EDGAR DAY and HONORABLE JOHN W. KIRK v. 17 WEST MINING, INC.; HONORABLE J. KEVIN KING, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED: MAY 13, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001867-WC
EDGAR DAY and
HONORABLE JOHN W. KIRK
v.
APPELLANTS
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. 2003-00713
17 WEST MINING, INC.; HONORABLE
J. KEVIN KING, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GUIDUGLI and TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.1
EMBERTON, SENIOR JUDGE:
This is an appeal from an opinion of
the Workers’ Compensation Board upholding the denial of
retraining incentive benefits as being precluded by KRS
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
342.732(1)(a)7 due to the fact that the claimant had reached the
age of 65 prior to the date the award became final.
We affirm.
The facts are neither complex nor in dispute.
It was
stipulated that the claimant Edgar Day worked in the coal mining
industry for 37 years and that he was last exposed the hazards
of respirable coal dust on November 3, 2001.
Day was 63 years
old on the date of his last injurious exposure and was 65 years
old at the time of the opinion and order which is the subject of
this appeal.
Day had filed two previous claims for retraining
incentive benefits.
The first, filed on September 9, 1992, was
dismissed in 1993.
The second claim for RIB was filed on March
31, 1993 and Day was awarded benefits in that proceeding in
1995.
However, Day continued to work after receiving that award
and therefore he never received any payment of benefits.
Day’s third RIB claim was filed on April 4, 2003,
supported by a report which interpreted a chest x-ray as
demonstrating evidence of coal workers’ pneumoconiosis, category
2/1.
In response, the appellee employer submitted an x-ray
interpretation which was completely negative.
Because no
consensus was established by the parties’ medical experts, the
Commissioner of the Department of Workers’ Claims submitted the
x-rays provided by the parties to a consensus panel.
Two panel
members interpreted the x-rays as indicating the existence of
-2-
category 1/0 pneumoconiosis and the third member read the x-ray
as negative.
The claim was subsequently assigned to an
Administrative Law Judge who issued a February 25, 2004 opinion
concluding that Day’s age of 65 years disqualified him from an
award of RIB under the plain language of KRS 342.732(1)(a)7.
In an appeal to the Board, Day advanced four arguments
in support of his contention that the decision of the ALJ must
be reversed: 1) that the ALJ misconstrued the intent and proper
application of KRS 342.732(1)(a)7; 2) that the statute does not
specify when RIB payments are to start; 3) that his prior RIB
award cannot impact any prospective award under the 2002
amendments because no benefits were actually paid as a result of
the 1993 award; and 4) that the 2002 amendments to the Act are
unconstitutional and the regulations enabling those amendments
exceed the scope and authority provided by statute.
Citing its
lack of authority to rule upon the constitutionality of a
statute, the Board declined to address that issue, but affirmed
the ALJ’s decision on the remaining points.
As noted by the Board, Day’s contentions regarding the
proper interpretation and application of KRS 342.732(1)(a)7 to
the particulars of his claim are a matter of first impression.
However, as the Board also properly observed, the issues, while
novel, are not complex and may be resolved by resort to the
plain language of the statute itself and established case law.
-3-
The statute at the heart of this controversy, KRS
342.732(1)(a)7, provides as follows:
An employee who is age fifty-seven (57)
years or older on the date of last exposure
and who is awarded retraining incentive
benefits under subparagraph 1.to 4. of this
paragraph, may elect to receive in lieu of
retraining incentive benefits, an amount
equal to sixty-six and two-thirds percent
(66-2/3%) of the employee’s average weekly
wage, not to exceed seventy-five percent
(75%) of the state average weekly wage as
determined by KRS 342.740 multiplied by the
disability rating of twenty-five percent
(25%) for a period not to exceed four
hundred twenty-five (425) weeks, or until
the employee reaches sixty-five (65) years
of age, whichever occurs first, KRS
342.730(4) notwithstanding.
Day argues that under the plain terms of this statute he is
entitled to elect to receive a permanent partial disability
award in lieu of retraining incentive benefits and thus it is
his age (63) on the date of his last injurious exposure which is
controlling, not his age as of the date of the award.
He
therefore posits that he is entitled to the award provided for
in this statute from November 3, 2001, the day he last worked,
through July 24, 2003, the day he turned 65 years of age.
Day
also contends that because the statute specifies only when
benefits end, not when they are to begin, he is entitled to rely
upon KRS 342.316(5)(b), which provides that benefits payable by
reason of occupational disease shall commence as of the date of
last exposure or the date of actual disability, whichever occurs
-4-
later.
We agree with the Board’s analysis that such a
construction fails to give effect to the totality of the
statute, as well as to the plain language of KRS 342.730(4)
which specifies the date upon which awards of retraining
incentive benefits are to commence.
The Board properly concluded that Day received an
award of retraining incentive benefits which, due to his age on
the date of his last exposure, he was entitled to convert to a
25% permanent partial disability award under KRS 342.732(1)(a)7.
However, such a conversion does not change the nature of
appellant’s award from one of retraining incentive benefits, nor
does it relieve Day from the effect of the statutes applicable
to RIB awards.
The Supreme Court of Kentucky addressed the
question of the commencement date for awards of RIB in Meade v.
Spud Mining,2 a case in which the Court set out the following
basic premises which we find pertinent to our review of this
case:
[T]he apparent purpose of the RIB was to
encourage coal workers who had contracted
category 1 pneumoconiosis, but who as yet
had experienced no significant respiratory
impairment, to seek employment outside the
mining industry before their condition
worsened.
. . .
Aside from being contrary to the plain
language of KRS 342.316(1)(b) and KRS
2
949 S.W.2d 584, 587-88 (Ky. 1997).
-5-
342.040(3), it would defeat or, in the
least, undermine the very purpose of the
1994 amendment for a working miner to obtain
an award which “locks in” the entitlement to
a RIB but which permits the worker to defer
payment of the benefit until some uncertain
future date.
. . .
The fact remains that it is a claimant
who controls the filing of a claim for RIB.
Nothing forces a worker to file a claim
pursuant to KRS 342.732(1)(a) until such
time as he is ready to meet the conditions
which authorize payment of the benefit.
. . .
We conclude that an award of RIB begins
on the date upon which the award becomes
final and extends for the 208 consecutive
weeks which follow the award.
The cited language clearly reflects the emphasis which must be
placed on the purpose of the legislation in interpreting the
meaning and application of the retraining incentive benefit
statutes.
KRS 342.732(1)(a)7 unequivocally states that “KRS
342.730(4) notwithstanding,” a worker who has reached the age of
65 is ineligible to receive an award of retraining incentive
benefits.
We therefore agree with the Board’s conclusion that a
worker must otherwise qualify for an RIB award in order to avail
himself of the conversion provision of the statute.
Because Day
was no longer eligible for an RIB award, there was nothing to
convert to a permanent partial award.
-6-
Next, Day argues that a RIB award he received in 1995
is res judicata and that he is entitled to reopen that claim
under KRS 342.792.
Again, we disagree.
This is precisely the
type of award abatement which the Court in Spud Mining found to
be “inconsistent with accomplishing” the purposes of the RIB
statutes.
Furthermore, the Supreme Court specifically rejected
the contention that Smith v. Leeco, Inc.,3 a case upon which Day
relies, was either “controlling or persuasive” as to abatement
of RIB awards.
Finally, as to the constitutionality of the Act and
its enabling regulations, Day’s argument consists solely of a
citation to two of this Court’s opinions which are currently
pending in the Supreme Court.
Neither case has any application
to the issues raised in this case.
In Bartrum v. Hunter
Excavating4 this Court determined that “to the extent that KRS
342.316 and the regulations promulgated thereunder preclude the
use of x-ray evidence in rebuttal in a coal-worker’s
pneumoconiosis claim, they violate the parties’ due-process
right to a meaningful hearing.”
The “consensus” procedure
prescribed by that statute has not been raised as an issue in
this case.
In Day v. Fairbanks Coal Company,5 the Court
3
897 S.W.2d 581 (Ky. 1995).
4
___ S.W.3d ___ (Ky.App. rendered May 28, 2004).
5
2003-CA-002418-WC (Rendered March 24, 2004, not to be published).
-7-
addressed mandatory language in KRS 342.316(3)(b) requiring that
the date of the x-ray to be indelibly labeled on the x-ray and
contained in the report.
was not considered.
The constitutionality of the statute
As no specific argument has been advanced
concerning this statute’s constitutionality, we decline to
address the matter except to note that were the issue properly
before us, the rationale utilized by the Supreme Court in
upholding the constitutionality of KRS 342.730(4) in McDowell v.
Jackson Energy RECC6 appears dispositive of the constitutionality
of terminating eligibility for an RIB award at age 65.
The opinion of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John Harlan Callis, III
Paintsville, Kentucky
Carl M. Brashear
Lexington, Kentucky
6
84 S.W.3d 71 (Ky. 2002).
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
