*1 RAINEY, Lewis, Drs. Fred David Kidd, Appellants,
Astra
v. MILLS,
Gladys Ann John Calhoun
Wells, Compensation and Workers’
Board, Appellees, MILLS, Cross-Appellant, Ann RAINEY,
Drs. Fred David Astra Wells, John Calhoun and Work Board, Cross-Appel
lee. Appeals
Court of of Kentucky.
June 1987.
Case Ordered Published Appeals July
Court Louisville, Fogle, appel-
James G. cross-appellees. lants/ Elizabethtown, Cooper, ap- Thomas pellee/cross-appellant. Louisville, Dockter,
Thomas A. cross-appellee. lee/ HOWERTON, C.J., Before HAYES, COMBS and JJ.
HAYES, Judge:
dispute
compensation
This is a workers’
Spe-
which the
*2
finding
clearly erred in
judgment entered
since the Board
appeal
Fund
from a
cial
claim
reversing and re-
4 in the 1977 settlement
in Hardin Circuit Court
that the S.F.
par-
further
manding
permanent
an order of the Board for
on a
form was based
41%
concerning
ratio,
of occu-
findings
apportionment
as the claim
disability
tial
where
employers.
disability between two
pational
permanent partial rat-
itself recites a
form
Mills,
claimant, cross-appeals
the
10%,
merely
may
the Board
have
challenging
finding
Board’s
oc-
the
61%
figure
present
out of her
carved that 41%
disability and the Board’s refus-
cupational
recovery.
disability to avoid double
61%
fringe
in
calcula-
al to include
benefits
the
appar-
The court surmised that the Board
average
wage.
tion of her
figure
the
from the
ently picked-up
41%
the
“since
employer’s brief before
11, 1982, Gladys Ann
September
On
only place
the
in the record where
that is
nurse,
practical
sustained
a licensed
figure.”
any mention is made of the 41%
injury to her back while
a work-related
Rainey,
employed by Drs.
on
incorrectly
The trial court
relied
Cook
had suffered a com-
appellants herein. She
Service,
Recapping
v. Paducah
October,
pensable
injury in
(1985)
authority
684
for
to reverse
S.W.2d
employed by
Hospital.
Greenview
while
parties.
on an issue not raised
the
Cook
roughly
prior
This
claim was settled for
clearly
a
Board determi-
involved
erroneous
benefits,
$3,000
disability
temporary total
expert
nation
an
witness had stated
that
$28,950
occupa-
plus
permanent partial
in
impairment in
there
no functional
that
was
benefits,
representing
tional
10%
finding
the claimant. This
was relevant
body
to the
as a whole.
finding
of no
dis-
its ultimate
Subsequent
injury,
to her most recent
appeal.
ability,
actually
issue
raised on
temporarily
Board found her to be
to-
the
agreed
Kentucky Supreme Court
with
per
tally
for 84%weeks at $130.67
disabled
claimant/appellant
ultimate
the
that an
week,
occupationally
at
disabled
61%
finding or conclusion of the Board is enti-
period. The Board
expiration
the
of that
upon
findings of
tled to be based
correct
(non-
apportioned
to active
41%
facts, and
the
underlying basic
remanded
compensable),
to the
of a
arousal
10%
entry
of a new deter-
case to the Board
nondisabling condition
preexisting dormant
of the claim.
mination
Fund)
(Special
injury
to the 1982
10%
apportionment
correct
deter
As a
(the employer). She claimed before the
required
disposition
a
was not
mination
Board and circuit court that the evidence
court,
the trial
any of the issues before
finding
perma-
compelled a
total
100%
the case for
hold it was error to remand
we
fringe
occupational disability and that
nent
issue.1 A review
further
on that
average
should be included in her
benefits
the
limit its review to
ing court should
weekly wage.
possible
parties,
as it is
issues raised
rejected
arguments,
her
The circuit court
error,
assignments of
party
to waive
a
remanded for additional
reversed and
but
impliedly.
expressly or
Allen
either
concerning apportionment
findings of fact
Inc.,
Sales,
Mobile Home
O.K.
occupational disability between the 1976
660
570 S.W.2d
parties
injuries. None of the
and 1982
Next,
properly
the issues
we will address
found
the Board or circuit court had
before
claim-
appellate review. The
preserved for
determina-
apportionment
that
error with
compensation must
initially argues that
initiative,
ant
tion;
court,
reject-
on its own
benefits; specifi-
necessarily figure because it determined
ed the contributions,
pension plan
cally, employer
finding
it was based was
on which
that
benefits,
life insur-
health insurance
clearly
The court inferred
erroneous.
bring
However,
appellant
first
must
place
that in such a case
do not
reliance on
we
Natty,
a
authority,
Corporation v.
of the Board in
Eaton Axle
to the attention
lant’s
Ky.,
such failure
(1985),
seeking judicial
case in-
rehearing
as that
688
petition for
before
required
to make a
volved an actual
finding.
failure
Kentucky Supreme
Court held
premiums.
anee
While
appreciate
we
her Board to
occupation-
award less than 100%
theory,
“melon”
wherein
However,
she states “when
disability.
our review is limit-
you bargain
you get
all,”
for a melon
it
we
ed to whether
the evidence before the
have been unable to
statutory support
find
overwhelming
Board was so
as to
to include
benefits. KRS
finding
342.140
favor. Stovall v.
appellant’s
only money Collett,
including
defines
as
not
Ky. App.,
(1984);
rendered,
for services
Sturgill
Fairchild, Ky.,
but:
& Sons v.
*3
(1983).
S.W.2d 796
board, rent,
the reasonable value
Where there is suffi-
of
hous-
ing,
testimony
support
cient
to
lodging, and
the award of the
fuel or similar advan-
Board, it
tage
will not
received from
be disturbed on
Stice,
Snawder v.
gratuities
received in
the course of em-
(1979). In
ployment
the instant
from others
case there was testi-
employer
than the
mony by
Gavin,
to
Dr.
gratuities
orthopedic surgeon
the extent such
reported
are
who
examined Mrs.
that she
purposes.
income tax
is able
perform
to
private
duties of a nurse in a
general phrase
The
“or similar
setting, though
office
he would restrict her
advantage
employer”
received from the
fol
lifting
pounds.
to 25
He stated that he
specific
board, rent,
lows the
items of
hous
apply
would
any patient
like restrictions to
ing
lodging.
or
The
advantage
“similar
undergone
who had
low
surgery.
received” must be of the same class as
Board considered Mrs.
relatively
Mills’
delineated,
those specifically
accordingly to
young age, education, occupation, prior
general principles of statutory construc
work history,
earning
and future
capacity
Corporation,
Nelson v. SAIF
tion.
78 Or.
in finding that she sustained an occupation-
App.
(1986).
Act scope. Lovell v. it’s C.J., HOWERTON, concurs. Mining Corporation, Osborne (1965). Nelson, supra, (Involv S.W.2d 596 COMBS, J., dissents. wages virtually definition identical COMBS, Judge, dissenting: Kentucky’s; Employer-paid in medical pension surance and benefits held not en respectfully I dissent and would affirm compassed in definition of for work remanding the action of the trial court compensation purposes). Wengler v. findings. case to the Board for further Co., Druggists Mutual Ins. Mo.App., (1981), (Blue Cross part held not to be included as
earning. statutory provi Their omission in presumption
sions creates of their exclu
sion).
Appellant urges next us to find an
abuse of discretion in the failure of the