Transport Motor Express, Inc. v. Finn

GANT, Judge. This is an appeal from a judgment of the Jefferson Circuit Court affirming an award of the Workmen’s Compensation Board to the appellee in the amount of $35.97 per week from the employer and $35.97 from the Special Fund. The facts are not in dispute, both appellants and appellees agreeing that the sole questions are questions of law and not fact. The agreed facts are as follows: 1. The appellee is 100% disabled at the present time. 2. Appellee had a prior disability which had been previously compensated by various methods to the extent of 50%. 3. 25% of appellee’s disability is attributable to his work-related injury. 4. 25% of the appellee’s disability is attributable to the arousal into further disabling reality of a pre-existing dormant condition. 5. Appellee’s average weekly wage at the time of the injury was $261.60. 6. The maximum award permitted, at the time of the injury, under KRS 342.-740(1) was $84.00. The first argument of the appellants is concerned with the procedure followed by which the final award was reached. The Board entered its first opinion on October 18, 1976, awarding the appellee $71.94 per week, payable equally by the appellants and the Special Fund. Appellants filed a petition for reconsideration and the Board reduced the award to $42.00 per week, again divided equally, by its order dated November 15,1976. On November 22,1976, appel-lee filed a motion to set aside the November 15 order on the grounds of mistake in the manner of computation, which motion was sustained and the original award was restored. The appellants argue that KRS 342.281 requires the claimant to file a petition for reconsideration within 14 days after the award is made and that his failure to do so bars reconsideration by the Board. However, in the instant case, the claimant had no reason to ask the Board for reconsideration of its original award and it was only the subsequent award that was objectionable to him. His motion was filed within seven days of the order reducing the payment. This Court is aware of the fact that some confusion exists in the recent Workmen’s Compensation cases and we will therefore present to the Workmen’s Compensation Board, the lower courts and to the practicing attorneys the formula to be used in computing percentages and compen [511] sation and apply this formula to the instant case. This formula shall pertain to all cases of permanent total disability and permanent partial disability. PERCENTAGE COMPUTATIONS STEP 1. The Workmen’s Compensation Board shall translate the percentage of functional disability into the percentage of occupational disability. Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 128 (1977). The percentage of occupational disability attributable to the employer, non-compensable disability and the Special Fund shall be fixed by the Board in the following order and in the following manner (Young v. Fulkerson, Ky., 463 S.W.2d 118 [1971]; Yocom v. Spalding, Ky., 547 S.W.2d 442 [1977]): (a) Determine the employer’s percentage of liability by affixing the percentage of disability attributable to his work-related injury alone. Young v. Young, Ky., 460 S.W.2d 832 (1970); Young v. Fulkerson, supra. In the instant case this was done and that percentage was fixed at 25%. (b) Determine the percentage attributable to the non-compensable or non-compensated disability or disabilities. This computation is for the sole purpose of assistance in computing percentage attributable to the employer and the Special Fund. It is never used again in compensation computations set out herein. In the instant case, the appellants urged that KRS 342.120(4) requires that any prior disability, whether compensated or not, shall be excluded from consideration. With this we agree, but “excluded” does not mean “deducted from” the compensation. As this Court stated in Yo-com v. Reid, Ky.App., 24 Ky.L.Summ. 9 (June 17, 1977): In no event shall the non-compensable disability be applied to reduce the allowable income benefits which a claimant may receive as long as those benefits do not exceed the maximum as set forth in KRS 342.740. The amount assignable to non-compensable disability is already excluded by the method of determination. Additionally, KRS 342.120(4) is available only to reduce the liability of the Special Fund and not to reduce the liability of the employer. In this case, the non-compensable percentage was fixed at 50%. (c)Determine the percentage of liability of the Special Fund, if any, under KRS 342.120. This percentage shall be the percentage of disability remaining after deducting the portion attributable solely to the work-related injury and the non-com-pensable or non-compensated disability or disabilities. In other words, the sum of (a), (b), and (c) must equal the total percentage of the claimant’s disability as found by the Board. Young v. Young, supra. In the instant case, the Board fixed this percentage at 25%, and the total of the three percentages equalled 100%, the total percentage of claimant’s disability as found by the Board. COMPENSATION COMPUTATIONS STEP 2. Determine the greater of: (a) Lost wages. Mills v. Parsley, Ky. App., 24 Ky.L.Summ. 7 (May 20, 1977); Apache Coal Co. v. Fuller, Ky., 541 S.W.2d 933 (1976); Bartley & Bartley Coal Co. v. Ratliff, Ky.App., 24 Ky.L.Summ. 8 (May 27, 1977); Liberty Engineering and Manufacturing Co. v. Granger, Ky.App., 548 S.W.2d 845 (1977); or (b) 55% of the claimant’s average weekly wage as defined by KRS 342.140 and two and one-half per cent (2.5%) of his average weekly wage for each dependent as defined by KRS 342.075, up to a maximum of three. KRS 342.730(1). For claims filed after January 1,1977, this percentage shall be 66⅜%, irrespective of the number of dependents. The claimant here had no dependents and applying the 55% to his average weekly wage of $261.60 we arrive at the sum of $143.88. STEP 3. Determine the weekly maximum income benefits as per KRS 342.-740(1). This is computed by taking 60% of the average weekly wage of the state as prescribed by KRS 342.143. In any event, this sum shall not exceed the average weekly wage of the injured employee. [512] It was stipulated herein that the weekly maximum income benefits at the time of this injury were $84.00. STEP 4. EMPLOYER. Determine the compensation payable by the employer by multiplying the percentage attributable to him as found in Step 1(a) by the amount found under Step 2. C. E. Pennington Co., Inc. v. Winburn, Ky., 537 S.W.2d 167 (1976); Yocom v. Hopkins, Ky.App., 548 S.W.2d 151 (1977); Yocom v. Reid, Ky.App., 24 Ky.L. Summ. 9 (June 17,1977). (a) If this product is equal to or greater than the maximum weekly benefits in Step 3 then the employer’s liability is fixed at the amount as computed in Step 3 and this is the total compensation to be paid to the claimant. In this event, the computations would cease here. KRS 342.740(1). In the case before us, the Board properly applied this procedure and multiplied the 25% disability attributable to the employer times the $143.88 arrived at under Step 2(b) and affixed the employer’s liability at $35.97. (b) SPECIAL FUND. If the employer’s liability as computed hereinabove is less than the amount as set forth in Step 3, then the maximum liability of the Special Fund shall be determined by multiplying Step 1(c) by Step 2. The Special Fund’s actual liability is then determined in the following manner: (i) If the sum of the employer’s liability and the allowable Special Fund’s liability is less than Step 3, then the Special Fund’s liability is equal to the allowable Special Fund liability as computed above. (ii) If the sum of the employer’s liability and the allowable Special Fund liability is greater than Step 3, then the amount payable by the Special Fund is the difference between the employer’s liability and Step 3, the maximum weekly income benefits. In this case, the Board properly applied this formula and multiplied the 25% determined under Step 1(c) times the amount determined in Step 2(b) and arrived at the liability of the Special Fund in the amount of $35.97. The sum total of both the employer and the Special Fund was $71.94, being less than the maximum weekly income benefits as per KRS 342.740(1) and thus the allowable amount was payable by the Special Fund. Had the claimant herein cross-appealed, he would have been entitled to lost wages as indicated in Step 2(a), as the stipulated fact that he was totally and permanently disabled establishes that his loss of wages was $261.60. This formula as herein set out would have imposed a liability on the employer of 25% of that amount, which would have been $65.40, and the liability of the Special Fund would have been $18.60, as computed by Step 4(b)(ii), above. See KRS 342.620(9); KRS 342.730(l)(b). Also, the Special Fund did not raise this issue on appeal. STEP 5. PREVIOUS AWARD, SETTLEMENT OR VOLUNTARY PAYMENT. Where a claimant is receiving compensation from a previous award, including schedule losses under KRS 342.730(l)(c), settlement or voluntary payments the compensation shall be computed as follows: (a) Deduct the amount of the weekly payments for the prior disability from the amount determined in Step 3. Osborne Mining Corp. v. Blackburn, Ky., 397 S.W.2d 144 (1965); Cabe v. Skeens, Ky., 422 S.W.2d 884 (1967). The difference shall then constitute the new weekly maximum income benefits to be used in the computations in Step 4 in lieu of the amount originally determined in Step 3. (b) When the amounts due from the previous award, settlement or voluntary payments are exhausted, the liability of the employer and the Special Fund shall be determined in Step 4 by using the original weekly maximum income benefits determined in Step 3. See 2 Larson’s Workmen’s Compensation Law, 59.41 at 10—341; 59.42 at 10-345. A claimant is deemed to be receiving compensation whether it is from periodic payments or from a previous lump sum payment calculated over a period of time which overlaps with the period of time of [513] compensation now under consideration. If the previous compensation was in a lump sum payment, the amount of the previous compensation for purposes of these computations is the amount and period of time of compensation as found by the Board and not the lump sum award actually received by the claimant distributed over the time of the compensation. General Refractories Co. v. Herron, Ky.App., 566 S.W.2d 433 (1977). In the instant case, the evidence disclosed that the claimant had received some payment for a dislocation of the right shoulder in the 1960’s, a disability to his hand for which he had received further payments and that both of these payments had ceased prior to this injury so that Step 5 was not applicable herein. Additionally, the claimant had received a disabling injury at the hands of a third party and, although he had made claims against both the third party and his employer under his Workmen’s Compensation, the recovery was had from the third party and no disability payments had been made under Workmen’s Compensation. It is the opinion of this Court that the formula above set out was properly followed by the Workmen’s Compensation Board and the judgment of the lower court is affirmed. To avoid confusion and to enable preparation for the making of the determinations required under this opinion, this opinion will have prospective application only, and shall not constitute grounds for review of previous awards as provided in KRS 342.-125. All concur. PARK, J., concurs in the result by separate opinion, in which MARTIN, C. J., and WILHOIT, J., join. VANCE, J., also concurs by separate opinion.