MARTIN COUNTY COAL CORPORATION v. BILLY HAMMOND; DENIS S. KLINE, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED: October 16, 1998; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-000324-WC
MARTIN COUNTY COAL CORPORATION
v.
APPELLANT
PETITION FOR REVIEW
OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
WC-95-049890
BILLY HAMMOND; DENIS S. KLINE,
ADMINISTRATIVE LAW JUDGE; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
* * *
BEFORE:
COMBS, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
In this petition for review of a decision of
the Workers’ Compensation Board (Board), Martin County Coal
Corporation (Martin County) argues that the 1996 amendment to KRS
342.732(1)(a) is remedial legislation which precludes an award of
benefits to Billy Hammond (Hammond) and, in the alternative, that
because Hammond’s exit from the coal mining industry was due to
his own fault, he is not entitled to collect any retraining
incentive benefits (RIB).
Finding no error in the Board’s
decision, we affirm.
On September 26, 1995, Hammond was fired from Martin
County for allegedly using company gasoline in his own truck.
He
filed his RIB claim on December 1, 1995, and on July 30, 1996,
the Administrative Law Judge (ALJ) found that he suffered from
category one pneumoconiosis.
He dismissed the claim, however,
for the following reason:
The Plaintiff is entitled to recover
Retraining Incentive Benefits in cash from
his employer only when he is out of the
mining industry “through no fault of his
own.” Mr. Hammond is currently no longer
employed in the mining industry through his
own fault. He was discharged for taking
company property for his own use, and it
appears that the company was justified in
discharging him.
The Board, finding that the “through no fault of his
own” language of KRS 342.732(1)(a) refers only to miners who
continued to work in the coal mining industry at the time the
award is made and then either (1) leave the industry or (2) enter
a bona fide training or education program and then leave the
industry, reversed.
We agree that the Board’s interpretation of
the statute is correct.
The applicable version of KRS 342.732(1)(a) states in
relevant part:
These benefits may be paid directly to the
employee only if the employee is not working
in the mining industry in the severance and
processing of coal . . ., in which event the
one (1) time only retraining incentive
benefit awarded under this paragraph may be
-2-
collected semimonthly as provided in KRS
342.040. While the employee is working in
the mining industry in the severance and
processing of coal . . ., and if the employee
is enrolled and actively participating in a
bona fide training or education program
. . ., benefits awarded under this paragraph
shall be paid directly to the institution
conducting the training or education program
on a semimonthly basis. The benefit shall
not be paid for a period in which the
employee ceases to participate in the
program. In no event shall the benefit be
paid to the employee while the employee is
working in the mining industry in the
severance and processing of coal . . ., nor
shall the employee personally receive any
benefits pursuant to this award other than
for traveling expenses.
We agree with the Board that the statute distinguishes
between miners who are working in the mining industry at the time
of the award and those who have left the industry by the time of
the award.
The latter are entitled to direct payment of their
RIBs, regardless of their reason for leaving the industry.
The
former are entitled to direct payment only if a portion of the
award remains after they have completed their retraining program
and leave the industry, through no fault of their own, or they
leave the industry, through no fault of their own, without
undergoing retraining.
This interpretation that the last
sentence of the subsection (1)--the only reference to fault-relates only to miners still in the industry at the time of the
award is supported by the words “remaining benefits.”
There can
only be “remaining benefits” if some of the benefits have already
been used or have expired.
These scenarios only occur when the
miner is still in the industry at the time of the award.
-3-
Because Hammond was no longer working in the severance
and processing of coal at the time of his award, the reason for
his having left is irrelevant.
While this outcome seems to
reward his illegal activity, we are constrained to interpret the
legislation as it is plainly written.
We are also reminded that
it is always more profitable to work than to receive a form of
workers’ compensation benefits.
Furthermore, as the Board said:
Certainly, prior to the rendition of an
actual award in a claim, the injured worker
has no certainty that he will receive
benefits. If an individual were allowed to
continue to work until that point in time at
which he received an award, then there would
be no “risk” in pursuing a RIB claim. Under
those circumstances, one could logically
presume that the individual left work solely
because he had been awarded RIB. If an
individual is no longer in the mining
industry at the time of the award, that
motivation does not exist. Therefore, there
is a logical, rational, and reasonable basis
for the differing standard for the award of
benefits to the employee.
Appellant also argues that the 1996 amendment to KRS
342.732(1)(a)1, is remedial and precludes an award of any
benefits to Hammond.
The contention is not well taken.
issued his Opinion and Order on July 30, 1996.
The ALJ
The amendment to
KRS 342.732(1)(a) did not become effective until December 12,
1996.
Even remedial changes in the law which do not become
1
This amendment limits retraining incentive benefits to an
employee who 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 approved under administrative regulations to be
promulgated by the commissioner.”
-4-
effective until after an ALJ has reached a decision on a claim
cannot be a proper basis for determining that the decision was
erroneous.
Therefore, regardless of whether the 1996 amendment
is remedial, it does not apply to this claim because the claim
had already been decided by the ALJ, and thus was no longer
pending, on the effective date of the amendment.
Accordingly, the decision of the Workers’ Compensation
Board is affirmed, and the claim is remanded to the ALJ to
instate Hammond’s RIB award.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, BILLY
HAMMOND:
Natalie D. Brown, Esq.
Lexington, Kentucky
J. Drew Anderson
Prestonsburg, Kentucky
-5-
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