Opinion
No. 2001-CA-001249-WC.
February 15, 2002.
Petition For Review Of A Decision Of The Workers' Compensation Board, Action No. WC-91-04896.
John Burrell, Frankfort, Kentucky, Brief for Appellant.
Dennis James Keenan, Anderson, Hinkle, Keenan Childers, P.S.C., South Williamson, Kentucky, Brief for Appellee, Robert Sherrill.
J. Gregory Allen, Riley Allen, P.S.C., Prestonsburg, Kentucky, Brief for Appellee, Dynasty Resources.
Before: GUDGEL, Chief Judge; JOHNSON, and McANULTY, Judges.
OPINION
Appellant, Special Fund, appeals from a May 16, 2001 opinion by the Kentucky Workers' Compensation Board ("Board"). The Board reversed in part and affirmed in part an opinion and award rendered by the Hon. Donald G. Smith, Administrative Law Judge ("ALJ"). The ALJ awarded Robert Sherrill ("Sherrill") an additional occupational disability due to a subsequent psychological condition and found that the 425- week benefit period began on December 21, 1993, the date of the original settlement agreement. The Board reversed and remanded the ALJ's finding that Sherrill suffered from an additional 30% occupational disability, but it affirmed the ALJ's finding that the 425-week benefit period began on the date of the original settlement agreement.
When reviewing decisions of the Workers' Compensation Board, our function "is to correct the Board only when we perceive that the Board has overlooked or misconstrued controlling law or committed an error in assessing the evidence so flagrant as to cause gross injustice." Daniel v. Armco Steel Company, L.P., Ky.App., 913 S.W.2d 797, 798 (1995). After careful review of the record and the relevant statutory authority, we find that the Board and the ALJ misconstrued controlling law regarding the 425-week benefit period. Therefore, we reverse.
In 1990, Sherrill worked as an underground mine shuttle car operator for Dynasty Resources ("Dynasty"), a coal company. On December 11, 1990, a fully loaded shuttle car struck the shuttle car operated by Sherrill. Due to the impact, Sherrill's head and back struck the canopy of his shuttle injuring him. As a result of his injury, Sherrill filed a claim with the Department of Workers' Claims. Dynasty and Sherrill entered into a settlement agreement on December 21, 1993, in which Dynasty agreed to pay Sherrill a lump sum of $11,739.13 and the Special Fund agreed to pay a lump sum of $10,000.00 for a total of $21,739.13 that represented a 22.6% permanent partial disability. The settlement agreement included attorney's fees and interest.
After four years of unemployment, Sherrill eventually returned to work in 1994. In 1996, while working for a coal company in West Virginia, Sherrill injured himself when he accidently stepped into a hole while cutting weeds. On March 9, 2000, Sherrill filed a motion to reopen his claim for occupational injuries. Sherrill alleged that the 1996 injury had exacerbated his original injuries and that both his physical and psychological condition had worsened since the 1993 settlement.
On April 21, 2000, an arbitrator for the Department of Workers' Claims granted Sherrill's motion, reopened his claim and transferred the claim to the ALJ for further adjudication. On September 25, 2000, Sherrill tried his claim before the ALJ. As previously mentioned, in a November 16, 2000 opinion and award, the ALJ awarded Sherrill an additional 30% occupational disability due to a worsening of his psychological condition. The Special Fund appealed the ALJ's findings to the Board. As mentioned above, the Board reversed in part and affirmed in part. Specifically, the Board affirmed the ALJ's finding that the 425-week benefit period for the original settlement began on December 21, 1993, the date the agreement was entered. This appeal followed.
The Special Fund raises one issue for our consideration, did the Board and the ALJ err when they held that the 425-week benefit period began on the settlement date.
On appeal, the Special Fund argues that KRS 342.730(1)(b) controls when the benefit period shall begin, which is usually after temporary total disability benefits have ceased to be paid. According to the Special Fund, Dynasty stopped paying Sherrill temporary total disability benefits on May 6, 1992. The Special Fund points out that the Board affirmed the ALJ's finding regarding the 425-week benefit period because the original settlement agreement did not address past due interest. However, the Special Fund points out that the settlement agreement did include both attorney's fees and interest, although this term was difficult to read in the photocopies of the agreement. The Special Fund argues that since KRS 342.730 sets the benefit period at the cessation of temporary total disability benefits and since the 1993 settlement agreement affirmatively addressed interest, the Board erred and should be reversed. We agree.
The version of KRS 342.730(1)(b) that was in effect at the time of the Sherrill's original claim reads in pertinent part:
For permanent, partial disability . . . for a maximum period, from the date the disability arises, of four hundred twenty-five (425) weeks. Any temporary total disability period within the maximum period for permanent, partial disability benefits shall extend the maximum period[.]
While no case has directly addressed the issue sub judice, a review of the existing case law clearly shows that the benefit period begins on the date that the permanent partial disability arises. The period of permanent partial disability may begin on the injury date; however, the period of permanent partial disability more often begins to run following a period of temporary total disability, which extends the maximum period for permanent partial disability benefits. See, Palmore v. Peabody Coal Company, Ky.App., 818 S.W.2d 622 (1991) and Beale v. Shepherd, Ky., 809 S.W.2d 845 (1991).
We have found no case law, nor did the Board or the ALJ cite any, that supports the proposition that the settlement date can or should be used to fix the beginning of the 425-week benefit period for permanent partial disability. Furthermore, the Board, in support of its decision, stated that the 1993 settlement agreement did not affirmatively waive past due interest, and, absent such a waiver, the ALJ acted reasonably when it used the settlement date to set the beginning of the benefits period. However, the 1993 settlement agreement stated that the lump sum payments made by the employer and the Special Fund included attorney's fees and interest. Although the copies of the settlement agreement that this court has reviewed are not the most legible, the copy that is in the record does state, "settlement includes attorneys [sic] fees and interest." Sherrill clearly waived any past due interest when he entered into this agreement.
In workers' compensation cases, we, ordinarily, defer to the Board and to the ALJ; however, in the case sub judice, both misconstrued KRS 342.730, which controls the 425-week benefit period, and the Board erred in assessing the evidence, namely the 1993 settlement agreement. Therefore, we reverse the Board and remand to the ALJ with instructions to determine when the 425-week benefit period began according to the provisions set forth in KRS 342.730.
ALL CONCUR.