Continental Air Filter Co. v. Blair

681 S.W.2d 427, 1984 Ky. LEXIS 276

• Court: Kentucky Supreme Court
• Decided: December 6, 1984
• Status: Published

Opinions

STEPHENSON, Justice.

The Workers’ Compensation Board reopened its award to James Blair and increased his percentage of disability from 50 percent to 100 percent. This procedure was based on a change in economic conditions. The trial court affirmed, and the Court of Appeals affirmed the theory of the reopening. We granted discretionary review and reverse.

James Blair was involved in a work-related industrial accident in which he lost all his fingers except for one index finger and both thumbs. Blair was awarded 50-per-cent disability. Continental had created a new job for Blair which did not require him to use his hands. He was later transferred to another job on the night shift and then to a third job when the night shift was abolished. Blair worked on the last job one day and quit, stating he could not perform the work. There is a dispute as to the reason for Blair quitting, dislike of the foreman or intent to take early retirement.

Blair filed a motion with the Workers’ Compensation Board to reopen his claim under KRS 342.125. The change of conditions asserted by Blair was not a change of physical condition, but a change in his economic condition. No medical testimony was offered, and there is no claim of any change in physical condition. The trial court affirmed the Board, and the Court of Appeals affirmed holding that a change in economic condition is sufficient to fulfill the reopening requirements of KRS 342.-125.

KRS 342.125(1), concerning this proposition, provides in part:

“Upon its own motion or upon the application of any party interested and a showing of change of condition, mistake or fraud or newly discovered evidence, the board may at any time review an award or order_” [Emphasis added.]

The difficulty with the decision of the Court of Appeals is that it attempts to finesse a long-standing holding of this court that “change of conditions” in the Act means change in physical condition.

This interpretation of change in condition is exemplified in Osborne v. Johnson, Ky., 432 S.W.2d 800, 804 (1968), where we said:

“Since the determination of post-injury earning capacity is to be based on normal economic conditions, it follows that a mere fluctuation in economic conditions will not be considered a ‘change in conditions’ within the meaning of the reopening statute, KRS 342.125. As we interpret the statute, the change of conditions contemplated is a change of the workman’s physical condition.”

All the cases that have relied on Osborne have referred to “change of conditions” as “functional disability,” i.e. physical condition.

The Court of Appeals cited Osborne and Central City v. Anderson, Ky., 521 S.W.2d 246 (1975), and expressed the opinion these two cases must be restricted to their facts, thereby distinguishing the two cases from the situation presented here.

We are of the opinion the fact situation here falls directly within the rule in Osborne and that the Court of Appeals’ decision is erroneous in holding otherwise.

We have not attempted to list the opinions of this court following the rule in Osborne. It is sufficient to state again that a change in economic conditions is not a ground for reopening an award under KRS 342.125(1). A reopening must be based on a change in physical condition. We recognize that the language of the statute is susceptible to a different interpretation. However, our interpretation in Osborne and other cases is too well settled to change in the absence of action by the General Assembly.

The decision of the Court of Appeals is reversed with directions that the judgment of the trial court be reversed.

STEPHENS, C.J., and GANT, STEPHENSON, VANCE and WINTERSHEIMER, JJ., concur. LEIBSON and AKER, JJ., dissent and file a separate dissenting opinion.