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Whittaker v. Kennedy9/1/1994
Opinion OF THE COURT
This case concerns whether a worker who the Administrative Law Judge (ALJ) has determined is totally, occupationally disabled by a combination of injury and coal workers' pneumoconiosis may receive a combined award of lifetime benefits pursuant to KRS 342.730 and KRS 342.732.
Claimant was found to be 60% occupationally disabled due to a back injury [KRS 342.730(1)(b)] and 75% disabled due to coal workers' pneumoconiosis [KRS 342.732(1)(b)]. The injury award was apportioned equally between the employer and the Special Fund and the pneumoconiosis award was apportioned 25% to the employer and 75% to the Special Fund. The ALJ determined that "the Plaintiff has suffered an occupational disability of 100% from the combined effects of his injury and occupational disease," and awarded combined benefits equal to those for permanent, total occupational disability for so long as claimant was so disabled. Accordingly, the ALJ ordered that the injury claim would take precedence over the occupational disease claim, with 60% of the combined award attributable to the injury claim and 40% of the combined award attributable to the pneumoconiosis claim. Estep Coal Co. v. Ward, Ky., 421 S.W.2d 367 (1967); Osborne v. Blackburn, Ky., 397 S.W.2d 144 (1965). The Special Fund's petition for reconsideration was overruled.
The Workers' Compensation Board (Board) reversed the award based on its interpretation of KRS 342.732 as providing an exclusive remedy for pneumoconiosis claims. The Board reasoned that because the legislature did not provide for the combination of awards pursuant to KRS 342.730(1)(b) and KRS 342.732(1)(b) in order to produce a lifetime award for total disability, such an award was not authorized. The Board remanded the case for the entry of two separate awards for permanent, partial disability, the injury award for 60% and the pneumoconiosis award for 75%, with each payable for 425 weeks.
On appeal to the Court of Appeals the decision of the Board was reversed and the case was remanded in order for the ALJ's award to be reinstated. We affirm.
Before KRS 342.732 was enacted to govern the award of benefits for pneumoconiosis, both injury and pneumoconiosis benefits were awarded pursuant to KRS 342.730. In Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277 (1978), the Court emphasized that the first step in computing the amount of benefits to which an injured worker is entitled is to determine the amount to which the worker is entitled by the whole of his disability. A worker who was totally disabled by a combination of work-related injury, the arousal of a previously dormant condition caused by the injury, and prior, active work-related disability was entitled to be compensated for disability caused by the latest injury as a percentage of permanent, total disability pursuant to KRS 342.730(1)(a), even though the effects of the injury were only partially disabling. Subsequently, where a worker was totally disabled by a combination of permanent, partial occupational disabilities due to concurrent injury and occupational disease, the court ruled that he should be compensated as for total disability at the higher rate and lifetime duration provided in KRS 342.730(1)(a) rather than as for two permanent, partial disabilities at the lower rate and 425 week duration provided in KRS 342.730(1)(b). Sovereign Coa
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