OPINION ENTERED: January 15, 2009
CLAIM NO. 07-87464
MANALAPAN MINING COMPANY, INC. PETITIONER
VS. APPEAL FROM HON. RICHARD M. JOINER,
ADMINISTRATIVE LAW JUDGE
LARRY ELLIS
and HON. RICHARD M. JOINER,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
REVERSING & REMANDING
* * * * * *
BEFORE: GARDNER, Chairman, COWDEN and STIVERS, Members.
COWDEN, Member. Manalapan Mining Company, Inc. (“Manalapan”) appeals from the decision of Hon. Richard M. Joiner, Administrative Law Judge (“ALJ”). The sole question on appeal concerns the ALJ’s calculation of the permanent partial disability benefits awarded.
Larry Ellis (“Ellis”) had a prior back injury resulting in surgery at the L4-5 and L5-S1 levels in 1978. The ALJ determined this injury produced a 10% rating immediately prior to Ellis’ work injury on March 6, 2007. The ALJ determined Ellis’ current injury resulted in additional impairment and his current impairment rating was 17%. The ALJ then calculated Ellis’ permanent partial disability benefits based upon the 17% impairment enhanced by a 3.8 multiplier and accounted for the prior impairment by subtracting the value of a 10% impairment multiplied by the .85 statutory factor and a one multiplier.
Manalapan filed a petition for reconsideration arguing benefits should be calculated based upon a 7% rating caused by the March 6, 2007 injury multiplied by the .85 statutory factor producing a weekly benefit of $109.62.
In his order overruling the petition for reconsideration, the ALJ stated:
The question would be whether the benefit is calculated first for the entire impairment and then the benefit for the pre-existing impairment is excluded or whether the impairment to be used in the benefit calculation is simply the difference between the current impairment and the pre-existing impairment. I believe that the method of calculation that I used is in conformity with is Transport Motor Exp., Inc. v. Finn , Ky., 574 S.W.2d 277 (1978), which states as follows:
In our view, the proper approach, whether the disability is total, as here, or partial is to employ the methodology of KRS 342.730 to determine the amount to which the claimant is entitled by the whole of his disability. ….
This method of calculation also gives voice to KRS 342.730 (2) which provides:
(2) The period of any income benefits payable under this section on account of any injury shall be reduced by the period of income benefits paid or payable under this chapter on account of a prior injury if income benefits in both cases are for disability of the same member or function, or different parts of the same member or function, and the income benefits payable on account of the subsequent disability in whole or in part would duplicate the income benefits payable on account of the pre-existing disability.
The subject injury was to the same body part as the prior impairing condition. The subject injury caused a man who had a 10% impairment to have 17% impairment. It did not cause only 7% impairment. To award based on 17% impairment would duplicate benefits that would be payable for the prior injury. To award based on 7% impairment would ignore the extent of disability caused by the subject injury. I believe that the method of calculation was proper, in accordance with statute, fair, and equitable. I do not find patent errors appearing on the face of the Opinion and Award. On this basis, the petition for reconsideration is OVERRULED.
On appeal, Manalapan argues the ALJ erred as a matter of law in calculating the permanent partial disability benefit. Manalapan argues the correct calculation of the benefit would be based upon a 7% impairment rating multiplied by the .85 statutory factor in KRS 342.730(1)(b) and the applicable multiplier. Manalapan argues the statute requires the fact finder to ascertain the permanent impairment rating caused by the injury and multiply that number by the relevant impairment factor.
Manalapan is correct in arguing the functional impairment rating caused by the work injury is 7% and thus, the ALJ erred as a matter of law in calculating the PPD benefit. In a post 1996 permanent partial disability case, the permanent impairment rating caused by the work injury in instances involving a pre-existing active impairment is calculated by subtracting the active impairment rating from the combined rating. See Roberts Brothers Coal Co. v. Robinson, 113 S.W.3d 181 (Ky. 2003). This is the first step in the calculation, and the statutory factor is applied only after the impairment caused by the injury is determined. In a permanent partial disability case, when a work-related injury is superimposed on a pre-existing impairment, additional impairment must result in order for the injury to be compensable. Any measurable impairment existing prior to the work-related injury to the same body part must be found non-compensable when the claimant sustains a subsequent injury. If there is a measurable pre-existing impairment under the Guides, that impairment cannot be viewed as being proximately caused by the subsequent injury.
Here, the ALJ determined Ellis had a 10% pre-existing impairment and, after the subsequent work injury, had a 17% impairment rating. The ALJ’s opinion reflects he was influenced by pre 1996 cases involving apportionment. In a post 1996 case, however, the statute clearly requires consideration of only impairment proximately caused by the work injury. By definition, a pre-existing impairment cannot be proximately caused by a later event. It is therefore necessary to reverse the ALJ’s calculation of the PPD benefit and direct the ALJ on remand to enter an award of PPD benefits based upon a 7% impairment multiplied by the .85 statutory factor in KRS 342.730(1)(b) and enhanced by a 3.8 multiplier pursuant to KRS 342.730(1)(c) 1 and 3.
Accordingly, the decision of Hon. Richard M. Joiner, Administrative Law Judge, is hereby REVERSED and this matter is REMANDED for entry of an opinion in conformity with the views expressed herein.
ALL CONCUR.
COUNSEL FOR PETITIONER
HON W BARRY LEWIS
PO BOX 800
HAZARD KY 41702-0800
COUNSEL FOR RESPONDENT
HON KAREN S DAVENPORT
PO BOX 349
HARLAN KY 40831
ADMINISTRATIVE LAW JUDGE
HON RICHARD JOINER
145 EAST CENTER ST
MADISONVILLE KY 42431
