GARRETT MINING COMPANY V LLOYD W . NYE ; ROBERT L . WHITTAKER, DIRECTOR OF SPECIAL FUND ; HON . J . KEVIN KING, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
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RENDERED: OCTOBER 23, 2003
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2002-SC-0455-WC
GARRETT MINING COMPANY
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APPELLANT
APPEAL FROM COURT OF APPEALS
2001-CA-1863-WC
WORKERS' COMPENSATION BOARD NO. 94-34477
LLOYD W. NYE ; ROBERT L .
WHITTAKER, DIRECTOR OF SPECIAL
FUND ; HON. J . KEVIN KING,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING IN PART AND REVERSING IN PART
In this workers' compensation case, Appellant Garrett Mining Company appeals
from an opinion and award entered by an administrative law judge (ALJ) pursuant to a
reopening of a previous award of benefits to Appellee Lloyd W . Nye, which increased
the previous award of 50% permanent partial disability benefits to 100% total disability
benefits . Both the Workers' Compensation Board and the Court of Appeals affirmed .
We now affirm the ALJ's finding that Nye's disability had increased to 100% since the
date of the initial award, but reverse the award insofar as it failed to exclude benefits
payable for a previously determined 22% pre-existing active and, therefore,
noncompensable disability .
Nye's date of birth is July 29, 1945. He has only a GED and no specialized
training . Most of his work experience was in the coal mining industry, though he also
worked briefly as a factory worker, assembly line worker, lathe operator, tile setter, and
general laborer in the construction industry. His first work-related injury relevant to his
present claim occurred on August 4, 1990, when he fell while crossing a tailpiece while
in the employ of CBM Mining and sustained injuries to his back, shoulder and right
knee . He subsequently filed claim number 90-30229, which he settled for a lump sum
of $26,555.56, representing a 27.57% permanent partial disability of which 22.72%
($21,880 .56) was paid by CBM Mining and 4.85% ($4,675.00) was paid by the Special
Fund .
Nye entered the employ of Garrett Mining Company in 1993 as a "belt man ." His
duties included heavy lifting and shoveling . On April 1, 1994, he was injured in a workrelated motor vehicle accident and suffered headaches and pain in his lower back and
left leg. He did not miss any work following this accident. On August 13, 1994, he
slipped and fell at work while carrying rollers weighing seventy to eighty pounds and
injured his back, chest, left shoulder and arm . He has not returned to work since that
date. He filed claim number 94-34477 against Garrett and the Special Fund for the
injuries sustained in both 1994 accidents . On May 15, 1995, ALJ James L . Kerr
consolidated claim number 90-30229 with claim number 94-34477.
On November 14, 1995, ALJ Kerr entered an opinion, award and order finding
Nye to be 72% disabled . He specifically found that the April 1, 1994, accident did not
cause an injury of appreciable proportions, thus did not attribute any portion of the
disability to that event . However, applying former KRS 342.120' and Young v.
Fulkerson , Ky., 463 S .W .2d 118 (1971), he found that 25% of Nye's disability was
attributable to the August 13, 1994, injury alone, 22% was attributable to a pre-existing
active occupational disability, 2 and 25% was attributable to the arousal of a pre-existing
dormant, nondisabling condition into disabling reality . Thus, 25% of the award was
payable by Garrett, 25% was payable by the Special Fund, and 22% was
noncompensable . No appeal was taken from ALJ Kerr's award and order.
On August 21, 2000, Nye filed a motion to reopen the award alleging an increase
of disability . KRS 342.125(1)(d) . In support, he attached, inter alia , medical reports
prepared by Dr. James S . Powell, a neurosurgeon, and Dr. Michael McDonald, a
urologist . The motion was granted and the claim was assigned to ALJ Kevin King for
adjudication . After hearing the evidence on the motion, ALJ King entered an opinion,
award and order on February 20, 2001, finding that Nye's occupational disability had
increased from 72% to 100% and that 22% of the disability was noncompensable as
due to the prior active disability previously found and adjudged by ALJ Kerr. ALJ King
divided the remaining 78% compensable disability equally between Garrett and the
Special Fund (as had ALJ Kerr) and awarded Nye benefits of $324.43 per week.
Nye subsequently filed a petition for reconsideration, KRS 342.281, requesting
that the "whole man" theory be applied to his case so that he could be awarded benefits
KRS 342 .120 was amended, effective December 12, 1996, to eliminate Special Fund
liability for work-related injuries . 1996 Ky. Acts (1 st ex . Sess .), ch . 1, § 3 .
2 The opinion mistakenly recited that Nye "settled a prior claim for an injury occurring
on August 4, 1990, for 22%" and assigned that percentage to the pre-existing active and
noncompensable disability .
based on 100% disability. By order entered March 21, 2001, ALJ King granted the
petition for reconsideration and amended both his findings of fact and the award, viz:
[U]nder the "whole man" theory, Nye is entitled to be fully compensated for
all disability attributable solely to the 1994 injury . The Administrative Law
Judge finds that the entirety of Nye's current disability is attributable to the
1994 injury; therefore, Garrett and the Special Fund shall pay full benefits
to Nye.
He then increased the award from $324.43 per week to $415.94 per week . Garrett
appealed.
I . SUFFICIENCY OF THE EVIDENCE .
Garrett first asserts that the evidence presented on reopening was insufficient to
support an increase of the award . We disagree . ALJ King primarily relied on the
testimony of Dr. Powell and the medical records of Dr. McDonald . Dr. Powell testified at
both the original hearing and at the reopening hearing . He first saw Nye in 1995 on
referral from another physician . He diagnosed cervical brachial plexopathy and
possible cervical disc disease with radiculopathy. Although he did not assign an
impairment rating at the time, he testified that he would have assigned a 15% rating if
asked and would have restricted Nye to light work duty.
Dr. Powell next saw Nye on September 2, 1999, at which time Nye was
complaining of worsening right arm symptoms and marked weakness . Dr. Powell
recommended surgery, which was scheduled but then cancelled by Nye due to anxiety .
Dr. Powell's diagnoses on reopening were cervical myelopathy with cauda equina
syndrome and severe multilevel radiculopathy both caused by compression of the
cervical spine secondary to the August 13, 1994, injury. He testified that Nye's present
impairment per the AMA Guides to the Evaluation of Permanent Impairment was 60%
for the cervical myelopathy with cauda equina syndrome, 35% for the severe multilevel
radiculopathy, yielding a combined impairment rating of 74% . He further testified that
whereas Nye had been able to perform light duty in 1995, his condition had deteriorated
to the extent that he was presently incapable of any form of work. Dr. Powell
recommended surgery to relieve the increased spinal cord compression but opined that,
even after surgery, Nye's present physical disability would be permanent .
Nye also had developed a neurogenic bladder condition subsequent to the 1995
award that presently requires him to urinate as often as fifteen times per day. Dr.
McDonald first saw Nye for treatment of his bladder complaints in July 1997. On
January 22, 1998, he performed a cystoscopy and bilateral retrograde pyelogram that
revealed concrete objective evidence of a neurogenic bladder condition that, according
to Dr. McDonald, was related to an upper motor neuron lesion secondary to the 1994
"mine related injury ." According to Dr. McDonald, this upper motor neuron lesion has
caused a number of neuromuscular problems of both upper and lower extremities, as
well as the bladder, that may progress further with time.
Garrett presented other medical evidence that disagreed with the opinions of Drs .
Powell and McDonald . However, since Nye prevailed on his motion to reopen, the
issue on appeal is whether there was substantial evidence of probative value to support
ALJ King's conclusions . Special Fund v. Francis , Ky., 708 S .W.2d 641, 643 (1986);
Wolf Creek Collieries v. Crum , Ky. App., 673 S .W .2d 735, 736 (1984). Substantial
evidence is defined as "evidence of substance and relevant consequence having the
fitness to induce conviction in the minds of reasonable men ." Smvzerv. B . F. Goodrich
Chem. Co . , Ky., 474 S.W .2d 367, 369 (1971). In ascertaining whether there has been a
change in occupational disability, the ALJ is both authorized and obligated to analyze
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not only the evidence presented upon reopening but also that which was considered at
the time of the original award. W . E. Caldwell Co. v. Borders , 301 Ky. 843, 193 S .W .2d
453, 455 (1946). As fact-finder, the ALJ has the authority to determine the quality,
character, and substance of all the evidence . Square D Co . v. Tipton , Ky., 862 S.W .2d
308, 309 (1993) ; Paramount Foods, Inc. v. Burkhardt , Ky., 695 S .W.2d 418, 419 (1985).
The ALJ is the sole judge of the weight and inferences to be drawn from the evidence .
Miller v. East Ky. Beverage/Pepsico, Inc., Ky., 951 S.W .2d 329, 330 (1997); Luttrell v.
Cardinal Aluminum Co., Ky. App., 909 S .W.2d 334, 336 (1995). He may reject any
testimony and believe or disbelieve various parts of the evidence, regardless of whether
it was presented by the same witness or the same party's total proof. Magic Coal Co . v.
Fox, Ky., 19 S.W.3d 88, 98 (2000) ; Whittaker v. Rowland, Ky., 998 S .W.2d 479, 481
(1999). The mere fact that there was evidence contrary to the ALJ's decision on
reopening is insufficient to support a reversal on appeal . Whittaker v. Rowland, supra ,
at 482. We conclude that the evidence was sufficient to support ALJ King's finding that
Nye's present occupational disability is 100% .
Garrett also asserts that the motion to reopen was erroneously granted because
there was no evidence of any change in Nye's occupational disability since the 1995
award, i.e. , he was not working at the time of the initial award and he was not working
when he filed his motion to reopen . For this proposition, Garrett relies on Gro-Green
Chemical Co . v. Allen , Ky. App ., 746 S .W.2d 69 (1987) .
[T]he appellee had the burden of proving that he not only had sustained
an increase in functional disability, but an increase in occupational
disability as well. Testifying in his own behalf, the appellee admitted that
he had not worked since November of 1979, nor had he applied for work.
He further testified that he was unable to engage in the work for which he
had been employed by the appellant at the time the settlement agreement
was entered into . He stated that his condition then included swelling in his
legs, muscle spasms, and difficulty, or even the impossibility, of engaging
in any type of lifting . In simple terms, the appellee admitted that at the
time he signed the settlement agreement, he "couldn't do any of the jobs
that [he] had ever done in the past." Such testimony was not contradicted
by the treating physician, Dr. Baker .
Id . at 70 .
Gro-Green , however, was decided under a prior version of KRS 342 .125(1) that
permitted reopening only upon a showing, inter alia, of a "change of occupational
disability" (emphasis added), and the evidence in that case proved only an increase in
functional impairment . Id . at 70. The statute was amended in 1994 to permit reopening
upon a showing of a change of "medical condition," 1994 Ky. Acts, ch . 181, Part 7, § 27,
eff. April 4, 1994 (emphasis added), and again in 1996 to permit reopening upon a
showing of a "[c]hange of disability," 1996 Ky. Acts (1st ex. Sess.), ch .1, § 6, eff.
December 12, 1996 (emphasis added). The 1996 version of the statute is the one
applicable to the reopening of this case . Peabody Coal Co. v. Gossett , Ky., 819 S .W .2d
33, 36 (1991) . Thus, Nye was not required to show a "change of occupational disability"
as a prerequisite to a reopening but only a "change of disability." The medical reports of
Drs . Powell and McDonald that were submitted in support of the motion to reopen
contained evidence that Nye's disability had increased since the initial award, and that
evidence was sufficient to warrant the reopening . Once reopened, the AU could
determine the extent of occupational disability in accordance with the principles set forth
in Osborne v. Johnson , Ky., 432 S .W .2d 800 (1968) . Dr. Powell's testimony that Nye
was presently and permanently incapable of performing any form of work was
substantial evidence supporting AU King's determination of total occupational disability .
Id . at 803 .
II. LIMITATIONS .
Garrett mistakenly asserts that any of Nye's present disability that is the result of
his neurogenic bladder condition is noncompensable because he failed to assert a claim
for that condition within two years of March 11, 1995, the date of last payment of
temporary total disability benefits . KRS 342.185(1). However, the neurogenic bladder
condition is not a new injury but an additional disability stemming from the original
injury . Because the neurogenic bladder condition did not manifest itself until several
years after the rendition of the original award, any increased disability attributable to that
condition is a "change of disability" triggering the application of KRS 342 .125. Fischer
Packing Co. v. Lanham , Ky., 804 S.W.2d 4, 5 (1991).
KRS 342.185(1) applies only to the time for filing an original application for
adjustment of a claim . The period of limitations applicable to a motion to reopen is
stated in KRS 342 .125(3) for claims originally decided after December 12, 1996, and in
KRS 342.125(8) for claims originally decided before December 12, 1996. Meade v.
Reedy Coal Co. , Ky., 13 S .W .3d 619, 621 (2000). For claims originally decided, as
here, before December 12, 1996, the period of limitations within which to file a motion to
reopen is "within four (4) years of the award or order or within four (4) years of
December 12, 1996, whichever is later." KRS 342.125(8) . Nye filed his motion to
reopen on August 21, 2000, which was within four years of December 12, 1996. Thus,
his claim for additional disability benefits because of the development of the neurogenic
bladder condition was not barred by limitations .
III . APPLICATION OF THE "WHOLE MAN" THEORY.
There are four reasons why it was error to apply the "whole man" theory to this
case: (1) ALJ King exceeded his authority by increasing the award in response to a
petition for reconsideration ; (2) the "whole man" theory applies only to "independent"
injuries; (3) the "whole man" theory does not apply to awards apportioned under former
KRS 342.120 ; and (4) AU Kerr's 1995 finding that 22% of Nye's disability from the 1994
injury was pre-existing and noncompensable is res judicata as to that issue .
A. Petition for Reconsideration .
KRS 342 .281 provides that in considering a petition for reconsideration, "[t]he
administrative law judge shall be limited in the review to the correction of errors patently
appearing upon the face of the award, order, or decision . . . ." This language precludes
an AU (or, formerly, the "old" Board) from reconsidering the case on the merits and/or
changing the findings of fact. Wells v. Beth-Elkhorn Coal Corp. , Ky. App., 708 S.W.2d
104, 106 (1985); see also , Ford Furniture Co . v. Claywell , Ky., 473 S .W .2d 821, 823
(1971) (where record considered by "old" Board supported its decision, KRS 342 .281
could not be used to reconsider case on the merits); Beth-Elkhorn Corp. v. Nash, Ky.,
470 S .W .2d 329, 330 (1971) (after dismissing employee's claim, "old" Board exceeded
its authority by awarding benefits on petition for reconsideration) . Thus, AU King
exceeded his authority by making additional findings and increasing the award in
response to a petition for reconsideration .
B . Independent Injury.
The "whole man" theory is that "[w]here [an employee] has had a compensable
disability, received his compensation and returned to work and then receives a
subsequent independent injury which incapacitates him, the prior injury should not be
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deducted." Cabe v. Skeens, Ky., 422 S .W.2d 884, 885 (1967) (emphasis added) . "In
such instances, the key word is 'independent."' Young v. Young , Ky., 460 S .W.2d 832,
835 (1970). The rule is applied when the disability caused by the second injury is
unrelated to and unaffected by the disability caused by the previous injury.
The two leading Kentucky cases applying the "whole man" theory, International
Harvester Co. v. Poff, Ky., 331 S .W.2d 712 (1959) and Schneider v. Putnam , Ky., 579
S.W .2d 370 (1979), are perfect examples of "independent" injuries. In Poff, the case
that first adopted the "whole man" theory in Kentucky, a worker who had lost an eye in a
previous work-related accident had been compensated therefor and returned to work.
He then suffered a second accident requiring the amputation of both legs. It was held
that the "whole man" theory precluded deducting the disability caused by the lost eye
from the award for the disability caused by the amputations . Id . at 714-15 . The two
injuries were unrelated and incapacitated the worker in different ways; obviously, the
disability resulting from the amputations was not affected by the lost eye . In Schneider,
the worker had been almost blind since early childhood but, nevertheless, was working
full-time when he was disabled by a work-related injury to his back . It was held that the
disability resulting from his visual impairment should not be deducted from the award for
the disability resulting from his back injury. Id. at 372. Again, the disability resulting
from the back injury was not affected by the pre-existing visual impairment, and the
"whole man" theory applied . Id . at 371 .
In contrast, the "whole man" theory was not applied in Young v. Kentucky Baptist
Hospital , Ky., 483 S .W.2d 148 (1972), where the employee, having lost one eye during
childhood, lost his other eye in a work-related accident resulting in total disability. Since
the work-related accident would not have caused total disability except for the pre-10-
existing impairment, it was held that KRS 342.120 required an exclusion reflecting the
pre-existing disability . Id . at 150 . Both injuries affected the worker's vision rather than,
e.g_, one affecting his vision and the other his back; therefore, the "whole man" theory
was not applicable . "If there had been no preexisting disability, [the plaintiff] would have
had a good left eye and would not have sustained total disability." Id .
Here, both the 1990 accident and the 1994 accident injured Nye's back and
shoulders (primarily cervical spine area), and all of his present disability stems from the
injuries of that area of his body. Since he had a prior active disability in the same area
of his present disability, the subsequent injury was not "independent" of the previous
injury and the "whole man" theory does not apply.
C. Apportioned Disability.
Although the procedural law applicable to the motion to reopen is the law in effect
at the time of reopening, Peabody Coal Co . v. Gossett, supra, at 36, the substantive law
applicable to a reopened case is the law in effect at the time of the injury. Maggard v.
Int'I Harvester Co. , Ky., 508 S .W .2d 777, 783 (1974). Here, that includes the
apportionment procedures mandated by former KRS 342 .120(7), which provided, inter
alia :
The remaining compensation for which such resulting condition
would entitle the employee, including any compensation for disability
resulting from a dormant disease or condition aroused into disabling reality
by the injury or occupational disease, but excluding all compensation
which the provisions of this chapter would have afforded on account of
prior disabling disease or injury had it been compensated thereunder,
shall be paid out of the special fund . . . .
(Emphasis added .)
Thus, as recognized in Young v. Young, supra, at 835-36, if the case is practiced
under KRS 342 .120, i.e. , if part of the award is to be apportioned against the Special
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Fund, exclusion for a prior disabling injury is required by the apportionment statute, and
the common law "whole man" theory simply does not apply. In fact, Poff, supra,
distinguished two prior cases that had required an exclusion for a prior disability
because those cases had been practiced under KRS 342 .120 whereas Poff had not. Id .
at 714.
The reason an apportionment case is different is that only in KRS
342 .120, the apportionment statute, does the law expressly require that a
pre-existing disability be excluded (in the form of a deduction) from the
benefits otherwise payable as the result of a compensable injury or
disease .
Schneider , supra , at 371 . However, Schneider clarified that, even then, the exclusion is
required only if, as here, the pre-existing condition is a contributing factor to the
disability caused by the subsequent injury. Id . at 372. The employee's pre-existing
visual impairment in Schneider was not a contributing factor, thus did not require an
exclusion (even though causation of the claimant's work-related back injury in Schneider
was apportioned between the employer and the Special Fund). Id .
Here, both the 1990 and 1994 injuries affected the same bodily functions and the
award was apportioned between the employer and the Special Fund under KRS
342.120 . Thus, KRS 342 .120(7) required that an exclusion for the pre-existing disability
for which Nye had been previously compensated and precluded application of the
"whole man" theory to this case.
3 In fact, KRS 342 .120(7) would seem to have required an exclusion of 27 .57%, which
was the percentage of disability previously compensated by the award for the 1990
injury . However, as discussed more fully infra , AU Kerr's apportionment is now res
judicata .
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D. Res Judicata.
A workers' compensation award can be reopened on grounds of (a) fraud, (b)
newly discovered evidence, (c) mistake, and (d) change of disability. KRS 342 .125(1) .
While KRS 342 .125(7) provides that upon reopening of an award based upon an
approved settlement agreement , "[t]he parties may raise any issue upon reopening and
review of this type of award which could have been considered upon an original
application for benefits" (emphasis added), the statute does not contain a similar
provision with respect to reopening of awards adjudicated by an ALJ on the basis of the
law and facts. Obviously, the intent of KRS 342.125(7) was to assure that the principle
of res judicata would apply only to prior judicial determinations, not to cases that were
settled between the parties . Thus, in American Standard, Inc . v. Stephen , Ky. App ., 565
S .W.2d 158 (1978), it was held that KRS 342.125(2) [now KRS 342 .125(7)] authorized
joinder of the Special Fund upon reopening and apportionment of the new award
despite the fact that the Special Fund had not been a party to the original settlement
agreement . Id . a t 161 .
However, once an ALJ-adjudicated award and order becomes final, the ALJ's
determinations with respect to, etc .., causation, notice, apportionment, etc ., cannot be
readdressed under KRS 342 .125 except upon an allegation of fraud, newly discovered
evidence, or mistake, grounds that do not exist and are not asserted in this case. The
reason, of course, is that revisiting issues previously decided is precluded by the
principle of res judicata . "The doctrine of res judicata applies to the rulings of a
Workmen's Compensation Board the same as it does to the decisions of a court."
Hysteam Coal Corp. v. Ingram , 283 Ky. 411, 141 S .W.2d 570, 572 (1940) . See Keefe
v. O. K. Precision Tool & Die Co. , Ky. App., 566 S.W .2d 804, 809 (1978) (method of
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computing original award could not be changed on reopening for "mistake" to conform
to Supreme Court's later interpretation of computation statute in Apache Coal Co . v.
Fuller, Ky., 541 S .W.2d 933 (1976)); compare General Elec. Co . v. Morris , Ky., 670
S .W.2d 854, 856 (1984) (on reopening of prior settlement agreement because of
change of condition, new award could be computed in accordance with Apache); cf.
Whittaker v. Cecil , Ky., 69 S.W.3d 69, 73 (2002) (employer precluded by res judicata
from challenging ALJ's apportionment decision by way of 803 KAR 25:075 § 3, a
regulation permitting an employer to challenge the Special Fund's calculation of the
employer's credit for commuted attorney's fees); Whittaker v. Morgan, Ky., 52 S.W.3d
567, 569-70 (2001) (Special Fund's failure to appeal ALJ's manner of calculating credit
would have resulted in that calculation becoming the "law of the case") .
The disease condition had been recognized as contributing to disability
and used as a factor for computation in the apportionment made in the
1961 back injury claim . Therefore, it could not be regarded as dormant or
nondisabling prior to the 1968 injury. Neither the employer nor the Special
Fund was liable for the percentage of the resulting disability attributed to
the disease condition . . . .
Young, supra , at 836. Likewise, the pre-existing active disability attributable to Nye's
1990 back injury, having been recognized by ALJ Kerr as contributing to Nye's disability
in the 1995 award, could not be disregarded by AU King upon reopening the same
award for increased disability caused by the same injury in 2001 .
Thus, while AU King had the authority under KRS 342 .125(4) to increase Nye's
award in accordance with his increased disability, he was without authority to change
the apportionment of causation established in the original award and to require payment
of more than 78% of maximum benefits. Nor did he have the authority, in response to a
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petition for reconsideration, to make new findings, apply a new theory, and increase the
amount of benefits awarded.
Accordingly, the opinion of the Court of Appeals is affirmed in part and reversed
in part . The order entered on March 21, 2001, is vacated and the award and order
entered on February 20, 2001, is reinstated .
Lambert, C .J . ; Graves, Johnstone, and Keller, JJ., concur. Wintersheimer, J .,
dissents by separate opinion with Stumbo, J., joining that dissenting opinion .
COUNSEL FOR APPELLANT :
A . Stuart Bennett
175 E. Main Street
P.O . Box 2150
Lexington, KY 40588
COUNSEL FOR APPELLEE LLOYD W. NYE :
Leonard Joseph Stayton
P .O . Box 1386
Inez, KY 41224
COUNSEL FOR APPELLEE ROBERT L . WHITTAKER :
Glina R. Bryant-Lentz
Kentucky Labor Cabinet
Division of Special Fund
Suite 4
1047 US Hwy 127 South
Frankfort, KY 40601
RENDERED : OCTOBER 23, 2003
TO BE PUBLISHED
,Suyraat Courf of ~rnfurkg
2002-SC-0455-WC
GARRETT MINING COMPANY
V.
APPELLANT
APPEAL FROM THE COURT OF APPEALS
2001-CA-1863-W C
WORKERS' COMPENSATION BOARD NO. 94-34477
LLOYD W . NYE ; ROBERT L.
WHITTAKER, DIRECTOR OF SPECIAL
FUND; HON . J . KEVIN KING,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
DISSENTING OPINION BY JUSTICE WINTERSHEIMER
I respectfully dissent from that part of the majority opinion that determines it was
error to apply the whole man theory to this case . Otherwise, I concur in affirming the
decision of the Court of Appeals.
The Administrative Law Judge applied the "whole man" theory and awarded Nye
full disability benefits . The "whole man" doctrine applies where an individual suffers a
subsequent work-related injury and the nature of that subsequent injury is such that it
causes the individual to be totally occupationally disabled regardless of any injury
previously suffered . See Schneider v. Putnam , Ky., 579 S.W.2d 370 (1979).
If the prior injury did not contribute to the subsequent total and permanent
occupational disability, then the prior injury was not a preexisting disability for the
purposes of determining the degree of occupational disability which existed immediately
prior to the subsequent injury. Wells v. Bunch , Ky., 692 S.W.2d 806 (1985). As such,
the employer will not receive a credit for any award for the prior injury . The ALJ
properly determined, pursuant to the "whole man" doctrine that Nye's total and
permanent occupational disability was caused solely by the subsequent 1994 injury and
thus, Garrett was not entitled to the 22 percent credit which represents the award to
Nye for the 1990 injury.
Garrett argues that it and the Special Fund were denied the proper credit for the
prior awards . It contends that the ALJ should have excluded the 22 percent prior active
disability that was due to the 1990 work-related injury . Further, it argues that the prior
award of 50 percent occupational disability awarded as a result of the August 1994
injury would likewise be excluded as active, preexisting and noncompensable, thereby
limiting Nye's recovery to 28 percent occupational disability. I cannot agree .
The ALJ determined Nye to be totally disabled as a result of the deterioration
that stemmed from his August 1994 injury alone . Clearly, the ALJ determined that the
1994 injury, in and of itself, was sufficient to have produced the physical and
occupational worsening proven by Nye on reopening entitling him to total disability
benefits . Such a finding comports with the "whole man" doctrine . Under that doctrine,
even if an individual has previously been determined to have some degree of
occupational disability, whether it be work-related or not, an ALJ retains the discretion
to rule that a subsequent event in and of itself is sufficiently significant to render that
claimant totally occupationally disabled and entitled to full benefits. Schneider v.
Putnam , Ky., 579 S .W .2d 370 (1979) and International Harvester v. Poff, Ky., 331
S .W .2d 712 (1959). Consequently, because the 1994 injury by itself resulted in a total
disability, no exclusion is required .
A prior determination which made an active impairment rating under
circumstances such as involved here does not necessarily constitute res judicata . Res
judicata does not attach if the issue at stake was not specifically decided in the prior
proceeding or, even if decided, was not essential to the final decision of the case .
Woodbridae INOAC v. Downs , Ky., 864 S.W.2d 306 (1993) . In the 1995 opinion and
award, the ALJ found that the August 1994 injury produced a 50% permanent partial
disability. Consequently, the finding that the 1990 injury also produced a 22% active
disability was not essential to the overall decision of the ALJ in 1995. No error
occurred .
The opinion of the Court of Appeals should be affirmed totally .
Stumbo, J ., joins this dissenting opinion .
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