HONORABLE ROBERT L. WHITTAKER, ACTING DIRECTOR OF SPECIAL FUND v. JAMES D. PAYNE; HONORABLE DENIS S. KLINE, ADMINISTRATIVE LAW JUDGE, AND WORKERS' COMPENSATION BOARD

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RENDERED: March 5, 1999; 2:00 p.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1998-CA-000482-WC HONORABLE ROBERT L. WHITTAKER, ACTING DIRECTOR OF SPECIAL FUND APPELLANT PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NOS. 95-36510 & 97-605 v. JAMES D. PAYNE; HONORABLE DENIS S. KLINE, ADMINISTRATIVE LAW JUDGE, AND WORKERS' COMPENSATION BOARD APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: DYCHE, EMBERTON AND GARDNER, JUDGES. GARDNER, JUDGE: Robert Whittaker, Acting Director of the Special Fund (Special Fund) appeals from a decision of the Workers’ Compensation Board (the board) reversing and remanding the opinion of the Administrative Law Judge (ALJ). At issue in this case is whether the provision of Kentucky Revised Statute (KRS) 342.315(2), stating that the findings and opinions of designated university medical evaluators shall be afforded presumptive weight, should be applied retroactively to claims involving occupational disease where the date of last exposure occurred prior to the December 1996 amendments to Kentucky workers’ compensation statutes. We have concluded that the board ruled correctly as a matter of law, and thus affirm. James D. Payne (Payne) was an employee of Crockett Collieries (Crockett). Payne filed a claim for workers’ compensation benefits alleging disability resulting from a knee injury and coal workers’ pneumoconiosis. was completely settled. The knee injury claim Payne contended that the last date of exposure for the pneumoconiosis claim was April 5, 1996, and he filed his pneumoconiosis claim in February 1997. The pneumoconiosis claim was settled against Crockett, but Payne reserved the right to proceed against the Special Fund. Five physicians provided medical evidence regarding pneumoconiosis. Because the highest pulmonary results exceeded 100% of the predicted normal, the ALJ relied on x-rays in reaching his decision. Payne presented reports from Drs. Powell and Marshall; both diagnosed category 2/1 pneumoconiosis. Crockett filed reports from Dr. Harrison who diagnosed category 1/0 pneumoconiosis and Dr. Jarboe, who read an x-ray as completely negative. Dr. Woodring, a university evaluator who examined Payne pursuant to KRS 342.315, (as amended December 12, 1996), diagnosed category 1/1 pneumoconiosis with normal pulmonary results. The ALJ after reviewing the evidence found that Dr. Powell’s testimony was most persuasive, but concluded that based upon KRS 342.0015 and 342.315, he must give presumptive weight to Dr. Woodring’s opinion. The ALJ based upon Dr. Woodring’s -2- testimony, concluded that Payne contracted pneumoconiosis to the extent of category 1/1. He found that Payne had no respiratory impairment, and therefore, would be entitled to an award of retraining incentive benefits (RIB). He concluded that the Special Fund had no liability for RIB, and thus dismissed Payne’s claim. Payne appealed his dismissal to the board. The sole issue presented was whether KRS 342.315(2) applied to a claim filed subsequent to the amended statute’s effective date, when last exposure occurred prior to that date. The board consolidated Payne’s appeal with several others which all raised the same issue. The board ultimately concluded that the change in the statute represented an alteration in the overall burden of proof placed on the parties which was substantive in nature. The board ruled that the statutory provisions calling for presumptive findings to be given to the university evaluator’s findings should not be applied retroactively to the facts in the instant case. The board therefore reversed and remanded Payne’s case. The Special Fund has now brought this appeal. The Special Fund argues that the presumptive weight given to reports of university medical evaluators pursuant to KRS 342.315 as amended in December 1996, applied to Payne’s claim and that Payne failed to overcome the presumptive weight afforded the university evaluator. As we disagree with the Special Fund’s first contention, we find it unnecessary to address the second contention. -3- The plain language of KRS 342.315(2), as amended, reveals that the presumptive weight provision is a substantive change, not merely a procedural revision. plain language and meaning of a statute. App., 664 S.W.2d 941, 943 (1983). Courts must follow the Lydic v. Lydic, Ky. See also Transport Motor Express, Inc. v. Finn, Ky., 574 S.W.2d 277, 283 (1978); Board of Education of Nelson County v. Lawrence, Ky., 375 S.W.2d 830 (1963). If a statutory definition is not provided, statutory terms are to be defined or construed according to common and approved usage of the language. Claude N. Fannin Wholesale Co. v. Thacker, Ky. App., 661 S.W.2d 477 (1983). When construing a statute, a court must attempt to determine the intent and purpose of the legislature in enacting the provision, and its use of certain language. Reed v. Greene, Ky., 243 S.W.2d 892 (1951). A reviewing body is to presume that the legislature by enacting a statutory provision, did so with some intended purpose. See Reisinger v. Grayhawk Corp., Ky. App., 860 S.W.2d 788 (1993). In the instant case, the board carefully determined the meaning and intent of the General Assembly in enacting the new provision of KRS 342.315(2). KRS 342.315(2) provides, The physicians and institutions performing evaluations pursuant to this section shall render reports encompassing their findings and opinions in the form prescribed by the commissioner. The clinical findings and opinions of the designated evaluator shall be afforded presumptive weight by arbitrators and administrative law judges and the burden to overcome such findings and opinions shall fall on the opponent of that evidence. When arbitrators or administrative law judges reject the clinical findings and opinions of the designated evaluator, they shall state in -4- the order the reasons for rejecting that evidence. The statutory language clearly shows that the presumption applies to the level of credibility to be given to certain evidence rather than a presumption on an overall issue in the claim. If the party claiming benefits cannot come up with the evidence to rebut the findings of the university evaluator which is adverse to him or her, then the party loses. We now consider whether the presumption in KRS 342.315 (2) should be applied retroactively to cases arising before the enactment of the new statute. KRS 342.0015 states, The substantive provisions of 1996 (1st Extra. Sess.) Ky. Acts ch. 1 shall apply to any claim arising from an injury or last exposure to the hazards of an occupational disease occurring on or after December 12, 1996. Procedural provisions of 1996 (1st Extra. Sess.) Ky. Acts ch. 1 shall apply to all claims irrespective of the date of injury or last exposure, including but not exclusively, the mechanisms by which claims are decided and workers are referred for medical evaluations. The provisions of KRS 342.120(3), 342.125(8), 342.213(2)(e), 342.265, 342.270(7), 342.320, 342.610(3), 342.760(4), and 342.990(11) are remedial. Generally, the assignment of the burden of proof is a rule of substantive law. Director, Office of Workers’ Compensation Programs, Dept. of Labor v. Greenwich Collieries, 512 U.S. 267, 114 S.Ct. 2251, 2254, 129 L.Ed.2d 221 (1994). Further, matters have been considered substantive where they are outcome determinative. Fite & Warmath Const. Co. v. MYS Corp., Ky., 559 S.W.2d 729, 733 (1977), citing Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). -5- In the instant case, the provision of KRS 342.315(2) regarding presumptive weight is substantive. By its terms, the clinical findings and opinions of the university evaluator shall be afforded presumptive weight by arbitrators and administrative law judges, and the burden to overcome such findings and opinions shall fall on the opponent of the evidence. Thus, the statute has substantive impact on a case as it changes the burden and level of proof that the party who did not receive a favorable finding from the evaluator must meet. By the terms of KRS 342.0015, substantive provisions of the 1996 special session apply only to claims arising from an injury or last exposure occurring on or after December 12, 1996. General Refractories Co. v. Henderson, 313 Ky. 613, 232 S.W.2d 846 (1950), is distinguishable from the instant case, because the language of the statute was different and showed an intent to apply changes regarding proof in workers’ compensation cases retroactively. The board correctly found in the case at bar that the ALJ incorrectly gave the university evaluator’s opinion presumptive weight. Payne’s date of last exposure for pneumoconiosis occurred before the December 1996 amendments to KRS 342.315(2). The ALJ stated that he found Dr. Powell’s testimony most persuasive but believed under the law, he had to give Dr. Woodring’s opinion presumptive weight. The board correctly reversed Payne’s case and remanded it to the ALJ for further proceedings. Upon remand the ALJ must again consider the medical evidence without giving Dr. Woodring’s findings presumptive weight. -6- For the foregoing reasons, this Court affirms the opinion of the Workers’ Compensation Board. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE JAMES D. PAYNE: Joel D. Zakem Louisville, Kentucky Mark L. Ford Harlan, Kentucky -7-

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