Opinion
August 24, 1979. As Modified September 14, 1979.
Appeal from the Letcher Circuit Court, F. Byrd Hogg, J.
Denis S. Kline, Asst. Counsel, Dept. of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept. of Labor, Frankfort, for James R. Yocom.
Richard D. Cooper, Cooper, Gullett, Combs Holliday, Hazard, for Willie West.
John D. Hays, Stratton, May Hays, Pikeville, for Letcher County Bd. of Ed.
Before Full Court sitting En Banc.
This is an appeal from a holding of the Letcher Circuit Court affirming an Opinion and Award by the Workmen's Compensation Board. Both the employer and the Special Fund appeal in separate actions which we have consolidated for the purposes of this opinion.
Willie West, under circumstances which have no bearing on this appeal, injured his back in the performance of his job duties as a custodian for appellant Letcher County Board of Education. The Board found a temporary total disability, to be compensated at the rate of $96.00 per week. It also found a 25% permanent partial disability of which 10%, i. e. 2/5 of the total, was due to a prior active condition, and thus noncompensable. The Board apportioned the remaining 15%, 1/2 to the employer on the basis that 3/10 of the total disability was attributable to the job related injury, and 1/2 to the Special Fund on the basis that 3/10 of the total disability was due to a pre-existing dormant condition.
The Board applied the Apache v. Fuller, Ky., 541 S.W.2d 933 (1976), minimum to a calculation of West's usual income according to Transport Motor Express Co. v. Finn, Ky., 574 S.W.2d 277 (1978), raising his award from $13.90 per week to $32.00 per week. The first issue which we will consider on appeal is whether the claimant's award should be reduced by the proportion of his disability which, but for the Board's application of Apache, would have been excluded as being due to a prior active condition.
The amount of the award is challenged on three grounds: (1) that the Apache decision is unconstitutional; (2) that Finn, in effect, overrules Apache; and, (3) that because of specific statutory language which takes precedence, Apache is not here wholly applicable.
As to the first contention, we of course decline to review the constitutionality of a decision made by the Supreme Court of Kentucky with, we are sure, full cognizance of constitutional issues.
Similarly, since the majority opinion in Finn, supra, did not suggest that it intended to disturb Apache, we must assume that no such result was intended.
We do, however, hold that the express language of KRS 342.120(4), i. e. that all compensation for a prior disabling disease or condition shall be excluded from the award is controlling in this situation.
We believe that the method by which to honor the mandate of KRS 342.120(4) and, at the same time, to give Apache the appropriate application, is to begin by raising a claimant's award to the Apache minimum, and then calculating the appropriate proportionate reduction.
If we begin with the Board's result, i. e. $32.00 per week, of which $16.00 is owing from the employer and the other $16.00 is payable by the Special Fund, we calculate the exclusion as follows: (Step I.) $16.00 X 2/5 = $6.40; and (Step II.) $16.00 — $6.40 = $9.60. Thus the weekly amount owing from each appellant for appellee's permanent partial disability is $9.60. West's total weekly award should then be $19.20.
Appellants point out in their briefs, and appellee's brief does not seriously dispute, that the temporary total disability award of $96.00 per week was calculated prior to the issuance of Transport Motor Express, Inc. v. Finn, supra. The Board applied the "lost wages" method rather than the formula set out in KRS 342.730. This approach has clearly been discredited by the Finn case, supra.
We therefore remand to the Circuit Court with instructions to remand to the Board for calculation of West's temporary total disability benefits according to KRS 342.730, and for calculation of his permanent partial disability benefits according to the instructions set out in this opinion.
HOWARD and GANT, JJ., dissent.