AK STEEL CORPORATION v. ROGER C. JONES; JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; AND THE WORKERS' COMPENSATION BOARD
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RENDERED:
NOVEMBER 26, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2003-CA-001283-WC
AK STEEL CORPORATION
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-02-00301
v.
ROGER C. JONES;
JAMES L. KERR, ADMINISTRATIVE LAW
JUDGE; AND THE WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE:
BAKER, KNOPF, AND TACKETT, JUDGES.
KNOPF, JUDGE:
AK Steel Corporation seeks review of an order of
the Workers’ Compensation Board, entered May 21, 2003, affirming
an award of income benefits to Roger C. Jones.
For more than
thirty-five years, Jones performed maintenance duties for AK
Steel and in the course of that employment was regularly exposed
to high levels of noise.
An Administrative Law Judge (ALJ)
found that as a result of this exposure Jones had suffered a
hearing loss that amounted to an eight-percent whole-body
impairment.
Under KRS 342.7305, Jones was thus entitled to
income benefits for permanent partial disability as provided for
in KRS 342.730(1)(b).
The ALJ further found that Jones was
entitled to an enhanced benefit under KRS 342.730(1)(c)2.
Board affirmed both findings.
The
On appeal, AK Steel contends that
the ALJ’s impairment finding is not supported by the medical
evidence and departs without adequate explanation from an
opinion of the university evaluator.
It also contends that the
ALJ and Board have misapplied the benefit-enhancement provision
of KRS 342.730(1)(c)(2).
With this second contention we agree.
AK Steel’s first contention, however, misconceives our
standard of review.
As our Supreme Court has noted many times,
[t]he function of further review of the WCB
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.1
There is no dispute that Jones suffers from a noiserelated hearing loss as a result of his long career with AK
Steel.
The dispute is over the extent of the loss.
1
Jones’s
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88
(1992).
2
expert estimated a whole-body impairment of eight percent; AK
Steel’s expert estimated a six-percent impairment.
The
university evaluator found an impairment of twenty-one percent,
but explained that that impairment included losses attributable
to a middle-ear condition that had apparently arisen after
Jones’s employment.
He estimated the work-related impairment to
be in the neighborhood of ten percent.
The ALJ declined to
adopt the evaluator’s finding because of the middle-ear
complication, and found instead that Jones’s impairment was
eight percent.
This finding was clearly supported by competent
evidence and cannot seriously be characterized as unjust.
At his deposition, the university evaluator remarked
that he believed that the office of AK Steel’s expert, a
physician, was better equipped to test hearing than the office
of Jones’s expert.
He then admitted, however, that he had
visited neither office.
AK Steel asserts that this remark by
the evaluator amounts to an opinion entitled to deference under
KRS 342.315 endorsing its expert’s finding of a six-percent
impairment.
We disagree.
The remark was outside what is
contemplated by the statute, which requires deference only to
the evaluator’s “clinical findings and opinions,”2 and plainly
was entitled to no special weight.
declining to address it.
2
KRS 342.315(2).
3
The ALJ did not err by
We agree with AK Steel, however, that the ALJ and the
Board have misconstrued the enhancement provisions of KRS
342.730(1).
Subpart (b) of that statute explains how to
calculate the basic income benefit in cases such as this one of
permanent partial disability.
Subpart (c) then provides for
enhancement of that basic benefit in certain circumstances.
Subpart (c)1 provides for a triple benefit when the employee’s
work-related injury prevents his return to his former work.
Subpart (c)2 provides in part that
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.3
In other words, if a partially disabled employee
returns to work at his former wage or better, he is entitled to
the basic benefit during his return to work and is entitled to
twice the basic benefit during periods that his return to work
3
See Fawbush v. Gwinn, Ky., 103 S.W.3d 5 (2003) (discussing
recent amendments to these provisions).
4
ceases.
If the employee does not return to work, however, then
this subsection is not invoked.
Apparently Jones had non-work-related knee surgery in
June 2001, and the following February, while he was still on
leave from his job recuperating from the surgery, he had the
hearing tests that confirmed and measured his work-related
hearing loss.
He filed the present claim for workers’
compensation benefits on February 27, 2002.
As of February
2003, when the ALJ ruled on Jones’s claim, Jones had still not
returned to work.
Addressing whether Jones had the physical
capacity to return to his former type of work, the ALJ found
that plaintiff [Jones] can return to the
type of work performed at the time of the
injury at least as a result of his hearing.
The plaintiff testified that he only ceased
employment due to knee replacement surgery
and problems associated with a diabetic
condition.
Because Jones’s work-related injury had not prevented
his return to his former job, the ALJ correctly determined that
he was not entitled to an enhanced benefit under KRS 342.730(1)
subpart (c)1.
Believing, however, that Jones’s employment had
“ceased” for the purposes of subpart (c)2, the ALJ ordered that
his benefit be doubled in accordance with that subpart.
This
latter ruling was incorrect.
As noted above, subpart (c)2 does not apply unless the
employee returns to work at or above his pre-injury wage.
5
Able
employees are thus encouraged to resume working.
If they do so,
they are assured of an enhanced benefit in the event that the
return to work is unsuccessful.
If they decline to do so they
forfeit that enhanced benefit.
For the purposes of the statute,
Jones is an able employee who has not resumed working.
thus not entitled to an enhanced benefit.
He is
The ALJ and the Board
erred by ruling otherwise.
Accordingly, we affirm the May 21, 2003, order of the
Workers’ Compensation Board insofar as it upheld the ALJ’s
impairment finding, but reverse and remand so that Jones’s award
may be recalculated in accordance with KRS 342.730(1)(b).
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Christopher A. Dawson
VanAntwerp, Monge, Jones &
Edwards
Ashland, Kentucky
Robert G. Miller, Jr.
Perry, Preston & Miller
Paintsville, Kentucky
6
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