WEBSTER COUNTY COAL CORP. v. LEONARD J. BELT, AND HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE AND WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 1, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002577-WC
WEBSTER COUNTY COAL CORP.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-96-09172
v.
LEONARD J. BELT, AND
HON. DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, KNOPF, AND TACKETT, JUDGES.
BARBER, JUDGE:
This appeal of a Workers’ Compensation Board decision
was abated by order of this Court pending the Supreme Court’s final
determination in
Magic Coal
That decision is now final.
v. Fox, Ky., 19 S.W.3d 88 (2000).
On our own motion we now order the
above-styled appeal removed from abatement and returned to the active
docket.
We reverse and remand for further proceedings as outlined
below.
The Appellee, Leonard Belt (Belt) filed an application for
retraining incentive benefits (RIB) on December 12, 1996.
He alleged
that he stopped working in the coal mine industry on December 10,
1996.
In an opinion and award dated September 15, 1997, the ALJ
determined that Belt was entitled to an award of RIB, based upon
the opinion of Dr. Robert Powell, who diagnosed coal workers’
pneumoconiosis, category 1/1.
The ALJ declined to apply the
presumptive weight provisions of KRS 342.315 to the opinion of
the university evaluator, Dr. Betty Joyce, because Belt’s last
exposure occurred before the effective date of the 1996
amendments to KRS Chapter 342.
The employer appealed to the
Board which affirmed.
The sole issue on appeal is whether KRS
342.315, as
amended December 12, 1996, should apply to all occupational
disease claims filed and litigated after the effective date of
the amendment.
The amendment was held to so apply in Magic
Coal, id., at p. 97:
The amendments to KRS 342.315 which became
effective on December 12, 1996, apply to all
claims pending before the fact-finder on or
after that date. KRS 342.315(2) creates a
rebuttable presumption which is governed by
KRE 301 and, therefore, does not shift the
burden of persuasion. Pursuant to KRS
342.315(2), the clinical findings and
opinions of the university evaluator
constitute substantial evidence of the
worker's medical condition which may not be
disregarded by the fact-finder unless it is
rebutted. Where the clinical findings and
opinions of the university evaluator are
rebutted, KRS 342.315(2) does not restrict
the authority of the fact-finder to weigh the
conflicting medical evidence. In instances
where a fact-finder chooses to disregard the
testimony of the university evaluator, a
reasonable basis for doing so must be
specifically stated.
-2-
Here, evidence was presented which rebutted the opinion of the
university evaluator.
We therefore reverse and remand to the ALJ
for further proceedings consistent with the Supreme Court’s
direction in Magic Coal.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard M. Joiner
Mitchell, Joiner &
Hardesty, P.S.C.
Madisonville, Kentucky
Dick Adams
Madisonville, Kentucky
-3-
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