CALVIN BLACK PETITION FOR REVIEW OF A DECISION V. CMT TRUCKING; ELMER KINCAID, JR.,D/B/A ELMER KINCAID JR TRUCKING; J. LANDON OVERFIELD, JR., ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD and ELMER KINCAID, JR., D/B/A ELMER KINCAID JR TRUCKING V. CALVIN BLACK, JR.; J. LANDON OVERFIELD, JR., ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED:
February 4, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001079-WC
CALVIN BLACK
V.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
CLAIM NO. WC-02-1755
CMT TRUCKING; ELMER KINCAID, JR.,D/B/A
ELMER KINCAID JR TRUCKING;
J. LANDON OVERFIELD, JR.,
ADMINISTRATIVE LAW JUDGE;
WORKERS' COMPENSATION BOARD
AND
NO. 2004-CA-001220-WC
ELMER KINCAID, JR., D/B/A
ELMER KINCAID JR TRUCKING
V.
APPELLEES
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
CLAIM NO. WC-02-1755
CALVIN BLACK, JR.;
J. LANDON OVERFIELD, JR.,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
OPINION
AFFIRMING
CROSS-APPELLEES
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; JOHNSON AND MINTON, JUDGES.
MINTON, JUDGE:
The doctrine of res judicata operates to prevent
the relitigation of issues already decided and to promote
judicial economy.
Res judicata applies specifically to prevent
parties involved in a prior action from reopening final
judgments.
In 1991, an Administrative Law Judge found Calvin
Black had developed coal workers’ pneumoconiosis while employed
by Nally & Hamilton Enterprises, Inc.
incentive benefits (RIB).
He was awarded retraining
Eleven years later, Black again filed
for disabilities related to his pneumoconiosis, this time with a
different employer, CMT Trucking/Elmer Kincaid, Jr., d/b/a Elmer
Kincaid, Jr. Trucking (“Kincaid”).
The ALJ assigned to this
claim found that Black did not have pneumoconiosis and that he
had not given Kincaid timely notice.
dismissed.
Therefore, his claim was
On appeal, the Workers’ Compensation Board reversed
with regard to the issue of notice but affirmed the ALJ’s
finding that Black did not have pneumoconiosis.
Black requested
this Court review the Board’s decision, arguing the doctrine of
res judicata should apply.
Kincaid filed a cross-petition for
review, asking us to determine whether the Board correctly
determined Black’s notice was timely.
affirm.
-2-
On both issues, we
When Black brought his original workers’ compensation
claim against Nally & Hamilton in 1991, the ALJ determined that
he had a “1/1” radiographic classification for pneumoconiosis.
Since the disease was linked to his employment with Nally &
Hamilton, Black was awarded RIB.
Shortly thereafter, Black went to work as a truck
driver for a gravel-hauling company.
And, in 1999, he began his
employment as a coal truck driver for Kincaid.
Black’s job
primarily consisted of hauling coal betweens mines and tipples
throughout Eastern Kentucky and Tennessee.
Black accepted a voluntary lay-off from Kincaid on
March 21, 2002.
Six-months later, Dr. Matthew Vuskovich, a
certified “B-reader,” interpreted a radiographic film for Black.
Dr. Vuskovich determined that Black was positive for
category 2/1 pneumoconiosis.
Based on Dr. Vuskovich’s
evaluation, Black filed for benefits from Kincaid in October
2002.
Black claimed his pneumoconiosis was “arising out of” and
contracted “in the course of his employment” with Kincaid.
On April 22, 2003, Dr. A. Dahnan evaluated Black and
interpreted his radiographic film as completely negative for
pneumoconiosis.
In contrast, in June 2003, Dr. Glen Baker
evaluated Black and determined he was positive for category 1/0
pneumoconiosis.
-3-
Following these evaluations, Black moved to reopen the
claim against Nally & Hamilton.
In support of his motion, Black
submitted the report of Dr. Vuskovich, indicating his condition
had worsened to Category 2/1 pneumoconiosis.
On October 2,
2003, the Chief ALJ denied Black’s motion to reopen, stating
that the reopening was time-barred by KRS1 342.125(3).
Because of the disparity in the interpretations of
Black’s radiographic film and in accordance with
KRS 342.316(13), a consensus procedure was undertaken to
determine whether Black was afflicted with pneumoconiosis.
Under KRS 342.316(13), a consensus procedure can be applied to
all claims not assigned to an ALJ before July 15, 2002.
The
classification assigned by the consensus is presumed to be
correct unless there is clear and convincing evidence to the
contrary.
The three doctors who conducted the consensus were all
certified B-readers.
Dr. Larry K. West, a Board-certified
radiologist, interpreted Black’s chest x-ray and determined he
was completely negative for pneumoconiosis.
Category 0/0.
He assigned Black a
Dr. Robert Pope, a Board-certified pulmonary
specialist, also interpreted the chest film as negative.
Although Dr. Pope did find some abnormalities with Black’s
1
Kentucky Revised Statutes.
-4-
x-ray, he did not believe there was sufficient evidence to
positively diagnose Black; so he assigned a Category 0/1.
Finally, Dr. Robert Powell, also a Board-certified pulmonary
specialist, interpreted Black’s film as positive for
pneumoconiosis and assigned him a Category 1/1.
The consensus interpretation was that Black was
negative for coal workers’ pneumoconiosis.
Based on this
interpretation, the ALJ assigned to the case found that Black
did not have pneumoconiosis.
Specifically, the ALJ stated:
Plaintiff does not have the disease of coal
workers pneumoconiosis based on the evidence
submitted in this claim. In making this
finding, I have accepted the consensus
classification which, pursuant to
KRS 342.316(13), is presumed to be the
correct classification of Plaintiff’s
condition unless overcome by clear and
convincing evidence. I find no clear and
convincing evidence in the record which
would overcome the presumption afforded the
consensus classification by the cited
statute.
With regard to the issue of notice, the ALJ further
found that Black had not met his burden of proof in establishing
that he gave due and timely notice to Kincaid.
The ALJ stated
that although Black knew or should have known since 1991 that he
had been diagnosed with pneumoconiosis, he did not make an
effort to notify Kincaid until October 14, 2002.
The ALJ found
that the notification was not given “as soon as practicable” as
required by KRS 342.316(2); therefore, since Black “received the
-5-
diagnosis in 1991, last worked for [Kincaid] on March 21, 2002,
and did not give notice until October of 2002,” the ALJ held his
notice was untimely.
On appeal, the Board affirmed that portion of the
ALJ’s decision that held Black did not have pneumoconiosis. The
Board stated that since Nally & Hamilton was not a party to
Black’s 2002 claim, res judicata did not apply because there had
not been an identity of parties or issues.
With regard to the issue of notice, the Board
determined the ALJ’s decision was erroneous as a matter of law.
Specifically, the Board held that Black’s duty to notify did not
arise until after Dr. Vuskovich issued his report diagnosing
Black with category 2/1 pneumoconiosis.
Consequently, the Board
held that “the question that should have been addressed by the
ALJ with regard to the notice issue is whether, after the
issuance of Dr. Vuskovich’s report and upon learning of a
potential progression of his coal workers’ pneumoconiosis,
Black’s notice to Kincaid Trucking in October 2002 was
sufficient[.]”
Since the ALJ did not address this issue, the
Board held the matter was moot.
In response to the Board’s decision, both parties
sought review.
This opinion follows.
BLACK’S PETITION FOR REVIEW
-6-
Black’s sole argument is that the Board erroneously
upheld the ALJ’s finding that he did not have pneumoconiosis.
In support of this argument, Black argues that the doctrine of
res judicata applies because, in his 1991 claim for benefits, he
was found to be positive for the disease.
We disagree.
The application of res judicata to workers’
compensation decisions is firmly established in Kentucky.
In
Godbey v. University Hospital of the Albert B. Chandler Medical
Center Inc., this Court stated that “‘Kentucky has for many
years followed the rule that the decisions of administrative
agencies acting in a judicial capacity are entitled to the same
res judicata effect as judgments of a court.’”2
As commonly stated:
the doctrine of res judicata is that an
existing final judgment rendered upon the
merits, without fraud or collusion, by a
court of competent jurisdiction, is
conclusive of causes of action and of facts
or issues thereby litigated, as to the
parties and their privies, in all other
actions in the same or any other judicial
tribunal of concurrent jurisdiction.3
Res judicata actually involves two distinct subparts:
2
975 S.W.2d 104, 105 (Ky.App. 1998) (citations omitted).
3
46 Am.Jur.2d §514, Judgments.
-7-
“claim preclusion,” which embodies the typical definition of res
judicata, and “collateral estoppel” or “issue preclusion.”4
“Claim preclusion bars a party from [relitigating] a previously
adjudicated cause of action and entirely bars a new lawsuit on
the same cause of action.”5
In contrast, “[i]ssue preclusion
bars the parties from relitigating any issue actually litigated
and finally decided in an earlier action.
The issues in the
former and latter actions must be identical.”6
The general rule
of issue preclusion is “[w]hen an issue of fact or law is
actually litigated and determined by a valid and final judgment,
and the determination is essential to the judgment, the
determination is conclusive in a subsequent action between the
parties, whether on the same or a different claim.”7
One
exception to this general rule allows for relitigation of an
issue when “[t]he party against whom preclusion is sought could
not, as a matter of law, have obtained review of the judgment in
the initial action.”8
4
Yeoman v. Com., Health Policy Board, 983 S.W.2d 459, 464 (Ky. 1998);
see also Sedley v. City of West Buechel, 461 S.W.2d 556 (Ky. 1970).
5
Yeoman, supra at 464.
6
Id.
7
RESTATEMENT (SECOND) OF JUDGMENTS, §27.
8
RESTATEMENT (SECOND) OF JUDGMENTS, §28.
-8-
While claim preclusion is dependent upon the mutuality
of the parties, issue preclusion is not.9
This means that “issue
preclusion . . . allows the use of the earlier judgment by one
not party to the original action to preclude relitigation of
matters litigated in the earlier action.”10
Black argues that, “the doctrine of res judicata
should operate as a bar to any findings by the consensus panel
that he does not have the occupational disease and thus should
bar the finding by the Administrative Law Judge that [he] does
not have [coal miners’ pneumoconiosis].”
Black’s reliance on
this doctrine is misplaced for several reasons; therefore, we
must disagree with his contention.
Initially, we note that because there is no mutuality
of the parties between the 1991 claim and the instant case, res
judicata, or claim preclusion, cannot apply.
Board’s reasoning.
This was the
The Board specifically stated, “In 1991,
Black was determined to have Category 1, coal workers’
pneumoconiosis while in the employ of Nally & Hamilton, Inc.
Nally & Hamilton, Inc. is not a party to this action.
Therefore, neither res judicata nor collateral estoppel relate.”
9
Blonder-Tongue Laboratories, Inc. v. University of Illinois
Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971).
10
Godbey, supra, at 105 (emphasis added).
-9-
We agree with the Board’s conclusion to the extent
that it denies application of the doctrine of res judicata
because Nally & Hamilton is not a party to this action.
But
this fact alone does not necessarily preclude the application of
collateral estoppel, or issue preclusion, since that doctrine is
not reliant on mutuality.
Nonetheless, upon further analysis of
Black’s claim under issue preclusion, we do not believe there is
sufficient evidence to support his contention that the 1991
findings regarding his pneumoconiosis were binding on the
present case.
First, issue preclusion is not applicable to this case
because the causation issue presented in 1991 is not the same
causation issue presented in 2002.
The issue before the ALJ in
1991 was whether Black was afflicted with coal workers’
pneumoconiosis arising out of and in the course of his
employment with Nally & Hamilton.
On the contrary, the issue
before the ALJ in this case is whether Black’s pneumoconiosis
arose out of and in the course of his employment with Kincaid.
As noted, the doctrine of issue preclusion is only relevant when
the issues presented in the former and latter actions are
identical.11
Here, they clearly are not.
Moreover, since the statutory standards for
pneumoconiosis claims were amended in 2002, Black’s 1991 claim
11
Id.
-10-
was not decided under the same law as his 2002 claim.
Since
different standards were used to determine the status of Black’s
disease, it cannot be said that the issues were the same.
So
issue preclusion cannot apply.
Second, as stated by Professor Larson in his treatise
on workers’ compensation law:
It is almost too obvious for comment that
res judicata does not apply if the issue is
the claimant’s physical condition or degree
of disability at two different times,
particularly in the case of occupational
disease. A moment’s reflection would reveal
that otherwise there would be no such thing
as reopening for a change in condition.12
As the issue in this case was Black’s physical condition,
particularly the status of his occupational disease, issue
preclusion cannot apply.
Finally, we question the propriety of Black’s ability
to claim either res judicata or issue preclusion in this case.
As previously noted, “issue preclusion . . . allows the use of
the earlier judgment by one not party to the original action to
preclude relitigation of matters litigated in the earlier
12
Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation Law,
§79.72(f), Vol. 8 (1999); see also Fields v. Workmen’s Compensation
Appeal Board (Duquesne Light Company), 114 Pa.Cmwlth. 645, 647,
539 A.2d 507 (1988).
-11-
action.”13
Since Black brought the original claim against
Nally & Hamilton, he was a party to the original action.
Also, because Kincaid was not a party to the original
action, the RESTATEMENT (SECOND)
OF
JUDGMENTS states that relitigation
is proper because “the party against whom preclusion is sought
could not, as a matter of law, have obtained review of the
judgment in the initial action.”14
Kincaid could not have
obtained review of the claim between Black and Nally & Hamilton;
therefore, relitigation of the issue is appropriate, and the
application of issue preclusion in this action would be
erroneous.
We do not believe that the doctrine of res
judicataeither in its manifestation as claim preclusion or
issue preclusioncan be applied in this case.
So we affirm the
Board’s decision holding that the ALJ properly found Black to be
negative for coal workers’ pneumoconiosis.
KINCAID’S CROSS-PETITION FOR REVIEW
Kincaid argues that the Board’s holding with regard to
the timeliness of Black’s notice to his employer was erroneous
as a matter of law.
Kincaid specifically states that since the
issue of whether notice was timely is a question of fact, the
13
Godbey, supra, at 105 (emphasis added).
14
RESTATEMENT (SECOND) OF JUDGMENTS, §28.
-12-
Board abused its discretion in holding that the ALJ’s findings
were erroneous.
We disagree.
KRS 342.316(2) states:
[N]otice of claim shall be given to the
employer as soon as practicable after the
employee 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.
In Newberg v. Slone,15 the Kentucky Supreme Court
interpreted the KRS 342.316(2) notice requirement, stating,
“[w]hat we are convinced of is that the notice provision of
KRS 342.316(2)(a) is clear and requires notice to an employer
when the worker has knowledge of a potentially compensable
condition.”16
The Court has further held that “[a]n examination
of some of our opinions pertaining to the notice provision of
KRS 342.316(2) reveals that the requirement to give notice as
soon as practicable means within a reasonable time under the
circumstances of each particular case.”17
15
Ky., 846 S.W.2d 694 (1992).
16
Id. at 695.
17
Peabody Coal Company v. Harp, 351 S.W.2d 170, 171-172 (Ky. 1961).
-13-
With regard to the timeliness of Black’s notice, we
believe the holding in Blackburn v. Lost Creek Mining18 is
germane.
benefits.
In Blackburn, a miner filed a claim for pneumoconiosis
Although two doctors found he was positive for the
disease, two other doctors claimed he was negative; the ALJ
adopted the findings that the miner was negative and his claim
was dismissed.
Several years later, the miner again applied for
benefits for pneumoconiosis but from a different employer.
The
new employer, Lost Creek, denied his claim and asserted that the
miner was required to give them notice “of his previous
diagnosis and his potential claim as soon as practicable after
he ceased his employment with Lost Creek in August, 1995.”19
The
Supreme Court disagreed, stating “[t]he claimant became employed
by Lost Creek after the [initial] decision and did not obtain a
second diagnosis of category 1/0 disease . . . until after the
employment with Lost Creek ceased; whereupon, he attempted to
notify Lost Creek.”20
The Court held that the miner had given
Lost Creek notice “as soon as practicable” in accordance with
KRS 342.316(2).
18
31 S.W.3d 921 (Ky. 2000).
19
Id. at 924-925.
20
Id. at 925.
-14-
The same analysis applies in the instant case.
Although Black had previously been diagnosed with
pneumoconiosis, he was under no duty to notify Kincaid until he
obtained the second diagnosis from Dr. Vuskovich.
At that
point, Black had a “compensable injury” that could be attributed
to his employment with Kincaid.
Notifying Kincaid of his prior
diagnosis would have been fruitless because until he was “rediagnosed” by Dr. Vuskovich, Black did not have any further
compensable injury for which he could have claimed benefits from
Kincaid.
The ALJ’s findings with regard to this issue were
clearly erroneous.
Since the Board is charged with deciding
“whether the evidence is sufficient to support a particular
finding made by the ALJ,”21 we believe the decision to reverse
was clearly within the Board’s province.
Black notified Kincaid within a month of receiving his
diagnosis from Dr. Vuskovich.
We believe this delay was
reasonable; therefore, we affirm the Board’s holding.
For these reasons, the decision of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
21
Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).
-15-
BRIEFS FOR APPELLANT/CROSSAPPELLEE:
Susan Turner Landis
Johnnie L. Turner
Harlan, Kentucky
BRIEF FOR APPELLEE/CROSSAPPELLANT, ELMER KINCAID, JR.,
D/B/A KINCAID JR TRUCKING:
W. Barry Lewis
Hazard, Kentucky
-16-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
