Peabody Coal Co. v. GossettPeabody Coal Co. v. Gossett
This workers’ compensation case involves the application of
In this case, claimant alleges that his unsuccessful attempts at reemployment following his layoff from work were due to his original injury although his physical condition had not worsened. He maintains that pursuant to the amended version of
Claimant was originally awarded compensation benefits in 1981, as the result of a work-related eye injury. The Old Workers’ Compensation Board opinion noted that claimant returned to his prior occupational classification some five months after the injury. Dr. Pate, claimant’s treating physician, found a 100% impairment of useful vision in claimant’s right eye, which translated to a 24% impairment to the body as a whole. Dr. Dill, a psychologist and vocational counselor, testified that it would be extremely difficult for claimant to obtain employment in the coal mining industry. The Board found that claimant suffered an occupational disability of 35%.
In February of 1988, following his layoff on July 23, 1984, claimant filed a motion to reopen on the grounds that he had sustained additional occupational disability over and above that for which he was compensated. In support of his motion, claimant attached his own affidavit stating that during the last two-year period since his layoff, he had unsuccessfully sought to obtain other employment with at least 18 coal mines; that at least half of the applications required information regarding previous injuries; that throughout the period of time that he was applying for a job with the 18 mines, at least 11 were hiring employees; and that of those applicants hired, many were inexperienced as compared to his 13 years employment with Peabody Coal. Claimant concludes that he has been unsuccessful in obtaining employment as an effect of the loss of his vision, and therefore his occupational disability has increased since the time of the award.
In denying the motion to reopen, the Old Board found that claimant’s motion and affidavit did not contain medical reports of any physician to substantiate the claim that he suffered an increase in functional or occupational disability due to his eye injury; therefore, he had failed to make the prima facie showing necessary for a reopening.
The claimant appealed to the New Board which reversed the dismissal by the Old Board. The New Board stated that the amendment to
The employer appealed to the Court of Appeals which affirmed the New Board’s reversal. The Court of Appeals noted that it was presented a single issue of first impression: “Did the 1987 amendment to
Appellant, the employer, argues on appeal to this Court that in spite of the 1987 amendment, a disabled employee must still show a change in physical condition to justify reopening. Appellant contends that the amendment does not revolutionize the standard, for workers’ compensation benefits have always been awarded on the basis of occupational disability.
Osborne v. Johnson,
Ky.,
In
Continental Air Filter Company v. Blair,
Ky.,
During the 1987 extraordinary session, the General Assembly took such action and amended the requirement for reopening from a change in “condition” to a change in “occupational disability”. Disability for workers’ compensation purposes means “a decrease of wage earning capacity due to injury or loss of ability to compete to obtain the kind of work the employe is customarily able to do in the area where he lives, taking into consideration his age, occupation, education, effect upon employe's general health of continuing in the kind of work he is customarily able to do, and impairment or disfigurement.” KRS 342.-0011(11). Pursuant to the amended version of
Accordingly, an award may now be reopened upon a showing of a change in occupational disability which may be supported by evidence of both physical changes and economic changes, when those economic changes are not brought on by the willful intent of the employee nor by mere changes in economic conditions such as a recession or plant closing. Thus, a change in claimant’s ability to get or hold employment, or to maintain his earlier earning level, could logically be considered a change in occupational disability even though claimant’s physical condition may have remained unchanged. We stress, however, that the claimant moving for reopening has the burden of showing that the decrease of wage-earning capacity, whether the result of physical deterioration or subsequent unemployability without a physical change, is due to the effects of the injury in order for an award to be increased. Therefore, in the case at bar, claimant must prove that he was frozen out of the labor market-because of the particular effects of his injury and not merely because of general economic circumstances.
The 1987 amendment codifies the holding of a case where the employer moved to reopen the award due to a change of conditions since the employee was able to return to work.
Mitsch v. Stauffer Chemical Company,
Ky.,
1987 Kentucky Workers’ Compensation Law,
by former Senator H. Edward O'Daniel, Jr., contains the 1987 amendments to the Act followed by the author’s comment. Regarding the amendment to
The amendment repeals Blair to the extent that the case required a change in functional disability or physical condition for reopening. The amendment does not, however, allow reopening for a mere change in economic conditions. To do so would invite a multitude of reopenings during an economic recession or even at the time of a major plant closing.
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Occupational disability, and not functional disability, was recognized as the basis for an award of disability benefits in
Cook v. Paducah Recapping Service,
Id. § 16, pp. 65-66.
The appellant also argues that the 1987 amendment to
A retrospective law, in a legal sense, is one which takes away or impairs vested rights acquired under existing laws, or which creates a new obligation and imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. Therefore, despite the existence of some contrary authority, remedial statutes, or statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, do not normally come within the legal conception of a retrospective law, or the general rule against the retrospective operation of statutes. In this connection it has been said that a remedial statute must be so construed as to make it effect the evident purpose for which it was enacted, so that if the reason of the statute extends to past transactions, as well as to those in the future, then it will be so applied although the statute does not in terms so direct, unless to do so would impair some vested right or violate some constitutional guaranty. 73 Am.Jur.2d Statutes § 354 (1974) (Footnotes omitted.)
Although
Finally, appellant argues that the claimant’s affidavit and application are insufficient to support his motion to reopen under any interpretation of
We agree with the Workers’ Compensation Board and the Court of Appeals