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Phoenix Manufacturing v. Johnson12/20/2001
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The final matter at issue concerns whether the equal apportionment of medical expenses between the carriers was properly reversed by the Board. Contrary to the views that were expressed by the Board and the Court of Appeals, we are not persuaded that Derr Construction Co. v. Bennett, KY., 873 S.W.2d 824 (1994) controls these facts. In Derr v. Bennett we rejected an argument that the Special Fund could be held responsible for a portion of the expenses for medical treatment of a gradual injury simply because it was sustained in multiple employments. Although we recognized that it might seem harsh to place all liability for future medical treatment on the last employer in such circumstances, we noted that KRS 342.020 referred only to the employer and not to the Special Fund.
Derr did not address the liability of an employer's successive insurance carriers. Furthermore, of particular significance in the instant case is the fact that, when settling the claims in 1994, the carriers agreed to share medical expenses equally. Nothing in Derr v. Bennett would support releasing the 1989 carrier from its agreement to reimburse the 1992 carrier for half of the claimant's medical expenses, and nothing in the agreement limited its effect to medical expenses that were outstanding at the time. The ALJ determined that the claimant's surgery was necessitated by the combined effects of the injuries and specifically referred to the settlement agreement when apportioning liability equally between the carriers. Under the circumstances, we find no error in the ALJ's decision to do so. To that extent we reverse the decision of the Court of Appeals and reinstate the decision of the ALJ.
The decision of the Court of Appeals is affirmed, in part, and reversed, in part, and the claim is remanded to the ALJ for the entry of an award of total disability for which the 1992 carrier and the Special Fund bear equal liability.
Lambert, C.J., and Graves, Johnstone, Keller, Stumbo, and Wintersheimer, JJ., concur.
Cooper, J., concurs, in part, and dissents, in part, by separate opinion.
OPINION CONCURRING IN PART, AND DISSENTING IN PART
BY JUSTICE COOPER
I dissent from the majority opinion insofar as it reaffirms the holdings in Fleming v. Windchy, Ky., 953 S.W.2d 604 (1997) and Whittaker v. Fleming, Ky., 25 S.W.3d 460 (2000) per my dissents in those cases and in Spurlin v. Brooks, Ky., 952 S.W.2d 687 (1997).
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