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RENDERED: November 3, 2000; 2:00 p.m. NOT TO BE PUBLISHED

C ommonwealth O f K entucky C ourt O f A ppeals
NO. 2000-CA-000809-WC

ROBERT L. WHITTAKER, Director of SPECIAL FUND

APPELLANT

v.

PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NOS. WC-90-36354 & WC-95-48386

SILAS PATRICK (Deceased); MAVIS PATRICK (Widow of Silas Patrick); ESTATE OF SILAS PATRICK through Administratrix, Sharon Smith, daughter); MILLER BROTHERS CONSTRUCTION; ROGER D. RIGGS, Administrative Law Judge; and WORKERS' COMPENSATION BOARD

APPELLEES

OPINION AFFIRMING ** ** ** ** ** BEFORE: GUDGEL, Chief Judge; COMBS and McANULTY, Judges. Robert L. Whittaker, Director of Special Fund

COMBS, JUDGE:

(Fund), asks us to review an opinion of the Workers' Compensation Board (Board) rendered March 3, 2000. (KRS) 342.290. We affirm. In 1991, Silas Kentucky Revised Statutes

This claim has been much litigated.

Patrick was found to be entitled to an award of retraining incentive benefits. Contending that he could establish a

decrease in pulmonary capacity and that he was thus entitled to an award based upon his total disability, Patrick reopened his claim was reopened in May 1995. After a hearing on the

reopening, a decision from the Administrative Law Judge, and an appeal to the Board, this court examined the claim in light of the Kentucky Supreme Court's holding in Campbell v. Universal Mines, Ky., 963 S.W.2d 623 (1998). Following our analysis, we

remanded for a finding of whether Patrick suffered from category two rather than category one pneumoconiosis. Silas Patrick died

while the case was pending before the ALJ on remand. The ALJ issued a final order, opinion, and award on September 24, 1999, and thereafter issued several orders on petitions for reconsideration. The ALJ's last order -- rendered

November 15, 1999 -- found that Patrick's death was not workrelated and that benefits were payable pursuant to KRS 342.732. He found that the tier-down provisions of KRS 342.730(4) were inapplicable since the original award was the result of a 1990 claim. He also ordered that all benefits were payable to Mavis

Patrick, Silas Patrick's widow, who had been substituted as a party. The award of total benefits was ordered payable at the

full rate from the time of the reopening on May 5, 1995, until the date of Patrick's death on February 9, 1999. Thereafter, the

award was payable to the widow at 50% of the total award pursuant to KRS 342.730(3). The ALJ directed that Miller Brothers

Construction, Patrick's employer, would pay the first 25% and that the Special Fund would pay the remaining 75% for both the full-rate award and the reduced-rate award to the widow. On

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appeal, the Board affirmed in part, and reversed and remanded in part. The Fund seeks review. The extent of Patrick's disability is not at issue on appeal. Instead, the Fund contends that the ALJ erred in his

apportionment of liability between Patrick's motion to reopen and the date of his death. Relying on Williamson v. Island Creek

Coal Co., Ky. App., 899 S.W.2d 499 (1995), the Fund contends that it should not be liable for any benefits accruing during the interval. It insists that these benefits were due and owing

during the employer's payment period and, as a result, were the responsibility of Miller Brothers Construction alone. explains as follows: [T]he decedent had a life expectancy of 910 weeks as of the date of the motion to reopen. The employer owed the first 25%, or 227, weeks of that 910-week period. In other words, the employer would have owed benefits to the decedent through approximately November 1999, and the Special Fund would have owed benefits thereafter if the decedent had lived to collect the same. We do not agree that the ALJ was required to make the entire award payable by the employer -- nor do we believe that the ALJ The Fund

erred by requiring the Fund to make its payment of benefits before the employer had exhausted its liability to the payees. On the contrary, we believe that the ALJ correctly apportioned the benefits. Because Williamson is factually different from the

case before us, we have found no error. The Fund also asks us to clarify whether benefits payable for the period prior to Patrick's death are to be paid to his estate. We read the Board's opinion as indeed requiring

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payment of these benefits to the estate. this conclusion.

We find no error in

For the foregoing reasons, the opinion of the Workers' Compensation Board is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: David R. Allen Frankfort, KY BRIEF FOR APPELLEES PATRICK: J. Drew Anderson Prestonsburg, KY BRIEF FOR APPELLEE MILLER BROTHERS CONSTRUCTION COMPANY: Monica J. Rice Hazard, KY

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