*/
Workers’
Compensation Board
OPINION ENTERED: August 31,
2018
CLAIM
NO. 201701688
WARRIOR
COAL, LLC PETITIONER
VS. APPEAL FROM HON. JEFF V. LAYSON,
ADMINISTRATIVE
LAW JUDGE
CHARLES
MARTIN
and
HON. JEFF V. LAYSON,
ADMINISTRATIVE
LAW JUDGE RESPONDENTS
OPINION
AFFIRMING IN PART, VACATING IN PART
& REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and
RECHTER, Members.
STIVERS, Member. Warrior Coal, LLC (“Warrior Coal”) appeals
from the April 27, 2018, Opinion and Order and the May 30, 2018, Order
overruling Warrior Coal’s Petition for Reconsideration of Hon. Jeff V. Layson, Administrative Law Judge (“ALJ”).[1]
The ALJ awarded Charles Martin (“Martin”) permanent partial disability (“PPD”)
benefits and medical benefits for a work-related left shoulder injury.
On appeal, Warrior Coal asserts the ALJ
erred by awarding benefits for Martin’s alleged left shoulder injury. Further,
Warrior Coal asserts the ALJ erred by enhancing Martin’s benefits by the three
multiplier. Finally, Warrior Coal asserts the ALJ erred in awarded 12% interest
on unpaid income benefits due on or before June 28, 2017.
BACKGROUND
The Form 101 alleges Martin sustained
work-related cumulative trauma injuries to his “neck, right knee, lower back,
left shoulder, bilateral hands, bilateral hips” on April 1, 2016.[2]
Martin was deposed on December 15, 2017. He
testified Warrior Coal was the last coal mining company for which he worked,
and the reason he stopped working at Warrior Coal was because he was one of
ninety employees laid off. At the time of his deposition, he was working at Carhartt
performing maintenance.
Martin also testified at the February 28,
2018, Formal Hearing. He described the type of work he performed at Warrior
Coal which he believed resulted in the most damage to his shoulders:
A:
Mostly everything I done [sic]. Because like I say [sic], I done [sic] lifting
and pulling and even loading my toolboxes up every day. My tool boxes weighed
75, 80 pound [sic]. I’d load them up daily and unload
them. I had about six on my truck that I rode around on. And – and then all – I
carried two come-alongs and sledge hammers and pry
bars and I used them daily.
Q:
Charles, you mentioned that a few of the tasks you performed earlier, I believe
you talked about changing tires. Are you referring to just a normal standard
tire like would be on a vehicle?
A:
No, it was solid rubber tires. And some of them would weigh 1200 to 1,400 pound [sic].
Q:
Would you have to change those tires underground?
A:
Yes.
Q:
Describe that process to the judge.
A: We
would have to take a ratchet and a cheater bar and break the studs. And then we
would have to get them and slide them out like this. (Witness demonstrates.)
Q:
And Charles, you’re making kind of a shimmying motion with –
A:
Yeah.
Q: -
with your hands?
A:
Yeah, you would slide them. I had a – it had a – like a hub that this tire
solid on and then you’d have to pry it out like this (witness demonstrates) and
roll it over. And then they could take a forklift and pick it up and get it out
of the way and then bring a new one. Then you’d have to try to work it back in
there like that.
Q: Do
you think that process you’ve just described placed a strain on your shoulder?
A: Yes.
Q:
Did you have to use a sledgehammer for Alliance Coal?
A:
Yes, just about every day.
Q:
Could you describe that for the judge?
A:
Well, we would have like big pins that was [sic] probably as wide as this table
and three inches in diameter that we’d have to knock out. And we would
sometimes, if it was froze up, you couldn’t use a
cutting torch because we had to have the cart, so we would have to take and
beat it out.
Q:
How heavy of a sledgehammer would you use?
A:
Well, anywhere from a [sic] eight pound to a 20 pound.
Q:
How many times would you have to swing those a day, would you guess?
A: We
would take turns. I’d say sometimes we’d swung [sic] even for eight hours and
you’d bump each other out maybe every other ten minutes. Somebody would swing
for ten minutes and then let somebody else. And we’d take turns, you know.
Q:
Charles, are you saying that you’d swing a sledgehammer for a whole shift –
A:
Yeah.
Q: -
working for Alliance?
A: Yes.
Martin filed the December 14, 2017, Form
107-I of Dr. Stephen Autry. After performing a physical examination and a
medical records review, Dr. Autry set forth the following diagnoses:
1. Aggravation of cervical spondylosis with
radiculopathy.
2. Aggravation of lumbar spondylosis.
3. Aggravation of posttraumatic arthritis,
right shoulder.
4. Aggravation of posttraumatic arthritis,
left shoulder.
5. Chondromalacia patella, right knee.
6. Chondromalacia patella, left knee.
7. Anterior cruciate insufficiency, left
knee.
8. Baker’s cyst, left knee.
Regarding
causation, Dr. Autry opined as follows:
The plaintiff’s history
and job description correlate with the specific diagnoses. The plaintiff’s job
required significant work in awkward and difficult circumstances creating
leverage on the joints such as both shoulders and the knees with constant
twisting, turning, squatting, and having to do [sic] use tools in localities
that would cause significant impact loading and leverage on the shoulders, neck
and lower back, as well as both knees.
Dr. Autry assessed a 25% whole person
impairment rating pursuant to the 5th Edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment,
(“AMA Guides”), with 9% apportioned to the left shoulder injury. He
opined maximum medical improvement (“MMI”) was obtained as of the date of his
examination of Martin. He further opined Martin does not retain the physical
capacity to return to the type of work he performed at the time of his injury.
Restrictions include avoiding repetitive bending, stooping, kneeling, and above
shoulder level use of both arms and no lifting more than thirty (30) pounds or
overhead lifting.
Warrior Coal filed the January 31, 2018,
Independent Medical Examination report of Dr. Rick Lyon. After performing a
physical examination and a medical records review, Dr. Lyon diagnosed the following:
1. Low back pain due to specific work event
2010.
2. Neck pain with history of multiple
specific work events.
3. Left knee ACL and meniscus tears s/p
meniscectomy- unrelated to work.
4. Right knee pain.
5. Carpal tunnel syndrome bilateral hands.
6. Impingement syndrome/rotator cuff tendonitis left shoulder.
Concerning the cause of Martin’s left
shoulder condition, Dr. Lyon opined as follows:
It is my opinion Mr.
Martin’s rotator cuff tendinitis is not a result of work-related cumulative
trauma. Regardless, he is a candidate for consideration of injection into the
subacromial space followed by an exercise program. In addition, he is also a
candidate for an MRI. Finally, depending upon the results of the injection, he
may be a candidate for surgical arthroscopy. However, it is my opinion any
additional treatment for the left shoulder is not a result of work-related
cumulative trauma.
Dr. Lyon’s report contains the following
questions and answers:
1.
Whether Mr. Martin
sustained a cumulative trauma work injury related to his employment at Warrior
Coal: It is my opinion Mr. Martin has not
sustained any cumulative trauma work injuries related to his employment at
Warrior Coal.
2.
If Mr. Martin has
sustained a cumulative trauma work injury related to his employment at Warrior
Coal, what is his diagnosis: It is my opinion he
has not sustained [sic] cumulative [sic] work injury as a result of his work at
Warrior Coal.
3.
What limitations, if any
will be placed on Mr. Martin’s activities because of his alleged injuries
sustained as a result of cumulative trauma: Mr. Martin has continued to work full duty. Therefore, it is
my opinion he has no work restrictions.
4.
Whether Mr. Martin has
reached MMI for his claimed injuries: Please see
above discussion.
5.
The impairment rating,
if any, for the alleged injury sustained as a result of
cumulative trauma: Please see discussion above.
6.
If any or all of the
impairment rating is attributable to a prior active condition, please state how
much is attributable to a prior active condition: Please see discussion above.
7.
Whether, in your
opinion, based upon reasonable medical probability (and based strictly on the
injuries allegedly suffered on 4/1/16), Mr. Martin is able to return to work in
the same capacity he was working as of the date of the injury: It is my opinion Mr. Martin is able to continue to work in the
same capacity he was working as of the date of the injury. It is my opinion Mr.
Martin is able to continue working at his former job at Warrior Coal.
The February 13, 2018, Benefit Review
Conference Order and Memorandum lists the following contested issues:
work-relatedness/causation, notice, benefits per KRS 342.730, credit for
unemployment benefits, “injury” as defined by the Act, statute of limitations,
and medical benefits.
ALJ’S DECISION
After concluding Martin did not sustain
work-related cumulative trauma cervical and right shoulder injuries, in the
April 27, 2018, Opinion and Order, the ALJ set forth the following findings
regarding the alleged left shoulder injury:
I. Causation/work-relatedness and “injury” under the Act.
. . .
Left Shoulder
There is no
dispute in this case that the Plaintiff does have a medical condition which
affect his left shoulder. Dr. Autry diagnosed aggravation of post-traumatic
arthritis in the left shoulder while Dr. Lyon felt he had impingement syndrome
and rotator cuff tendinitis. Unlike the right shoulder, there is objective
medical evidence of a condition affecting Mr. Martin’s left shoulder, i.e. the
x-rays done on March 28, 2016 which document “flattening, narrowing, sclerosis
of glenohumeral joint with moderated-sized inferior spurs, degenerative change
in the AC joint.” Also unlike the right shoulder,
there is not a specific incident or point in time that can be identified as the
beginning of the left shoulder symptoms.
Dr. Autry
and Dr. Lyon offer differing opinions with regard to
whether or not the left shoulder condition is caused by work-related cumulative
trauma. Dr. Autry attributes the condition to cumulative trauma. Dr. Lyon says
that Mr. Martin has not sustained any cumulative trauma injuries, including the
left shoulder.
Dr. Lyon
did, however, make some statements regarding the causation of the conditions he
diagnosed as a general matter. He stated that impingement syndrome occurs:
[w]hen the subacromial
bursa and the rotator cuff are pinched between the acromion, coracoacromial
ligament, and/or distal clavicle and the greater tuberosity below. This occurs
during elevation and can cause subacromial bursitis, abrasion, inflammation,
and/or attenuation of the tendon with a predisposition to tearing.
Similarly, with regard
to rotator cuff disease, he said:
Recent scientific articles confirm that the etiology of
the rotator cuff disease is likely multifactorial. There are contributions from
external compression, from age-related degeneration, from trauma and even
vascular abnormalities. Despite controversy regarding the importance of these
factors, most investigators believe that the compression from the anterior
acromion, the coracoacromial ligament and the acromioclavicular joint plays a
significant role in the development of rotator cuff disease by the time
treatment is considered.
Although Dr. Lyon ultimately concluded that Mr. Martin’s
left shoulder condition was not caused by cumulative trauma at work, the type
of repetitive activities which Mr. Martin described are consistent with the
“pinching” and “external compression” which Dr. Lyon acknowledged can be at
least partially responsible for the impingement syndrome and rotator cuff
disease which he diagnosed. When considered alongside the x-rays confirming the
existence of a condition affecting the Plaintiff’s left shoulder and Dr.
Autry’s testimony that the condition was caused by cumulative trauma, these
statements from Dr. Lyon convince the Administrative Law Judge that Mr. Martin
does, in fact, have a work-related cumulative trauma injury to his left
shoulder.
Finally, the Administrative Law Judge does acknowledge
the fact that Mr. Martin stated during his deposition that he was not claiming
work-related cumulated trauma injuries to his shoulders. However, the left
shoulder is specifically listed as an injured body part in the Application for
Resolution of Claim. This fact, along with the fact that the doctors addressed
the Plaintiff’s left shoulder in their reports, convinces the Administrative
Law Judge that the Plaintiff was, in fact, incorrect and confused when asked
about his shoulders during his deposition, as he later explained at the formal
hearing.
…
III.
Benefits per KRS 342.730
The only AMA rating in the record relating to the
Plaintiff’s left shoulder is the 9% impairment assessed by Dr. Autry. Although
Dr. Lyon does not believe Mr. Martin has a diagnosable medical condition
affecting the left shoulder he did state whether or not
there was an applicable AMA rating. Therefore, the Administrative Law Judge
finds that the 9% rating from Dr. Autry is a credible and accurate assessment
of the Plaintiff’s permanent impairment resulting from his work-related left
shoulder injury.
The work that Mr. Martin did before the injury was
maintaining equipment in underground coal mines. This job, as described by Mr.
Martin, required a significant amount of lifting, carrying and working overhead
with the left arm. Dr. Autry stated that the Plaintiff is physically unable to
return to this type of work and that he should avoid working above shoulder
level and lifting more than 30 pounds. Moreover, the Plaintiff testified that
he is physically unable to return to his pre-injury job. Based on these facts,
the Administrative Law Judge finds that, as a result of
the left shoulder injury, Mr. Martin no longer retains the physical capacity to
return to his pre-injury work as a coal miner and is entitled to have his PPD
benefits enhanced by a 3.4 factor, as set forth in KRS 342.730(1)(c)1.
Although Mr. Martin has returned to work as a maintenance
worker at a Carhartt factor, he testified that his wages are two-thirds of what
he earned as a coal miner. This is the only evidence in the record regarding
the Plaintiff’s post-injury wages. Therefore, the Administrative Law Judge
finds that Mr. Martin has not returned to work at the same or greater wages and
that the two multiplier set forth in KRS
342.730(1)(c)2 does not apply in this case.
The award of permanent, partial disability benefits in
this case is calculated as follows:
9% AMA
impairment rating x .85 grid factor = 7.65% disability rating x $598.98 (max.
PPD rate for 2016) = $45.82 base PPD benefit x 3.4 factor = $155.79 PPD
benefit.
Warrior
Coal filed a petition for reconsideration alleging several errors. First, it
asserted the ALJ erred by awarding 12% interest on unpaid income benefits due
on or before June 28, 2017. Warrior Coal also requested additional findings
regarding Martin’s alleged cumulative trauma left shoulder injury, including
whether Martin has reached MMI and, if so, the specific date. Warrior Coal also
requested additional findings on the issue of the three multiplier.
In
the May 30, 2018, Order, the ALJ provided the following additional findings:
…
The first issue raised by the Defendant/Employer
relates to the rate of interest payable on past due benefits. The ruling by the
Administrative Law Judge regarding interest in this case is consistent with the
directive of the Workers’ Compensation Board in several prior cases where this
issue has been raised.
The second issue raised in the Petition is a
request for additional findings of fact regarding the Plaintiff’s left shoulder
injury. The Defendant/Employer first takes issue with the ALJ’s finding that
there was no specific incident or point in time that can be identified as the
beginning of the Plaintiff’s left shoulder symptoms by pointing to the
Plaintiff’s testimony that the left shoulder pain started “ten or twelve years
ago.” The Administrative Law Judge does not believe that “ten or twelve years
ago” constitutes a specific incident or point in time.
The Defendant/Employer also points to a statement
in Dr. Lyon’s IME report regarding an x-ray report from 2016 in which it is
mentioned that Mr. Martin had an injury to his left shoulder as a child. There
is no medical opinion which indicates that any such injury plays a role with regard to the Plaintiff’s current left shoulder
condition. Simply summarizing a notation in a past medical record does not
constitute an opinion regarding causation. Dr. Lyon’s description of the cause
of the current shoulder problems does not make any reference to a childhood
injury and, as set forth verbatim in the Opinion and Award, is much more
consistent with cumulative trauma. In any event, the Administrative Law Judge
reiterates his finding that Dr. Lyons’ opinions regarding causation do not
dissuade the Administrative Law Judge from relying upon Dr. Autry’s clear and
unambiguous statement that the Plaintiff’s current left shoulder condition is
causally related to cumulative trauma at work.
The Defendant/Employer also asks the Administrative
Law Judge to state whether the Plaintiff has reached MMI for his left shoulder
and, if so, the date upon which MMI occurred. The Defendant/Employer did not
preserve any issue or question regarding MMI at the BRC or at the formal
hearing. Moreover, the Defendant/Employer did not raise this issue in its
brief. Those facts notwithstanding, the Administrative Law Judge notes that the
only physician who specifically addressed the question of MMI was Dr. Autry, who
stated that the Plaintiff was at MMI as of the date of his examination on December
14, 2017.
The third, and final, issue raised by the
Defendant/Employer in its Petition for Reconsideration relates to the
application of the 3.4 multiplier. This finding was based on the medical
opinion of Dr. Autry to the effect that the Plaintiff could not return to his
pre-injury job. Consistent with this medical opinion was the testimony of Mr.
Martin, who stated:
Q: Have you noticed any type of pain or inability as far as your range of
motion in your shoulders?
A: Yeah, I cannot---there was a guy working on my building and I tried to
help him. And I cannot reach up, you know, with my left shoulder. And when I do
try my right one, after a while it gets to really hurting. But my left one, I
just can’t reach up to use it….
Q: Do you have any limitations in your left shoulder as far as picking up
any type of weight and extending it out in front and to the side of you?
A: Yes.
Q: Is that something that’s hard for you to do?
A: Yes, because I used to be able to, you know, go straight up and— with
anything. And it’s just gradually got to where I can’t. I don’t hardly— it hurts and I just can’t do it. (Hearing transcript, pp.
21-22).
Prior to this testimony, the Plaintiff had
described the physical activities required as part his job to include reaching
and lifting overhead; hanging high voltage cable weighing about 10 pounds per
foot from the mine roof, and; taking turns swinging a 20-pound sledgehammer for
an entire shift. (Hearing transcript, pp. 9-14). When asked what particular activities placed stress on his shoulders, the
Plaintiff replied: “mostly everything I done.” (Hearing transcript, p. 16).
The combined effect of the Plaintiff’s testimony
regarding his pre-injury physical work requirements and his post-injury
physical abilities, leads to the conclusion that he no longer retains the
physical capacity to return to his pre-injury job.
Based on the foregoing, the Defendant/Employer’s
Petition for Reconsideration is overruled.
ANALYSIS
In its first argument,
Warrior Coal points out Martin, during his deposition, testified he was not
claiming an injury to either shoulder as a result of
his employment with Warrior Coal. It asserts Martin did not change his
testimony until after Dr. Autry’s report had been filed. We determine this
argument lacks merit, as Martin claimed a work-related cumulative trauma left
shoulder injury in his Form 101. The record also indicates the left shoulder
cumulative trauma was not among the body parts Martin formally withdrew from
his claim at the February 28, 2018, Hearing. Importantly, Martin
gave the following unequivocal testimony at the Hearing regarding the error he
had made on this issue during his deposition:
Q: In reviewing your
deposition testimony, I believe you stated that you were not alleging your
shoulders as part of this claim, was that incorrect?
A: That was incorrect.
Q: You believe that was
because you were nervous and had not ever given a deposition before?
A: Yeah, it was my
first deposition that I had give [sic]. And I really
don’t even remember being asked that question but they
said that it was. So I’d have to agree with that that
I answered it incorrectly.
Q: Are you saying that
you agree you said what you said in your deposition but today, you are alleging
cumulative trauma injuries to your shoulders?
A: Yes. I was incorrect in that answer or I answered it
wrong.
The ALJ is free to reject any testimony and
believe or disbelieve various parts of the evidence, regardless of whether it
comes from the same witness. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky.
2000).
Since
Martin claimed a cumulative trauma left shoulder injury in his Form 101, and
Dr. Autry’s report and Martin’s Hearing testimony fully support a finding of
such an injury, this aspect of the first argument must be rejected.
Warrior Coal further
asserts that, “Respondent’s deposition testimony aside,” Dr. Lyon’s findings
are more credible than Dr. Autry’s, and, consequently, the ALJ should have
relied upon Dr. Lyon and dismissed Martin’s left shoulder injury claim. We
disagree.
A claimant has the burden of proving each of
the essential elements of her claim, including proving an injury as defined by
the Act. Snawder
v. Stice, 576 S.W.2d 276 (Ky. App. 1979). As
Martin was successful in proving he sustained a permanent cumulative
trauma left shoulder injury, Warrior Coal has the burden on appeal of demonstrating
substantial evidence does not support the ALJ’s determination. Special Fund
v. Francis, 708 S.W.2d 641 (Ky. 1986). Substantial evidence is defined as
evidence of relevant consequence having the fitness the induce conviction in
the minds of reasonable persons. Smyzer v.
B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).
In
the case sub judice,
the ALJ relied upon Dr. Autry to conclude Martin sustained a work-related
cumulative trauma left shoulder injury. In his December 14, 2017, report, Dr. Autry
opined Martin’s multiple injuries, including his cumulative trauma left
shoulder injury, “are consequences of his many years in mining.” Since Martin’s
last employment in the coal mines was with Warrior Coal, Dr. Autry’s opinions
constitute substantial evidence supporting the ALJ’s determination Martin
sustained a work-related cumulative trauma left shoulder injury for which
Warrior Coal bears the liability. While Dr. Lyon’s opinions differ from those
of Dr. Autry, the ALJ, as fact-finder, has the sole authority to determine the
quality, character, and substance of the evidence. Square D Company v.
Tipton, 862 S.W.2d 308 (Ky. 1993). Further, mere evidence
contrary to the ALJ’s decision is not adequate to require reversal on appeal. Whittaker
v. Rowland,
998 S.W.2d
479 (Ky. 1999). We affirm the ALJ’s reliance upon Dr. Autry and his conclusion
Martin sustained a work-related cumulative trauma left shoulder injury.
Next, Warrior Coal asserts the ALJ erred by
enhancing Martin’s award of income benefits by the three
multiplier pursuant to KRS 342.730(1)(c)1. It contends the ALJ, in
awarding the three multiplier, relied upon Martin’s testimony that he is
physically unable to return to his pre-injury job; however, as asserted by
Warrior Coal, no such testimony exists. We affirm on this issue.
KRS 342.730(1)(c)1 states, in
relevant part, as follows:
If, due to an injury, an employee
does not retain the physical capacity to return to the type of work that the
employee performed at the time of injury, the benefit for permanent partial
disability shall be multiplied by three (3) times the amount otherwise
determined under paragraph (b) of this subsection.
In the April
27, 2018, Opinion and Order, the ALJ enhanced the award via the three
multiplier based not just on Martin’s testimony regarding his ability to return
to his pre-injury job, but also on Dr. Autry’s opinions as set forth in his December
14, 2017, report. The ALJ noted
“Dr. Autry stated that the Plaintiff is physically unable to return to this
type of work and that he should avoid working above shoulder level and lifting
more than 30 pounds.” This is certainly consistent with our review of Dr.
Autry’s report. Dr. Autry’s opinions, standing
alone, constitute substantial evidence supporting the enhancement of
Martin’s income benefits via the three multiplier. However, in the May 30,
2018, Order, the ALJ detailed Martin’s specific testimony which allowed him to
infer Martin is unable to return to the type of work he performed at the time
of the injury. That testimony includes the following:
Q: Have you noticed any type of pain or inability as far as your
range of motion in your shoulders?
A: Yeah, I cannot – there was a guy working on my building and I
tried to help him. And I cannot reach up, you know, with my left shoulder. And
when I do my right one, after a while it gets to really hurting. But my left
one, I just can’t reach up to use it. And if I sleep on my left shoulder, I’ll
wake up in the middle of the night in pain and have to
get back on my back.
Q: Do you have any limitations in your left shoulder as far as
picking up any type of weight and extending it out in front and to the side of
you?
A: Yes.
Q: Is that something that’s hard for you to do?
A: Yes, because I used to be able to, you know, go straight up
and – with anything. And it’s just gradually got to where I can’t. I don’t
hardly – it hurts and I just can’t do it.
This
testimony by Martin in conjunction with testimony regarding his job duties at
Warrior Coal, including swinging a twenty-pound jackhammer, allowed the ALJ to conclude
Martin is unable to return to his pre-injury job. As fact-finder, the ALJ is
free to make such an inference. We also note a claimant’s own testimony as to
his condition and ability to work has probative value and is appropriate for
consideration by the ALJ. Hush v. Abrams, 584 S.W.2d 48 (Ky. 1979). As
Dr. Autry’s opinions and Martin’s testimony constitute substantial evidence,
the enhancement of the income benefits by the three multiplier is affirmed.
That said, we vacate
that portion of the award subjecting Martin’s award of PPD benefits “to the
provisions of KRS 342.730(4) in effect as of April 4, 1994.” The newly revised version of KRS 342.730(4) states that all income benefits shall terminate
when the employee reaches age seventy, or four years after the injury or last
exposure, whichever last occurs. The newly revised statute became effective July 14, 2018, and applies to all claims for which a date of
last exposure occurred on or after December 12, 1996, and to all claims which
“have not been fully and finally adjudicated or are in the appellate process,
or for which time to file an appeal has not lapsed” as of July 14, 2018. The
legislature has clearly spoken regarding when income benefits are to be terminated
pursuant to KRS 342.730(4). Therefore, we must vacate this
portion of the award and remand the claim for entry of an amended award
applying the 2018 version of KRS 342.730(4).
Finally, Warrior Coal
asserts the ALJ erred in awarding 12% interest on the past due income benefits
accrued prior to June 29, 2017. We affirm on this issue.
Effective June 29, 2017, the Kentucky
legislature amended KRS 342.040 to read, in relevant part, as follows:
All income benefits shall be payable on the regular payday after
seven (7) days after the injury or disability resulting from an occupational disease, with interest
at the rate of six percent (6%) per annum on each installment from the time it
is due until paid….
In
a line of opinions following this amendment, this Board has consistently held there is no indication, express or implied,
the legislature desired the recent amendment to have retroactive effect.
Therefore, from the date of the onset of disability for Martin’s cumulative
trauma left shoulder injury, and up through June 28, 2017, Martin is entitled
to 12% interest on all past due income benefits. Martin is entitled to 6%
interest on all unpaid installments of income benefits due on or after June 29,
2017. Our logic is set forth in these opinions for all parties to review, and
we will continue to so hold until informed otherwise.
Accordingly,
on all issues raised on appeal, the April 27, 2018, Opinion and Order and the
May 30, 2018, Order are AFFIRMED. We
VACATE the award of PPD benefits
subjecting Martin’s PPD benefits to the tier-down provision as seen in the 1994
version of KRS 342.730(4), and REMAND
for entry of an amended award and order applying the 2018 version of KRS
342.730(4).
ALL
CONCUR.
COUNSEL FOR PETITIONER:
HON
MORGAN J FITZHUGH
333
W VINE ST STE 300
LEXINGTON
KY 40507
COUNSEL FOR RESPONDENT:
HON
MCKINNLEY MORGAN
921
S MAIN ST
LONDON
KY 40741
ADMINISTRATIVE LAW
JUDGE:
HON
JEFF V LAYSON
617
CHAMBERLIN AVE
FRANKFORT
KY 40601
[1] The Form 101 lists “Alliance Coal” as
the Defendant/Employer, and Warrior Coal and Alliance Coal are used
interchangeably throughout the record. The Form 111 Notice of Claim Denial or
Acceptance lists the defendant/employer as “Warrior Coal as insured by Alliance
Coal.” Therefore, for purposes of this appeal, Warrior Coal and Alliance Coal
are synonymous.
[2] At the February 28, 2018, Hearing, Martin withdrew his cumulative trauma injury claim related to all body parts except for his neck and “both shoulders.” While it is important to note Martin’s Form 101 alleges only a left shoulder injury, his right shoulder injury claim was tried by consent.
