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McCoy Elkhorn Coal Corp. v. Sullivan9/30/1993
Opinion OF THE COURT
This case concerns whether a worker may receive a permanent, total, occupational disability award due to injury concurrently with a retraining incentive benefit. KRS 342.730(1)(a); KRS 342.732(1)(a).
Claimant sustained a permanent, total, occupational disability due to a back injury and contracted category 1 coal workers' pneumoconiosis without a significant pulmonary impairment. The Administrative Law Judge (ALJ) determined that claimant could receive the 100% disability award for the injury [KRS 342.730(1)(a)] and a retraining incentive benefit [KRS 342.732(1)(a)] concurrently. This ruling was based upon his interpretation of KRS 342.732(1) and KRS 342.730(1) as precluding a credit or offset against a pneumoconiosis award, made pursuant to KRS 342.732, for income benefits paid for an injury or other occupational disease, made pursuant to KRS 342.730. Such a credit or offset was allowed before October 15, 1987, when claims for both coal workers' pneumoconiosis and for injury and other occupational diseases were all controlled by KRS 342.730. Island Creek Coal Co. v. Davis, Ky. App., 761 S.W.2d 179 (1988).
The Workers' Compensation Board (Board) and the Court of Appeals agreed that the language of KRS 342.730(1) and KRS 342.732(1) was clear. The statutes created two entirely independent remedies, one for coal workers' pneumoconiosis and another for injuries and other occupational diseases. Claimant was, therefore, entitled to receive both benefits without an offset. We disagree; hence, we reverse the decisions below.
In Matney v. Newberg, Ky., 849 S.W.2d 526 (1992), this Court reaffirmed the longstanding principle that a worker who receives multiple compensation awards may, at one time, be compensated for no more than total, occupational disability because he can, in fact, be no more than totally, occupationally disabled. We also stated that income benefits from combined awards were limited by both 66 2/3 of the worker's average weekly wage and 100% of the state's average weekly wage. Because the worker in that case did not raise before the ALJ the issue of whether the language of KRS 342.732(1) and KRS 342.730(1) precluded an offset of the injury award against the pneumoconiosis award, we refrained from addressing that issue.
Subsequently, in Mooney v. Pittsburg & Midway Coal Co., Ky., 849 S.W.2d 527 (1993), where the issue of offset was raised, we ruled that, regardless of whether a worker's award was for benefits pursuant to KRS 342.732, or to KRS 342.730, or to a combination thereof, he could receive a combined permanent, partial disability benefit no greater than 75% of the state's average weekly wage. We also noted that, regardless of the prefatory language in KRS 342.730 and KRS 342.732, we found no indication that the legislature intended to create two entirely independent remedies or to allow a worker to receive a combined benefit greater than the maximum for permanent, partial disability authorized by either statute simply because part of his disability was due to coal workers' pneumoconiosis. However, Mooney, supra, unlike the instant case, did not involve an award of retraining incentive benefits but one of income benefits for permanent, partial, occupational disability due to coal
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