Osborne v. Johnson
| Decision Date | 08 March 1968 |
| Citation | 432 S.W.2d 800 |
| Parties | Adam OSBORNE, doing business as Pine Fork Coal Company, Appellant, v. Richard JOHNSON, Workmen's Compensation Board and Carl Cabe, Commissioner of Industrial Relations, Custodian of Special Fund, Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
E. R. Hays, Baird & Hays, Pikeville, for appellant.
Reed D. Anderson, Combs & Anderson, Pikeville, Thomas R. Emerson, Dept. of Labor, Frankfort, for appellees.
CULLEN, Commissioner.
The Workmen's Compensation Board made an award of compensation to Richard Johnson on the basis of 15 percent permanent partial disability. On appeal to the circuit court judgment was entered setting aside the board's order and remanding the case to the board with directions to enter an award for total permanent disability. Johnson's employer has appealed.
Johnson was a coal miner and claimed disability from a back injury. Upon the hearing of the claim, there being a question as to the existence and extent of a preexisting congenital defect, the board appointed a physician under KRS 342.121 to to make an examination and report. In the formal part of his report, in which he answered specific questions posed by the board's report form, this physician stated that Johnson had a '10 to 15 percent partial permanent disability to the body as a whole.' However, in the narrative part of the report he said:
We are unable to distinguish this case from Deby Coal Company v. Caldwell, Ky., 383 S.W.2d 905. There, the same physician who is in this case reported formally that the workman's disability was 50 percent, but stated narratively his opinion that the man 'could do only light work.' This court held that the report required a finding by the board that the man was totally, permanently disabled, it being considered that the percentage rating was in terms of physical impairment or functional disability whereas the opinion that the man could do only light work was evidence of occupational disability of a total nature.
Under the holding in the Deby case the circuit court in the instant case correctly adjudged that the board erred in basing its award on the physician's disability percentage rating instead of upon the physician's evaluation that the employe was unable to perform hard physical labor (such as is required in coal mining). Under Deby and under Ed Hall Drilling Co. v. Profitt, Ky., 424 S.W.2d 403, the physician's report, upon exceptions to it having been overruled by the board, was controlling as to the extent of functional disability even though the physician made no apportionment, and the evaluation of inability of the workman to perform hard physical labor was the equivalent of a finding of total functional disability which in the case of this coal miner amounted to total occupational disability.
Although, as we have indicated, the circuit court properly followed the Deby case, we are not fully satisfied that Deby and the decisions upon which it rests properly interpret the law concerning the determination of disability. So we have reconsidered the law in this area and shall state herein a modified interpretation, with the reasons therefor.
We start with acceptance of the proposition that 'disability' as used in the workmen's compensation law means occupational disability as distinguished from functional disability (mere bodily impairment). 1 Our adherence to this proposition is evidenced by such decisions as McCown v. Hellier Elkhorn Coal Company, Ky., 399 S.W.2d 719; Kilgore v. Goose Creek Coal Company, Ky., 392 S.W.2d 78; Deby Coal Company v. Caldwell, Ky., 383 S.W.2d 905; Leep v. Kentucky State Police, Ky., 366 S.W.2d 729; and E. & L. Transport Company v. Hayes, Ky., 341 S.W.2d 240, 84 A.L.R.2d 1102. It is inherent in the provisions of KRS 342.110 that require consideration to be given to the impairment or limitation of 'occupational opportunities.' And it is endorsed by Larson, who says:
'Compensable disability is inability, as the result of a work-connected injury, to perform or obtain work suitable to the claimant's qualifications and training. The degree of disability depends on impairment of earning capacity, which in turn is presumptively determined by comparing pre-injury earnings with post-injury earning ability; the presumption may, however, be rebutted by showing that post-injury earnings do not accurately reflect claimant's true earning power. * * * 'Total disability may be found, in spite of sporadic earnings, if the claimant's physical condition is such as to disqualify him for regular employment in the labor market. * * *' Larson's Workmen's Compensation, Vol. 2, sec. 57.00.
If occupational disability is the basis for compensation and if, as seems clear, it means impairment of earning capacity, it would seem that all that need be determined in a compensation case, as concerns disability, is: To what extent has the injured workman's earning capacity been impaired? And it would seem that this would involve only these determinations: (1) What kind of work normally available on the local labor market was the man capable, by qualifications and training, of performing prior to injury; (2) what were the normal wages in such employment; (3) what kind of work normally available on the local labor market is the man capable of performing since his injury; and (4) what are the normal wages in such employment? Larson says:
'* * * The proper balancing of the medical and the wage-loss factors is * * * the essence of the 'disability' problem in workmen's compensation.' Larson's Workmen's Compensation, Vol. 2, sec. 57.10
'Degree of disability is calculated under most acts by comparing actual earnings before the injury with earning capacity after the injury.
Larson's Workmen's Compensation, Vol. 2, sec. 57.21
Under the foregoing concept medical percentages are not determinative. 2 The real question is: How much less money can the injured workman command in the labor market? The doctors' testimony should be addressed to the question of what job requirements the injured man is physically capable of performing (taking into consideration his qualifications and training). The board's determination of the extent to which the man's earning capacity is impaired then should be made on the basis of evidence as to the existence, in the local area or region, of regular employment opportunities for the type of work the medical testimony shows the man is capable of performing, and the prevailing wage rates in such employment. 3
If the board finds that the workman is so physically impaired that he is not...
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