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Scott v. Fruit of the Loom2/22/2002
ed, does not mean that they were nonwork-related.
In Kern's Bakery v. Tackett, Ky. App., 964 S.W.2d 815 (1998), the claimant injured his back in 1995. As did Scott in the case sub judice, the claimant had a prior back injury at work in 1984, for which he received ttd benefits, but did not file a claim. The ALJ concluded that the claimant was totally disabled, attributing five percent occupational disability to the 1984 injury and made a lifetime award for 95% occupational disability for the 1995 injuries.
The employer appealed, arguing the claimant was not entitled to lifetime benefits under KRS 342.730(1)(a). Specifically, the employer contended that KRS 342.730(1)(d) addresses cases such as this, where the pre-existing disability is from an uncompensated work injury . Id. at 816. The 1994 amended version of KRS 342.730(1)(a), at issue in Kerns, provides that " onwork-related disability shall not be considered in determining whether the employee is totally disabled for the purposes of this subsection." The 1996 version, at issue in the case sub judice, provides that " onwork-related impairment . . . shall not be considered in determining whether the employee is totally disabled for purposes of this subsection." In Kern's, this Court, adopting the Board's language, stated:
We agree that the Legislature intended to prohibit nonwork-related disability from being combined with work-related injuries in order to determine whether an injured worker is totally disabled under KRS 342.730(1)(a); . . . .
However, we cannot agree that the statute, as written, prohibits combining prior work-related disabilities with work-related injuries to determine . . . total occupational disability . . . . We believe that to the extent a prior work- related disability is being considered by the fact- finder that Teledyne remains alive and well.
The key factor we must consider . . . is whether the ALJ finds the claimant to be totally or only permanently partially disabled. Here, the ALJ found [the claimant] . . . to be totally occupationally disabled. In that circumstance, the method for computing benefits is appropriately under KRS 342.730 (1)(a). This is exactly what the ALJ did in [this] . . . case. . . . .
When KRS 342.730(1)(a), which deals with total disability, was amended in 1994, a sentence was added which stated " onwork-related disability shall not be considered in determining whether the employee is totally disabled for purposes of this subsection." As the prior disability suffered . . . in this case was a work-related disability rather than a nonwork-related disability, it may be considered in determining whether [the claimant] . . . was totally disabled. Kern's Bakery v. Tackett, supra at 816-817.
We also conclude that the Board erred by overlooking essential evidence in the record. The Board stated that it could not find a "scintilla of evidence which would weigh on the question of causation as it relates to Scott's back condition." To the contrary, Dr. Friesen's opinion provided evidence of substance that Scott's low back impairment was attributable to his 1984 and 1990 injuries at work.
Hence, we reverse and remand with direction that this case be remanded to the ALJ for further findings of fact. Upon remand, the ALJ shall determine Scott's entire disability, taking into account any prior, active, work-related, occupational disability, and calculate the award under the appropriate provision of KRS 342.730.
ALL CONCUR.
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