TEDDY A. TURNER v. APOLLO FUELS, INC. AND HON. SHEILA C. LOWTHER, CHIEF ADMINISTRATIVE LAW JUDGE, AND KENTUCKY WORKERS' COMPENSATION BOARD
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RENDERED: JUNE 10, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
MODIFIED: JULY 1, 2005; 2:00 P.M.
Commonwealth Of Kentucky
Court of Appeals
NO.
2004-CA-002537-WC
TEDDY A. TURNER
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 97-WC-01864
v.
APOLLO FUELS, INC. AND
HON. SHEILA C. LOWTHER,
CHIEF ADMINISTRATIVE LAW JUDGE,
AND KENTUCKY WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, HENRY, AND TACKETT, JUDGES.
HENRY, JUDGE:
Teddy A. Turner (Turner) has petitioned for
review of an opinion of the Workers' Compensation Board (Board)
entered on November 12, 2004, which affirmed an order of the
chief administrative law judge (CALJ) rendered June 17, 2004,
overruling Turner's motion to reopen his coal workers'
pneumoconiosis (CWP) claim.
We affirm.
Turner worked for Apollo Fuels, Inc. (Apollo Fuels)
for eighteen years.
For sixteen of those years he was a tipple
operator, and the last two years of employment he operated a
road sweeper.
His last date of exposure was November 6, 1996.
Six months before his last exposure he began operating a small
feed business with his father which he continued after leaving
employment with Apollo Fuels.
On August 20, 1997, Turner filed to recover retraining
incentive benefits (RIB).
In support of his claim, he filed two
x-ray reports from January and February of 1997.
In a reading
of the January x-ray (rated a Grade 1 film), the doctor found
p/p opacities in all zones of both lungs in a 1/1 profusion.
A
second doctor reading the February x-ray (rated a Grade 2 film)
found p/q opacities in the upper zone of the left lung in a 1/1
profusion.
On behalf of Apollo Fuels, two doctors read the same
x-rays, rated them as Grade 1 films, and found no evidence of
pneumoconiosis.
A third doctor on behalf of Apollo Fuels read a
third x-ray (rated a Grade 1 film) from February 6, 1998, and
likewise found no evidence of pneumoconiosis.
Pursuant to changes in the Workers' Compensation Act
which became effective December 12, 1996, a university medical
evaluator was appointed to examine Turner.
Statutes (KRS) 342.315.
Kentucky Revised
After examining a chest x-ray (rated a
-2-
Grade 1 film) dated October 7, 1997, the evaluator found no
evidence of pneumoconiosis.
Upon review of the medical evidence and Turner's
deposition, the ALJ found:
That portion of the 1996 Amendments
providing for the appointment of a
university evaluator is procedural and is
applicable to this case. That portion of
the Amendment that provides the report of
the university evaluator shall be given
presumptive weight is substantive and is not
applicable to this case in which plaintiff's
last exposure occurred prior to the
effective date of the 1996 Amendments.
Therefore it was proper for a university
evaluator to be appointed to examine
plaintiff in this case but the report of
that university evaluator is not given
presumptive weight.
The ALJ thereafter found that although the medical evidence was
conflicting, that presented by the employer was more persuasive
and sufficient to establish that Turner did not suffer from CWP.
Based upon this finding he entered an order dismissing Turner's
claim for RIB.
On October 23, 2003, Turner filed a motion to reopen
his claim "for review of the university x-ray in compliance with
reconsideration procedures of KRS 342.732, effective 7-15-021
with his last exposure to coal dust being prior to 12-12-96."
In support of his motion, Turner filed an affidavit indicating
that since the ALJ order of June 11, 1998, his "condition has
1
Reference is also made in the record to this amendment as HB 348.
-3-
continued to worsen to the point that I am totally disabled.
I
would state that my breathing is now more impaired and I have
difficulty doing normal day to day activities."
He further
stated, in response to Apollo Fuels' objection to the motion,
that "under HB 348 and KRS 342.732, [I am] reopening [my] claim
to have the university procedures reviewed and [I do] not need a
new x-ray to support this."
Turner's motion was filed and his
university evaluator x-ray was referred to three "B" readers for
interpretation, whom, on April 7, 2004, found as a consensus a
negative reading of 0/0.
On June 17, 2004, the CALJ issued the following order:
Based upon this negative consensus reading,
it is the finding of the undersigned
Administrative Law Judge that the Plaintiff
has failed to make a prima facie showing of
entitlement to additional benefits. No
challenge having been made, IT IS HEREBY
ORDERED, Plaintiff's Motion to Reopen is
OVERRULED.
Turner appealed to the Board, contending for the first time a
denial of his right to administrative due process.
He alleged
that 803 KAR2 25:009, § 3, which restricts the submission of
additional x-rays in a consensus procedure, is void by its
conflict with KRS 342.316(13), which allows for rebuttal of
consensus findings by clear and convincing evidence.
2
Kentucky Administrative Regulations.
-4-
On November 12, 2004, the Board affirmed the order of
the CALJ, finding that Turner failed to avail himself of the
opportunity provided in 803 KAR 25:009, § 4(5), for crossexamination of the medical evidence of record, and as such,
failed to fully exhaust his administrative remedies, while
further indicating that it was without authority to reach
Turner's question on appeal of whether the limitation on medical
evidence contained in 803 KAR 25:009, § 4, is unconstitutional.
This petition for review follows.
Before us Turner makes the same argument as he did
before the Board, specifically that he was denied his right to
administrative due process because 803 KAR 25:009, § 3,
impermissibly conflicts with KRS 342.316(13) in failing to allow
him to present additional medical evidence in support of his
motion to reopen.
The sole question presented by Turner is
constitutional in nature which requires prior notice to the
Attorney General pursuant to Kentucky Rules of Civil Procedure
(CR) 24.03 and KRS 418.075.
The notice requirement applies to a
challenge to the constitutionality of a statute or regulation,
is mandatory, and is to be strictly enforced.
Homestead Nursing
Home v. Parker, 86 S.W.3d 424, 425, n. 1 (Ky.App. 1999); citing
Maney v. Mary Chiles Hospital, 785 S.W.2d 480 (Ky. 1990).
-5-
A
review of the record herein reveals no such notice.
Accordingly, we decline to address this constitutional question.
For the foregoing reasons, the Opinion of the Workers'
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Johnnie L. Turner
Harlan, Kentucky
Denise M. Davidson
Hazard, Kentucky
-6-
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