Whittaker v. Rowland
| Decision Date | 26 August 1999 |
| Docket Number | No. 99-SC-0003-WC.,No. 99-SC-0153-WC.,99-SC-0003-WC.,99-SC-0153-WC. |
| Citation | 998 S.W.2d 479 |
| Parties | Robert L. WHITTAKER, Director of Special Fund, Appellant, v. Murray ROWLAND; Field Packing Company; Sheila C. Lowther, Administrative Law Judge; and Workers' Compensation Board, Appellees. and Field Packing Company, Appellant, v. Murray Rowland; Special Fund; Sheila C. Lowther, Administrative Law Judge; and Workers' Compensation Board, Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
This workers' compensation appeal concerns whether there was substantial evidence at reopening to support increasing a settled award to one for total disability. It also concerns the proper method for crediting payments made pursuant to the settlement.
Claimant was a 63-year-old maintenance worker with an eighth grade education. He fell and injured his back at work in February, 1987. He underwent back surgery by Dr. Kavolus in November, 1989, after which he returned to work for approximately ten months up until December, 1990. On July 24, 1991, he filed a workers' compensation claim in which he alleged a permanent, partial occupational disability due to the back injury. The claim was settled with the defendants in December, 1991, for a 28.84% occupational disability which was paid in a lump sum of $25,646.00. Liability was apportioned 68.5% to the employer and 31.5% to the Special Fund.
In June, 1992, claimant was referred to Dr. Madauss, a neurosurgeon, who performed a spinal fusion in November of that year; however, claimant's condition continued to worsen. He applied for and was awarded Social Security Disability which was dated back to his last employment in December, 1990. Claimant underwent a second spinal fusion in 1994 and testified that after that point he was unable to perform even the most sedentary tasks. After a prior motion to reopen was dismissed for regulatory noncompliance, the present motion was filed on July 3, 1996.
At reopening, the employer's human resources director indicated his belief that claimant was capable of holding other employment at the time he quit work. Claimant and his wife testified concerning various activities which he was able to perform at the time of settlement and could not perform at reopening. In his deposition, claimant testified that he had never been able to return to work after leaving the employment; however, at the hearing, he denied that he had been totally disabled the entire time. Claimant also offered testimony from Dr. Madauss concerning the change in his medical condition, including testimony that he had never released claimant to return to work. The employer offered no medical evidence.
After noting that it was a difficult case, the Administrative Law Judge (ALJ) determined that claimant had been 40% disabled at settlement, that his condition had worsened dramatically thereafter, that his present occupational disability was 100%, and that the 100% disability award should be apportioned equally between the defendants. Benefits were commenced as of July 3, 1996. As amended pursuant to petitions for rehearing by the employer and the Special Fund, the award indicated that claimant was temporarily totally disabled during the period between the injury and his return to work in February, 1990, at which point his permanent occupational disability was 40%. The defendants were permitted to credit the applicable benefit for a 40% permanent, partial occupational disability against the benefit for total disability during the weeks in which the 425-week period of permanent, partial disability which was covered by the settlement overlapped the period of permanent, total disability. The ALJ indicated that at the end of the 425-week period, claimant was entitled to receive the full benefit for permanent, total disability. Each defendant was ordered to pay its proportional share of the additional benefits. The decision was affirmed by the Workers' Compensation Board (Board) and the Court of Appeals. These appeals by the Special Fund and the employer followed.
The employer asserts that there was no substantial evidence to support the finding of an increase in occupational disability. The Special Fund and the employer both assert that claimant waived the compensability of 40% of his ultimate disability by settling the initial claim and that credit for the proceeds of the settlement should equal 40% of a permanent, total disability award for its entire duration. Claimant responds that there was substantial evidence to support the findings of 40% disability at settlement and 100% disability at reopening. He also asserts that there is no authority for the position of the Special Fund with regard to the question of a credit. He points to the finding that, at settlement, he had sustained a 40% permanent, partial disability and notes that the credit which the ALJ permitted against the ultimate award was for a 40% permanent, partial disability.
The claimant bears the burden of proof and risk of nonpersuasion before the fact-finder with regard to every element of the claim. Wolf Creek Collieries v. Crum, Ky.App., 673 S.W.2d 735 (1984); Snawder v. Stice, Ky.App., 576 S.W.2d 276 (1979); Roark v. Alva Coal Corporation, Ky., 371 S.W.2d 856 (1963). Although KRS 342.285 permits the appeal of the ALJ's decision to the Board, it provides that the ALJ's decision is "conclusive and binding as to all questions of fact" and that the Board "shall not substitute its judgment for that of the [ALJ] as to the weight of evidence on questions of fact." KRS 342.290 limits the scope of review by the Court of Appeals to that of the Board and also to errors of law arising before the Board.
It is clear that the parties are entitled to a sufficient explanation by the ALJ of the basis for the decision. Big Sandy Community Action Program v. Chaffins, Ky., 502 S.W.2d 526 (1973); Shields v. Pittsburgh & Midway Coal Mining Co., Ky.App., 634 S.W.2d 440 (1982). However, this Court has construed KRS 342.285 to mean that the factfinder, rather than the reviewing court, has the sole discretion to determine the quality, character, and substance of evidence [Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985)]; that...
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