Opinion
March 8, 1968.
Appeal from the Circuit Court, Floyd County.
Fred G. Francis, Howard, Francis Howard, Prestonsburg, for appellants.
W.W. Burchett, Prestonsburg, Thomas R. Emerson, Frankfort, for appellees.
In this workmen's compensation case the circuit court confirmed an award of total and permanent disability benefits against the appellant employer. The only issue on appeal is whether the Board should have apportioned the award between the employer and the Special Fund in accordance with the report of a physician who was appointed under KRS 342.121.
In 1944 the employee had severely injured his right leg and was disabled for several years (for which he received compensation). After returning to work with appellant, he received an injury to his back which resulted in the present claim. Admittedly he is now totally disabled.
It appearing that the employee's present disability was to some extent attributable to his prior injury, on motion of both parties the Special Fund was made a party to the proceeding. KRS 342.120. The Board appointed Dr. T. Rothrock Miller to make a determination of the proper apportionment of liability under the provisions of KRS 342.121. He filed his report in which his findings were in substance that the employee's total disability was 50 percent, the latest injury produced a disability of 15 percent, and the preexisting injury and an arthritic condition contributed 35 percent. The deposition of Dr. Miller was taken and he testified that his percentages related to "functional" disability, which must be distinguished from "vocational" disability.
Under KRS 342.121(4) the findings of Dr. Miller with respect to medical questions were conclusive upon the Board "unless specific objections thereto" were filed with the Board. The employee did make timely application for review and did object to Dr. Miller's findings. These objections, however, were that the employee was totally and permanently disabled and Dr. Miller's percentages should have equaled 100 percent (rather than 50 percent). No objection was made to the percentage apportionment of disability as between the employee's latest injury and his pre-existing condition. Those findings must be accepted as conclusive since they are neither inconclusive, incomplete nor ambiguous. Deby Coal Company v. Caldwell, Ky., 383 S.W.2d 905.
The employee's objection to Dr. Miller's report raised only the question of translating functional disability into vocational disability, which was a matter that should have been addressed to the Board rather than to the report.
In Ed Hall Drilling Company v. Profitt, Ky., 424 S.W.2d 403, we held that the unequivocal findings in such a report (responsive to the medical question involved) must be accepted by the Board to the extent they are not questioned by specific objections. Here the employee's only objection was that the percentages should be in terms of vocational rather than functional disability, but no question was raised as to the correctness of the apportionment. Such being the case, the Board was bound by the apportionment.
The employer admits and the proof establishes that the employee, from a vocational standpoint, is totally and permanently disabled. To convert Dr. Miller's percentages of functional disability into vocational disability simply requires the doubling of his figures. Since the employee is 100 percent disabled, 30 percent is attributable to the last injury and 70 percent to the pre-existing condition. Therefore the award should have apportioned liability as between the employer and the Special Fund on that basis.
The judgment is reversed, with directions to remand the case to the Workmen's Compensation Board for the entry of an award consistent with this opinion.
All concur.