BILLY HOSKINS v. FRED DAVIS & SONS, INC.; SPECIAL FUND; J. KEVIN KING, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
APRIL 26, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002232-WC
BILLY HOSKINS
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-96-03595 & WC-96-03927
v.
FRED DAVIS & SONS, INC.; SPECIAL FUND;
J. KEVIN KING, Administrative Law Judge;
and WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, EMBERTON AND TACKETT, JUDGES.
EMBERTON, JUDGE: The sole question in this appeal is whether the
Workers’ Compensation Board erred in upholding the dismissal of
appellant’s motion to reopen a previously dismissed coal workers’
pneumoconiosis claim.
Having reviewed the record in light of the
opinions of the Kentucky Supreme Court in Pikeville Coal Company
v. Sullivan,1 and Blackburn v. Lost Creek Mining,2 we affirm.
In 1996, Hoskins filed a claim for coal workers’
pneumoconiosis benefits, alleging that he was last exposed to the
1
Ky., 895 S.W.2d 574 (1995).
2
Ky., 31 S.W.3d 921 (2000).
hazards of the disease on September 20, 1995.
Having received
medical evidence from several providers showing a range of x-ray
readings from 0/0 to 1/1, as well as the results of spirometric
testing, the Administrative Law Judge entered an opinion and
award in which he found the negative x-ray interpretations of 0/1
to be the most reliable and was persuaded by medical evidence
that established appellant’s obstructive airway disease was most
likely the result of cigarette smoking.
After the ALJ dismissed
his claim for benefits, appellant did not file a petition for
reconsideration or appeal.
In March 2001, appellant filed a motion to reopen his
previously dismissed claim, alleging that his pneumoconiosis had
worsened to the point that he had become totally occupationally
disabled.
In support of his motion, appellant filed a medical
report from Dr. John E. Myers dated February 14, 2001, indicating
a reading of Category 1/1 pneumoconiosis, as well as additional
pulmonary function studies.
On May 3, 2001, the ALJ denied
appellant’s motion on the basis that he failed “to establish a
prima facie case for worsening of condition/increase in
occupational disease.”
A subsequent appeal to the Board produced
an opinion that held:
We believe that the language of KRS
342.125(2)(a), as it existed on the date of
Hoskins’ last exposure, and the holding in
Pikeville Coal Company v. Sullivan, supra,
make it clear that a pneumoconiosis claim
dismissed on the merits may only be reopened
when there is additional exposure to the
hazards of the disease. In the instant
claim, however, Hoskins has not alleged or
proved any additional exposure. We therefore
find no error with the ALJ’s order denying
Hoskins’ motion to reopen.
-2-
In his appeal to this court, appellant Hoskins argues
that a claimant can always reopen a claim, even one that was
previously dismissed, so long as he subsequently makes a
“reasonable prima facie showing of the substantial possibility
that one or more of his prescribed conditions now exist so as to
warrant a change in that decision. . . .”
Because we agree with
the Board that a motion to reopen a claim for pneumoconiosis
benefits is governed by KRS3 342.125(2)(a) [as it existed on
September 15, 1995, the date of Hoskins’ last exposure], we must
also conclude that his motion was properly dismissed because the
pertinent language in that statute clearly contemplates the
existence of a previous award:
Upon the application of the affected
employee, and a showing of progression of his
previously diagnosed pneumonoconiosis
resulting from exposure to coal dust and
development of respiratory impairment due to
the pneumoconiosis, the administrative law
judge may review an award of a retraining
incentive benefit because of the diagnosis,
and upon a finding of respiratory impairment
due to that pneumoconiosis shall make an
award for benefits as provided in KRS
342.732. Such a reopening may also occur
upon a showing of progression of respiratory
impairment in a claim for which benefits were
previously awarded under the provisions of
KRS 342.732. (Emphasis added).
Based upon our interpretation of the cited portion of
KRS 342.125(2)(a), we concur in the Board’s assessment that the
dismissal of appellant’s original claim for coal workers’
pneumoconiosis benefits precludes reopening because the statute
speaks in terms of reviewing a previous “award” only.
3
Kentucky Revised Statutes.
-3-
Neither
Pikeville Coal nor Lost Creek, supra, is of any avail to
appellant because additional exposure was a factor in those
decisions and no additional exposure was alleged in appellant’s
motion.
Finally, we agree with the contention of both the
employer and the Special Fund that appellant’s claim on reopening
is barred by the doctrine of res judicata.
Appellant chose not
to appeal the ALJ’s original decision that he did not suffer from
pneumoconiosis and that his pulmonary impairment was the result
of cigarette smoking.
He is thus precluded from rearguing those
facts in this appeal.4
The opinion of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE FRED DAVIS
& SONS, INC.:
Ronald C. Cox
JOHNNIE L. TURNER, P.S.C.
Harlan, Kentucky
John S. Harrison
SHEFFER & SHEFFER
Louisville, Kentucky
BRIEF FOR DIVISION OF WORKERS’
COMPENSATION FUNDS (SUCCESSOR
TO SPECIAL FUND):
Joel D. Zakem
Frankfort, Kentucky
4
Uninsured Employers’ Fund v. Fox, Ky. App., 862 S.W.2d
902 (1993).
-4-
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