MICHAEL WILSON v. MANNINGTON MINING COMPANY, INC.; ROBERT D. SPURLIN, DIRECTOR OF SPECIAL FUND; HON. J. LANDON OVERFIELD, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED:
December 19, 1997; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-0226-WC
MICHAEL WILSON
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
NO. WC-95-04852
MANNINGTON MINING COMPANY, INC.;
ROBERT D. SPURLIN, DIRECTOR
OF SPECIAL FUND;
HON. J. LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDGE; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
* * * * *
BEFORE:
GARDNER, GUIDUGLI and JOHNSON, Judges.
GUIDUGLI, JUDGE.
Michael Wilson (Wilson) appeals from an
opinion entered by the Workers' Compensation Board on January 21,
1997, affirming an opinion and order entered by the
Administrative Law Judge (ALJ) on July 24, 1996, denying his
petition for coal workers' pneumoconiosis benefits.
We affirm.
Wilson began working as an underground coal miner in
the Commonwealth of Kentucky in 1975.
Wilson continued to work
as an underground coal miner in Kentucky for the next 15 years.
He first worked for appellee, Mannington Mining Company, Inc.
(Mannington) for a three month period in 1990.
Upon leaving employment with Mannington, Wilson was
employed as an underground coal miner for Buck Creek Mining (Buck
Creek) in the State of Indiana.
Wilson worked for Buck Creek for
three months, then returned to Kentucky and worked as an
underground coal miner for Wolf Creek Mining for one week until
the mine was closed.
He then obtained employment as an
underground miner with Crab Orchard Mining (Crab Orchard) in the
State of Illinois.
When Crab Orchard closed one week after his
employment, he began working as an underground coal miner for
Eagle Valley, also in Illinois, where he remained for one and a
half years.
In March 1993, Wilson returned to Kentucky and was
rehired by Mannington.
Wilson worked as an underground coal
miner for Mannington until June 14, 1993.
Wilson then returned
to Indiana and was rehired as an underground coal miner by Buck
Creek, where he remained until June 1994.
It is undisputed by
the parties that Wilson's last date of injurious exposure to coal
dust in Kentucky was June 14, 1993, while he was employed by
Mannington.
Wilson was diagnosed with coal workers' pneumoconiosis
in July 1994.
He filed an application for adjustment of claim in
Kentucky asserting that he was last exposed to coal dust on June
14, 1993, while employed by Mannington.
Wilson submitted medical records from Dr. John Myers,
Jr. (Dr. Myers) and Dr. Robert Powell (Dr. Powell) in support of
his claim.
Both Dr. Myers and Dr. Powell diagnosed Category 2/1
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coal workers' pneumoconiosis.
Although both doctors reported
that Wilson's pulmonary function studies were within normal
ranges and that Wilson was physically able from a pulmonary
standpoint to work in the mines, both doctors indicated that
Wilson should avoid further exposure due to the degree of his
disease.
Mannington submitted medical evidence from Dr. Ballard
Wright (Dr. Wright) and Dr. Bruce Broudy (Dr. Broudy).
Dr.
Broudy found no evidence of coal workers' pneumoconiosis.
Dr.
Wright diagnosed Category 0/1 pneumoconiosis.
In his opinion entered July 24, 1996, the ALJ found
that Wilson was suffering from Category 2/1 pneumoconiosis based
on the reports of Dr. Myers and Dr. Powell.
However, the ALJ
further held:
Plaintiff has failed to sustain the burden
of proving to the satisfaction of the trier
of fact that his coal workers pneumoconiosis
is a result of an injurious exposure to the
hazard of the disease while in the employment
of Defendant Employer. While it is true that
the vast majority of Plaintiff's coal mine
work was in the Commonwealth of Kentucky and
the last Kentucky employer was Defendant
Employer, there is no medical evidence
addressing the issue raised by Defendant
Employer of the effect of the subsequent
employment outside of Kentucky. For the last
3 1/2 years during which Plaintiff was
employed in the coal mine industry, 6 months
was while working for Defendant Employer in 2
different 3 months periods. The other 3
years was work in Illinois and Indiana during
two 18 month periods. His last significant
stretch of employment was in Indiana for 1
1/2 years immediately prior to the time he
left the coal mine industry. It is after
this 1 1/2 year stretch that he began having
symptoms which he related to his coal workers
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pneumoconiosis and it was after this Indiana
employment when he was first diagnosed,
radiographically, as having coal workers
pneumoconiosis. Thus, pursuant to KRS
342.316(1)(a), the liability has not been
proven to be that of Defendant Employer and
Defendant, Special Fund.
The dismissal of Wilson's claim was affirmed by the Board, and
this appeal followed.
Wilson contends that notwithstanding the fact that he
was exposed to coal dust outside Kentucky, he is entitled to
benefits for coal workers' pneumoconiosis under Kentucky Revised
Statutes (KRS) 342.316(3)(b), which provides:
Income or retraining incentive benefits for
the disease of pneumoconiosis resulting from
exposure to coal dust or death therefrom
shall not be payable unless the employee has
been exposed to the hazards of such
pneumoconiosis in the Commonwealth of
Kentucky over a continuous period of not less
than two (2) years during the ten (10) years
immediately preceding the date of his last
exposure to such hazard, or for any five (5)
of the fifteen (15) years immediately
preceding the date of such last exposure.
Wilson also relies on Coal Dust Coal Co. v. Stiltner, Ky., 905
S.W.2d 859 (1995), where the claimant was permitted to receive
pneumoconiosis benefits despite the fact that he worked as a coal
miner outside Kentucky following the last date of injurious
exposure within the Commonwealth because he satisfied the
conditions of KRS 342.316(3)(b).
Wilson argues that because he
meets the requirements of KRS 342.316(3)(b) like the claimant in
Stiltner, he, too, is entitled to benefits.
Wilson's reliance on Stiltner is misplaced on two
grounds.
First, the claimant in Stiltner was diagnosed with coal
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workers' pneumoconiosis before he was employed as a coal miner
outside the Commonwealth.
Stiltner, 905 S.W.2d at 859.
Second,
all of the claimant's physicians testified that the claimant's
condition "dated back to the time of his last employment in
Kentucky[.]"
Id. at 860.
Unlike the claimant in Stiltner, none
of Wilson's physicians provided any evidence which would link his
condition to his employment with Mannington and Wilson was not
diagnosed until after he had worked in an Indiana mine for one
year.
We agree with Mannington's argument that this is not a
case of jurisdiction.
As Mannington points out, there is no
evidence in the case which would support a finding that Wilson
contracted the disease while employed by Mannington.
In fact,
the evidence clearly shows that Wilson did not begin to evidence
symptoms of coal workers' pneumoconiosis until after he left his
job with Buck Creek in June 1994, and was not diagnosed with the
disease until July 1994.
The ALJ's findings are supported by
substantial evidence, and we find nothing in the record which
compels a finding in Wilson's favor.
Special Fund v. Francis,
Ky., 708 S.W.2d 641, 644 (1986).
Having considered the parties' arguments on appeal, the
opinion of the Board is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, MANNINGTON
MINING COMPANY:
Rebecca Baylous
John S. Sowards, Jr.
Wilson & Stanley
Lexington, KY
Dov Moore
Cole, Moore & Baker
Bowling Green, KY
BRIEF FOR APPELLEE, SPECIAL
FUND:
Benjamin C. Johnson
Labor Cabinet
Louisville, KY
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