O.K. Precision Tool & Die Co. v. Wells

678 S.W.2d 397, 1984 Ky. LEXIS 291
CourtKentucky Supreme Court
DecidedOctober 25, 1984
StatusPublished
Cited by6 cases

This text of 678 S.W.2d 397 (O.K. Precision Tool & Die Co. v. Wells) 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
O.K. Precision Tool & Die Co. v. Wells, 678 S.W.2d 397, 1984 Ky. LEXIS 291 (Ky. 1984).

Opinion

LEIBSON, Justice.

This is a workers’ compensation case. The question is what principle controls apportionment of liability to the Special Fund where the Board finds that the employee has a “condition” which “is a result of her many years of work and should be classified as a gradual type of injury.”

The employee, Dora Goble, developed a condition diagnosed as lateral epicondylitis, an inflammation of the tensor muscles near the elbow, more commonly known as “tennis elbow,” caused by fifteen years of assembly line work imparting torque to a screwdriver. Her condition became disabling on August 13, 1980, only two and a half months after she had been employed at O.K. Precision Tool & Die Co. The Board concluded that her condition was not a traumatic injury occurring on the date her disability began, but “a gradual type of injury.”

KRS 342.316(13)(a) provides for apportionment in certain occupational disease cases “which developed to the point of disablement only after an exposure of five (5) or more years” on a 75%-25% basis between the Special Fund and the last employer. Because there are similarities between the present condition and an occupational disease, the employer, O.K. Precision Tool, claims that Dora Goble’s condition should be classified as an occupational disease under this section as a matter of law.

On the other hand, the Special Fund, citing as authority Haycraft v. Corhart Refractories Co., Ky., 544 S.W.2d 222 (1977), claims that where there is a gradual type of injury resulting from the nature of the work, regardless of the limited period of employment for the last employer, the last employer is liable for the entire award.

The Workers’ Compensation Board decided that the plaintiff had sustained a 50% occupational disability. Then, concluding that “the line of reasoning espoused by the Special Fund in its Brief appropriately states the law,” the Board dismissed the claim as to the Special Fund and ordered the employer, O.K. Precision Tool, to pay the entire award.

Conversely, Fayette Circuit Court agreed with the employer. It decided that this was an occupational disease case under KRS 342.316(13) as a matter of law, and reversed and remanded to the Board with directions to bring in the Special Fund and award twenty-five percent against the employer, seventy-five percent against the Special Fund.

Next, the Kentucky Court of Appeals disagreed with the circuit court’s classification as an occupational disease, and reversed with instructions to reinstate the award of the Workers’ Compensation Board assessing all liability against the employer.

We accepted discretionary review to consider what rule is appropriate in this situation where the injury is attributable to the nature of the work and the Board found that it should be “classified as a gradual type of injury,” but only a portion of the injury is attributable to the last employment.

[399]*399We disagree with both previous applications of the Workers’ Compensation law to the facts of this case. The Board’s classification as a “gradual type of injury” caused by the nature of the work rather than a “occupational disease” compensable under KRS 342.316, is commensurate with the facts. However, Haycraft v. Corhart Refractories does not mandate that the employer for whom the employee is working at the time the disability from a gradual type of injury manifests itself is “at risk” for the entire award where, as here, the last employer was not the only employer. The interpretation of Haycraft found in another recent Court of Appeals case differently decided, Southern Ky. Concrete Contractors v. Campbell, Ky.App., 662 S.W.2d 221 (1983), providing for apportionment in this situation, is correct.

Haycraft involved a gradual type of injury occurring over many years of employment, but the entire period of employment was with the same employer. For this reason the employer was liable for all disability “attributable to the work.” The Special Fund, the Board, and the Court of Appeals, have erred in concluding that the results in Haycraft apply here. On the contrary, we conclude that this case fits squarely within the apportionment principle expressed by KRS 342.120 which applies when the employee has a pre-existing non-disabling condition “aroused or brought into disabling reality by reason of a subsequent compensable injury,” resulting in a “combined” disability greater than that which would have resulted from either alone. Therefore, we reverse both prior interpretations of the law in this case and remand to the Workers’ Compensation Board to apportion under KRS 342.120.

Before 1972 the language of the Workers’ Compensation law, strictly construed, limited compensation to injury from a work related traumatic event or occupational disease. There was no leeway to grant a compensation award for a gradual type of injury such as that which occurred here or in the Haycraft case1 unless it could be classified as an occupational disease. In National Stores, Inc. v. Hester, Ky., 393 S.W.2d 603 (1965), cited by the movants, we avoided the noncompensable nature of a work related gradual type of injury where there was no specific traumatic event by classifying it as an occupational disease.

As noted in the Haycraft case, in 1972 the General Assembly reworked the definition of the word “injury” to mean “any work related harmful change in the human organism.” Further, the 1972 amendments reworded KRS 342.120(l)(b) to expand the liability of the Special Fund, previously limited to a situation where there was a “dormant disabling disease condition,” to include pre-existing “disease or condition,” (emphasis added) “thus shifting liability from the employer to the Special Fund for the portion of the workman’s disability ascribable to a pre-existing nondisabling condition that was not a ‘disease.’ ” Haycraft v. Corhart Refractories Co., supra, 544 S.W.2d at 224-25.

The Special Fund’s Brief states that “when the legislature reworked the definition of injury, it made provision for ‘injury’ to cover the situation in which a person is subjected to minor traumas over a period of years and develops a gradual type of injury.” Brief for Appellee at 6. We agree. However, we disagree with the Special Fund that Haycraft goes further and requires the last employer to bear the entire liability for this gradual type of injury where it is not the only employer.

The reason for apportionment in Hay-craft

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678 S.W.2d 397, 1984 Ky. LEXIS 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ok-precision-tool-die-co-v-wells-ky-1984.