JAMES LANKFORD v. ADDINGTON ENTERPRISES; HON. LAWRENCE F. SMITH, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD; AND WORKERS' COMPENSATION FUNDS
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RENDERED: March 4, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001937-WC
JAMES LANKFORD
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-01-01655
ADDINGTON ENTERPRISES;
HON. LAWRENCE F. SMITH,
ADMINISTRATIVE LAW JUDGE;
WORKERS' COMPENSATION BOARD;
AND WORKERS' COMPENSATION FUNDS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.1
GUIDUGLI AND TAYLOR, JUDGES; AND EMBERTON, SENIOR
GUIDUGLI, JUDGE: James Lankford petitions for review of an
opinion of the Workers’ Compensation Board affirming an opinion
and order of the Administrative Law Judge dismissing Lankford’s
pneumoconiosis claim. The ALJ determined that Lankford’s claim
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 100(5)(b) of the Kentucky Constitution
and KRS 21.580.
was barred by operation of the statute of limitations because it
was not filed within five years from his last date of exposure
to coal dust.
For the reasons stated below, we affirm the
Board’s opinion.
Lankford was born in 1940, and worked in the coal
industry for most of his adult life.
After working for other
employers, he began his employment with Addington Enterprises on
October 16, 1996.
At Addington, Lankford’s job required him to
operate a loader to fill trucks.
Lankford was exposed to coal
dust during the course of his employment.
In December, 1996, Lankford’s employment with
Addington ended.2
On December 18, 2001, he filed an application
for Resolution of Occupational Disease Claim with the Department
of Workers’ Claims.
He alleged that he suffered from coal
workers’ pneumoconiosis (a.k.a., “black lung disease”).
He
further maintained that his last date of exposure to coal dust
was the last date of his employment with Addington, i.e.,
December 20, 1996.
After receiving the claim, Addington filed a notice of
claim denial.
As a basis for the denial, Addington maintained
2
The record is not clear as to the reason for Lankford’s termination. He
testified that he “left the company,” though the record indicates that he was
terminated due to being “awkward” and “a danger to himself and others.”
Another notation in the record merely states that he was laid off . . . (not
discharged).”
-2-
that Lankford had failed to comply with the applicable statute
of limitations.
Proof on the claim was taken by way of deposition.
Lankford initially testified that his last day of employment was
December 20, 1996.
On cross-examination, however, he twice
stated that his employment was terminated on December 2, 1996.
Later, on re-direct examination, Lankford stated that he thought
he worked “up in December”, meaning that he believed he
continued to work into mid or late December, 1996.
Re-direct
examination on this question closed with Lankford stating that
he was not sure of the final date of employment with Addington.
Finally, in a subsequent deposition, Lankford again stated that
December 20, 1996, was the final date of employment.
The matter went before the ALJ.
After considering the
proof, the ALJ rendered an opinion and order dismissing the
claim based on the five-year statute of limitations provided for
in KRS 342.316(4)(a).
The ALJ determined that the proof
tendered by Addington in support of its affirmative defense,
particularly the testimony of Lankford’s supervisor Willard
Thompson, was credible and persuasive.
The ALJ relied on
Thompson’s testimony and documentary evidence in reaching the
conclusion that Lankford’s final date of employment was December
2, 1996.
Since Lankford’s claim was not filed within five years
-3-
of that date, the claim was found to be untimely.
Accordingly,
the claim was dismissed.
Lankford filed an appeal with the Board.
After
considering the record, the Board rendered an opinion on
September 3, 2004, affirming the ALJ’s opinion and order
dismissing Lankford’s claim.
The Board noted that compliance
with KRS 342.316(4)(a) is mandatory, and that the ALJ has the
sole authority to judge the weight of the evidence and the
inferences to be drawn there from.
It found no basis for
altering the ALJ’s finding that the evidence in support of
Addington’s affirmative defense was stronger and more credible
than the evidence in support of Lankford’s assertion that the
claim was timely filed.
This petition for review followed.
Lankford now argues that the Board erred in affirming
the opinion and order of the ALJ dismissing Lankford’s claim as
untimely filed.
He maintains that the medical evidence clearly
establishes that he suffers from coal workers’ pneumoconiosis;
that credible evidence was produced which supported his
assertion that the last date of exposure was December 20, 1996;
that Thompson was not a credible witness because of his loyalty
to Addington; and, that Lankford’s claim should be resolved on
its merits and not disposed of on a procedural issue.
In sum,
he argues that workers’ compensation law should be applied in a
manner to promote the protection of injured workers, and that
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the ALJ and the Board erred in failing to apply this principle
to his benefit.
He seeks an order vacating the Board’s opinion
and remanding the matter to the Board for an opinion consistent
with the medical evidence.
We have closely examined the record, the law, and the
written arguments, and find no error in the Board’s opinion
affirming the opinion and order of the ALJ.
The issue before us
turns on two questions: whether the Board properly concluded
that the ALJ is vested with the sole authority to judge the
weight and credibility of the evidence; and, whether the Board
properly concluded that application of KRS 342.316(4)(a) is
mandatory rather than discretionary.
Both of these questions
must be answered in the affirmative.
On the weight and credibility issue, there is little
question but that the Board properly concluded that the ALJ is
vested with the sole authority to examine conflicting evidence
and to draw conclusions there from.3
In the matter at bar, and
as if often the case, the evidence was conflicting.
That is to
say, evidence exists in the record upon which either party could
have reasonably prevailed.
Such conflicts in the evidence are
resolved by the ALJ, who is in the best position to judge its
weight and credibility.4
The ALJ found Thompson’s testimony and
the supportive documentary evidence to be more credible than
3
4
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).
Id.
-5-
that of Lankford.
This is not to say that Lankford was being
untruthful in his testimony; rather, it reflects the belief by
the ALJ that Addington’s affirmative defense as to the date of
termination and last exposure was more strongly supported by the
evidence.
Lankford recognizes the ALJ’s authority in his
appellate brief, yet attempts to argue around it by pointing to
the principle that workers’ compensation law should be applied
to protect workers rather than employers.
While Lankford
properly notes that workers’ compensation law exists primarily
for the benefit of injured workers, we cannot go so far as to
conclude that an injured employee (even one with an uncontested
injury) is always entitled to prevail on a claim for benefits.
This leads to the second issue – the mandatory application of
KRS 342.316(4)(a).
KRS 342.316(4)(a) states in relevant part that, “ . .
. the right to compensation for any occupational disease shall
be forever barred, unless a claim is filed with the commissioner
within five (5) years from the last injurious exposure to the
occupational hazard . . . .”
This language is clear and
unambiguous, and subject to but one interpretation.
“shall” means “mandatory”.5
5
KRS 446.010(29).
-6-
The word
Having determined that the ALJ properly exercised his
authority in finding that Lankford’s claim was not filed within
five years of his final exposure date of December 2, 1996, the
mandatory application of KRS 342.316(4)(a) operated to bar
Lankford’s claim as untimely.
The Board correctly so found, and
accordingly, we have no basis for tampering with the Board’s
opinion.
For the foregoing reasons, we affirm the opinion of
the Workers’ Compensation Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Shawn C. Conley
Harlan, KY
Jeffrey D. Damron
Pikeville, KY
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