JAMES FRED JENKINS v. B & S TRUCKING
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RENDERED: MAY 4, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001352-MR
JAMES FRED JENKINS
APPELLANT
APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE RON JOHNSON, JUDGE
ACTION NO. 97-CI-00897
v.
B & S TRUCKING
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, GUIDUGLI AND HUDDLESTON, JUDGES.
GUIDUGLI, JUDGE.
Fred James Jenkins (Jenkins) appeals an order
of the Harlan Circuit Court which dismissed his claim against
B & S Trucking, finding that it lacked jurisdiction because
Jenkins’ exclusive remedy was found within the Kentucky Workers’
Compensation Act.
We agree, hence we affirm.
Jenkins filed a civil claim against B & S Trucking in
the Harlan Circuit Court on December 17, 1997.
In his complaint,
Jenkins set forth, in part, the following allegations:
4. All the Parties here are
subject to and are governed by the Kentucky
Department of Mines and Minerals regulations;
the Kentucky OSHA regulations; and the
Federal Mine and Safety Health Inspection regulations pursuant to
any and all coal mining operations.
5. The Defendant operated a coal trucking operation in
Harlan County Kentucky where the above named Plaintiff was
employed, in a negligent, careless, and reckless manner in which
the standards relative to dust control were violated. These
violations were known, or through the exercise of ordinary mining
expertise should have been known to the Defendant over a period
of time.
6. The Plaintiff alleges that the Defendant operated
its coal trucking operation with disregard to the Plaintiff’s
health, safety and welfare. The Defendant did in fact subject
the Plaintiff to recognized hazards which caused or likely cause
death or serious physical harm to said Plaintiff.
7. The Plaintiff has contracted the disease of Coal
Workers Pneumoconiosis, as evidenced by x-ray readings. As a
result of recently enacted Workers’ Compensation Act that was
signed by Governor Paul Patton into Law on December 12, 1996, and
the Administrative Regulations promulgated thereunder by Hon.
Walter Turner, Commissioner of the Department of Workers’ Claims,
the above named Plaintiff has no remedy pursuant to the Workers’
Compensation Laws of the Commonwealth of Kentucky. Therefore,
the provisions of KRS 342 do not constitute an exclusive remedy
because under KRS 342 as it now operates, there is no remedy to
the above named Plaintiff.
8. The Plaintiff’s contraction of the disease of Coal
Workers’ Pneumoconiosis has left him in a state which due to his
severity of the nature of the disease as being diagnosed by
qualified physicians as being Category 2/2 by the x-ray
interpretation that he is now totally and occupationally
disabled.
9. The Plaintiff, alleges and reiterates that as a
result of the negligent, wanton, careless, and intentional acts
of the Defendant, he has contracted the disease of Coal Workers’
Pneumoconiosis, and as a result he has suffered an injury and
request damages for the following;
a.
Any medical expenses relative to the disease he is
likely to incur; and
b.
Impairment of the ability to earn wages; and
c.
Pain and suffering, including mental anguish; and
d.
For an award of punitive damages
While this case was pending, Jenkins filed an
application for resolution of an occupational disease with the
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Department of Workers’ Claim on August 4, 1998.
The application
alleged contraction of “Tier II” occupational disease as the
result of “long years of exposure to coal/rock dust in and around
the underground coal mines.”
The workers’ compensation case was
assigned to an arbitrator who determined that Jenkins had not
“contracted a compensable pneumoconiosis and is not entitled to
benefits pursuant to KRS 342.732.”
Appellant requested a hearing
before an Administrative Law Judge (ALJ).
Upon review, the ALJ
denied Jenkins’ claim on March 19, 1999, and ordered his claim be
dismissed after making the following findings and conclusions:
1.
The facts as stipulated.
2. Plaintiff has failed to sustain the
burden of proving to the satisfaction of the
trier of fact that he has the disease of coal
workers pneumoconiosis or that he is entitled
to benefits pursuant to KRS 342.732. Both
Drs. Broudy and Lieber read Plaintiff’s xrays, including the one upon which Plaintiff
bases his claim, as showing no signs of coal
workers pneumoconiosis. The clinical
findings and opinions of Dr. Lieber, pursuant
to KRS 342.315, must be afforded presumptive
weight and the burden to overcome his
findings and opinions rest on the Plaintiff.
Dr. Lieber is a board certified radiologist
and a certified B-reader. Nothing has been
offered which will overcome the presumptive
weight to be afforded his opinion.
Jenkins did not file a request for reconsideration, nor
did he appeal the ALJ’s opinion.
Thereafter, on March 17, 2000,
B & S Trucking moved the circuit court to dismiss Jenkins’
complaint.
After each party filed memoranda in support of its
position, the circuit court held a hearing on the matter on
April 2, 2000.
After hearing legal arguments of the parties, the
circuit court entered an oral order dismissing the complaint.
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On
May 1, 2000, the court entered its written order finding that
based upon Shamrock Coal Co., Inc. v. Miracle, Ky., 5 S.W.3d 130
(1999), the “court [had] no subject matter jurisdiction over this
case as exclusive jurisdiction lies with the Workers’
Compensation Board.”
This appeal followed.
In Shamrock, Id., former employees of the coal company
brought a civil action against their employer in circuit court,
seeking damages for their occupational diseases (coal workers’
pneumoconiosis).
Shamrock, the employer, sought a writ of
prohibition asserting lack of subject matter jurisdiction, CR
12.01(a), and failure to state a claim upon which relief can be
granted, CR 12.01(f).
Judge Miracle had held that the exclusive
liability provision of KRS 342.732 was unconstitutional because
it denied the plaintiffs their “jural right” to a remedy in
violation of the Kentucky Constitution.
In reversing the circuit
court (and Court of Appeals which had affirmed) and granting the
writ of prohibition, our Supreme Court stated, in part:
In the case at bar, the plaintiffs
brought suit under the Workers’ Compensation
Act. Therefore, Shamrock, on the face of the
complaint, was entitled to the protection of
the exclusive liability provision.
Consequently, the Leslie Circuit Court has no
subject matter jurisdiction over this case
and the writ is appropriate. See Corns v.
Transportation Cabinet, Ky., 814 S.W.2d 574,
578 (1991).
...
This Court specifically upheld the
constitutionality of the presumptive
acceptance provision of the Workers’
Compensation Act in Wells v. Jefferson
County, Ky., 255 S.W.2d 462 (1953). See
also, Mullins v. Manning Coal Corporation,
Ky., 938 S.W.2d 260 (1997), cert. denied, 521
-4-
U.S. 1119, 117 S.Ct. 2511, 138 L.Ed.2d 1014
(1997). We find nothing raised herein which
compels us to revisit the issue and,
therefore, we reaffirm our decision in Wells
upholding the constitutionality of the
Workers’ Compensation Act and the presumptive
acceptance provision contained therein.
...
Shamrock’s exclusive liability to
plaintiffs is clearly governed by KRS
342.690(1): “[T]he liability of such employer
under this chapter shall be exclusive and in
place of all other liability of such employer
to the employee....” There is no other
remedy available. There was no common law
cause of action for non-disabling category
one pneumoconiosis in existence at the time
of the adoption of the present Constitution;
therefore, the jural rights doctrine is
inapplicable. Regardless, the fact that a
remedy for a work-related injury is
unavailable under the Workers’ Compensation
Act does not authorize bringing a civil
action for damages in circuit court. Davis
[v. Solomor] 276 S.W.2d [614] at 676 [1955].
Therefore, as the Workers’ Compensation Act
confers exclusive liability to participating
employers for all matters falling within its
purview, no trial court has subject matter
jurisdiction over such a matter. The proper
venue for a matter falling within the purview
of the Workers’ Compensation Act lies solely
with the Workers’ Compensation Board.
Shamrock, supra, at 133, 134.
In view of the clear language of Shamrock and this
Court’s duty to follow precedence as set forth by our Supreme
Court (SCR 1.030(8)(a)), we are bound to affirm the decision of
the Harlan Circuit Court.
Despite Jenkins’ arguments to the
contrary, it would appear that his remedy lies with the Kentucky
Legislature which enacted the 1996 amendments to the Workers’
Compensation Act which he finds so repugnant.
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Having thoroughly reviewed this matter and based upon
KRS 342.690(1), and Supreme Court precedence as set forth in
Shamrock, supra, and the recently decided case of Magic Coal Co.
v. Fox, Ky., 19 S.W.3d 88 (2000), we affirm the order entered by
the Harlan Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ronald C. Cox
Harlan, KY
J. Gregory Allen
Prestonsburg, KY
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