RICHARD HAWKINS v. BILLY RAY CARROLL CONSTRUCTION; HON. ROBERT L. WHITTAKER, Director of SPECIAL FUND; HON. IRENE STEEN, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: November 6, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1998-CA-000789-WC
RICHARD HAWKINS
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-94-023994
BILLY RAY CARROLL
CONSTRUCTION;
HON. ROBERT L. WHITTAKER,
Director of SPECIAL FUND;
HON. IRENE STEEN,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
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BEFORE:
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**
**
**
GUDGEL, CHIEF JUDGE; GARDNER and MILLER, Judges.
MILLER, JUDGE.
Richard Hawkins (Hawkins) asks us to review an
opinion of the Workers’ Compensation Board (Board) rendered
October 27, 1997.
Ky. Rev. Stat. (KRS) 342.290.
We affirm.
On May 23, 1994, Hawkins was injured in a work-related
accident while in the employ of Billy Ray Carroll Construction
Company (Carroll).
Hawkins was forced to jump from a Carroll
truck after it stalled and began to roll over the side of a
mountain.
fall.
He sustained numerous injuries as a result of the
Hawkins filed for benefits under the Workers’ Compensation
Act (KRS 342.000 et seq.) based upon those injuries as well as
coal workers’ pneumoconiosis.
The administrative law judge (ALJ)
found him to be 40% occupationally disabled as a result of a
shoulder injury sustained in the accident.
Hawkins appealed to
the Board, which, in turn, affirmed the ALJ's decision.
This
appeal followed.
Hawkins first complains that the ALJ erred when he
dismissed his coal workers’ pneumoconiosis claim.
The ALJ's
opinion dismissed the claim based on Hawkins's failure to prove
injurious exposure while in the employ of Carroll.
To the
contrary, Hawkins maintains that his testimony was sufficient to
prove injurious exposure.
He testified that he was exposed to a
significant amount of coal dust throughout his employment.
Additional evidence, however, reflects that all of Hawkins's coal
mining experience with Carroll was above-ground.
Further, no
medical evidence was presented to address the issue of injurious
exposure.
As such, we do not believe the evidence compelled a
different result.
See Wolf Creek Collieries v. Crum, 673 S.W.2d
735 (1984).
Hawkins’s next complaint concerns the ALJ’s failure to
make findings of fact regarding his alleged stomach problems.
The Board held that because Hawkins failed to file a petition for
reconsideration under KRS 342.281 requesting such findings, the
error is not preserved.
Hawkins maintains that a petition for
reconsideration in such circumstances is not necessary and the
error of which he complains is still preserved.
We agree with the Board’s disposition of this issue and
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adopt such herewith:
KRS 342.281 provides that a party may file a
petition for reconsideration within 14 days
of the date of an award in order to request
correction of errors patently appearing upon
the face of the opinion. Prior to December
12, 1996, KRS 342.281 provided, “The failure
to file a petition for reconsideration shall
not preclude an appeal on any issue.” That
sentence was removed from the statute in the
1996 amendments to KRS Chapter 342. In Smith
v. Dixie Fuel Co., Ky., 900 S.W.2d 609
(1995), it was held that the 1994 amendment
to KRS 342.281 inserting this language was a
procedural change. It therefore follows that
the 1996 amendment deleting this language is
also procedural. KRS 342.0015 provides that
the procedural provisions of the 1996 Act
“shall apply to all claims irrespective of
the date of injury or last exposure.” We
believe that the effect of the amendment
deleting the above-mentioned sentence from
KRS 342.281 is to reinstate the Supreme
Court’s holding in Eaton Axle Corp. V. Nally,
Ky., 688 S.W.2d 334 (1985), which provides
that errors appearing patently on the face of
the award must be brought to the ALJ’s
attention in a petition for reconsideration
and that failure to do so precludes that
issue from being raised on appeal to this
Board. Failure to make a required finding of
fact is an error patently appearing upon the
face of the opinion. Wells v. Ford, Ky., 714
S.W.2d 481 (1986). Hawkins failed to
properly preserve this issue; . . .
Hawkins next contends that the ALJ erred by finding
that the neck, back, and testicular injuries he suffered in the
accident did not result in occupational disability.
Having
reviewed the record, we perceive no error by the ALJ on this
issue.
Dr. Andrew Morfesis, Hawkins's treating physician, did
not diagnose Hawkins with back pain syndrome until two years
after the work-related injury.
An EMG and an MRI of the cervical
spine were found to be normal.
Drs. Ben Kibler and David Muffly
testified that Hawkins's neck pain could merely be referred pain
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from his shoulder.
Further, Dr. Muffly testified that Hawkins
could return to his previous employment as an equipment operator
or coal truck driver.
Regarding Hawkins’s injured testicle, Dr.
Richard Lotenfoe testified that although it had atrophied and was
somewhat tender, Hawkins's pain was not severe.
Dr. Charles Ray
believed it highly unlikely that Hawkins could not carry out
routine work activities as a result of this malady.
Upon the
whole, we do not believe the evidence compelled a different
finding.
See Wolf Creek Collieries, 673 S.W.2d 735.
Last, Hawkins maintains that the ALJ erred by finding
that Carroll was not in violation of safety regulations.1
Hawkins advances the theory that the truck's auxiliary steering
pump was missing at the time of the accident.
In support
thereof, he testified that he examined the truck's wreckage
approximately three weeks after the incident and discovered that
the auxiliary steering pump was missing.
Hawkins, however,
testified that he was not a mechanic but was trained only to
check the tires and fluid levels in the truck.
Moreover, Carl
Dale Johnson, another Carroll employee, testified that the truck
in question could not have been driven without the auxiliary
pump.
In further support of his allegation of safety
violations, Hawkins avers that Carroll failed to maintain
adequate berms on the road where the accident occurred.
Carroll’s owner, however, testified that on the day of the
1
Such a finding would have entitled Hawkins to a 15%
increase in benefits. Kentucky Revised Statute 342.165.
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accident, berms were present on the road in question.
He stated
that the berms were created when dirt was dumped on the road and
leveled by a bulldozer.
The only regulation that Hawkins
proffers pertaining to berms is 30 Code of Federal Regulations §
77.1605(k), which states that “[b]erms or guards shall be
provided on the outer bank of elevated roadways.”
He refers us
to no law mandating that the berms be of a particular size.
As
such, we do not believe Hawkins presented sufficient evidence to
compel a finding that Carroll committed safety violations.
See
Id.
Under the precepts of Western Baptist Hospital v.
Kelly, Ky., 827 S.W.2d 685 (1992), we perceive no error in the
Board's construction of the law or its assessment of the
evidence.
For the foregoing reasons, the decision of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE/CARROLL:
Sidney B. Douglass
Harlan, KY
J. Logan Griffith
John V. Porter
Paintsville, KY
BRIEF FOR APPELLEE/FUND:
Joel D. Zakem
Louisville, KY
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