WHITAKER COAL CORPORATION v. PHILLIP HOSKINS; SPECIAL FUND; HON. W. BRUCE COWDEN, JR., ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: December 15, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002658-WC
WHITAKER COAL CORPORATION
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-94-14502
v.
PHILLIP HOSKINS; SPECIAL FUND;
HON. W. BRUCE COWDEN, JR.,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, McANULTY AND SCHRODER, JUDGES.
McANULTY, JUDGE: The sole issue in this appeal is whether the
1996 amendments to KRS 342.732(1)(a) apply to the claim of
Phillip Hoskins.
Both the Administrative Law Judge (“ALJ”) and
the Workers’ Compensation Board (“Board”) concluded that they did
not.
We agree, based on the recently rendered decision in
Whitaker Coal v. Melton, Ky. App., 18 S.W.3rd 361 (2000).
This case has followed a lengthy and arduous path to
reach this Court.
After he had worked in coal mines for
approximately nineteen years, Phillip Hoskins filed an
application for adjustment of claim to receive retraining
incentive benefits (“RIB”) for pneumoconiosis on April 4, 1994.
At the time he filed his claim, Hoskins worked for Whitaker Coal
Corporation (“Whitaker”).
Whitaker subsequently sold the
operation where Hoskins worked to Cockerills Fork Mining and
Hoskins discontinued his employment with Whitaker and began
working for the new owner.
Nevertheless, the ALJ determined that
Whitaker was the proper defendant in the claim, based on National
Mines Corporation v. Pitts, Ky., 806 S.W.2d 637 (1991).
After examining the proof submitted, the ALJ entered an
Opinion and Order, which was later amended to an Opinion, Order
and Award, on February 17, 1995.
In this document, the ALJ
specifically found that Hoskins suffered from category 1
pneumoconiosis with normal pulmonary function studies.
The ALJ
then concluded that Hoskins would ordinarily be eligible for a
one time only RIB award.
However, the ALJ observed that the
parties disputed whether the 1994 amendments to KRS 342.732
applied to Hoskins’ claim.
In that regard, the ALJ held the
claim in abeyance pending a final decision in Thornsbury v. Aero
Energy, Ky., 908 S.W.2d 109 (1995) which involved that precise
issue.
Whitaker appealed the ALJ’s determination that Hoskins
was entitled to an RIB award and asked the Board to hold the
appeal in abeyance, pending the outcome of Thornsbury, supra.
In
Thornsbury the Kentucky Supreme Court determined that the 1994
amendment to KRS 342.732(1)(a) was remedial and could be applied
retroactively to claims that arose before the effective date of
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the amendment.
As such, Hoskins would only be able to receive
RIB directly if he were no longer employed in the coal industry.
If he remained employed in the industry, the RIB would be sent
directly to the institution providing the approved training or
education.
By an opinion rendered December 8, 1995, the Board
reversed and remanded Hoskins’ claim to the ALJ for issuance of a
modified award.
For some reason which is not explained in the record,
the ALJ did not issue the opinion and award until three years
later on January 7, 1998.
At that time the ALJ amended the
February 17, 1995 order to find Hoskins eligible to participate
in an approved training or education program for a period of 208
consecutive weeks and that RIB was to be paid directly to the
appropriate training institution as long as Hoskins continued to
work in the coal industry.
The ALJ further amended the order to
provide that Hoskins may petition to receive the benefits
directly in the event that he ceases employment in the mining
industry.
Whitaker then filed a petition for reconsideration and
asked the ALJ to once again hold the claim in abeyance pending a
final decision in Colonial Coal Company v. Breeding.
A panel of
this Court had issued an opinion in Breeding holding that the
1996 amendments to KRS 342.732(1)(a) were remedial and applied to
all pending RIB claims.
The Supreme Court had granted
discretionary review of the case but had not yet rendered an
opinion.
The ALJ granted Whitaker’s motion to hold the claim in
abeyance.
Subsequently, in its decision in Breeding v. Colonial
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Coal, Ky., 975 S.W.2d 914 (1998), the Supreme Court determined
that the issue of retroactivity of the 1996 amendments was not
properly before the Court of Appeals and therefore, did not
address the matter.
Whitaker once again moved to hold the claim in abeyance
to await the outcome of Whitaker Coal Corp. v. Melton, which was
pending before this Court.
The ALJ declined and held that the
1996 amendments did not apply to Hoskins claim.
appealed to the Board.
Whitaker
The Board affirmed the decision of the
ALJ and this appeal followed.
A panel of this Court has recently examined the issue
of the retroactivity of the 1996 amendment to KRS 342.732(1)(a).
In Whitaker Coal v. Melton, Ky. App., 18 S.W.3rd 361 (2000), this
Court held that the amendment, which acted to reduce the period
of time in which a claimant could receive RIB, “affects the
vested rights of claimants and cannot therefore be applied
retrospectively without a specific expression by the Legislature
of its intent for the provisions to be so applied.”
Id. at 364.
It is clear, therefore, that the 1996 amendment should not be
applied to Hoskins’ claim.
Accordingly, we affirm the opinion of the Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE HOSKINS:
Charles W. Berger
Harlan, KY
Edmond Collett
Hyden, KY
BRIEF FOR APPELLEE SPECIAL
FUND:
Joel Zakem
Frankfort, KY
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