ROBERT E. SPURLIN, DIRECTOR OF SPECIAL FUND V. MARTIN SHEPHERD, JR.; BLUE DIAMOND COAL COMPANY, INC.; and HONORABLE DONALD C. SMITH, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD AND BLUE DIAMOND COAL COMPANY, INC. V. ROBERT E. SPURLIN, DIRECTOR OF THE SPECIAL FUND; MARTIN SHEPHERD, JR; HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED:
February 20, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-3363-WC
ROBERT E. SPURLIN, DIRECTOR
OF SPECIAL FUND
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
NO. WC-92-14040
MARTIN SHEPHERD, JR.;
BLUE DIAMOND COAL COMPANY, INC.;
and HONORABLE DONALD C. SMITH,
ADMINISTRATIVE LAW JUDGE; and
WORKERS' COMPENSATION BOARD
AND:
NO. 97-CA-0011-WC
BLUE DIAMOND COAL COMPANY, INC.
v.
APPELLEES
CROSS-APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
NO. WC-92-014040
ROBERT E. SPURLIN, DIRECTOR
OF THE SPECIAL FUND;
MARTIN SHEPHERD, JR;
HON. DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE; and
WORKERS' COMPENSATION BOARD
CROSS-APPELLEES
OPINION
REVERSING ON APPEAL AND CROSS-PETITION
* * * * *
BEFORE:
DYCHE, EMBERTON and GUIDUGLI, Judges.
GUIDUGLI, JUDGE.
Robert E. Spurlin, Director of the Special
Fund (Special Fund) and Blue Diamond Coal Company, Inc. (Blue
Diamond) appeal from an order of the Workers' Compensation Board
(the Board) entered November 18, 1996, which affirmed an award
entered by the Administrative Law Judge (ALJ) on March 27, 1996.
We reverse.
Martin Shepherd (Shepherd) has worked as an underground
coal miner for twenty years.
His last date of exposure to coal
dust was January 11, 1991, while he was employed by Blue Diamond.
Shepherd was laid off on that date, and has not returned to work.
In April 1992, Shepherd filed an application for
adjustment of claim alleging entitlement to benefits for
pneumoconiosis (the 1992 claim).
In support of his claim,
Shepherd introduced medical records from Dr. W. F. Clarke and Dr.
Glen Baker (Dr. Baker), both of whom diagnosed Category I
pneumoconiosis.
Blue Diamond introduced medical records from Dr.
Ballard Wright (Dr. Wright) and Dr. John Myers, Jr. (Dr. Myers),
both of whom found no evidence of pneumoconiosis.
Pulmonary
function studies conducted by Dr. Wright and Dr. Myers indicated
FVC and FEV1 values greater than 80%.
In an opinion entered January 30, 1993, Administrative
Law Judge Lloyd Edens (ALJ Edens) held that Shepherd had failed
to show that he had contracted pneumoconiosis and dismissed his
claim.
ALJ Edens indicated that he relied on the medical records
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of Dr. Wright and Dr. Myers in reaching his decision.
Shepherd
did not appeal ALJ Eden's decision.
On June 22, 1995, Shepherd filed a verified motion to
reopen his 1992 claim, alleging progression of both
pneumoconiosis and respiratory impairment.
Shepherd's motion to
reopen was granted, and the parties submitted their proof.
Shepherd submitted medical records from Dr. William
Anderson (Dr. Anderson), who saw him on May 17, 1995.
According
to Dr. Anderson's records, chest x-rays showed Category 1/1
pneumoconiosis.
Dr. Anderson's pulmonary function studies were
invalid due to excess variation.
Shepherd also introduced additional records from Dr.
Baker, who saw Shepherd again on October 18, 1995.
Dr. Baker
evaluated x-rays performed on that date and diagnosed Category
1/0 pneumoconiosis.
Dr. Baker reported a FVC of 69.3% and an
FEV1 of 67.8% which he attributed to exposure to coal dust and
smoking.
Blue Diamond submitted additional records from Dr.
Wright, who saw Shepherd again on August 19, 1995.
Again, Dr.
Wright found no evidence of pneumoconiosis upon reviewing the
chest x-rays.
Dr. Wright indicated an FVC rating of 81%, but an
FEV1 rating of 71% which he attributed to pulmonary disease.
Blue Diamond also submitted additional records from Dr.
Myers who re-evaluated Shepherd on July 24, 1995.
diagnosed Category 0/1 pneumoconiosis.
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Dr. Myers
Dr. Myers reported an FVC
of 76% and an FEV1 of 70% which he attributed to pulmonary diseae
and past pneumotheraphy.
In an opinion rendered March 27, 1996, the ALJ held
that Shepherd sustained his burden under KRS 342.125 of showing
that his condition had worsened since the dismissal of the 1992
claim.
The ALJ held that Shepherd was suffering from Category
1/1 pneumoconiosis which was attributable to his exposure to coal
dust and awarded Tier II benefits pursuant to KRS 342.732(1)(b)
for a period of 425 weeks.
The Board affirmed, holding that
Shepherd's claim was not barred by res judicata and that
reopening was proper under KRS 342.125(1).
On cross-petition, Blue Diamond argues that KRS
342.125(1) does not control the reopening of a claim for coal
workers' pneumoconiosis benefits.
Instead, Blue Diamond contends
that KRS 342.125(2)(a) controls, and that under that section
there must be a previous award of benefits before a claim can be
reopened.
We agree.
KRS 342.125(1) provides:
In claims where an award or order is entered
pursuant to KRS 342.730(1)(a) or (1)(b) and
upon its own motion or upon the application
of any party and a showing of change of
occupational disability, mistake or fraud, or
newly-discovered evidence, the administrative
law judge may at any time reopen and review
any award or order, except as provided in
subsection (2) of this section, ending,
diminishing, or increasing the compensation
previously awarded, within the maximum and
minimum provided in this chapter, or change
or revoke his previous order, sending
immediately to the parties a copy of his
subsequent order or award. In claims where
an award or order is entered pursuant to KRS
-4-
342.730(1)(c) or (d), and upon its own motion
or upon the application of any party and a
showing of change of medical condition,
mistake, or fraud, or newly-discovered
evidence, the administrative law judge may at
any time reopen and review any award or
order, except as provided in subsection (2)
of this section, ending, diminishing, or
increasing the compensation previously
awarded, within the the maximum and minimum
provided in this chapter, or the
administrative law judge may change or revoke
his previous order, sending immediatley to
the parties a copy of his subsequent order or
award. Any final award increasing or
diminishing benefits shall require a showing
of a change in occupational disability.
Reopening and review under this section shall
be had upon notice to the parties and in the
same manner as provided for an initial
proceeding hereunder but shall not affect the
previous order or award as to any sums
already paid thereunder. The employer shall
not suspend the payment of benefits during
the pendency of any reopening procedures.
(emphasis added).
KRS 342.730 provides income benefits for total and permanent
partial disability resulting from a work-related injury or
occupational disease.
However, income benefits and retraining
incentive benefits (RIB) for coal workers' pneumoconiosis
resulting from exposure to coal dust are provided by KRS 342.732.
Because the ALJ could not have awarded benefits in the original
claim under KRS 342.370, Shepherd's motion to reopen is not
governed by KRS 342.125(1).
Instead, the reopening of a claim for pneumoconiosis
benefits is governed by KRS 342.125(2)(a),1 which provides:
1
Our decision is further supported by the language of KRS
342.125(1), which specifically excepts situations controlled by
KRS 342.125(2).
-5-
Upon the application of the affected
employee, and a showing of progression of his
previously diagnosed occupational
pneumoconiosis resulting from exposure to
coal dust and development of respiratory
impairment due to that pneumoconiosis, the
administrative law judge may review an award
of a retraining incentive benefit because of
the diagnosis, and upon a finding of
respiratory impairment due to that
pneumoconiosis shall make an award for
benefits as provided in KRS 342.732. Such a
reopening may also occur upon a showing of
progression of respiratory impairment in a
claim for which benefits were previously
awarded under the provisions of KRS 342.732.
An application for review under this
subsection shall be made within one (1) year
of the date the employee knew or reasonably
should have known that a progession of his
disease and development or progression of
respiratory impairment have occurred. Review
under this subsection shall include a review
of all evidence admitted in all prior
proceedings. (emphasis added).
Based upon our reading of KRS 342.125(2)(a), the
dismissal of Shepherd's previous claim precludes reopening
because the statute contemplates the review of an "award" only.
Absent an award, there is nothing to review on reopening as the
dismissal of Shepherd's original claim has the effect of "leaving
him in the same position as if no application had been filed."
Hysteam Coal Corp. v. Ingram, 283 Ky. 411, 141 S.W.2d 570, 573
(1940).
We also agree with the contention of both Blue Diamond
and the Special Fund that Shepherd's claim on reopening is barred
by the doctrine of res judicata, which has been held to apply to
workers' compensation cases.
See Uninsured Employers' Fund v.
Fox, Ky. App., 862 S.W.2d 902 (1993).
-6-
As noted by the Supreme
Court in Pikeville Coal Co. v. Sullivan, Ky., 895 S.W.2d 574
(1995), "filing a subsequent claim after a finding on the merits
involving the same proof and involving the same parties does not
deserve close scrutiny by the ALJ, and under proper circumstances
may constitute a frivolous claim."
575.
Pikeville Coal, 895 S.W.2d at
Although this action involves a reopening as opposed to a
new claim, we feel that the language is equally applicable to
attempts to reopen a claim for pneumoconiosis benefits which has
peviously been dismissed.
Although Shepherd cites Pikeville Coal in support of
his argument that reopening of his claim was proper, we note that
the Court specifically stated that "[i]f additional exposure is
the basis for an allegation of increased occupational disability,
then by all means a reopening would be the proper avenue for
requesting relief."
Id.
Shepherd does not meet this requirement
as the record shows that he has not been exposed to coal dust
since his last date of employment with Blue Diamond.
Shepherd's reliance on Stambaugh v. Cedar Creek Mining,
Ky., 488 S.W.2d 681 (1972), is also misplaced.
In Stambaugh, the
Court held "[w]here [KRS 342.125] expessly provides for reopening
under specified conditions, the rule of res judicata has no
application when the prescribed conditions are present."
Stambaugh, 488 S.W.2d at 682.
As Shepherd does not meet the
conditions for reopening set forth in KRS 342.125(2)(a), res
judicata precludes his claim.
-7-
Having considered the parties' argument on appeal, the
opinion of the Workers' Compensation Board is reversed.
ALL CONCUR.
-8-
BRIEF AND ORAL ARGUMENT FOR
APPELLANT, SPECIAL FUND:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE, MARTIN SHEPHERD:
Joel D. Zakem
Louisville, KY
Kenneth R. Witt
Hyden, KY
BRIEF AND ORAL ARGUMENT FOR
CROSS-APPELLANT, BLUE DIAMOND
COAL:
Jennifer Nicholson
J. L. Roark
Barret, Haynes, May, Carter &
Roark, P.S.C.
Hazard, KY
-9-
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