather that a diagnosis must be supported by
objective medical findings in order to establish the
presence of a compensable injury.
The fact that a
particular diagnosis is made in the standard manner will
not render it an “objective medical finding.”
We
recognize that a diagnosis of a harmful change which is
based solely on complaints of symptoms may constitute a
valid diagnosis for the purposes of medical treatment and
that symptoms which are reported by a patient may be
viewed by the medical profession as evidence of a harmful
change.
However, KRS 342.0011(1) and (33) clearly
require more, and the courts are bound by those
requirements even in instances where they exclude what
might seem to some to be a class of worthy claims.
-10-
Elkins’[s] L4-L5 disc herniation was the cause of all his
problems. Furthermore, although there are indications in
Dr. Kennedy’s testimony that Elkins suffered symptoms at
that time that are similar to the symptoms he complained
of following the 2000 injury, Elkins testified that those
symptoms resolved following his 1990 surgery and did not
reoccur until the 2000 injury.
As the ALJ pointed out,
an MRI taken shortly after the 2000 injury indicated the
presence of a large L5-S1 disc herniation.
Given that
Dr. Kennedy’s reports only indicated a mild L5-S1 disc
herniation of no clinical significance, we find no error
with the ALJ’s conclusion that Elkins’[s] L5-S1 disc
herniation was a result of his 2000 injury.
In a workers’ compensation claim, the claimant bears the
burden of proving each of the essential elements of his claim.5
As
fact-finder, the ALJ has the sole authority to determine the
weight, credibility, substance and inferences to be drawn from the
evidence.6
In
doing
so,
the
ALJ
may
choose
to
believe
or
disbelieve various parts of the evidence, regardless of whether it
comes from the same witness or the same party’s total proof.7
When the decision of the fact-finder is in favor of the
party with the burden of proof (Elkins), the question on appeal is
5
Magic Coal Co. v. Fox, Ky., 19 S.W.3d 88, 96 (2000).
6
Id.; Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d
418, 419 (1985).
7
Caudill v. Maloney’s Discount Stores, Ky., 560 S.W.2d 15,
16 (1977); Magic Coal Co., supra, n. 5, at 96.
-11-
whether the ALJ’s decision is supported by substantial evidence.8
Substantial evidence is defined as evidence of substance and
relevant consequence having the fitness to induce conviction in the
minds of reasonable people.9
As a result, a party challenging the
ALJ’s factual findings (Kentucky River) must do more than present
evidence supporting a contrary conclusion to justify reversal.10
When reviewing decisions of the Board, our function is to
correct the Board only where we perceive that 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.”11
As evidenced by the Board’s assessment,
there is substantial evidence to support the ALJ’s determination
that Elkins suffered a work-related injury.
That being the case,
the Board has committed no such error here and further discussion
as to this issue is unnecessary.
In a related vein, Kentucky River also argues that the
ALJ’s analysis of the causation issue is incorrect under Gibbs as
Elkins
failed
testimony.”
to
submit
any
“objective,
direct
causation
According to Kentucky River, Elkins’s testimony and
the reports of Dr. Sharma and Dr. Templin constitute nothing more
than
“subjective
medical
opinion
evidence
and
‘a
patient’s
8
Special Fund v. Francis, Ky., 708 S.W.2d 641 (1986);
Magic Coal Co., supra, n. 5, at 96.
9
Id.
10
Ira A. Watson Dep’t Store v. Hamilton, Ky., 34 S.W.3d 48,
52 (2000).
11
Western Baptist Hosp. v. Kelly, Ky., 827 S.W.2d 685, 687688 (1992).
-12-
complaints of symptoms,’ types of evidence which do not meet the
Gibbs definition of objectivity.”
The Kentucky Supreme Court
addressed this contention in Staples, Inc. v. Konvelski,12 saying:
“Although KRS 342.0011(1) clearly requires that there be objective
medical findings of a harmful change in the human organism in order
for that change to be compensable, we are not persuaded that KRS
342.0011(1) requires causation to be proved by objective medical
findings.”
As was the case in Staples, “the ALJ was persuaded by
the claimant’s experts, both with regard to the existence of the
harmful changes that [the claimant] alleged and to the cause of
those harmful changes.”13
Since the ALJ found in favor of Elkins,
i.e., the party with the burden of proof here, the standard for
review of the finding is whether it is supported in the record by
any evidence of substance and, therefore, is reasonable.14 Like the
Board, we find no error in the ALJ’s reliance on the opinions of
Dr. Sharma and Dr. Templin as to the causation of Elkins’s injury
as they constitute “evidence of substance.”
Next, Kentucky River contends that the ALJ erred in
awarding benefits to Elkins for a permanent partial disability
based upon the 9.5% functional impairment rating assessed by Dr.
Templin since it was not calculated pursuant to the AMA Guides.
In
support of its argument, Kentucky River emphasizes that, under the
12
56 S.W.3d 412, 415-416 (2001). Although Kentucky River
correctly asserts that Staples had not yet become final at the time
of the Board’s opinion, it has since been published and is binding
upon this Court.
13
Id. at 416.
14
Id. (citation omitted).
-13-
DRE model (use of which is required unless specified conditions are
met), impairment ratings are only assessed in 5% increments and, as
such, Dr. Templin’s 9.5% rating necessarily fails to comply with
the Guides.
As the Board has effectively addressed this argument,
we reproduce that portion of its opinion below:
We would direct Kentucky River’s attention to
the
fact
that
Dr.
Templin
actually
assessed
a
10%
impairment rating, but excluded .5% as being due to
preexisting
active
conditions.
The
10%
rating
is
explicitly based on the AMA Guides using the DRE Model.
Since Dr. Templin’s impairment [rating] is in fact based
upon the Guides, we find no error with the ALJ’s use of
that rating.
Kentucky River also argues it was error for the
ALJ to utilize an impairment rating that did not take
into account the impairment attributable to Elkins’[s]
1989 injury.
Edition
AMA
It relies on that portion of the Fourth
Guides
at
Section
3.3f,
p.
101,
which
provides:
9.
From historical information and previously
compiled medical data, determine if there was
a preexisting impairment.
compiled
data
can
be
If the previously
verified
as
being
accurate, they may be used in apportionment
(see Glossary).
The percent based on the
previous findings would be subtracted from the
percent based on the current findings.
-14-
Kentucky
River
argues
Dr.
Kennedy
assessed
a
14%
impairment in 1990 and that Dr. Sheridan and Dr. Ensalada
both believed Elkins had a 10% preexisting impairment.
Kentucky River therefore contends Elkins cannot receive
income benefits since the only evidence of impairment
indicates that his current impairment rating is no higher
than the preexisting impairment.
We must disagree with this argument also.
We
note that Dr. Sharma stated it is quite possible that
Elkins may have ultimately recovered from the 1990 injury
and
surgery
to
the
impairment rating.
point
he
would
not
warrant
an
Furthermore, Dr. Templin assessed a
10% impairment, but excluded .5% as being due to a
preexisting impairment.
Dr.
Templin’s
method
While it could be argued that
for
assessing
the
preexisting
impairment is not in keeping with the directives of the
Guides, Kentucky River has not so argued.
Since Dr.
Templin did assess Elkins’[s] current impairment and then
excluded the portion due to the preexisting impairment,
we believe his methods, to that extent, comport with the
Guides.
The Board’s reasoning is sound; we agree that the ALJ did not err
in
opting
not
to
exclude
any
additional
impairment
as
being
attributable to the 1989 injury.
Kentucky River’s remaining contention is that the ALJ
erred in applying the triple disability multiplier provided for in
KRS 342.730(1)(c)1 rather than the multiplier set forth in KRS
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342.730(1)(c)2.15
There is no dispute that Elkins returned to work
in a supervisory capacity at a wage equal to his preinjury wage.
Likewise, Kentucky River does not contest the ALJ’s finding that
Elkins is incapable of returning to the type of work he performed
prior to the injury, arguing instead that the considerations
integral to that determination are irrelevant given that KRS
342.730(1)(c)2 is applicable in this instance.
As the facts
presented satisfy the criteria in both subsections, the question
then becomes which one should be applied?
Although the current
version of the statute at issue became effective on July 14, 2000,
the language employed prior to the amendment was nearly identical,
with the only changes being the multipliers16 to be applied to the
15
KRS 342.730(1)(c)1 and 2 provide:
1. If, due to an injury, an employee does not retain the
physical capacity to return to the type of work that the
employee performed at the time of the injury, the benefit
for permanent partial disability shall be multiplied by
three (3) times the amount otherwise determined under
paragraph (b) of this subsection, but this provision
shall not be construed so as to extend the duration of
payments; or
2. If an employee returns to work at a weekly wage equal
to or greater than the average weekly wage at the time of
injury, the weekly benefit for permanent partial
disability shall be determined under paragraph (b) of
this subsection for each week during which that
employment is sustained. During any period of cessation
of that employment, temporary or permanent, for any
reason, with or without cause, payment of weekly benefits
for permanent partial disability during the period of
cessation shall be two (2) times the amount otherwise
payable under paragraph (b) of this subsection.
This
provision shall not be construed so as to extend the
duration of payments.
16
Originally, subsection 1 contained a x 1.5 multiplier and
subsection 2 mandated that the weekly benefits be reduced by onehalf for each week during which that employment was sustained.
-16-
benefit amounts and the insertion of the word “or” at the end of
subsection 1.
KRS 446.080(4) requires this Court to give statutory
language its plain, ordinary meaning.
“The cardinal rule of
statutory construction is that the intention of the legislature
should
be
ascertained
and
given
effect.”17
When
determining
legislative intent, a court must refer to the language of the
statute rather than speculate as to what may have been intended but
was not expressed.18
In other words, a court “may not interpret a
statute at variance with its stated language.”19
Applying those principles to the instant case, it is
apparent from even a casual reading of these subsections that there
are circumstances where both will apply equally, i.e., they are not
mutually exclusive.
A finding that a claimant lacks the physical
capacity to return to his preinjury employment is not dispositive
as to the question of whether the same claimant has returned to
work at a wage equal to or greater than his preinjury wage.
Conversely, a finding that a claimant has returned to work at a
wage
equal
to
or
higher
than
his
preinjury
wage
does
not
necessarily imply that he possesses the physical ability to return
to the same type of employment.
It stands to reason, therefore,
that the General Assembly was aware that, prior to the amendments,
the language of these provisions could have been interpreted as
17
Interim Office v. Jewish Hosp. Healthcare, Ky. App., 932
S.W.2d 388, 390 (1996).
18
Commonwealth v. Allen, Ky., 980 S.W.2d 278, 280 (1998).
19
Id. (citation omitted).
-17-
allowing for them to be applied concurrently as long as the
claimant satisfied both sets of criteria.
It is generally presumed that in amending a statute, the
legislature intended to change the law.20
The logical conclusion,
then, is that the legislature did not intend for both of these
subsections to be applied in a particular claim, as evidenced by
the addition of the word “or.” Clearly, the legislature could have
made the provisions mutually exclusive but declined to do so.
Having
established
that
only
one
subsection
may
be
properly
applied, which subsection to apply in the present context, i.e.,
when both sets of criteria have been met, is still an unanswered
question.
Contrary to Kentucky River’s assertion, there is no
language in the statute itself which provides any guidance. In the
absence of explicit direction, the purpose of the overall statutory
scheme becomes our focus.
“The Workers’ Compensation Act is social legislation, the
purpose of which is to compensate workers who are injured in the
course of their employment for necessary medical treatment and for
a loss of wage-earning capacity, without regard to fault.”21
In
Osborne v. Johnson,22 this Court emphasized that one of the primary
20
Whitley County Bd. of Educ. v. Meadors, Ky., 444 S.W.2d
890, 891 (1969).
21
Adkins v. R & S Body Co., Ky., 58 S.W.3d 428, 430 (2001).
22
Ky., 432 S.W.2d 800, 804 (1968). “While a workman who
has sustained a permanent bodily injury of appreciable proportions
may suffer no reduction of immediate earning capacity, it is likely
that his ultimate earning capacity will either be reduced by a
shortening of his work life or a reduction of employment
opportunities through a combination of age and physical
impairment.” Id.
-18-
purposes of the Act is to compensate injured employees for their
loss of earning capacity, not just a present loss of income.
All
presumptions are to be indulged in favor of those for whose
protection the enactment was made.23
Consistent with the foregoing
principles, we believe that KRS 342.730(1)(c)1. must be given
preference when the two provisions are equally applicable as is the
case here.
It could be argued that the result is counterintuitive
given that the claimant will receive triple the normal benefit
despite the fact that his wages have not been diminished. However,
the legislature has acknowledged that a loss of earning capacity
warrants a significant increase in income benefits as indicated by
the amended income benefit multipliers found in KRS 342.730(1)(c)1
and 2 as well as the factors which are added to the multipliers
pursuant to KRS 342.730(1)(c)3.
Because the application of KRS
342.730(1)(c)1 in the present case is consistent with the stated
purpose of the Act, the presumption in favor of the claimant and
the overall statutory scheme, the ALJ did not err in multiplying
Elkins’s
benefit
award
by
three
in
accordance
with
KRS
342.730(1)(c)1.
As the Board was faced with the unenviable task of
interpreting a statute without a binding precedent to follow and
did not overlook or misconstrue the controlling statute or commit
any error in assessing the evidence so flagrant as to cause gross
injustice, its opinion is affirmed.
ALL CONCUR.
23
Vance v. Unemployment Ins. Comm’n, Ky. App., 814 S.W.2d
284, 286 (1991)(citation omitted).
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
JERRY OTIS ELKINS:
W. Barry Lewis
LEWIS AND LEWIS LAW OFFICES
Hazard, Kentucky
Gene Smallwood, Jr.
POLLY & SMALLWOOD
Whitesburg, Kentucky
-20-
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