Spurlin v. Brooks

952 S.W.2d 687, 1997 Ky. LEXIS 49, 1997 WL 200428
CourtKentucky Supreme Court
DecidedApril 24, 1997
DocketNos. 96-SC-434-WC, 96-SC-445-WC, 96-SC-460-WC
StatusPublished
Cited by6 cases

This text of 952 S.W.2d 687 (Spurlin v. Brooks) 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
Spurlin v. Brooks, 952 S.W.2d 687, 1997 Ky. LEXIS 49, 1997 WL 200428 (Ky. 1997).

Opinions

STUMBO, Justice.

In January 1986, claimant injured his lower back at work. After undergoing surgery, he returned to work in March 1987, but continued to have problems with his back which caused intermittent periods of temporary, total disability. Then, in November 1990, claimant again injured his back and became unable to return to work. Workers’ compensation claims were filed for the two injuries and consolidated. The employer was insured by Liberty Mutual Insurance Company (Liberty) at the time of the 1986 injury and GAB Services, Inc. (GAB) at the time of the 1990 injury. There was evidence of preexisting, dormant degenerative changes in claimant’s spine, and the defendants stipulated that liability would be apportioned equally between the employer and the Special Fund.

The Administrative Law Judge (ALJ) determined that, in combination, claimant’s injuries had resulted in permanent, total occupational disability of which 33.33% was attributed solely to the 1986 injury, 16.67% solely to the 1990 injury, and 50% to the arousal of a prior, dormant nondisabling condition by both injuries. Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971). Benefits were ordered to commence as of November 26, 1990, at the 1990 rate, and to continue for so long as claimant remained totally disabled.

Pursuant to petitions for reconsideration, stipulated periods of temporary, total disability were ordered during the period between the two injuries. Furthermore, the ALJ rejected the employer’s argument that claimant should receive consecutive partial disability awards, emphasizing that claimant’s total disability was the result of the combined effects of his two injuries. Therefore, the ALJ believed that the combined award of total disability was proper. Finally, the ALJ recalculated the combined benefit rate, utilizing the maximum rate for total disability benefits in 1986 and in 1990, multiplied by the respective percentages of disability attributable to each injury. Both insurers appealed.

The Workers’ Compensation Board (Board) rejected GAB’s assertion that the evidence compelled a finding which attrib[689]*689uted all of claimant’s disability to the 1986 injury. The Board noted that, although most of the physicians attributed claimant’s impairment entirely to the 1986 injury, Dr. Goodman’s testimony provided a sufficient basis for the ALJ’s decision to attribute % of the impairment to the 1986 injury and Jé to the 1990 injury.

The Board agreed with Liberty that, when awarding benefits for the 1986 injury, the ALJ was prohibited from considering the effects of the 1990 injury in order to enhance the duration of the award. Johnson v. Scotts Branch Coal Co., Ky.App., 754 S.W.2d 555 (1988). Therefore, the ALJ erred in ordering Liberty to pay lifetime benefits for disability caused by the 1986 injury. Accordingly, the decision of the ALJ was affirmed in part, reversed in part, and the claim was remanded.

Claimant and GAB appealed, with claimant asserting that the Board erred by determining that he was entitled only to partial disability benefits for the 1986 injury. GAB cross-appealed, contesting the finding that the 1990 injury contributed to claimant’s disability and joining claimant’s argument concerning benefits payable for the 1986 injury. The Court of Appeals affirmed the Board concerning the ALJ’s finding that the effects of the 1990 injury contributed to claimant’s total disability, emphasizing that it is the role of the ALJ to weigh conflicting medical evidence and to determine which witness to believe. The court did not find the evidence cited by GAB to be so compelling as to require a different result.

Concerning the duration of benefits for the 1986 injury, the Court of Appeals agreed with the Board that claimant was not entitled to benefits for total disability until 1990 when he actually became totally disabled. However, the court believed that he was entitled to an award of benefits for total disability at that time. Therefore, the court determined that claimant was entitled to receive benefits for a 66%% permanent, partial occupational disability, payable for 425 weeks, at the 1986 rate, and apportioned equally to Liberty and the Special Fund. The court agreed with GAB that permanent, partial disability benefits paid for the 1986 injury should be credited against the 1990 award of total disability in order to avoid double compensation. KRS 342.730(2). However, the court rejected the argument that the 6&%% disability attributable to the 1986 injury must be entirely excluded from the total disability award. Hence, the court determined that, as of the date of the 1990 injury, claimant was entitled to receive benefits for total disability, at the 1990 rate, apportioned equally between GAB and the Special Fund, with a credit against the award to the extent of any overlapping benefits paid pursuant to the partial disability award. Hence, the decision of the Board was reversed in part, and the ease was remanded to the ALJ for further consistent proceedings.

Subsequently, petitions for rehearing were granted, the original opinion was withdrawn, and a modified opinion was rendered. The modified opinion noted that this Court’s decision in Cambell v. Sextet Mining Co., Ky., 912 S.W.2d 25 (1995), was factually on point and controlling of the outcome. The Court of Appeals noted that, pursuant to Campbell, where the ALJ finds that total disability results from the combined effects of two injuries, lifetime benefits are to be paid for the entire disability not excluded as a prior, active condition. Id. at 26. Furthermore, lifetime benefits are to be awarded for both injuries as though they occurred at the same time. Id. at 27. Although the Court of Appeals believed that Campbell allowed claimant to receive a windfall, since it permitted him to receive total disability benefits during the period between the two injuries when he was not totally disabled, the court noted that it was compelled to follow Supreme Court precedent. Therefore, the decision of the Board was reversed to the extent that it denied claimant lifetime benefits for the 1986 injury, and the decision of the ALJ was reinstated.

GAB continues to argue that the evidence did not support the finding that part of claimant’s ultimate occupational disability was caused by the 1990 injury. However, we observe that the AL J’s finding in that regard has twice been affirmed. It appears that the Board and the Court of Appeals conducted a thorough review of the evidence, and we are [690]*690not persuaded that the view of the evidence which they took was either patently unreasonable or flagrantly implausible. Hence, we affirm in that regard. Western Baptist Hosp. v. Kelly, Ky., 827 S.W.2d 685 (1992).

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

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Bluebook (online)
952 S.W.2d 687, 1997 Ky. LEXIS 49, 1997 WL 200428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spurlin-v-brooks-ky-1997.