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McCoy Elkhorn Coal Corp. v. Sullivan9/30/1993
workers' pneumoconiosis. An issue that remains, therefore, is whether the limitation on concurrent awards of income benefits for occupational disability applies to retraining incentive benefits, which are neither income benefits nor based on a finding of occupational disability. In the instance where a worker has sustained a concurrent permanent and total occupational disability due to an injury or other occupational disease, we believe that it should.
Claimant is 100% disabled by virtue of his injury. Therefore, if the ALJ believed that rehabilitation was feasible, claimant would be entitled to rehabilitation benefits because of the injury, pursuant to KRS 342.710 and KRS 342.715, regardless of his pneumoconiosis. Although the ALJ emphasized claimant's physical limitations and lack of education and noted that employer-financed rehabilitation was improbable, he made no findings or ruling regarding whether rehabilitation of this worker was feasible. Such findings are not required for the award of a retraining incentive benefit.
The purposes of retraining incentive benefits are to encourage coal workers with category 1 pneumoconiosis but with less than a 20% respiratory impairment to learn other occupational skills and, regardless of whether they do, to encourage them to seek employment outside the mining industry. Eastern Coal Co. v. Blankenship, Ky., 813 S.W.2d 808 (1991). Where a worker is incapable of rehabilitation due to an injury, the purpose of the award cannot be fulfilled. A statutory scheme that authorized the award of a retraining incentive benefit to an individual who is totally, occupationally disabled due to injury and for whom the ALJ believes rehabilitation is not feasible, would be absurd.
Although a finding of occupational disability is not required by KRS 342.732(1)(a) for the award of a retraining incentive benefit, this benefit, like the income benefit is computed as a function of the worker's average weekly wage and is paid in weekly installments. Furthermore, it is clear that despite the difference in its name, the retraining incentive benefit is not an entirely separate benefit but is part of an ascending scheme of benefits for workers with varying degrees of proved respiratory impairment or disease category and, hence, occupational disability, from none [KRS 342.732(1)(a)], to partial [KRS 342.732(1)(b)], to total [KRS 342.732(1)(c) and (d)]. Under this scheme, a worker's occupational disability is presumed to increase with either his respiratory impairment or disease category, and his compensation, in the form of a retraining incentive benefit [KRS 342.732(1)(a)] or an income benefit [KRS 342.732(1)(b),(c),(d)], increases accordingly. The maximum benefit payable under this scheme, as under KRS 342.730 for occupational injury, is for total, occupational disability. We also note that the legislature has provided that where a worker has been awarded a retraining incentive benefit, and subsequently is awarded greater benefits pursuant to some other section of KRS 342.732, the subsequent award of income benefits is reduced by the amount of retraining incentive benefits which the worker has received. KRS 342.125(1)(b).
Because a worker can, in fact, be no more than totally, occupationally disabled and pursuant to our decision in Mooney, supra, a worker with combined occupational disabilities from pneumoconiosis and injury which exceed 100% would not be eligible to receive a weekly award greater than that f
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