GREEN COAL COMPANY, INC. v. PATRICK S. RILEY; HON. RICHARD CAMPBELL, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
September 7, 2001; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002100-WC
GREEN COAL COMPANY, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-02707
v.
PATRICK S. RILEY; HON. RICHARD CAMPBELL,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; COMBS AND JOHNSON, JUDGES.
JOHNSON, JUDGE: Green Coal Company, Inc. has petitioned for
review of an opinion of the Workers’ Compensation Board entered
on August 2, 2000.
The Board affirmed the decision of the
Administrative Law Judge (ALJ), who granted Patrick Riley
retraining incentive benefits, due to his contracting category
1/0 or 1/11 coal workers’ pneumoconiosis.
Having concluded that
the Board has not overlooked or misconstrued controlling statutes
1
There was conflicting expert testimony regarding whether
Riley’s pneumoconiosis was category 1/0 or 1/1.
or precedent in ruling that the ALJ applied the appropriate
version of KRS2 342.732(1)(a) to Riley’s claim, we affirm.3
Riley was employed as a welder and maintenance foreman
by the Green Coal Company from July 11, 1974, to May 3, 1981, and
from April 10, 1984, to October 15, 1996.
October 15, 1996, was
the date of Riley’s last exposure to Green Coal’s surface coal
mining operations.
On December 18, 1997, Riley filed a claim for
retraining incentive benefits (RIB) pursuant to KRS 342.732,
alleging he had contracted coal workers’ pneumoconiosis as a
result of his employment with Green Coal.
Expert medical
testimony later revealed that Riley had in fact developed
category 1/0 or 1/1 coal workers’ pneumoconiosis, due to his
exposure to Green Coal’s mining operations.
On November 13, 1998, the ALJ, relying on the expert
testimony, found that as a result of Riley’s condition, he was
entitled to a RIB award pursuant to KRS 342.732(1)(a).
While
Riley’s claim was filed after KRS 342.732(1)(a) had been amended
on December 12, 1996, the ALJ ruled that since Riley’s last
injurious exposure had occurred prior to the effective date of
the 1996 amendment, his claim was governed by the version of KRS
342.732(1)(a) in effect from April 4, 1994, through December 11,
1996.
Therefore, to be eligible for a RIB award, it was not
necessary for Riley to prove the respiratory impairment required
by the 1996 amended version of KRS 342.732(1)(a) or to be
enrolled and actively and successfully participating as a full2
Kentucky Revised Statutes.
3
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687-88 (1992).
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time student taking 24 or more instruction hours per week in a
bona fide training or education program.
On August 2, 2000, the
Board affirmed the ALJ’s opinion and award.
This petition for
review followed.
Green Coal’s sole claim of error is that the December
12, 1996 amendment to KRS 342.732(1)(a) should have been applied
to Riley’s claim since Riley did not file his claim until
December 18, 1997.
Specifically, Green Coal argues:
Pursuant to the pre-December 12, 1996 version
of KRS 342.732, a claimant was not required
to submit evidence concerning respiratory
impairment to receive a RIB award. Pursuant
to the December 12, 1996 amendments to KRS
342.732, a claimant must submit evidence of
respiratory impairment in order to receive an
award. In light of the fact [that Riley]
failed to submit evidence concerning
respiratory impairment, his claim must be
dismissed if the post December 12, 1996
version of KRS 342.732 controls this claim.
In support of its argument, Green Coal relies almost
exclusively on dicta from Breeding v. Colonial Coal Co.4
In
Breeding, our Supreme Court stated:
It is well settled that the law on the
date of filing a claim for RIB controls the
applicant's entitlement to the benefit and,
therefore, is the law under which the ALJ
must reach a decision on the claim. Arch of
Kentucky, Inc. v. Thomas, Ky., 895 S.W.2d 578
(1995).
Since the above statement from Breeding was clearly dicta, it is
not controlling precedent for the issue before us.
Rather, to
analyze this statement of the law, we must look beyond Breeding.
We believe that Arch, the case cited by the Supreme Court in
Breeding as authority for the above rule, is distinguishable from
4
Ky., 975 S.W.2d 914, 916 (1998).
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the case sub judice.
In Arch,5 the Supreme Court stated:
It seems logical and reasonable that the
compensation rate for a RIB award should be
that rate payable on the date the claim is
filed. . . .
Arch's reliance on Maggard,6 supra as
controlling precedent is misplaced. It is
true that Maggard stands for the proposition
that the law in effect on the date of the
injury or the date of last exposure fixes the
rights of the claimant. This case is,
however, neither an injury case nor a
disability case where the employee has quit
his job so as to mark a time when he was
'last exposed.' RIB claims involve workers
who do not cease working during the time they
are drawing these benefits. The compensation
received by the worker is used for retraining
at the rates charged in the particular year
he receives the training. He should not be
penalized because he chose not to immediately
opt for retraining when he first became aware
that he had stage one pneumoconiosis.
Thus, the case sub judice is distinguishable from Arch in two
respects.
First, the sole issue in Arch was the appropriate
benefit rate, whereas the issue before us is Riley’s entitlement
to a RIB award.
Second, in Arch, there was no date of last
injurious exposure.
In the instant case, it is not disputed that
Riley was last exposed on October 15, 1996.
Accordingly, we do
not find either Arch or Breeding to be controlling in the case
before us.
On the other hand, Whitaker Coal Co. v. Melton,7 is
5
Arch, supra at 579.
6
Maggard v. International Harvester Co., Ky., 508 S.W.2d 777
(1974).
7
Ky.App., 18 S.W.3d 361, 363-64 (2000).
-4-
analogous to Riley’s case.
In Whitaker,8 this Court stated:
Although Melton filed his claim after
the effective date of the 1996 amendment [to
KRS 342.732], the date of his last exposure
to the hazards of the disease was [March] 30,
1995. The issue, therefore, is whether the
1996 amendment can be applied retroactively
to a claim that arose prior to the effective
date of the amendment. KRS 446.080(3) states
that: "No statute shall be construed to be
retroactive, unless expressly so declared."
However, the Courts have consistently held
that remedial statutes do not come within the
legal conception of a retrospective law or
the general rule against the retrospective
operation of statutes. Peabody Coal Co. v.
Gossett, Ky., 819 S.W.2d 33 (1991).
The question, then, is whether the 1996
amendment to KRS 342.732(1)(a) is merely
remedial, or is it a retrospective law. In
73 AmJur2d Statutes § 354 (1974), it is
stated:
A retrospective law, in a legal
sense, is one which takes away or
impairs vested rights acquired under
existing laws, or which creates a new
obligation and imposes a new duty, or
attaches a new disability, in respect to
transactions or considerations already
past.
Remedial statutes are statutes which relate
to remedies or modes of procedures not
creating new or taking away vested rights but
only operating in furtherance of a remedy or
confirmation of such rights.
. . .
In our opinion, the 1996 amendment to KRS
342.732(1)(a), unlike the 1994 amendment,
affects vested rights of claimants and cannot
therefore be applied retrospectively without
a specific expression by the Legislature of
its intent for the provisions to be so
applied.
8
We take judicial notice of the fact that the Court of
Appeals’ opinion in Whitaker, which quoted in part from the
Board’s opinion, omitted the Board’s citations to Breeding.
-5-
. . .
Applying the 1996 version of the statute to
[Melton’s] claim would have resulted in no
award in that (1) he did not have evidence of
the requisite radiographic classification nor
degree of breathing impairment and (2) he was
not actively enrolled in an approved training
program notwithstanding the fact that he had
left the mining industry, thereby fulfilling
one of the purposes of the RIB statute.
Therefore, in our opinion, the ALJ did not
err in declining to apply the 1996 version of
KRS 342.732(1)(a) to Melton's claim in that
it would have impaired his vested rights to
the benefits to which he was entitled on the
date of his last exposure.
Thus, like the claimant in Whitaker, we believe Riley
had a vested right to a RIB award.
On October 15, 1996, the date
of his last injurious exposure, Riley qualified for a RIB award,
if he met the requirements of the substantive provisions of the
law as they stood on that day.
Absent express language
indicating that the 1996 amendment to KRS 342.732(1)(a) should
apply retroactively or a finding that it is remedial legislation,
Riley’s vested rights cannot be altered.
It is therefore
immaterial that Riley did not prove the respiratory impairment or
his participation in a training program that the 1996 amendment
would have required.
Accordingly, the ALJ correctly applied the
version of KRS 342.732(1)(a) that was in effect at the time of
Riley’s last injurious exposure.
Green Coal correctly points out that our decision in
Whitaker rejected the argument that the December 12, 1996
amendment to KRS 342.732(1)(a) was remedial in nature.
address that issue in further detail.
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We now
In Leeco, Inc. v. Crabtree,9 our Supreme Court stated:
As we observed in Spurlin v. Adkins, Ky., 940
S.W.2d 900, 902 (1997), the courts have
consistently determined that the law in
effect on the date of accident controls the
amount of income benefits which a worker is
entitled to receive and which the defendants
may be required to pay for disability caused
by a resulting injury. Therefore, an
amendment to the law with regard to the
amount of an income benefit which occurs
after the date of accident is viewed as
substantive in nature, rather than remedial,
since it affects the vested rights and
responsibilities of the parties [emphasis
added].
As stated earlier, the 1996 amendment to KRS 342.732(1)(a)
affected the vested rights of Riley.
substantive in nature.
The amendment was therefore
KRS 342.0015 provides:
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
[emphasis added].
Therefore, the Legislature has expressly stated that
the substantive provisions of the 1996 amendments are to have a
prospective effect only.
Accordingly, the 1996 amendments to KRS
342.732(1)(a), being substantive in nature, can only be applied
prospectively.
Furthermore, KRS 342.732(1)(a) was specifically
excluded in KRS 342.0015 from those provisions which were
9
Ky., 966 S.W.2d 951, 953 (1998).
-7-
intended to be remedial.
For these reasons, the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
John C. Morton
Samuel J. Bach
Henderson, KY
John S. Sowards, Jr.
Lexington, KY
ORAL ARGUMENT FOR APPELLANT:
Samuel J. Bach
Henderson, KY
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