PEABODY COAL COMPANY V. WILLIAM STONE; DICK ADAMS; HONORABLE DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: May 5, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001706-WC
PEABODY COAL COMPANY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-98050
v.
WILLIAM STONE;
DICK ADAMS;
HONORABLE DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
Peabody Coal Company (Peabody) appeals from an
opinion of the Workers’ Compensation Board (the Board) rendered
June 18, 1999 which affirmed the Administrative Law Judge’s (ALJ)
award of total occupational disability benefits to William Stone
(Stone).
We affirm.
Stone sustained a work related injury to his left arm
and shoulder on January 17, 1997, as a result of a fall in a
mine.
Stone, age 58, had been employed by Peabody since 1971.
Prior to that his work history consisted of manual labor jobs,
including factory and assembly line work.
education and has not obtained his GED.
He has a ninth grade
He has not returned to
work at Peabody since his injury, and testified at his deposition
that he has been terminated by Peabody because he cannot perform
his job.
Stone further testified that he can no longer perform
his prior job, and that he has not looked for other work.
Stone
admitted to drawing SSI disability benefits as well as a miner’s
pension.
Stone testified that if he works at a job in which he
would make more than $1,000 per month he would lose his medical
card.
Stone stated that he has problems with heavy lifting over
his head, loss of flexion, problems with rotating his hand, and
constant pain.
Stone’s treating physician was Dr. Agustin Sierra (Dr.
Sierra).
According to Dr. Sierra’s medical records, he treated
Stone for “a rupture of the long head of the biceps and rotator
tendonitis of the left shoulder.”
Dr. Sierra assigned an
impairment rating of 16.8% which he indicated was permanent and
related to the January 1997 injury.
In regard to restrictions,
Dr. Sierra indicated:
Modification in activities. Work that does
not require heavy lifting, pushing and
pulling and that will not require elevation
of the left arm to shoulder level or above
shoulder level.
Stone was evaluated by Dr. Jeffrey Lawrence on January
28, 1998.
Dr. Lawrence agreed with Dr. Sierra’s diagnosis of
rupture of the left biceps muscle, but also noted the presence of
degenerative osteoarthritis in the left AC joint and elbow as
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well as a degenerative tear in the rotator cuff of the left
shoulder.
According to Dr. Lawrence’s written report:
only the rupture of is [sic] his biceps
tendon is work related. The other changes in
his elbow and his left shoulder are due to
degenerative process and not work-related.
Dr. Lawrence also indicated that Stone would be unable to “return
to full duty” due to diminishment of strength in his left arm.
Permanent restrictions would include:
no lifting up to his shoulders more than 35
pounds and no lifting over his shoulders more
than 25 pounds. I would also limit one arm
pulling with his left arm to less than 20
pounds.
Dr. Lawrence assigned a 3% impairment rating.
At his deposition,
Dr. Lawrence testified that this impairment rating did not take
into account any of the arthritic changes.
Stone underwent a vocational evaluation with Dr. Joel
Dill (Dr. Dill) on November 7, 1998.
According to Dr. Dill’s
written report, Stone
will not be able to return to coal mining
work. . . . At his age and with his
background, the chances of being employed at
light work activity outside the coal mines
are slim.
At his deposition, Dr. Dill stated that Stone had no transferable
job skills and that his age would be “a significant factor in
terms of his being able to compete effectively on the job
market.”
Dr. Dill further testified as follows:
Q: Would there be a way that you could state
what percent of the jobs that you’re aware of
that Mr. Stone could perform under the
assessment by Dr. Lawrence and the assessment
by Mr. Stone himself of his restrictions?
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A: Well, I think in terms of performing that
it would all be fairly consistent. I think
he could perform light and sedentary, which I
think would get into approximately thirty
percent of the jobs of unskilled, entry-level
jobs that he could perform.
Dr. Dill agreed that this translated into a 70% vocational loss.
Stone filed his application for benefits on May 7,
1998.
Following a benefit review determination in which the
arbitrator assigned a permanent partial disability rating of
37.8%, Stone sought a de novo review before an ALJ, arguing that
he was totally disabled.
In an opinion and award entered
February 26, 1999, the ALJ found Stone to be totally disabled,
stating:
Plaintiff’s disability must be based upon an
impairment rating unless the Plaintiff is
found to be totally disabled. KRS
342.0011(11) defines “permanent total
disability” as “the condition of an employee
who, due to an injury, has a permanent
disability rating and has a complete and
permanent inability to perform any type of
work as a result of an injury.” KRS
342.001(34) also defines “work” as “providing
services to another in return for
remuneration on a regular and sustained basis
in a competitive economy.” Based on these
definitions, this Court does believe that the
Plaintiff is now suffering a total
occupational disability of 100% pursuant to
statute. This Court found the Plaintiff’s
testimony to be very credible regarding both
his pain and restrictions. Dr. Sierra also
placed restrictions on the Plaintiff’s
activities that severely limit his ability to
do any sort of work. This Court believes
that one must still be able to “compete” for
any type of work based on KRS 342.0011(34)
which considers work “in a competitive
economy.” Even if one were not to consider
Plaintiff’s ability to compete for jobs, this
Court seriously doubts Plaintiff would be
able to perform a job “on a regular and
sustained basis” due to his pain and
restrictions.
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The Board affirmed the ALJ’s award of total disability benefits
in an opinion rendered June 18, 1999, holding:
In order to accurately define the meaning of
permanent total disability under the Workers’
Compensation Act as it was modified on
December 12, 1996, one must consider the
definition of “work” as contained in KRS
342.0011(34). Placing these two definitions
together, one is directed to consider the
following:
The condition of an
employee who, due to an
injury, has a permanent
disability rating and has
a complete and permanent
inability to perform any
type of work (providing
services to another in
return for remuneration
on a regular and
sustained basis in a
competitive economy) as a
result of an injury . . .
KRS 342.0011(11)(c); and
KRS 342.0011(34).
The Legislature by defining work in part with
the use of the phrase “competitive economy”,
establishes that in determining whether an
individual is totally occupationally disabled
not only is their performance of a job at
issue but their ability to “compete” for a
job is at issue. Here, we believe the
evidence upon which the ALJ relied probably
established that on a theoretical basis Stone
could “perform” some work. That evidence,
including the testimony of Stone himself,
however, led to a reasonable conclusion,
reasonable inference, that he could not
effectively compete for a job.
. . .
The remaining analysis in determining whether
an individual is totally occupationally
disabled is to determine whether there is a
permanent disability rating and there was.
Dr. Lawrence assigned a 3% functional
impairment . . . and Dr. Sierra a 16.8
functional impairment. . . . Further, the ALJ
did not limit himself in considering the
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impact of this injury on Stone’s vocational
opportunities to the “local labor market”
and, therefore, we believe he performed a
supportable analysis in reaching his
conclusion.
This appeal followed.
Peabody contends that Stone is not permanently and
totally disabled for purposes of the December 1996 amendments to
Kentucky’s Workers’ Compensation Act (Chapter 342).
Peabody
maintains that in order to be totally disabled, Stone must prove
that: (1) he has a permanent disability rating; and (2) he is
completely and totally unable to perform any work as a result of
his injury.
Pointing to evidence in the record which showed that
there were jobs available to Stone which would accommodate the
restrictions placed on him, Peabody maintains that Stone is not
totally disabled.
We disagree.
For purposes of Chapter 342, “permanent total
disability” and “work” are given specific definitions.
Under the
provisions of KRS 342.0011, “permanent total disability” is
defined as:
the condition of an employee who, due to an
injury, has a permanent disability rating and
has a complete and permanent inability to
perform any type of work as a result of an
injury[.]
KRS 342.0011(11)(c).
“Work” is defined as the act of “providing
services to another in return for remuneration on a regular and
sustained basis in a competitive economy.”
KRS 342.0011(34).
Peabody would have us find that in order to be totally disabled,
Stone must show that he is unable to work 40 hours per week in a
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job available in the competitive economy as opposed to a “make
work” job designed to accommodate a disability.
When a particular word contained in a statute is given
a particular definition by the Legislature, we must use that
definition in construing the statute.
Ky., 677 S.W.2d 876 (1984).
Baker v. Commonwealth,
We believe that the Board’s
construction of “work” in light of the definition contained in
KRS 342.0011 is correct in that an injured worker must be unable
to compete with other potential employees for available jobs
before being found to be totally disabled.
We believe that this
construction of the statue is similar to that relied upon by
Peabody in that it requires the injured employee to compete for a
job on the open market instead of falling back on “make work”
jobs or relying on the largesse of friends or family members who
may be able to carry him on the payroll.
If Stone is truly able
to perform at any type of work but is unable to compete with
others in the job market to obtain those jobs, under the terms of
KRS 342.0011 he is totally disabled.1
Having considered the parties’ arguments on appeal, the
opinion of the Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, WILLIAM
STONE:
Peter J. Glauber
Walter E. Harding
Louisville, KY
Dick Adams
Madisonville, KY
1
The same conclusion was reached by a separate three-judge
panel of this Court in Ira W. Watson Department Store v.
Hamilton, 1998-CA-003100-WC.
Discretionary review of Hamilton
is currently pending before the Kentucky Supreme Court.
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