PEABODY COAL COMPANY v. BILLY GENE HAWES; EDDIE BEALMEAR; HONORABLE SHEILA C. LOWTHER, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED: April 16, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1998-CA-0000489-WC
PEABODY COAL COMPANY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
FILE NOS. WC-96-08675 & WC-96-07835
BILLY GENE HAWES; EDDIE
BEALMEAR; HONORABLE SHEILA
C. LOWTHER, ADMINISTRATIVE
LAW JUDGE; and WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; DYCHE and KNOX, Judges.
DYCHE, JUDGE.
We believe that the brief for appellant
adequately and correctly sets out the facts and procedural
history of this case, and we adopt that statement:
On December 9, 1996, Billy Gene Hawes filed
an Application for Adjustment of Claim with
the Department of Workers’ Claims seeking
retraining incentive benefits pursuant to KRS
342.732(1)(a). Mr. Hawes alleged that he had
contracted coal workers’ pneumoconiosis as a
result of 25 years of work as a coal miner,
with his last date of work in the coal mining
industry being April 7, 1995, while in the
employment of Peabody Coal Company.
During the time for submission of proof,
Mr. Hawes submitted medical reports from Drs.
Robert Powell and William Houser, with Dr.
Powell finding evidence of category 1/0 coal
workers’ pneumoconiosis based upon his review
of an x-ray taken as part of an examination
he conducted on November 1, 1996, and Dr.
Houser finding evidence of category 1/1 coal
workers’ pneumoconiosis based upon his review
of an x-ray taken as part of an examination
he conducted on September 3, 1996.
The employer also submitted medical
reports from two physicians as evidence in
the case, these physicians being Dr. Bruce
Broudy, who found no evidence of coal
workers’ pneumoconiosis based upon his review
of both the September and November, 1996 xrays taken by Drs. Powell and Houser, and Dr.
Ballard Wright, who classified the September
1996 x-ray taken by Dr. Houser as a category
0/0 and the November 1996 x-ray taken by Dr.
Powell as a category 0/1.
The final medical report submitted as
evidence in the claim came from Dr. Betty
Joyce. Dr. Joyce was appointed by the
Department of Workers’ Claims as the
“designated evaluator” pursuant to KRS
342.315 (as amended on December 12, 1996);
and based upon her taking and review of a
chest x-ray on March 13, 1997, Dr. Joyce
classified that particular x-ray as category
0/1. As reflected by the Department of
Workers’ Claims filed, Dr. Joyce is a
pulmonary specialist and, additionally, a Breader of x-rays.
On August 29, 1997, Judge Lowther issued
an Opinion in which she first considered
whether the “presumptive weight” language
used in KRS 342.315 accorded the medical
opinion of the designated evaluator (Dr.
Joyce) should be applicable to Mr. Hawes’
claim. Judge Lowther determined that,
although the “presumptive weight” language
was not added to KRS 342.315 until December
12, 1996, and thus was not found in the Act
as it existed on the day Mr. Hawes’ last work
in the coal mining industry on April 7, 1995,
the “presumptive weight” language was a
procedural (remedial) change in the Act and
thus was applicable to the adjudication of
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Mr. Hawes’ claim and thus went on to accord
“presumptive weight” to the medical report
issued by Dr. Joyce.
However, Judge Lowther then went on to
find that, based upon the fact that Drs.
Powell and Houser were well-qualified
pulmonary specialists and the fact that both
of these physicians had had the actual
opportunity to conduct a complete examination
of Mr. Hawes, as well as review his x-ray
(none of the other physicians involved in the
case had conducted complete examinations),
the opinions of these two physicians (both of
whom found coal workers’ pneumoconiosis to be
present) overcame the “presumptive weight” of
the “negative” finding of the disease by Dr.
Joyce and thus found Mr. Hawes to be entitled
to retraining incentive benefits.
This Opinion and Award of Judge Lowther
was appealed by the employer to the Workers’
Compensation Board, and there was no crossappeal by or on behalf of Mr. Hawes. The
Board, after the submission of briefs by the
parties and the holding of oral arguments,
entered an Opinion on February 2, 1998,
upholding Judge Lowther’s awarding of
retraining incentive benefits to Mr. Hawes.
On November 13, 1996, Eddie L. Bealmear
filed an Application for Adjustment of Claim
with the Department of Workers’ Claims. As
was the situation with Mr. Hawes, Mr.
Bealmear was seeking benefits as a result of
the alleged contraction of coal workers’
pneumoconiosis resulting from his years of
work in the coal mining industry, with his
last date of work in that industry being
September 5, 1995.
In support of his claim for benefits, Mr.
Bealmear submitted medical reports from Dr.
William Houser, who conducted an examination
and reviewed a chest x-ray of him on November
29, 1993, and found evidence of category 1/0
coal workers’ pneumoconiosis, and from Dr.
Robert Powell, who reviewed a September 10,
1996 chest x-ray and found evidence of
category 1/0 coal workers’ pneumoconiosis.
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The employer submitted a medical report as
evidence from Dr. Ballard Wright, who
reviewed the same September 10, 1996 x-ray
that had been reviewed by Dr. Powell and
found no evidence of coal workers’
pneumoconiosis.
A final medical report was submitted as
evidence in the claim, this medical report
coming from Dr. Richard Goldwin. Dr. Goldwin
had been appointed by the Department of
Workers’ Claims as the “designated evaluator”
pursuant to KRS 342.315 (as amended on
December 12, 1996), and based upon his taking
and review of a chest x-ray on March 11,
1997, found that x-ray to be completely
negative for the presence of coal workers’
pneumoconiosis. As reflected by the
Department of Workers’ Claims files, Dr.
Goldwin is a B-reader of chest films.
In an Opinion rendered on September 15,
1997, and after having reviewed and discussed
all of the medical evidence, Judge Lowther
first determined that the “presumptive
weight” language of KRS 342.315, as amended
in December 1996, was a procedural (remedial)
change in the Act and thus was applicable to
the report issued by Dr. Goldwin even though
Mr. Bealmear’s last work in the coal mining
industry had taken place prior to December
12, 1996. Judge Lowther then went on to find
that, based upon the fact that Drs. Powell
and Houser were well-qualified pulmonary
specialists and the fact that Dr. Houser was
the only physician involved in the claim who
had the actual opportunity to examine Mr.
Bealmear as well as review his x-ray, the
reports of these two physicians (who found
the disease to be present) overcame the
“presumptive weight” accorded the opinion of
Dr. Goldwin (who found no evidence of the
disease) and thus awarded Mr. Bealmear
retraining incentive benefits.
This Opinion and Award of benefits by
Judge Lowther was appealed by Peabody Coal
Company to the Workers’ Compensation Board in
September 1997. There was no cross-appeal
filed and/or submitted on behalf of Mr.
Bealmear. Following the submission of briefs
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by the parties and the holding of oral
arguments in a related case, the Workers’
Compensation Board, by an Opinion entered on
February 2, 1998, affirmed Judge Lowther’s
awarding of retraining incentive benefits to
Mr. Bealmear.
The primary issue on appeal is the effect of KRS
342.315 which gives “presumptive weight” to the reports of
designated “medical evaluators” appointed to examine claimants in
Workers’ Compensation cases.
Appellant asserts that the
Administrative Law Judge was correct in finding that the
amendment to the statute was remedial and therefore applicable to
all claims filed and/or pending on the effective date of that
amendment.
The Board found that the change was substantive in
nature, and therefore not applicable retroactively to claims
already pending on the date of the amendment, including the
present claims.
The Board also found, however, that the ALJ had used
the wrong standard in assessing the evidence in the Hawes case,
but that the ALJ had grounds to disregard the report of the
designated evaluator.
In Bealmear, the Board found no evidence
to overcome the weight to be given the evaluator.
Because the
amendment was not retroactive, however, the Board affirmed the
decision of the ALJ granting benefits in each case.
The employer now appeals, first asserting that the
claimants cannot take advantage of the Board’s decision that the
amendment was substantive and therefore not retroactive, because
they did not file cross-appeals from the decision of the ALJ
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which found otherwise.
The claimants cite us to Wheatley v.
Bryant Auto Service, Ky., 860 S.W.2d 767 (1993), for the
proposition that a mistake of law is cognizable at any time under
the reopening statute, even if no appeal was taken from the
erroneous ruling during the statutory period.
That being so,
they argue, it serves judicial economy for this court to go ahead
and consider the issue.
We agree.
This court has recently decided a case1 which was
consolidated with the present two cases before the Workers’
Compensation Board; the opinion in that case clearly and
correctly sets out the applicable law, and we adopt the reasoning
as our own:
. . . . This Court has concluded that the
board correctly interpreted the effect of the
new provision and correctly found that it
should not be applied retroactively.
The clear language of the statute reveals
that the presumptive weight provision is a
substantive change, not merely a procedural
revision. In general, courts must follow the
plain language and meaning of a statute.
Lydic v. Lydic, Ky. App., 664 S.W.2d 941, 943
(1983). See also Board of Education of
Nelson County v. Lawrence, Ky., 375 S.W.2d
830 (1963). A statutory construction which
renders a specific statute meaningless is to
be avoided. Transport Motor Express, Inc. v.
Finn, Ky., 574 S.W.2d 277, 283 (1978). If
there is no statutory definition of a phrase,
the 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). A reviewing court must
1
Magic Coal Company v. Fox, No. 1998-CA-000527-WC, rendered
January 15, 1999.
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avoid an interpretation that varies from the
statute’s language. Layne v. Newberg, Ky.,
841 S.W.2d 181 (1992). When construing a
statute, a court must attempt to determine
the intent and purpose of the legislature in
enacting the provision and in 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 in much
detail determined the meaning and intent of
the legislature in enacting the new provision
of KRS 342.315(2). We believe the board
correctly determined that based on the
language of the statute and the history
surrounding it, the statute does more than
simply change the burden of production. 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 specifically state in the
order the reasons for rejecting
that evidence.
The particular language used by the
legislature shows that it is clear 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. As the board correctly pointed
out, if the party claiming benefits cannot
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come up with evidence to rebut the finding of
the university evaluator which is adverse to
him or her, then the party loses.
. . . .
We must now consider whether the
presumption in KRS 342.315(2) should be
applied retroactively to cases arising before
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.
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, [271,] 114 S.Ct.
2251, 2254, 129 L.Ed.2d 221[, 227]
(1994)[(citation omitted)]. Further, matters
have been considered substantive in part
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. [sic] Tompkins, 304 U.S. 64, 58 S.Ct.
817, 82 L.Ed 1188 (1938).
In the instant case, the provision of KRS
342.314(2) regarding presumptive weight is
substantive. It states that 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. Thus, by the
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plain terms of the statute, it has
substantive impact on the 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.
Having found that the presumptive weight provision does
not apply to the present cases, we need not reach the question of
whether the evidence produced by the claimants overcame that
presumption, or whether the Board erred in making such a finding.
The opinion of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
EDDIE BEALMEAR:
William P. Swain
Philip J. Reverman, Jr.
John C. Talbott
Louisville, Kentucky
Harry R. Hinton
Madisonville, Kentucky
BRIEF FOR APPELLEE
BILLY GENE HAWES:
A. V. Conway, II
Hartford, Kentucky
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