DOUBLE N COAL COMPANY v. WILLIAM BUELL CRAFT; SPECIAL FUND; JOHN B. COLEMAN, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: December 10, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002608-WC
DOUBLE N COAL COMPANY
APPELLANT
ON PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-97-01722
v.
WILLIAM BUELL CRAFT; SPECIAL FUND;
JOHN B. COLEMAN,
Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION AFFIRMING
* * * * * * * * * * * * * * * * * * * * *
BEFORE:
GUDGEL, CHIEF JUDGE; BUCKINGHAM and KNOX, Judges.
BUCKINGHAM, JUDGE.
Double N Coal Company (“Double N”) petitions
for review of an opinion of the Workers’ Compensation Board (“the
board”) affirming the opinion of the administrative law judge
(“ALJ”),
which awarded William Buell Craft retraining incentive
benefits (“RIB”) of $142.50 per week for 208 weeks based upon a
finding that Craft has coal workers’ pneumoconiosis category 1/1.
We affirm.
Double N first argues that the ALJ’s finding that Craft
gave due and timely notice to Double N is not supported by
substantial evidence in the record.1
Kentucky Revised Statute
(KRS) 342.316(2) requires an occupational disease claimant to
give his employer notice of his claim “as soon as practicable
after [he] first experiences a distinct manifestation of an
occupational disease in the form of symptoms reasonably
sufficient to apprise him that he has contracted the disease, or
a diagnosis of the disease is first communicated to him,
whichever shall first occur.”
KRS 342.135 provides in part that
notice “shall be considered properly given and served when
deposited in the mail in a registered letter or package properly
stamped and addressed to the person to whom notice is to be given
. . . .”
Craft was diagnosed with pneumoconiosis on December 18,
1995.
He testified that the notice letter was sent to Double N
on December 20, 1995.
In his Order on Reconsideration, the ALJ
concluded:
As to the issue of notice, I resolve it
favorably to [Craft]. In doing so, I rely
upon [Craft’s] testimony that he had his
attorney send a letter to Double N. Mining,
informing them that he had been diagnosed as
having black lung. I believe [Craft’s]
testimony that the letter was dated December
20, 1995.”
The ALJ, as the finder of fact, and not the reviewing
court, has the sole authority to determine the quality,
character, and substance of the evidence.
Square D Company v.
Tipton, Ky., 862 S.W.2d 308, 309 (1993);
Paramount Foods, Inc.
1
As Craft prevailed on his claim, Double N must
demonstrate that the decision of the ALJ and the board was not
supported by substantial evidence. Wolf Creek Collieries v.
Crum, Ky. App., 673 S.W.2d 735, 736 (1984).
-2-
v. Burkhardt, Ky., 695 S.W.2d 418 (1985).
We conclude that the
testimony of Craft is substantial evidence in the record to
support the ALJ’s decision that Craft gave proper notice to
Double N of his occupational disease claim.
Double N also asserts that Craft’s testimony concerning
notice was inadmissible hearsay.
The testimony in this regard
was as follows:
Q112
Did you or your attorney notify Double N
that you have been diagnosed as having
black lung?
A
Yes.
Q113
Did you do that or did the attorney?
A
No, my attorney did.
Q114
By letter?
A
Yes sir.
I told him that...
MR. CHANDLER: We attached a copy to the
application, Barry.
MR. LEWIS: Okay, what is the date of the
notice letter?
A
December the 20th ‘95.
We note first that Double N never objected to the
testimony as being hearsay and apparently never raised this
argument until its petition to this court.
See Wolfe v. Fidelity
& Casualty Ins. Co. of N.Y., Ky. App., 979 S.W.2d 118, 120
(1998).
Second, the testimony is not clearly hearsay.
For these
reasons, we are not compelled to reverse the trial court on this
issue.
Double N’s second argument is that the ALJ’s finding
that Craft has pneumoconiosis is clearly erroneous on the basis
-3-
of the reliable, probative, and material evidence contained in
the record.
There was conflicting evidence as to whether Craft
has pneumoconiosis.
However, Dr. John E. Myers diagnosed Craft
with category 1/1 pneumoconiosis.
“[T]he function of the Court of Appeals in reviewing
decisions of the Workers' Compensation Board is to correct the
Board only when we perceive that the Board has overlooked or
misconstrued controlling law or committed an error in assessing
the evidence so flagrant as to cause gross injustice.”
Daniel v.
Armco Steel Company, L.P., Ky. App., 913 S.W.2d 797, 797-798
(1995);
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687-688 (1992).
Where the medical evidence is conflicting, the
question of which evidence to believe is the exclusive province
of the ALJ.
Square D, 862 S.W.2d at 309; Pruitt v. Bugg
Brothers, Ky., 547 S.W.2d 123, 124 (1977).
Although we may have
chosen to believe the other experts, it was the ALJ’s prerogative
to accept Dr. Myers testimony, Pruitt, supra, and we are not at
liberty to second-guess his decision.2
Double N. Mining’s final argument is that the December
12, 1996, amendments to KRS 342.315(2) and KRS 342.732(1)(a) are
remedial and retroactive and therefore applicable to Craft’s
claim for RIB, which arose before the effective date of the
amendments but was filed on July 31, 1997.
The December
1996
amendments to KRS 342.315(3) and KRS 342.315(1) provide for the
2
As we mention below, however, the 1996 amendments to
the workers’ compensation statute have changed the law such that
an evaluator is now appointed by the court to render an opinion
which is to be given presumptive weight.
-4-
appointment of a designated occupational disease evaluator from
one of the Kentucky medical schools, and KRS 342.315(2), as
amended, provides that “[t]he 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.”
The December 1996 amendments to KRS
342.732(1)(a) changed pneumoconiosis RIB law to provide, among
other things, that a RIB recipient could receive RIB payments
only while enrolled in a retraining program.
KRS 342.0015
provides that
[t]he 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 in part where
they are outcome determinative.
Fite & Warmath Construction
Company v. MYS Corporation, Ky., 559 S.W.2d 729, 733 (1977),
citing Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817,
-5-
82 L.Ed. 1188 (1938).
We conclude that the amendments to KRS
342.315 are substantive provisions and, therefore, are not
applicable to Craft’s claim.
Concerning the December 1996 amendments to
KRS 342.732(1)(a), that statute was amended to provide that
“benefits shall be paid only while the employee is enrolled and
actively and successfully participating as a full-time student
taking twenty-four (24) or more instruction hours per week in a
bona fide training or education program . . . .”
This is not one
of the statutes listed in KRS 342.0015 as being remedial.
Further, KRS 446.080(3) provides that “[n]o statute shall be
construed to be retroactive, unless expressly so declared.”
We
thus hold that the 1996 amendment to KRS 342.732(1)(a) does not
apply to Craft’s claim.
The opinion of the Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
W. Barry Lewis
Hazard, Kentucky
Samuel P. Chandler
Whitesburg, Kentucky
BRIEF FOR SPECIAL FUND:
Benjamin C. Johnson
Louisville, Kentucky
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