Fleming v. Windchy

953 S.W.2d 604, 1997 Ky. LEXIS 46, 1997 WL 200429
CourtKentucky Supreme Court
DecidedApril 24, 1997
DocketNo. 96-SC-100-WC
StatusPublished
Cited by8 cases

This text of 953 S.W.2d 604 (Fleming v. Windchy) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fleming v. Windchy, 953 S.W.2d 604, 1997 Ky. LEXIS 46, 1997 WL 200429 (Ky. 1997).

Opinions

STUMBO, Justice.

On March 16, 1990, claimant injured his back at work while in the employ of Sun Glo Coal Company (Sun Glo). He was paid temporary, total disability (TTD) benefits until August 19, 1990, after which he returned to work despite continuing problems with his back. On April 9, 1991, claimant again injured his back at work while in the employ of Trojan Mining, Inc. (Trojan), the successor corporation to Sun Glo. Claimant was paid TTD benefits until July 30,1991, but has not returned to work since that time. Claimant filed claims for permanent workers’ compensation benefits for the 1990 and 1991 injuries. Prior injuries included a 1977 back injury, for which a 6% occupational disability was awarded, and a 1988 knee injury, for which a 10% occupational disability was awarded.

After reviewing the evidence, the Administrative Law Judge (ALJ) determined that the combined effects of all of his injuries had rendered claimant totally occupationally disabled but that 16% of the disability was prior, active, and noncompensable. The remaining 84% disability was attributed, equally, to the 1990 and 1991 injuries, with the ALJ observing that claimant’s return to work after the 1990 injury was on a trial basis and that he had substantial difficulties performing his duties after that time. Liability for the 1990 injury was apportioned, equally, to Sun Glo and the Special Fund and ordered payable from August 20, 1990, for so long as claimant remained disabled. Whereas, liability for the 1991 injury was apportioned, equally, to Trojan and the Special Fund and ordered payable from July 1, 1991, for so long as claimant remained disabled.

The Special Fund petitioned for reconsideration, arguing that disability caused by a subsequent injury may not enhance the extent of liability for a prior injury. Johnson v. Scotts Branch Coal Co., Ky.App., 754 S.W.2d 555 (1988). Hence, the 1991 injury should not enhance the payment period for the 1990 injury. The petition was overruled, and the Special Fund appealed.

The Workers’ Compensation Board (Board) was persuaded by the argument that Johnson prohibited treating the award for the 1990 injury as a percentage of total disability since claimant did not actually become totally disabled until 1991. Therefore, the Board reversed the award to that extent, rejecting claimant’s argument that since he was totally disabled, he was entitled to lifetime benefits for both injuries. Claimant appealed.

The Court of Appeals affirmed the decision of the Board, emphasizing that an award of lifetime benefits for the 1990 injury was inconsistent with the ALJ’s findings. Although the ALJ had found that claimant’s return to work after the 1990 injury was only on a trial basis, the ALJ had not determined that claimant was totally disabled after the injury. Furthermore, the fact that claimant had been able to return to his former job for some eight months after the injury indicated that he was not totally disabled at that time. Therefore, the Court of Appeals concluded that claimant was entitled to receive only [606]*606partial disability benefits for 425 weeks for the 1990 injury and that lifetime benefits should begin only after the 1991 injury.

In a concurring opinion, Judge Johnson noted that although Brownies Creek Collieries v. Lingar, Ky.App., 794 S.W.2d 641 (1990), was cited by the claimant, it actually supported the decision of the Board. In that case, the award of total disability did not commence until November 27, 1985, the injured worker’s last day of work. Id. at 642.

Claimant now appeals to this Court, arguing that since the claims for the 1990 and 1991 injuries were litigated together and since the two injuries rendered him totally disabled, the decision in Campbell v. Sextet Mining Co., Ky., 912 S.W.2d 25 (1995), controls these facts. Therefore, he asserts that he is entitled to have benefits for both injuries computed as a percentage of total disability, pursuant to KRS 342.730(1), and paid for life. By contrast, Sun Glo (the 1990 employer) and the Special Fund present several arguments in support of the premise that this Court’s decision in Campbell was erroneous and should be reconsidered.

First, Sun Glo emphasizes that claimant was only partially disabled after the 1990 injury and that he did not, in fact, become totally disabled until after sustaining the subsequent injury in 1991. Therefore, he was not entitled to benefits for total disability until that time. Sun Glo argues that the extent of an employer’s liability for an injury cannot be enhanced by a subsequent injury which was incurred in a subsequent employment and that the Court’s basis for distinguishing Johnson was meaningless in view of the case’s holding. Furthermore, Sun Glo argues that the Court’s reliance on Beale v. Shepherd, Ky., 809 S.W.2d 845 (1991), and on prior eases which involved combined claims for occupational disease and injury was misplaced and that those cases do not support enhancing an employer’s liability by virtue of disability resulting from a subsequent injury which was incurred in a subsequent employment. Second, Sun Glo emphasizes that the partial disability caused by the 1990 injury clearly constituted a prior, active condition at the time the 1991 injury occurred. Any attempt by Campbell to treat it otherwise is contrary to the longstanding definition of the term. Third, Sun Glo argues that Campbell results in the inconsistent treatment of workers depending upon whether successive injuries which result in total disability are litigated together or sequentially. Finally, Sun Glo argues that if the Court reaffirms the decision in Campbell, the Special Fund should be held hable under the principle of “excess disability” for the difference between a 21% permanent, partial disability award, payable for 425 weeks, pursuant to KRS 342.730(l)(b), and whatever benefits are awarded for disability attributable to the 1990 injury. See KRS 342.120(6), (7).

The Special Fund agrees with Sun Glo that the decision in Johnson provides á blanket prohibition against the consideration of any subsequent disability to enhance the duration of an award. Furthermore, the Special Fund asserts that the ALJ’s award of lifetime benefits for the 1990 injury, despite the fact that claimant continued to work thereafter, was contrary to Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), as well as to Lingar, supra, at 642. Finally, the Special Fund asserts that the decision in Campbell “muddied the law of excess disability.”

The source of the controversy in this case, as in Campbell, is the fact that, although KRS 342.730

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Bluebook (online)
953 S.W.2d 604, 1997 Ky. LEXIS 46, 1997 WL 200429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fleming-v-windchy-ky-1997.