REEDY COAL COMPANY, as insured by OLD REPUBLIC INSURANCE COMPANY V. DANNIE MEADE; REEDY COAL COMPANY, INSURANCE COMPANY; ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND, DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE, and WORKERS' COMPENSATION BOARD
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RENDERED: May 21, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000888-WC
REEDY COAL COMPANY, as insured
by OLD REPUBLIC INSURANCE COMPANY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NOS. WC-97-001155, WC-94-26462,
WC-94-07134, AND WC-92-21450
DANNIE MEADE; REEDY COAL COMPANY,
as insured through LIBERTY MUTUAL
INSURANCE COMPANY; ROBERT L.
WHITTAKER, DIRECTOR OF SPECIAL FUND,
DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE,
and WORKERS’ COMPENSATION BOARD
AND
NO.
1998-CA-000970-WC
REEDY COAL COMPANY, as insured
by Liberty Mutual Insurance Company
v.
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NOS. WC-97-001155, WC-94-26462,
WC-94-07134, AND WC-92-21450
DANNIE MEADE; REEDY COAL COMPANY,
as insured by Old Republic Insurance;
ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND,
DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE,
and WORKERS’ COMPENSATION BOARD
OPINION
REVERSING
** ** ** ** **
BEFORE:
APPELLEES
CROSS-APPELLEES
BUCKINGHAM, MCANULTY AND MILLER, JUDGES.
McANULTY, JUDGE: In this appeal we are asked to decide whether
the 1996 amendments to KRS 342.125, prohibiting the reopening of
settlements and awards until two years after entry, apply to the
settlements made and awards rendered before the effective date of
the statute.
The Workers’ Compensation Board (“Board”) answered
this question in the negative.
We disagree and therefore reverse
the Board’s decision reversing the order of the Administrative
Law Judge (“ALJ”).
Appellee Dannie Meade (“Meade”) was an employee of
Reedy Coal Company (“Reedy Coal”), as insured by Old Republic
Insurance Company (“Old Republic”), when he sustained an injury
to his left knee in February of 1992.
Still employed by Reedy
Coal, which was then insured by Liberty Mutual Insurance Company
(“Liberty Mutual”), Meade injured his right knee in February of
1994.
Meade filed a worker’s compensation claim and was found to
be 50 percent occupationally disabled by an opinion and award
entered December 21, 1995.
Meade filed a motion to reopen in January of 1997.
The
matter was assigned to an arbitrator who eventually ruled that
the reopening was prohibited by the December 1996 amendments to
KRS 342.125.
Meade appealed to an Administrative Law Judge who
agreed that the time limitations in KRS 342.125 barred the
reopening.
Meade then appealed to the Workers’ Compensation
Board who reversed the decision of the ALJ.
Reedy Coal, as insured by Old Republic has filed a
petition for review of the Board’s decision and Reedy Coal, as
insured by Liberty Mutual has filed a cross-petition for review.
KRS 342.125(3) and (8), as amended effective December
12, 1996, state:
(3) Except for reopening solely for
determination of the compensability of
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medical expenses, fraud, or conforming
the award as set forth in KRS
342.730(1)(c)2., or for reducing a
permanent total disability award when an
employee returns to work, no claim shall
be reopened more than four (4) years
following the date of the original award
or order granting or denying benefits,
or within two (2) years of such award or
order, and no party may file a motion to
reopen within two (2) years of any
previous motion to reopen by the same
party.
(8) The time limitation prescribed in
this section shall apply to all claims
irrespective of when they were incurred,
or when the award was entered, or the
settlement approved. However, claims
decided prior to December 12, 1996, may
be reopened within four (4) years of the
award or order or within four (4) years
of December 12, 1996, whichever is
later, provided that the exceptions to
reopening established in subsections (1)
and (3) of this section shall apply to
these claims as well.
In finding that the 1996 amendments should not apply
retroactively, the Board relied on the particular language of the
statute.
Initially, the Board noted the use of the singular
“time limitation” rather than “time limitations.”
It concluded
that it must presume that the legislature intended to make this
distinction, citing Grieb v. National Bond and Insurance Co., 264
Ky. 289, 94 S.W.2d 612 (1936).
Next, the Board observed that
subsection (8) subsequently refers to claims which were decided
prior to the December 1996 amendments and then discusses only the
four year limitation period.
From this statutory construction,
the Board surmised that the singular time limitation referred to
the four year limitation period and not the two year period.
Moreover, the Board opined that its interpretation of the statute
-3-
addressed practical considerations of parties who settled claims
prior to December 12, 1996.
We disagree with the Board’s analysis of the statutory
language.
Whereas the Board found that KRS 342.125(3)
establishes two separate time limitations on filing reopenings,
we read this section as creating a specific window of opportunity
to file a motion to reopen.
First, the legislature states that
claims may not be reopened four years after the award or order is
entered.
Next, the legislature provides that a claim may not be
reopened within two years of the award or order.
In essence, the
legislature has declared that a claim may be reopened anytime
from two years after the date of the award until four years after
the date of the award.
In referring to only one time limitation,
in subsection (8) the legislature is referring to this window of
opportunity it has created and not only, as the Board concluded,
to the four year limitation.
Our decision is further strengthened by KRS 342.0015 in
which the General Assembly specifically identified KRS 342.125(8)
as being remedial.
While it is true that KRS 446.080(3) mandates
that “no statute shall be construed to be retroactive, unless
expressly declared”, the Supreme Court has held that remedial
statutes are to be applied retroactively.
Peabody Coal Co. v.
Gossett, Ky., 819 S.W.2d 33 (1991); Thornsbury v. Aero Energy,
Ky., 908 S.W.2d 109 (1995).
For the foregoing reasons we conclude that the Board
erred in determining that the 1996 amendments to KRS 342.125
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should not be applied retroactively and we therefore reverse the
decision to that effect.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE REEDY COAL COMPANY,
as insured by OLD REPUBLIC
INSURANCE CO.:
BRIEF FOR APPELLEE/CROSSAPPELLANT REEDY COAL COMPANY,
as insured by LIBERTY MUTUAL
INSURANCE CO.:
Jeffrey D. Damron
Prestonburg, KY
Penelope Justice Turner
Pikeville, KY
BRIEF FOR APPELLEE SPECIAL
FUND:
Joel D. Zakem
Louisville, KY
BRIEF FOR APPELLEE WORKERS’
COMPENSATION BOARD:
Donald Wayne Taylor, Jr.
Prestonburg, KY
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