MAGIC COAL COMPANY v. RONNIE FOX; HONORABLE ZARING P. ROBERTSON, ADMINISTRATIVE LAW JUDGE AND WORKERS' COMPENSATION BOARD

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RENDERED: January 15, 1999; 10:00 a.m. TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1998-CA-000527-WC MAGIC COAL COMPANY v. APPELLANT PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-97-000396 RONNIE FOX; HONORABLE ZARING P. ROBERTSON, ADMINISTRATIVE LAW JUDGE AND WORKERS' COMPENSATION BOARD APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: BUCKINGHAM, GARDNER AND KNOPF, JUDGES. GARDNER, JUDGE: Magic Coal Company (Magic) appeals from an opinion of the Workers’ Compensation Board which affirmed the decision of the Administrative Law Judge (ALJ) awarding workers’ compensation benefits to appellee, Ronnie Fox (Fox). The primary issue in this case is whether the provision of Kentucky Revised Statute (KRS) 342.315(2) stating that the findings and opinion of designated university medical evaluators shall be afforded presumptive weight should be applied retroactively to claims arising prior to the December 1996 amendments to the Kentucky workers’ compensation statutes. After carefully reviewing the applicable law and the facts of this case, this Court affirms the board’s opinion. Fox was employed in the coal mining industry for over nineteen years, with his employment ending in March 1992. last worked for Magic. He In February 1997, Fox filed a claim for retraining incentive benefits, claiming that he had contracted coal workers’ pneumoconiosis. The parties stipulated to all facts except as to whether Fox had pneumoconiosis, whether he continued to be employed in the mining industry, whether he had left employment with Magic through no fault of his own, and whether the university medical specialist’s report was entitled to presumptive weight pursuant to KRS 342.315. Fox presented medical evidence from Dr. Glenn Baker who read chest x-ray films as category 1/0 and 2/1 and from Dr. John Myers who read chest x-rays as category 1/1. Magic presented x- ray readings from Drs. Robert Powell and B. T. Westerfield, both of whom read and interpreted the x-ray films as negative (0/0) for pneumoconiosis. A chest x-ray film reading made by Dr. Betty Joyce, a university medical evaluator, was negative for pneumoconiosis. The ALJ issued his opinion in September 1997. He determined that the provisions of KRS 342.315 according presumptive weight to the findings of the university evaluators were substantive in nature and should not be applied retroactively to claims arising before enactment of the new statute. He weighed all of the medical evidence presented and -2- concluded that Fox met his burden of proving that he was suffering from coal worker’s pneumoconiosis. Magic appealed the ALJ’s opinion to the board. The board consolidated this case with others to consider the legal effect of the presumptive weight provision of KRS 342.315 and whether it should be applied retroactively. The board ultimately concluded that the change in the statute represents an alteration in the overall burden of proof placed on the parties which is substantive in nature. The board ruled therefore that the statutory provisions calling for presumptive weight to be given to the university evaluator’s findings should not be applied retroactively to the facts in the instant case. therefore affirmed the ALJ’s opinion. The board Magic has now appealed to this Court. Magic argues that the changes in KRS 342.315(2) regarding giving presumptive weight to the university evaluator’s findings are procedural in nature and should apply to all claims regardless of the last date of exposure or injury. Thus, it maintains that the ALJ and the board erred by not giving Dr. Joyce’s findings presumptive weight in the instant case. Fox on the other hand argues that the board erroneously analyzed the effect of the presumption established in KRS 342.315(2). He contends that the board should have interpreted the new provision as simply shifting the burden of going forward with proof, because this is consistent with existing law and avoids the problems of retroactivity and constitutionality regarding the new provision. Alternatively, Fox argues that if the board’s -3- interpretation was correct, then its conclusion that KRS 342.315(2) should not be applied retroactively to cases in which the injury or last date of exposure arose before the effective date of the statute should be sustained. 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. S.W.2d 941, 943 (1983). Lydic v. Lydic, Ky. App., 664 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 avoid an interpretation that varies from the statute’s language. S.W.2d 181 (1992). Layne v. Newberg, Ky., 841 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. v. Greene, Ky., 243 S.W.2d 892 (1951). Reed A reviewing body is to presume that the legislature by enacting a statutory provision, -4- 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 come up with evidence to rebut the finding of the university evaluator which is adverse to him or her, then the party loses. To adopt the interpretation of the statutory language espoused by Fox would render the statute basically meaningless. The cases cited by Fox and Kentucky Rule of Evidence (KRE) 301 do not apply to the case at bar, because of the specific language of KRS 342.315(2). -5- 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, 114 S.Ct. 2251, 2254, 129 L.Ed.2d 221 (1994). 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. 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 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 -6- session apply only to claims arising from an injury or last exposure occurring on or after December 12, 1996. Thus, the board correctly ruled that the ALJ did not err by declining to give the university evaluator’s finding presumptive weight in the case at bar. The ALJ chose to favor the findings of Fox’s experts, and a reviewing court must not substitute its opinion for that of a lower tribunal if there is substantial evidence to support the findings. See W. L. Harper Const. Co. v. Baker, Ky. App., 858 S.W.2d 202 (1993); Starks v. Kentucky Health Facilities, Ky. App., 684 S.W.2d 5 (1984). General Refractories Co. v. Henderson, 313 Ky. 613, 232 S.W.2d 846 (1950), cited by both parties is distinguishable from the instant case because the language of the statute in that case was more specific and showed an intent to apply changes regarding proof in workers’ compensation cases retroactively.1 For the foregoing reasons, this Court affirms the opinion of the Workers’ Compensation Board. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE RONNIE FOX: Charles E. Lowther Madisonville, Kentucky John S. Sowards, Jr. Lexington, Kentucky 1 Fox in his brief has argued that the revised KRS 342.315 is unconstitutional under both the United States and Kentucky Constitutions. This Court does not find it necessary to address the issue because we have ruled that the provision regarding presumptive weight does not apply retroactively in the case at bar. -7-

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