T. M. FUELS, INC. v. CURTIS P. BLEDSOE; SPECIAL FUND; HONORABLE MARK WEBSTER, ADMINISTRATIVE LAW JUDGE AND WORKERS' COMPENSATION BOARD AND ROBERT L. WHITTAKER DIRECTOR OF SPECIAL FUND v. CURTIS BLEDSOE; T. M. FUELS, INC.; MARK WEBSTER, ADMINISTRATIVE LAW JUDGE AND WORKERS' COMPENSATION
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RENDERED: September 22, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002404-WC
T. M. FUELS, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-09171
CURTIS P. BLEDSOE;
SPECIAL FUND; HONORABLE
MARK WEBSTER, ADMINISTRATIVE
LAW JUDGE AND WORKERS'
COMPENSATION BOARD
APPELLEES
AND
NO. 1999-CA-002555-WC
ROBERT L. WHITTAKER
DIRECTOR OF SPECIAL FUND
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-09171
CURTIS BLEDSOE; T. M.
FUELS, INC.; MARK WEBSTER,
ADMINISTRATIVE LAW JUDGE
AND WORKERS’ COMPENSATION
BOARD
APPELLEES
v.
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND TACKETT, JUDGES.
TACKETT, JUDGE:
Curtis Bledsoe (Bledsoe) was an underground coal
miner who was last exposed to respirable coal dust in April 1996
while working for T.M. Fuels.
Bledsoe filed an application for
adjustment of occupational disease claim on December 12, 1996.
Among the evidence taken was the report of a university
evaluator, Dr. Lieber.
The administrative law judge (ALJ)
awarded Bledsoe benefits based upon a 100% disability and refused
to give presumptive weight to Dr. Lieber’s report because
Bledsoe’s last date of exposure was prior to the effective date
of the 1996 version of Kentucky Revised Statute (KRS)
342.315(2).1
The Special Fund and T.M. Fuels appealed to the
Board arguing that the ALJ erred by failing to give Dr. Lieber’s
report presumptive weight.
The Board affirmed, after which the
Special Fund and T. M. Fuels filed the petitions for review at
hand.
As both appeals involve the same issue, both will be
resolved in this opinion.
T. M. Fuels’ appeal was held in abeyance pending the
Kentucky Supreme Court’s ruling in Magic Coal Co. v. Fox, 1999SC-0163.
The Supreme Court issued an opinion in that case on May
18, 2000, and T. M. Fuels’ appeal has since been removed from
1
KRS 342.315(2) provides in relevant part that “[t]he
clinical findings and opinions of the designated [university]
evaluator shall be afforded presumptive weight by arbitrators and
administrative law judges and the burden to overcome such
findings and opinions shall fall on the opponent of that
evidence.”
-2-
abeyance.
Magic Coal controls the only issue raised:
whether
the 1996 amendments to KRS 342.315(2) requiring an ALJ to give
presumptive weight to a university evaluator’s report apply
retroactively to Bledsoe’s claim.
Magic Coal specifically held
that “the amendments to KRS 342.315 which became effective on
December 12, 1996, apply to all claims pending before the factfinder on or after that date.”
35. (Emphasis added).
___ S.W.3d ___, 47 K.L.S. 5: 32,
Thus, the ALJ was required to give Dr.
Lieber’s report presumptive weight and this case must be reversed
and remanded for further proceedings consistent with Magic Coal.
ALL CONCUR.
BRIEF FOR T. M. FUELS, INC.:
BRIEF FOR APPELLEE CURTIS P.
BLEDSOE:
Benita J. Riley
Prestonsburg, Kentucky
Sidney B. Douglass
Harlan, Kentucky
BRIEF FOR SPECIAL FUND:
Joel D. Zakem
Frankfort, Kentucky
-3-
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