Newberg v. Wright, 91-SC-572-WC
| Decision Date | 13 February 1992 |
| Docket Number | No. 91-SC-572-WC,91-SC-572-WC |
| Citation | 824 S.W.2d 843 |
| Parties | Vicki G. NEWBERG, Acting Director of Special Fund, Appellant, v. Chester WRIGHT; Manning Coal Corp.; Ronald W. May, Administrative Law Judge; and Workers' Compensation Board, Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
John E. Stephenson, Appellate Atty., Labor Cabinet--Special Fund, Louisville, for appellant.
Ralph Roland Case, Pikeville, for appellee Wright.
Thomas L. Ferreri, Lexington, for appellee Manning Coal Corp.
Wright filed a claim for disability benefits, alleging that he had contracted pneumoconiosis and/or chronic, occupational bronchitis. Subsequently, he settled with his last employer for its share of any liability. When the case came before the Administrative Law Judge (ALJ) he ruled that Wright had contracted category 1 coal workers' pneumoconiosis and had sustained a 75% permanent, partial disability. KRS 342.732(1)(b). Pursuant to KRS 342.316, the Special Fund was liable for 75% of the award. The award was affirmed by the Workers' Compensation Board and the Court of Appeals.
On appeal, the Special Fund argues: 1) that the ALJ improperly adjusted Dr. Anderson's calculation of Wright's FEV1 value as a percentage of the predicted normal value for a man of his age and height, and 2) that because Wright's largest spirometric test values were greater than 80%, he should not have been awarded benefits pursuant to KRS 342.732(1)(b).
According to KRS 342.732(1)(b), a claimant who has a category 1 radiograph and who has respiratory impairment resulting from exposure to coal dust, as evidenced by spirometric test values of 55% or more, but less than 80% of the predicted normal values found in the latest edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (Guides ), is entitled to a 75% occupational disability benefit. Medical evidence in this case was given by three physicians. The ALJ's finding that claimant's X-rays exhibited category 1 disease is not disputed on appeal. The spirometric test data reported was as follows:
FVC FEV1
Physician value (% of predicted) value (% of predicted) Height Age
--------- ------------------------- --------------------------- ------ ----
Wright 4.0 (96%) 2.6 (78%) 69" 61
Nash 3.7 (75.4%) 2.3 (61.3%) 71" 61
Anderson 4.8 (100%) 2.8 (*86%) -- 61
*disputed
----------
At the hearing on this case, counsel for the claimant argued that, while he had no dispute with the FEV1 value reported by Dr. Anderson, the calculation of that value as a percent of the predicted normal value for a man of claimant's age and height was erroneous. Dr. Anderson, who testified for the Special Fund, failed to state the claimant's height in his report. However, the spirometric tracing sheet, submitted with the report as required by KRS 342.316(2)(b)2.b., indicated that claimant's height was 70 1/2".
The ALJ noted that he was without authority to look behind the test values reported by the physicians; however, because KRS 342.732(1)(b) requires the use of the Guides to calculate the reported values as a percent of the predicted normal value, he did have the authority to check the calculated percentage to ascertain that the Guides were used and were used correctly. According to the tables found in the Guides, the predicted normal values are a function of age and height. Because Dr. Anderson had failed to state claimant's height in his report, the ALJ used the height reported by Dr. Wright, the Special Fund's other medical expert, in order to find the appropriate normal value and to check Dr. Anderson's calculation of the percent of predicted normal represented by his 2.8 test value. When Dr. Anderson's 2.8 test value was compared to the normal value for a 69" tall, 61 year old man, found in the appropriate table in the latest edition of the Guides, the resulting percent of the predicted normal was 78%. The ALJ noted that because the 69" height measured by Dr. Wright was the lowest in the record, this calculation produced the result least favorable to the claimant. If, for example, the 71" height found by Dr. Nash had been applied to the table and the percentage of normal calculated, the result would have been 58%.
The Special Fund does not assert that the ALJ's percentage calculation was mathematically incorrect. It's argument is that the ALJ was without authority to check and to correct the erroneous percentage calculation. Under these circumstances, however, we believe that the ALJ did act within his authority when he checked the calculation of the percentage of normal represented by Dr. Anderson's FEV1 test value and when he found that the correct percentage represented by that value was 78%.
Next, the Special Fund argues that, pursuant to KRS 342.732(2), if either the FVC or the FEV1 value is greater than 80% of the predicted normal value, a claimant does not qualify for benefits under KRS 342.732(1)(b). Because this claimant's largest FVC exceeded 80% of the predicted normal, the Special Fund argues that, regardless of the fact that his FEV1 was less than 80%, he qualifies only for Retraining Incentive (RIB) benefits under KRS 342.732(1)(a).
KRS 342.732(2) reads as follows:
The presence of respiratory impairment resulting from exposure to coal dust shall be established by using the largest forced vital capacity (FVC) value or the largest forced expiratory volume in one second (FEV1) value determined from the totality of all such spirometric testing performed in compliance with...
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