ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND v. JAMES D. JOHNSON; JERICOL MINING, INC.; HON. SHEILA C. LOWTHER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD AND JERICOL MINING COMPANY, INC. v. JAMES D. JOHNSON; SPECIAL FUND; HON. SHEILA LOWTHER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: DECEMBER 6, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001051-WC
ROBERT L. WHITTAKER, DIRECTOR OF
SPECIAL FUND
v.
APPELLANTS
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NOS. WC-96-04586, WC-96-04587,
AND WC-96-04588
JAMES D. JOHNSON; JERICOL MINING,
INC.; HON. SHEILA C. LOWTHER,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
AND
NO.
2001-CA-001191-WX
JERICOL MINING COMPANY, INC.
v.
CROSS-APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-96-04586, WC-96-04587, AND
WC-96-04588
JAMES D. JOHNSON; SPECIAL FUND;
HON. SHEILA LOWTHER, ADMINISTRATIVE
LAW JUDGE; AND WORKERS’ COMPENSATION
BOARD
TO BE HEARD WITH:
NO.
2001-CA-001062-WC
CROSS-APPELLANTS
JERICOL MINING COMPANY, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-96-04586, WC-96-04587, AND
WC-96-04588
JAMES D. JOHNSON; HON. SHEILA LOWTHER,
ADMINISTRATIVE LAW JUDGE; AND WORKERS’
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, McANULTY, AND TACKETT, JUDGES.
McANULTY, JUDGE:
These workers’ compensation petitions and
cross-petition all concern the same question: whether claimant
James D. Johnson could reopen his injury and occupational disease
claims.
The Administrative Law Judge (hereinafter, ALJ)
dismissed Johnson’s motion to reopen his back injury claim on the
basis of the terms of the settlement agreement in which for
consideration he agreed to dismiss his claim with prejudice.
The
ALJ overruled the motion to reopen his occupational disease claim
because Johnson did not make a prima facie showing of a change in
his condition.
The Workers’ Compensation Board (the Board) reversed
and remanded.
The Board concluded that Johnson did not waive the
right to reopen, but only dismissed the claim with prejudice and
agreed to waive the right to medical benefits on his back injury
claim.
The Board held that dismissal of a claim with prejudice
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is not synonymous with a claimant’s waiver of rights under KRS
342.125.
In addition, the Board found that because Johnson
sought to reopen a previous dismissal and not an award, the
proper procedure was a motion to reopen under KRS 342.125(1), and
KRS 342.125(2)(a) did not apply.
The Board found that Johnson
made a showing of a prima facie case with x-ray evidence of coal
workers’ pneumoconiosis.
On appeal, Jericol Mining and the Special Fund argue
that the ALJ correctly held that Johnson could not reopen his
claim after a dismissal with prejudice.
In addition, they argue
that the Board’s decision to reopen his pneumoconiosis claim was
erroneous because under the terms of KRS 342.125(2)(a), Johnson
cannot reopen without proof of additional exposure to coal dust.
Additionally, Jericol Mining argues that the Board exceeded its
scope of review in setting aside the ALJ’s finding of waiver.
We
have reviewed their claims of error, and we affirm the opinion of
the Board.
First, we review Jericol’s argument that the Board
exceeded its scope of review.
Jericol cites the rule that in
order to reverse findings of the Board unfavorable to the
claimant and upon which he had the burden of proof, the test is
whether the evidence compelled a finding in his favor.
Special
Fund v. Francis, Ky., 708 S.W.2d 641 (1986); Lee v. International
Harvester Co., Ky., 373 S.W.2d 418 (1963).
We do not find that
the Board substituted findings of fact for those of the ALJ.
Rather, the Board found that the ALJ’s view of the evidence was
incorrect as to a matter of law: whether a dismissal with
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prejudice precluded a reopening under the statute.
In addition,
the question of whether Johnson had the right to reopen his
pneumoconiosis claim was an issue of law.
The Board has the
authority to correct a misapplication of law by the ALJ.
Toyota
Motor Mfg., Ky., Inc. v. Czarnecki, Ky. App., 41 S.W.3d 868, 871
(2001).
Therefore, we find that the Board proceeded properly in
its review of the ALJ’s decision.
Appellants’ next argument concerns whether Johnson had
the right to reopen his back injury claim after it was dismissed
with prejudice.
They argue that the intention of the parties
when the agreement was entered into was that Johnson would, for
consideration given, waive the right to reopen in dismissing his
claim with prejudice.
issue correctly.
We believe that the Board decided the
Its review of applicable case law showed that a
dismissal with prejudice has not been treated the same as a
waiver of the right to reopen under the Workers’ Compensation
Act.
Kendrick v. Bailey Vault Co., Ky. App., 944 S.W.2d 147
(1997).
The Board stated that, instead, “dismissal with
prejudice under the Workers’ Compensation Act is tantamount to a
decision or agreement as to a claim’s merits.”
We believe the
Board properly determined that the result of a dismissal with
prejudice is different in the area of workers’ compensation
because of the capacity of a claimant to reopen a claim for a
change in condition.
Appellants argue that the fact that consideration was
given for the dismissal with prejudice compels a different
result.
We might be inclined to agree if it was established that
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consideration was given specifically for a waiver of the right to
reopen.
However, in this case, the Board correctly noted that
the express terms of the settlement agreement did not include
waiver of “the right to reopen.”
Therefore, we agree with the
Board that appellants have not shown a clearly intentional waiver
of the right to reopen by Johnson.
And, under the workers’
compensation law, it should not be assumed that was what was
intended.
Therefore, we affirm the opinion of the Board on this
issue.
Next, the Special Fund argues that the Board erred
because under the 1994 version of KRS 342.125(2)(a), there must
have been an award before there can be a reopening.
Appellants
further argue that the only exception for allowing a reopening is
if there has been additional exposure to the hazards of the
disease, which Johnson does not claim in this case.
In its opinion, the Board found as follows:
KRS 342.125(2)(a), as enacted in 1994,
specifically applies only to the reopening of
a previous award and not the opening of a
previous dismissal. Under Stambaugh v. Cedar
Creek Mining Co., [Ky., 488 S.W.2d 681
(1972)], and Pikeville Coal Co. v. Sullivan,
Ky., 895 S.W.2d 574 (1995), the proper
procedure to follow where a previous disease
claim has been dismissed is a motion to
reopen. When no previous award has been
made, the only section of the reopening
statute that can be applied is that contained
in KRS 342.125(1), requiring the moving party
to make a showing of a change of occupational
disability.
We have examined the statutes in this case, and agree with the
Board that it could properly proceed under KRS 342.125(1) to
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reopen this claim, without regard to the terms of KRS
342.125(2)(a).
The Board went on to conclude that Johnson made a prima
facie showing on reopening with the pulmonary functions studies
completed by Dr. Myers, as well as his x-ray interpretation.
However, appellants cite Pikeville Coal Co. v. Sullivan, Ky., 895
S.W.2d 574 (1995), to urge that KRS 342.125 only authorizes the
reopening of an award when there has been additional exposure to
coal dust.
That case stated only that, “[i]f additional exposure
is the basis for an allegation of increased occupational
disability, then . . . a reopening is the proper avenue for
requesting relief.”
Id. at 575.
We find that Pikeville Coal
does not require additional exposure before a claimant may file
for reopening, but requires “different circumstances to warrant
reopening.”
Id.
The Board noted that appellant cited a
worsening of his condition and medical evidence of a compensable
condition.
Therefore, we affirm the Board’s determination that
appellant could reopen this claim.
For the foregoing reasons, we affirm the decision of
the Workers’ Compensation Board.
ALL CONCUR.
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BRIEF FOR APPELLANT/CROSSAPPELLEE, SPECIAL FUND:
BRIEF FOR APPELLEE/CROSSAPPELLANT, JAMES D. JOHNSON:
Joel D. Zakem
Frankfort, Kentucky
Ronald C. Cox
Harlan, Kentucky
BRIEF FOR APPELLANT/CROSSAPPELLANT, JERICOL MINING CO.,
INC.:
W. Barry Lewis
Lewis & Lewis Law Offices
Hazard, Kentucky
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