ROBERT L. WHITTAKER, Director of Special Fund v. GARY L. GRAY; NALLY & HAMILTON, INC.; JOHN B. COLEMAN, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: OCTOBER 20, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-000671-WC
ROBERT L. WHITTAKER,
Director of Special Fund
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. 97-01727
v.
GARY L. GRAY;
NALLY & HAMILTON, INC.; JOHN B.
COLEMAN, Administrative Law Judge;
and WORKERS' COMPENSATION BOARd
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, MILLER and TACKETT, Judges.
HUDDLESTON,
Judge.
The
Special
Fund
appeals
the
award
of
occupational disability benefits to Gary L. Gray. The Special Fund
argues that Gray, a coal worker, did not comply with the notice
provisions of Kentucky Revised Statute (KRS) 342.316(2)(a) and that
the university evaluator’s opinion was entitled to presumptive
weight pursuant to KRS 342.315.
Gray worked as an equipment operator for several surface
coal
mining
companies
for
twenty-six
years.
He
filed
an
occupational disease claim on July 23, 1997, in which he stated he
had contracted coal workers’ pneumoconiosis.
Gray claimed he was
last exposed to the hazards of the disease on or about July 15,
1996.
Gray also stated that he gave notice to his employer of his
affliction with this disease on February 3, 1997.
The first question presented is whether Gray met the
notice requirement of KRS 342.316(2)(a) when he did not notify his
employer until almost seven months after his last exposure.
Under
KRS 342.316(2)(a), to meet the notice requirement for claims in
occupational disease cases,
notice of claim shall be given to the employer as soon as
practicable
after
the
employee
first
experiences
a
distinct manifestation of an occupational disease in the
form of symptoms reasonably sufficient to apprise him
that he has contracted the disease, or a diagnosis of the
disease is first communicated to him, whichever shall
first occur[.]
Gray sought medical attention in August 1993, due to
shortness of breath.
According to the Administrative Law Judge,
Gray has never smoked cigarettes. Dr. Glen R. Baker diagnosed Gray
with “black lung” (i.e., coal workers’ pneumoconiosis) in January
1994.
However, Gray continued to work following this diagnosis.
Gray gave notice to his employer following his recovery from a July
18, 1996, automobile accident.
Gray had hoped to return to work,
contingent upon his doctor releasing him from medical care.
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In finding that Dr. Baker’s diagnosis did not trigger the
notice requirement of KRS 342.316(2)(a), the ALJ relied upon Howell
v. Shelcha Coal Co.1
In Howell, the employee continued working, so
his disease did not disable him for purposes of requiring notice of
disability under KRS 342.316(2)(a).
Since Gray continued to work
following Dr. Baker’s diagnosis, the ALJ reasoned that he was not
under a disability.
Having no disability, Gray had no reason to
believe he had a claim for compensation.
Without a claim, no
requirement to notify the employer exists.
The Special Fund points to Newberg v. Slone2 where the
Supreme Court said that “the notice provision of KRS 342.316(2)(a)
is clear and requires notice to an employer when the worker has
knowledge of a potentially compensable condition.”3 However, Slone
is
distinguishable
from
the
case
under
consideration.
Gray
intended to return to work when he filed notice of his claim.
Slone was collecting unemployment benefits when he filed notice of
his claim.
The Court in Slone made clear that it decided the case
with the claimant’s employment status in mind when it said:
Although
we
would
not
disturb
the
presumption
of
nondisability if the employee continues working for the
same employer, once there is a cessation of employment
the presumption disappears and “the question becomes
whether
circumstances
exist
1
Ky. App., 834 S.W.2d 693 (1992).
2
Ky., 846 S.W.2d 694 (1992).
3
Id. at 695.
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from
which
the
workman
realizes or reasonably should realize that his capacity
to work is impaired by reason of the disease.”4
Gray’s employer did not discharge him from his job, nor
had he resigned.
injury.
He was merely recuperating from an unrelated
Therefore,
he
is
entitled
to
the
presumption
of
nondisability.
“In light of the munificent, beneficent and remedial
purposes of the Workers’ Compensation Act, the notice provision
should be construed liberally in favor of the employee.”5
“It is
well-established that notice is an issue of fact for determination
by the fact-finder [that is, the ALJ]; that a factual finding
cannot be disturbed on appeal if there is substantial evidence to
support it; and that when more than one reasonable inference can be
drawn from the evidence, it is for the fact-finder to decide.”6
The ALJ’s finding that Gray gave timely notice is supported by
substantial evidence consisting of Gray’s continued intent to
return to work and his notification to his employer as soon as
practicable under the circumstances upon learning that he could not
return to his job as a coal miner.
The second question presented is whether the university
evaluator’s opinion was entitled to presumptive weight pursuant to
4
Id. at 697, quoting Caldwell v. Yocom, Ky. App., 574 S.W.2d
913, 915 (1979), citing Blue Diamond Coal Co. v. Stepp, Ky., 445
S.W.2d 866 (1969).
5
Coal-Mac, Inc. v. Wheeler Blankenship, Ky. App.
333, 335 (1993).
6
863 S.W.2d
Whitaker Coal Co. v. Melton, Ky. App. 18 S.W.3d 361, 365
(2000), citing Jackson v. General Refractories Co., Ky., 581 S.W.2d
10 (1979).
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KRS 342.315.
The Workers’ Compensation Board opined that the ALJ
could consider the university evaluator’s opinion as simply another
piece of evidence.
In doing so, the Board relied upon the
reasoning expressed in its decision in Magic Coal Co. v. Fox,7 that
this Court had affirmed, holding that the granting of presumptive
weight was not required in those claims that arose before the
effective date of the requirement. Here, the Board determined that
the
ALJ
had
evidence,
discretion
without
university
to
regard
evaluator’s
pick
for
a
findings.
and
choose
presumption
from
in
Subsequently,
conflicting
favor
the
of
the
Kentucky
Supreme Court reviewed Magic Coal and the decision of this Court,
reversing both.8
In Magic Coal, the Supreme Court held that a university
evaluator’s opinions and findings “constitute substantial evidence
with regard to medical questions which, if uncontradicted, may not
be
disregarded
by
the
fact-finder.”9
Further,
“[w]here
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.”10
Additionally, “[w]here a fact-finder chooses to disregard the
testimony of the university evaluator, a reasonable basis for doing
7
Claim No. 97-00367.
8
Magic Coal Co. v. Fox, Ky., 19 S.W.3d 88 (2000).
9
Id. at 96.
10
Id. at 97.
-5-
so must be specifically stated.”11
Finally, the Court said that
“the amendments to KRS 342.315 . . . apply to all claims pending
before the fact-finder on or after [December 12, 1996].”12
The Board stated that it did not require the ALJ in
Gray’s
case
to
grant
presumptive
weight
to
the
university
evaluator’s findings and that the ALJ chose not to do this.
Board was incorrect.
The
This claim was pending after the effective
date of the amendments; therefore, presumptive weight was to be
granted to the university evaluator’s findings. Further, the ALJ
noted in his opinion that he should apply presumptive weight to the
university evaluator’s findings in analyzing the evidence of this
claim,13 and he did just that.
The ALJ recognized the university evaluator’s findings
were based on a lower quality x-ray than the one used by the
physician upon whom he had relied in finding that Gray had coal
workers’ pneumoconiosis.
Although a dispute existed as to the
quality of the x-ray viewed by the university evaluator, the ALJ
resolved this dispute based on the opinion of another physician who
also does university evaluations. The ALJ based his opinion on the
long exposure history and on Gray’s expert rebuttal evidence.
Therefore, the ALJ stated specifically, in choosing to disregard
the testimony of the university evaluator, a reasonable basis for
finding that the disabling disease existed.
11
Id.
12
Id.
13
Although the ALJ came to this conclusion, it was apparently
based on faulty reasoning.
-6-
“[T]he function of the Court of Appeals in reviewing
decisions of the Workers’ Compensation Board is to correct the
Board only when we perceive that the Board has overlooked or
misconstrued controlling law or committed an error in assessing the
evidence so flagrant as to cause gross injustice.”14
Board misconstrued controlling law.
Here, the
However, the ALJ correctly
applied the law and the Board was incorrect in its perception of
the position taken and acted upon by the ALJ.
While the Board
committed an error in assessing the evidence, this error does not
require correction.
The ALJ made the correct decision and that
decision was affirmed by the Board, albeit for incorrect reasons.
We affirm the decision of the Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Joel D. Zakem
ATTORNEY FOR SPECIAL FUND
Frankfort, Kentucky
John E. Anderson
COLE, COLE & ANDERSON PSC
Barbourville, Kentucky
14
Daniel v. Armco Steel Company, L.P., Ky. App., 913 S.W.2d
797, 797-798 (1995); and see Western Baptist Hospital v. Kelly,
Ky., 827 S.W.2d 685, 687-688 (1992).
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