Stovall v. Stumbo

WILHOIT, Judge,

dissenting:

I respectfully dissent from the majority opinion. I believe the following statement found in the opinion of the Workers’ Compensation Board takes a realistic approach to this case and that the Board’s result in this respect does not violate either statute or case law:

[A]n employee, although adjudicated permanently and totally disabled and fully compensated therefore (sic), may thereafter acquire a wage earning capacity. If he then suffers a subsequent injury which deprives him of such newly acquired wage earning capacity, he may be entitled to compensation for such loss.

Our courts have long recognized, just as human experience teaches us, that a wage earner who has been disabled and cannot work for an extended period of time may in the future be able to resume gainful employment. See Inland Steel Co. v. Mosby, Ky., 375 S.W.2d 268 (1964). The former KRS 342.730(3) (repealed 1982) does not preclude an award in this case. That statute referred to “any scheduled benefits payable” (emphasis added), and we are not concerned here with scheduled benefits but with benefits paid for total disability subject to the 425-week limitation contained in the former KRS 342.095 (repealed 1972, effective Jan. 1,1973). I believe the proper disposition of this case, in view of the strong evidence that even though the claimant had returned to gainful employment he still suffered some occupational disability, would be to remand the matter to the Board for an apportionment of his disability at the time of his return with that when he became again totally disabled. That portion of his present disability which existed when he returned to work has already been compensated for and would no longer be compensable; the balance would. Cf. Yocom v. Hayden, Ky., 566 S.W.2d 776 (1978).