Spurlin v. Brooks

COOPER, Justice,

dissenting.

It is undisputed at this point that Appellee Brooks is 100% disabled and that his disability is apportioned as follows:

(1) 66%% due to the 1986 injury while the employer was insured by Liberty Mutual, which is apportioned 33%% against the employer (Liberty Mutual) and 33%% against the Special Fund;

(2) 33%% due to the 1990 accident while the employer was insured by GAB, which is apportioned 16%% against the employer (GAB) and 16%% against the Special Fund.

The issue is the rate and duration of compensation to be paid to Brooks for the 1986 and 1990 injuries and whether Brooks can be compensated for 100% disability following the 1990 injury. Permanent partial disability benefits are paid for 425 weeks at a rate equal to 66%% of the employee’s average weekly wage (AWW), but not to exceed an award equal to 75% of the state AWW. KRS 342.730(l)(b). Total disability benefits are paid for life at a rate equal to 66%% of the employee’s AWW, but not to exceed an award equal to 100% of the state AWW. KRS 342.730(l)(a).

Under the holding in Campbell v. Sextet Mining Co., Ky., 912 S.W.2d 25 (1995), Brooks would be entitled to total disability benefits payable from the date of the 1986 injury, despite the fact that the 1986 injury did not render him totally disabled. The correct view is expressed in Johnson v. Scotts Branch Coal Co., Ky.App., 754 S.W.2d 555 (1988), i.e., an award of compensation for disability resulting from a prior injury cannot be enhanced because of the effects of a subsequent injury. Therefore, for the 1986 injury, Brooks is entitled to be paid only at the rate and for the duration allowed for permanent partial disability, regardless of the effect of his 1990 injury.

For his 1990 injury, Brooks is entitled to be paid at the rate and for the duration allowed for total disability, regardless of the fact that the 1990 injury would not itself have resulted in total disability. Teledyne-Wirz v. Willhite, Ky.App., 710 S.W.2d 858 (1986). However, any percentage of his present disability which represents prior active disability must be excluded in calculating the percentage of disability compensable for the 1990 injury. Id. at 860; Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277 (1978); Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971). Thus, the percentage of disability attributed to the 1986 injury for which Brooks is being compensated as a permanent partial disability must be excluded from the award for the 1990 injury.

Therefore, Brooks is entitled to a 66%% permanent partial disability award for the disability he incurred as a result of the 1986 injury and a 33%% award payable at the rate and for the duration of a total disability award for the disability he incurred as a result of the 1990 injury. Instead, the majority opinion merely reaffirms Campbell, supra, with a new twist. It (1) gives Brooks a 66%% permanent partial disability award payable by Liberty Mutual and the Special Fund from and after the date of the 1986 injury; then (2) gives him a 100% total disability award for the combined effects of both the 1986 and 1990 injuries, payable by GAB and the Special Fund from and after the date of the 1990 injury, subject to a credit for the amounts payable by Liberty Mutual and the Special Fund after the date of the 1990 injury for the balance of the permanent partial disability award for the 1986 injury. Thus, Brooks gets a 100% total disability award as a result of the 1990 injury which, absent the prior active disability for which he is being separately compensated, would have resulted in only a 33%% disability.

In essence, the majority has reaffirmed Campbell, except that the total disability payments are not to begin until after the date of the second injury and the liability previously imposed upon the first insurer has been shifted to the second insurer. I would overrule Campbell and award Appellant the compensation to which he is entitled by the statutory scheme and our pre-Campbell precedents. Therefore, I respectfully dissent.