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Accuride Corp. v. Donahoo9/30/1993
Opinion OF THE COURT
The claimant suffered a back injury on December 29, 1986, which formed the basis for this action. Claimant had suffered two previous back injuries in 1955 and 1985. Dr. Dominguez, claimant's treating physician, testified that claimant had a functional impairment rating of 20% following the 1986 injury. He stated that 5% of the impairment was due to the previous injury and surgery in 1985. When asked to apportion the remaining 15% impairment between the effects of the injury itself and the arousal of the degenerative disc disease, Dr. Dominquez stated that the impairment would be apportioned in the "usual manner," 50% to the preexisting degenerative disc disease and 50% due to the effects of the injury or trauma suffered in 1986. He also stated that were it not for the degenerative disc disease, the 1986 incident would not have resulted in any permanent impairment.
Due to this last statement, the employer, Accuride Corporation (Accuride), has argued on appeal that liability for the 1986 injury should rest entirely with the Special Fund. KRS 342.120(3)[now(4)]; Stovall v. Dal-Camp, Inc., Ky., 669 S.W.2d 531 (1984). This claim arose before the 1987 enactment of KRS 342.1202 which would settle this issue and is therefore governed by the apportionment provisions contained in KRS 342.120.
The Administrative Law Judge (ALJ) concluded that claimant was totally disabled. Of the 100% disability rating, 30% was noncompensable, prior, active disability due to the previous back injuries and resulting surgeries. The remaining 70% was apportioned equally between Accuride and the Special Fund. The ALJ's award was upheld by the Workers' Compensation Board (Board) and the Court of Appeals.
KRS 342.120(4) provides in pertinent part as follows:
In Stovall v. Dal-Camp, Inc., supra, a heart attack case, the Court held that where there was uncontradicted medical evidence that the work-connected exertion would not have produced any disability absent the underlying nondisabling atherosclerotic condition, the entire award must be allocated against the Special Fund pursuant to KRS 342.120.
The issue in this case is whether the ALJ was free to apportion the award between the employer and the Special Fund, or whether pursuant to Dal-Camp liability for the entire award rests with the Special Fund.
In Island Creek Coal Co. v. Buckman, Ky. App., 714 S.W.2d 503 (1986), the Court of Appeals concluded that Dal-Camp was limited to heart attack cases. Furthermore, the court in Buckman construed medical testimony similar to that presented in the case at bar. The Buckman court concluded that unlike Dal-Camp, the medical evidence was conflicting, and therefore the Board was free to believe part of the evidence and apportion the award.
Likewise, in Palmore v. Allgood, Ky. App., 767 S.W.2d 328 (1988), there was testimony that the worker suffered a 15% occupational disability and that 5% could be attributed to dormant degenerative disc changes, and the remaining 10% to the effects of the injury suffered at work. The same physician also stated that a herniation does not occur but for the preexisting condition. The court considered this to be contradictory evidence, and reasoned that the fact finder was free to believe or disbelieve parts of the testimony and rely upon the 5%/10% apportionment. Therefore, it was not reversible error to apportion the award between the employer and the Special Fund.
This brings us to Accuride's argu
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