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Sidney Coal Co.9/3/2004
ch 2001, and that the condition was not diagnosed until February 14, 2002 - all subsequent to the original August, 1999 opinion and award. Dr. Cowell further attributed Owens' psychological condition to the original injuries he incurred in August, 1996.
The medical records and testimony of Dr. Cowell comprise substantial evidence supporting the decision of the ALJ that there has been a worsening of Owens' condition since the original award as a result of his work-related injury .
In the alternative, Sidney Coal argues that the ALJ's decision was erroneous because none of the medical witnesses, including Dr. Cowell, quantified Owens' psychological diagnoses as a percentage of impairment pursuant to the AMA Guidelines. Sidney Coal argues that without an impairment rating for the psychological condition under the AMA Guidelines, there could be no award.
In a reopening case, the substantive rights and obligations of the parties are governed by the law in effect on the date of the injury . Woodland Hills Mining, Inc. v. McCoy, Ky., 105 S.W.3d 446, 448 (2003). The version of KRS 342.730(1)(c) in effect on the date of Owens' injury provided as follows:
For permanent partial disability, except all cases described in subsection (1)(b), sixty six and two-thirds percent (66-2/3%) of the employee's average weekly wage but not more than seventy-five percent (75%) of the state average weekly wage as determined by his percentage of disability caused by the injury or occupational disease as determined by the "Guides to the Evaluation of Permanent Impairment," American Medical Association, latest edition available, or under KRS 342.0011(11), whichever is greater. . . . (Emphasis added).
As noted by the emphasized portion of the statute, the version of KRS 342.730(1)(c) in effect on the date of the original injury expressly provided for an alternative calculation of income benefits under KRS 342.0011(11). In turn, the version of KRS 342.0011(11) on the date of the original injury provided as follows:
"Disability" means a decrease of wage earning capacity due to injury or loss of ability to compete to obtain the kind of work the employee is customarily able to do, in the area where he lives, taking into consideration his age, occupation, education, effect upon employee's general health in continuing in the kind of work he is customarily able to do, and impairment or disfigurement.
Clearly, in combination, the relevant versions of KRS 342.730(1)(c) and KRS 342.0011(11) provided a means for an awarding of workers' compensation benefits without the assignment of an AMA disability rating under the guidelines. In fact, KRS 342.730(1)(c) specifically provided that the award should be based upon whichever calculation produced the greater result, and so Sidney Coal could not have been prejudiced by the failure of the medical witnesses to assign an AMA Guidelines disability rating to Owens. In addition, we adopt the Board's discussion regarding this issue:
The record contains substantial evidence upon which the ALJ could conclude Owens had a decrease of wage earning capacity due to the injury. As noted by Dr. Cowell, Owens could not return to jobs in the mining industry. Owens' testimony indicated he earned a much higher wage in the mining industry than he earned in his employment with the Fiscal Court. As noted in KRS 342.0011(11) as set out above, a decrease of wage earning capacity due to an injury is one of the definitions of disability. The other portion of the definition of disability is a loss of ability to compete to obtain the kind of work the employee is customarily able to do, in the area where he lives, taking into consideration h
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