TIMMY S. PARRIS v. STAFFING ALTERNATIVE, INC., HON. KEVIN KING, ALJ, and WORKERS' COMPENSATION BOARD
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RENDERED:
December 12, 2003; 10:00 a.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000216-WC
TIMMY S. PARRIS
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-98-59462
vs.
STAFFING ALTERNATIVE, INC.,
HON. KEVIN KING, ALJ, and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, DYCHE, and JOHNSON, JUDGES.
BUCKINGHAM, JUDGE: Timmy S. Parris petitions for review of an
opinion by the Workers’ Compensation Board affirming an order by
an administrative law judge (ALJ) dismissing Parris’s claim for
increased income benefits on reopening.
The issue concerns an
interpretation of KRS1 342.125(1)(d) and what an injured worker
must prove to prevail on a reopening claim under that portion of
the statute.
1
We affirm the ALJ and the Board.
Kentucky Revised Statutes.
Parris was employed by Staffing Alternative, Inc., as
an underground coal miner.
On October 20, 1998, he sustained
internal injuries and multiple injuries to his right side, back,
and beneath his arm, extending down the length of his body.
He
signed a settlement agreement on September 27, 1999, that
provided for a lump sum payment of $17,924.01, representing a
ten percent permanent partial disability.
The agreement was
approved on November 16, 1999.
On December 3, 2001, Parris filed a motion to reopen
pursuant to KRS 342.125(1)(d).
His claim was assigned to an
ALJ, and, on July 19, 2002, the ALJ entered an order denying and
dismissing Parris’s claim.
The ALJ subsequently entered an
order denying Parris’s petition for reconsideration.
On
January 8, 2003, the Board rendered an opinion affirming the
ALJ’s decision.
This petition for review by Parris followed.
KRS 342.125 provides in relevant part as follows:
(1)
Upon motion by any party or upon an
arbitrator’s or administrative law
judge’s own motion, an arbitrator or
administrative law judge may reopen
and review any award or order on any
of the following grounds:
(d)
Change of disability as shown by
objective medical evidence of worsening
or improvement of impairment due to a
condition caused by the injury since
the date of the award or order.
-2-
KRS 342.125(1)(d).
This wording of the subsection of the
statute became effective December 12, 1996.2
Parris never returned to work after his 1998 injury.
In support of his motion to reopen, Parris introduced medical
evidence from Dr. Roderick MacGregor, Dr. Clinton Mallari, and
Dr. Tudor Popescu.
He also introduced a report from Dr. Tom
Wagner, a psychologist and vocational expert.
This evidence
generally noted Parris’s physical limitations impacting his
occupational opportunities.
Further, Parris himself testified.
In dismissing Parris’s claim for increased income
benefits on reopening, the ALJ held as follows:
KRS 342.125(1)(d) provides that a claim
can be reopened upon a showing of a “change
of disability as shown by objective medical
evidence of worsening or improvement of
impairment due to a condition caused by the
injury since the date of the award or
order.” This portion of the ACT requires
the moving party to show, with objective
medical evidence, a change of disability and
an increase in impairment. The medical
evidence indicates that Parris had a 10%
impairment at or near the time he settled
his claim. There is no evidence that his
impairment has changed. Furthermore, the
medical evidence since Parris’s settlement
reveals a change in symptoms but does not
show any objective change in his condition.
Based on the above, the Administrative Law
Judge must dismiss Parris’s claim for
additional income benefits.
2
Prior to the 1996 amendment, the statute required only a showing of
“a change in occupational disability.”
-3-
On appeal to the Board, Parris argued that the ALJ
erroneously interpreted KRS 342.125(1)(d) as requiring a showing
of an increase in functional impairment in order to establish
entitlement to additional income benefits on reopening.
Parris
also argued that the ALJ ignored uncontradicted evidence,
including an admission by Staffing Alternative that Parris was
unable to work.
He asserted that the record compelled a finding
that he was permanently and totally disabled and thus entitled
to an increase in benefits.
The Board disagreed with Parris’s arguments.
First,
it agreed with the ALJ’s interpretation of the statute.
The
Board held that “Parris’s failure to submit proof of an increase
in his functional impairment rating subsequent to the original
settlement required the ALJ, as a matter of law, to dismiss his
claim for additional income benefits on reopening.”
Regarding
Parris’s argument that the evidence compelled a finding of total
disability, the Board stated that there was evidence to support
a finding that Parris was permanently and totally disabled at
that time.
Further, the Board noted that there was also
evidence that Parris was permanently and totally disabled at the
time he settled his claim.
However, the Board stated that the
evidence did not compel a finding that Parris was permanently
and totally disabled either before or after his initial claim
was settled and that the ALJ did not err in determining that
-4-
Parris had not met his burden of proof.
Thus, the Board
affirmed the ALJ.
Parris’s arguments in his petition for review to this
court are similar to the arguments he made to the Board.
First,
Parris argues that the ALJ and the Board erroneously interpreted
KRS 342.125(1)(d).
The Board held that “the above-quoted
language of KRS 342.125(1)(d), as amended December 12, 1996,
requires a claimant to demonstrate, by objective medical
evidence, a change in his degree of functional impairment before
an increased award may be issued on reopening.”
Parris argues
that this is an erroneous interpretation of the statute and that
he was only required to prove that the change in his physical
condition has resulted in an increase in occupational
disability, not an increase in his impairment rating.
Parris cites several cases in support of his argument,
including Robinson v. Bailey Mining Co., Ky., 996 S.W.2d 38
(1999); McCool v. Martin Nursery & Landscaping, Inc., Ky., 43
S.W.3d 256 (2001); Whittaker v. Ivy, Ky., 68 S.W.3d 386 (2002);
Newberg v. Davis, Ky., 841 S.W.2d 164 (1992); Whittaker v.
Rowland, Ky., 998 S.W.2d 479 (1999); and Ira A. Watson Dep’t
Store v. Hamilton, Ky., 34 S.W.3d 48 (2000).
The Robinson,
McCool, Ivy, Newberg, and Rowland cases are not applicable
because the injury in each of the cases occurred prior to the
1996 amendment of the statute.
Therefore, the version of the
-5-
statute in effect prior to the 1996 amended statute was
applicable in those cases.
See Woodland Hills Mining, Inc. v.
McCoy, Ky., 105 S.W.3d 446 (2003).
The Hamilton case is
distinguishable because it does not involve a reopening claim
and the statute applicable to this case.
This is an issue of first impression.
We agree with
the Board that there is no “judicial precedent that is
controlling on this issue.”
We also agree with the Board that
the language of the reopening statute, as amended effective
December 12, 1996, is determinative.
KRS 342.125(1)(d) requires that the change of
disability must be shown by objective medical evidence “of
worsening or improvement of impairment due to a condition caused
by the injury since the date of the award or order.”
added.]
[Emphasis
The prior version of the statute required only a
“change in occupational disability.”
Unlike the present version
of the statute, the prior version did not specify how the change
was to be shown.
We agree with the Board that Parris was
required to show by objective medical evidence a change in his
impairment rating from the time of the 1999 settlement and that
his failure to do so required the ALJ to dismiss his claim.
Prior to the 1996 amendment, a reopening had to be
based on a change in physical condition.
Continental Air Filter
Co. v. Blair, Ky., 681 S.W.2d 427, 428 (1984).
-6-
However, the
1996 amendment of KRS 342.125(1) “changed the standard for
reopening.”
Woodland Hills, 105 S.W.3d at 448.
By the terms of
the present version of the statute, a worsening or improvement
of impairment must be shown.
KRS 342.125(1)(d).
Furthermore, “the terms physical condition and
functional impairment involve different medical concepts and
should not be equated for purposes of the reopening statute.”
Beale v. Rolley, Ky., 777 S.W.2d 921, 924 (1989).
In the Beale
case, the Kentucky Supreme Court held that, under the pre-1996
version of the statute, an injured worker did not have to prove
an increase in the percentage of functional impairment in order
to establish a change in his physical condition.
Id. at 923.
As the Kentucky Supreme Court noted therein, “the terms
‘physical condition’ and ‘functional impairment’ address
different concerns.”
Id.
While Parris urges us to follow prior case law
interpreting the version of the statute in effect prior to the
1996 amendments, we refuse to do so.
With the passage of the
amended version of the statute now in effect, the legislature
has directed that a change in disability be shown by objective
medical evidence of a worsening or improvement of impairment.
KRS 342.125(1)(d).
“Medical testimony as to a worker’s
functional impairment . . . consists of a medical evaluation of
the percentage by which the worker’s bodily functions or systems
-7-
have been impaired by a particular compensable injury or
disease.”
Beale, 777 S.W.2d at 923-24.
Parris did not present
evidence of a change in his impairment rating since his initial
injury.
His evidence concerning a change in disability related
only to a change in his physical condition.
As a change in
physical condition is no longer the basis of an award on
reopening, the ALJ and the Board properly dismissed the claim.
Parris’s second argument is that the ALJ erred by
ignoring uncontradicted evidence, and his third argument is that
the evidence compelled a finding of total disability.
In light
of our ruling on the first issue, these arguments are moot.
The opinion of the Board is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE, STAFFING
ALTERNATIVE, INC.:
Dick Adams
Madisonville, Kentucky
Stephen B. Lee
Owensboro, Kentucky
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