Newberg v. Garrett

858 S.W.2d 181, 1993 Ky. LEXIS 85, 1993 WL 265411
CourtKentucky Supreme Court
DecidedMay 27, 1993
DocketNos. 92-SC-861-WC, 92-SC-862-WC, 92-SC-879-WC
StatusPublished
Cited by4 cases

This text of 858 S.W.2d 181 (Newberg v. Garrett) 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
Newberg v. Garrett, 858 S.W.2d 181, 1993 Ky. LEXIS 85, 1993 WL 265411 (Ky. 1993).

Opinion

OPINION OF THE COURT.

Claimant sought total disability benefits for a combination of coal worker’s pneumo-coniosis and occupational injury. The Administrative Law Judge (AU) ruled that claimant’s work-related back injury had re-[183]*183suited in a 55% occupational disability. Regarding the pneumoconiosis claim, the quality of the x-rays varied greatly, and the range of disease reported extended from category 0/0 to category 2/1.

The AU noted that, of the four physicians who performed pulmonary function tests, Doctors Lane and Gallo, who testified for the employer, reported that the results were invalid due to poor patient effort. He also noted that the report submitted by Dr. Baker on behalf of the claimant indicated that, due to the relationship between the FEV1 value (forced expiratory volume in the first second) and the MW value (maximum voluntary ventilation), there was a question concerning either poor patient effort or neuromuscular dysfunction. Nonetheless, Dr. Baker concluded that the results were valid and reported an FEV1 value of greater than 80% but an FVC value of less than 80%. He attributed the pulmonary impairment primarily to coal workers’ pneumoconiosis.

Dr. Myers, who also testified for the claimant, reported an FEV1 value of greater than 80% and an FVC value (forced vital capacity) of less than 80%, which he attributed to claimant’s lung disease and to his obesity. The AU stated, however, that the report also indicated a large discrepancy between the FEV1 value and the MW value. The AU concluded that, as had been the case with Dr. Baker’s test results, such a discrepancy raised a question as to the claimant’s effort on the tests performed by Dr. Myers. As further evidence of claimant’s lack of effort on the spirome-tric tests, he noted that all blood gas studies were normal, with the possible exception of Dr. Baker’s which showed a slight hypoxemia.

The AU recognized that there was evidence to support either a finding that claimant had not contracted pneumoconio-sis or that he had contracted pneumoconio-sis and was entitled to benefits under any section of KRS 342.732. However, after reviewing the evidence, he concluded that claimant had contracted category 1 disease. Regarding the spirometric studies, he concluded that the evidence as a whole indicated that all of the tests were invalid due to claimant’s lack of effort. If claimant did experience a restrictive impairment, it was due to his obesity and not to pneumoconio-sis. In view of the evidence, the AU awarded only a retraining incentive benefit. KRS 342.732(l)(a). The AU further decided that, particularly in view of claimant’s age and past relevant work history, as well as both his restrictions and capabilities, claimant had suffered no more occupational disability from the combination of pneumo-coniosis and the back injury than the back injury alone would have caused. The back injury, by itself, would have prevented claimant’s return to coal mining. He concluded that claimant was not totally, occupationally disabled under the guidelines of Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968) and, therefore, not entitled to a lifetime award. He ordered that the retraining incentive benefit be paid concurrently with the injury benefit.

The Workers’ Compensation Board (Board) was divided on the issue of whether the AU properly limited claimant to a retraining incentive benefit rather than awarding a 75% permanent, partial occupational disability. The majority emphasized that there was no competent medical testimony that Dr. Myers’ and Dr. Baker’s spi-rometric tests were invalid and ruled that the AU was required in this case: 1.) to rely on the two studies reported as valid; and 2.) to rely on the lower of the two statutorily required spirometric values, in this case the FVC value. Because claimant’s FVC values in the two valid studies were less than 80% of the predicted normal, the AU was required to award a 75% disability. KRS 342.732(l)(b), (2).

The Board affirmed the AU’s conclusion that claimant was not entitled to benefits for total, occupational disability, noting that there is no requirement that total disability be awarded in every case where a combination of permanent, partial disabilities equals or exceeds 100%. Brownies Creek Collieries v. Lingar, Ky.App., 794 S.W.2d 641 (1990). The result was that claimant would receive two 425 week awards, a 75% occupational disability [184]*184award for pneumoconiosis and a 55% occupational disability award for the injury.

Board member Miller dissented because he believed that, although the AU was authorized to award benefits pursuant to KRS 342.732(l)(b), he was not required to do so. Where the greatest FVC value and the greatest FEV1 value would entitle a claimant to different levels of benefits, KRS 342.732(2) does not require the AU to rely on the lesser value and to award the greater benefit. Rather, while he must rely on the greatest value obtained for each spirometric test, he may, if supported by substantial evidence, choose which of the two tests on which he will rely in determining the level of benefits to award.

The Court of Appeals affirmed the Board on both issues. All parties have appealed.

In Newberg v. Wright, Ky., 824 S.W.2d 843, 845 (1992), we interpreted KRS 342.-732(2) as authorizing the award of benefits for coal workers’ pneumoconiosis based on the more severe impairment resulting from exposure to coal dust, regardless of whether the impairment was due to pneumoconio-sis or to obstructive airways disease. In that case, because there was evidence that the worker’s depressed FEV1 value was caused by chronic occupational bronchitis that had resulted from his exposure to coal dust, the worker was entitled to receive benefits pursuant to KRS 342.732(l)(b). Nowhere did we state that the AU was, in every instance, required to award benefits based on the greater respiratory impairment exhibited by a worker, regardless of evidence that the apparent impairment was caused by factors other than exposure to coal dust. Our holding was that:

if either the largest FVC value or the largest FEV1 value is 55% or more but less than 80% of the predicted normal, a claimant may qualify for benefits under KRS 342.732(1)(b). (Emphasis added.)

Newberg v. Wright, supra, at 845.

Subsequently, in Newberg v. Reynolds, Ky., 831 S.W.2d 170 (1992), the coal worker had a history of smoking cigarettes.

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Bluebook (online)
858 S.W.2d 181, 1993 Ky. LEXIS 85, 1993 WL 265411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newberg-v-garrett-ky-1993.