SEARS ROEBUCK & COMPANY v. BOBBY DENNIS; BONNIE KITTENGER, Administrative Law Judge; RADIO SHACK; WORKERS' COMPENSATION FUNDS; and WORKERS' COMPENSATION BOARD & RADIO SHACK v. BOBBY A. DENNIS; BONNIE C. KITTINGER, Administrative Law Judge; SEARS ROEBUCK & COMPANY; WORKERS' COMPENSATION FUNDS; and WORKERS' COMPENSATION BOARD
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RENDERED:
MARCH 12, 2004; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002056-WC
SEARS ROEBUCK & COMPANY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. 01-WC-71866
BOBBY DENNIS; BONNIE KITTENGER,
Administrative Law Judge;
RADIO SHACK; WORKERS' COMPENSATION
FUNDS; and WORKERS' COMPENSATION
BOARD
&
APPELLEES
No. 2003-CA-002217-WC
RADIO SHACK
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. 95-WC-30472
BOBBY A. DENNIS; BONNIE C. KITTINGER,
Administrative Law Judge; SEARS
ROEBUCK & COMPANY; WORKERS’ COMPENSATION
FUNDS; and WORKERS’ COMPENSATION
BOARD
OPINION
AFFIRMING
** ** ** ** **
CROSS-APPELLEES
BEFORE:
COMBS, KNOPF, and McANULTY, Judges.
COMBS, JUDGE.
Sears Roebuck and Company (Sears) petitions and
Radio Shack cross-petitions for review of an opinion of the
Workers’ Compensation Board (Board) that affirmed in part,
reversed in part, and remanded an opinion of the Administrative
Law Judge (ALJ).
The two former employers of appellee Bobby
Dennis contest the Board’s determinations with respect to their
liability for disability and medical benefits.
Sears challenges
the Board’s conclusion that it is liable to Dennis for permanent
total occupational disability benefits.
Radio Shack contends
that the Board erred in affirming the ALJ’s apportionment of
medical benefits.
Finding no error, we affirm.
The facts giving rise to these appeals are not in
dispute.
Prior to his employment at Radio Shack, Dennis had
sustained several injuries resulting in some degree of active
disability.
He began working for Radio Shack in 1993.
In 1995,
he fell from a ladder onto a concrete floor at work, suffering a
serious injury affecting his neck, shoulder, and back.
He
sought workers’ compensation benefits for the disability
resulting from that injury and was determined to be 30%
occupationally disabled.
One-third of the disability (10%)
rating was attributed to Dennis’s prior active disability and
was non-compensable.
Benefits for the remaining disability
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(20%) were apportioned equally between the employer and the
Special Fund, the predecessor to the appellee Workers’
Compensation Funds (WCF).
Dennis ceased employment with Radio Shack in 1998.
He
subsequently worked for several different employers, including
Sears.
In January 2000, he began work as a salesman in the tire
department of Sears.
He was still having significant back
problems related to his 1995 injury when he started working for
Sears.
However, the ALJ believed Dennis’s testimony that Sears
was aware of his back condition when it hired him and that it
promised to accommodate his work restrictions -- including that
he avoid heavy lifting.
Nonetheless, Dennis was required to lift heavy tires,
and on two occasions -– December 7, 2000, and October 23, 2001
-– that lifting resulted in injury to his back.
The latter
incident occurred after his managers insisted that he work 14
straight hours while ignoring his complaints of pain and
requests to be allowed to go home.
Dennis did not work following the October 2001
incident.
He filed a new workers’ compensation claim against
Sears based on the two injuries to his back as well as a
psychological impairment.
He also moved to reopen his 1995
claim against Radio Shack due to a worsening of his back
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impairment since the previous award.
The new claim and the
reopened claim were consolidated before the ALJ.
After reviewing and outlining extensive medical
evidence, the ALJ found that Dennis was totally occupationally
disabled.
That determination is not challenged in this appeal.
In reaching that conclusion, the ALJ found that Dennis had
sustained:
both an increase in occupational disability
as a result of his 1995 injuries and a
permanent impairment from his October 23,
2001, injury.
(ALJ’s opinion, award and order, November 1, 2002, p. 17,
emphasis added.)
Specifically, the ALJ determined as follows:
(1) that 10% of the total disability was attributable to an
active disability pre-dating his employment at Radio Shack; (2)
that 5% of the disability was due to a psychological impairment
“directly attributable to his injury sustained” at Sears (Id.);
and (3) that the remaining 85% of Dennis’s occupational
disability resulted from a worsening of his 1995 Radio Shack
injury.
Accordingly, the ALJ ordered Sears to pay disability
benefits at the rate of 5% for life while ordering Radio Shack
and the Workers’ Compensation Funds to pay the remaining 85% for
life – again, apportioned equally.
On reconsideration, the ALJ clarified her award of
medical benefits and found Radio Shack liable for payment of all
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medical expenses related to Dennis’s shoulder, neck, and back
problems (except for the medical bills incurred during the
period of October 23, 2001, and December 11, 2001).
Sears was
responsible for only those medical expenses necessary to treat
Dennis’s psychological impairment.
Both employers and the WCF appealed to the Board.
Radio Shack and the WCF contended that the ALJ erred in
requiring them to pay lifetime benefits.
argued:
Radio Shack also
(1) that the evidence did not support the ALJ’s finding
of an increase in occupational disability since the 1998 award
and (2) that the ALJ erred as a matter of law in apportioning
the award of medical expenses.
Sears argued that the ALJ erred
in finding it liable for a 5% psychological impairment because
it was not based on a traumatic event occurring during Dennis’s
tenure at Sears for which an impairment rating had been
assigned.
In its review, the Board rejected Sears’s contention
with respect to its liability for the psychological impairment
as follows:
There is no requirement the physical injury
must result in an impairment rating before a
psychological condition can be compensable.
The correct standard is set forth in
Lexington-Fayette Urban County Government v.
West, Ky., 52 S.W.3d 564 (2001). There, the
court found a psychological claim must arise
from a physically traumatic event with such
event being one that involved physical
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trauma. Here, the ALJ concluded Dennis had
sustained an injury at Sears on October 23,
2001. His exertion involved pulling tires
and lifting them for 14 to 15 hours and
would constitute a physically traumatic
event. Since Dr. Steger opined Dennis did
not have an active psychiatric impairment
prior to this injury, there is substantial
evidence to support the ALJ’s conclusion
that Sears is liable for benefits related to
the psychological condition.
However, the Board agreed with the argument advanced
by Radio Shack and WCF that the ALJ had erred in holding them
responsible for the payment of permanent benefits.
The Board
analyzed Fleming v. Windchy, Ky., 953 S.W.2d 604 (1997),
Whittaker v. Fleming, Ky., 25 S.W.3d 460 (2000), and Spurlin v.
Brooks, Ky., 952 S.W.2d 687 (1997), and concluded as follows:
[C]laimants who are rendered totally
disabled by a series of work injuries with
different overlapping awards are to receive
benefits that correspond to the whole of
their disability on the date that disability
begins. Generally, if a worker has a
disability for which he is receiving
benefits, or is so entitled at the time his
permanent total disability manifests, then
the employer liable for the subsequent total
disability award receives a dollar-fordollar offset for permanent partial
disability benefits paid from and after the
date total disability benefits are scheduled
to begin. However, where a subsequent
injury occurs and the worker is determined
to be totally and permanently disabled, the
amount and duration of an award for a prior
condition may not be extended beyond that
allowed under the Act for permanent partial
disability if the first injury is combined
with the subsequent injury to find total
disability. Liability for the injured
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worker’s total disability award falls to the
employer or carrier when the subsequent
injur[y] occurred with a dollar-for-dollar
credit permitted for any prior overlapping
permanent partial disability awards, and the
extent and duration of that total award is
determined as of the date of the last workrelated injury. The fact that a prior
active disability contributes to the injured
worker’s total disability does not alter
this analysis. A reopening for the prior
injury is of no consequence except for
purposes of calculating the overlapping
credit attributable to any increase in
permanent partial disability from the prior
order or award. Any new award as a result
of the reopening can only be for permanent
partial disability regardless of whether the
earlier injury is a contributing factor in
concert with the final injury producing the
injured worker’s total disability. After
the expiration of any overlapping period of
permanent partial disability, the original
overlapping dollar amount becomes excess
disability and becomes the liability of the
workers’ compensation insurance carrier
legally responsible for the final injury for
so long as the claimant is disabled.
(Workers’ Compensation Board’s opinion entered August 27, 2003,
pp.16-17; emphasis in original.)
Thus, the Board affirmed the determination that Dennis
was totally occupationally disabled, but it reversed the ALJ’s
decision with respect to the employers’ liability for the award
of income benefits.
In the opinion from which these appeals
have been taken, the Board remanded the matter to the ALJ for
entry of an order holding Radio Shack and WCF responsible for
increased benefits only “from the date of the motion to reopen
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for the remainder of the permanent partial disability period.”
Sears was found to be responsible for the award of total
occupational disability benefits for as long as Dennis is
disabled with a credit for the amounts paid by Radio Shack and
the WCF during the time that the two awards overlapped.
In its appeal, Sears argues that the Board erred in
reversing the ALJ’s decision with respect to liability for the
award of income benefits.
As reflected in the ALJ’s findings,
the evidence established that the overwhelming majority of
Dennis’s occupational disability was due to the 1995 injury at
Radio Shack.
Consequently, Sears vigorously contests the
Board’s determination that it is responsible for permanent total
disability benefits.
We review workers’ compensation cases in accordance
with the standard articulated in Western Baptist Hospital v.
Kelly, Ky., 827 S.W.2d 685, 687 (1992).
Thus, we may 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.”
Id. at 687.
The issue raised by Sears does not
involve the Board’s assessment of the evidence; it turns instead
upon the Board’s application of the holdings in Whittaker v.
Fleming, Fleming v. Windchy, and Spurlin v. Brooks, supra.
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After our review, we cannot conclude that the Board erred in its
application of the law.
The evidence before the ALJ would have supported a
finding that Dennis was totally disabled as a result of a
worsening of his 1995 injury alone.
However, in quite specific
terms, the ALJ found that Dennis was totally occupationally
disabled as a result of the combined effects of an increase in
his prior back impairment and the psychological condition caused
at Sears.
Opinion of the ALJ, p. 4.
Under these circumstances,
the law dictates that the liability for total occupational
disability benefits rests upon Sears -– the employer at risk at
the time of the last injury.
Fleming v. Windchy, 953 S.W.2d at
607, Whittaker v. Fleming, 25 S.W.3d 462, Spurlin v. Brooks, 952
S.W.2d 690-691; see also, Phoenix Manufacturing Co. v. Johnson,
Ky., 69 S.W.3d 64 (2002).
Although Dennis’s 1995 injury was
quite devastating, there is evidence in the record to support
the ALJ’s finding that Dennis became totally disabled after the
October 2001 incident with its resulting psychological
impairment.
Therefore, we find no error in the Board’s
application of the law.
In its appeal, Radio Shack argues that there was no
authority allowing the ALJ to apportion medical expenses between
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the two employers.
Relying on KRS1 342.020 and Derr Construction
Co. v. Bennett, Ky., 873 S.W.2d 824 (1994), Radio Shack contends
that Sears should be solely responsible for the medical expenses
related to Dennis’s back ailment as well as for those necessary
to treat his psychiatric condition.
Again, we hold that the Board was correct in its
resolution of this issue when it reasoned as follows:
While it is true in general that the last
employer would be responsible for medical
expenses, there are occasions where medical
expenses can be clearly distinguished as
resulting from distinct and separate events
and body parts. Here, expert testimony
indicates the physical injury to Dennis’[s]
low back at Sears did not result in any
structural change nor did it result in
additional impairment. There was evidence
upon which the ALJ could reasonably conclude
the injury at Sears produced only temporary
effects. In such a situation it is proper
to award medical benefits during the
temporary period payable by the employer
responsible for the temporary aggravation
and, once the individual returns to his
baseline condition, to require the employer
responsible for the earlier injury to resume
medical payments. This is what the ALJ’s
order on reconsideration specifies. Since
the ALJ found the psychological condition
was related to the injury at Sears, she
appropriately made Sears responsible for the
medical benefits related to the
psychological condition.
In arguing that it should not be responsible for
further medical expenses related to the care of Dennis’s back,
1
Kentucky Revised Statutes.
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Radio Shack contends that there is no evidence that his back
worsened other than as a result of his employment at Sears.
However, Dr. Kriss testified that the two incidents at Sears
caused a temporary aggravation of Dennis’s symptoms but not any
permanent structural change.
The Board based its conclusion on the testimony of Dr.
Kriss, and we find no error in its election to rely on his
expert opinion.
Neither Derr v. Bennett nor KRS 342.020(1)
supports Radio Shack’s argument.
Derr holds that there was no
authority to apportion medical expenses for a prior active
condition to the Special Fund.
However, it does not address the
factual situation present in this case:
employers.
apportionment between
Moreover, there is no statutory prohibition for
splitting the award of medicals among the claimant’s various
employers.
KRS 342.020(1) provides that:
the employer shall pay for the cure and
relief from the effects of an injury or
occupational disease the medical, surgical,
and hospital treatment, including nursing,
medical, and surgical supplies and
appliances, as may reasonably be required at
the time of the injury and thereafter during
disability, or as may be required for the
cure and treatment of an occupational
disease. The employer’s obligation to pay
the benefits specified in this section shall
continue for so long as the employee is
disabled . . . .
While this statute does not specifically provide for
apportionment of medical expenses, it does not prohibit dividing
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those expenses among different employers and/or insurance
carriers when the circumstances so warrant.
The ALJ found that Dennis suffered distinct injuries
affecting different parts of his body with each employer.
Accordingly, the ALJ’s decision requiring Radio Shack to
continue to pay the medical expenses incurred for treatment to
Dennis’s back was wholly in harmony with pertinent statutes and
precedent.
We affirm the opinion of the Workers’ Compensation
Board.
ALL CONCUR.
BRIEF FOR APPELLANT SEARS:
Kamp T. Purdy
Lexington, Kentucky
BRIEF FOR CROSS-APPELLANT
RADIO SHACK:
W. Barry Lewis
Hazard, Kentucky
BRIEF FOR APPELLEE BOBBY
DENNIS:
Larry Duane Ashlock
Lexington, Kentucky
BRIEF FOR APPELLEE WORKERS’
COMPENSATION FUNDS:
David W. Barr
Frankfort, Kentucky
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