LEONARD GOMILLIA v. BAESEL & ASHER ENTERPRISES; UNINSURED EMPLOYERS' FUND; SPECIAL FUND; J. LANDON OVERFIELD, ADMINISTRATIVE LAW JUDGE; AND THE WORKERS' COMPENSATION BOARD
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RENDERED: JULY 30, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2004-CA-000109-WC
LEONARD GOMILLIA
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 97-01459
v.
BAESEL & ASHER ENTERPRISES;
UNINSURED EMPLOYERS’ FUND; SPECIAL FUND;
J. LANDON OVERFIELD, ADMINISTRATIVE LAW
JUDGE; AND THE WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON, AND KNOPF, JUDGES.
KNOPF, JUDGE:
Leonard Gomillia appeals from an order of the
Workers’ Compensation Board, entered December 17, 2003,
affirming the denial of his motion to reopen a 1998 award.
The
Administrative Law Judge (ALJ) found that any change in
Gomillia’s medical condition was the result not of Gomilla’s
August 23, 1996, injury, the injury that gave rise to the 1998
award, but of prior injuries.
Gomillia contends that a
causative link between his 1996 injury and the worsening of his
condition is res judacata.
We agree with the Board that it is
not.
Gomillia is forty-three years old with a history of
sporadic employment through labor services and independently
arranged odd jobs.
He injured his lower back in 1985 while
working for the Gilliam Candy Company.
He underwent surgery and
settled his claim.
In 1992, he aggravated the injury and had
two more surgeries.
Again in 1994 he sustained a back injury
and underwent a fourth surgery.
In 1995, he reopened his claim
and settled for approximately $60,000.00.
In August 1996, while
working as a roofer for Baesel & Archer Enterprises, he injured
his low back again, which necessitated a fifth surgery in
November 1996.
Gomilla’s claim for benefits following this 1996
injury resulted in a finding that he had a seventy-percent
occupational disability, sixty percent pre-existing and active
and ten percent related to the 1996 injury.
was awarded benefits for 520 weeks.
In October 1998, he
It is this award that
Gomilla seeks to reopen.
In support of his claim he presented the deposition of
Dr. Dan M. Spengler, an orthopedic surgeon and chairman of the
department of orthopedics at the Vanderbilt University School of
Medicine.
Dr. Spengler, who operated on Gomilla’s back in
January 2001, February 2001, and March 2002, testified that
2
Gomilla suffers from transition syndrome and that his medical
condition and occupational disability have indeed worsened since
his surgery in November 1996.
Dr. Spengler explained
“transition syndrome,” as follows:
[T]ransition just means that you fix a
segment [of the spine], and then the segment
above breaks down and you fix that, and then
the one above that. That’s sort of unusual,
but that’s what Mr. Gomillia had.
When asked if it was possible to tell what part of
Gomillia’s worsened condition was attributable to the 1996
injury as opposed to the original injury in 1985, Dr. Spengler
said,
That’s very difficult. My philosophy is
that most of this built on his original
problem. So I would say if you’re looking
at it, it’s whatever would cause the
original problem. All the rest of it, to
me, has been related.
On the basis of this testimony, the ALJ found that
Gomillia’s worsened condition was not the result of the 1996
injury and so concluded that the award for that injury could not
be increased.1
The Board affirmed, and it is from that
affirmance that Gomillia has appealed.
1
Whittaker v. Ivy, Ky., 68 S.W.3d 386, 388 (2002) (“It is
axiomatic that a worker who seeks an increased award at
reopening must demonstrate that the increased disability for
which compensation is sought is the direct and proximate result
of the injury that is the subject of the award.”)
3
He contends that the 1998 finding that ten percent of
his disability was the result of the 1996 injury is res judicata
and that the same percentage should therefore have been applied
to the increase in his disability since that finding.
Gomillia’s conclusion, however, does not follow from his
premise.
Although the 1998 apportionment is res judicata with
respect to the disability that then existed,2 that finding has
nothing to do with the additional disability that subsequently
developed.
The additional disability could have been the result
of a new injury or any combination of the prior injuries.
The
only medical evidence—Dr. Spengler’s opinion—was that the
additional disability probably resulted from Gomillia’s original
injury, not the injury in 1996.
The ALJ’s finding in accordance
with that testimony was not flagrantly erroneous.3
Finally, Gomillia contends that he is entitled to
life-time benefits solely by virtue of the facts that he is now
totally occupationally disabled and that his disability is the
result of work-related injuries.
2
We disagree.
KRS 342.125
Garrett Mining Company v. Nye, Ky., 122 S.W.3d 513 (2003).
3
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88
(1992) (“The function of further review of the WCB [Board] in
the Court of Appeals is to correct the Board only where the
Court perceives the Board has overlooked or misconstrued
controlling statutes or precedent, or committed an error in
assessing the evidence so flagrant as to cause gross
injustice.”)
4
allows for awards to be increased only in the course of a
reopening.
Gomillia’s 1998 award cannot be increased, however,
because, as we have seen, the injury underlying that award did
not cause Gomillia’s increased disability.
Gomillia’s earlier
award can no longer be reopened because of the reopening
statute’s limitations provisions.4
Thus, notwithstanding
Gomillia’s total disability, the Board did not err by affirming
the denial of his claim.
Accordingly, we affirm the Board’s
December 17, 2003, order.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE WORKERS’
COMPENSATION FUNDS:
Rodger W. Lofton
Paducah, Kentucky
David W. Barr
Frankfort, Kentucky
BRIEF FOR APPELLEE UNINSURED
EMPLOYERS’ FUND:
Gregory D. Stumbo
Attorney General
Elizabeth A. Myerscough
Assistant Attorney General
Frankfort, Kentucky
4
KRS 342.125(8).
5
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