WILLIAM A. HAMPTON v. ISLAND FORK CONSTRUCTION COMPANY; HON. LLOYD R. EDENS, ADMINISTRATIVE LAW JUDGE; AND THE WORKERS' COMPENSATION BOARD
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RENDERED:
JANUARY 20, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002395-WC
WILLIAM A. HAMPTON
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-02-01537
v.
ISLAND FORK CONSTRUCTION COMPANY;
HON. LLOYD R. EDENS, ADMINISTRATIVE LAW JUDGE;
AND THE WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND TAYLOR, JUDGES.
TAYLOR, JUDGE:
William A. Hampton petitions this Court to
review an opinion of the Workers’ Compensation Board (the Board)
entered November 5, 2003, which affirmed the Administrative Law
Judge’s (ALJ) dismissal of Hampton’s claim for workers’
compensation benefits.
We affirm.
Hampton had been a coal miner for some fifteen years.
Island Fork Construction Company (Island Fork) was Hampton’s
last employer, and Hampton’s last date of employment was January
3, 1997.
Hampton filed a claim for pneumoconiosis benefits on
September 16, 2002.
In support thereof, he submitted a chest x-
ray taken on July 16, 2002, and an ILO report from Dr. Michael
Alexander.
Dr. Alexander interpreted the x-ray as demonstrating
evidence of pneumoconiosis, Category 1/1, and also viewed the xray as being Quality 1.
In response, Island Fork submitted a
report from Dr. Robert Powell and an x-ray taken on December 6,
2002.
Dr. Powell interpreted the x-ray as demonstrating
Category 0/0 pneumoconiosis and also determined the x-ray to be
a Quality 1.
As no consensus had been established between the
parties’ medical experts, the matter was submitted to a
consensus panel of three “B” readers for interpretation of the
best quality film pursuant to Kentucky Revised Statutes (KRS)
342.316.
Two of the three readers interpreted the x-ray of
December 6, 2002, as Category 0/1, which is considered negative
for pneumoconiosis (consensus reading).
The commissioner
entered an order providing the parties with notice that two of
the “B” readers had reached a consensus that Hampton did not
suffer from pneumoconiosis.
Hampton then filed a notice
challenging the consensus reading but failed to file any
additional evidence.
By opinion and order dated September 2,
2003, the ALJ dismissed Hampton’s claim.
Being unsatisfied with
the ALJ’s dismissal, Hampton sought review by the Board.
-2-
By
opinion entered November 5, 2003, the Board affirmed the ALJ’s
dismissal of Hampton’s claim.
This review follows.
Hampton specifically argues:
1.
Whether, in the case of legal
presumption, it is still improper “to draw
inference from an inference”. [sic]
2.
Whether the legal presumption described
in KRS 342.316(13), that the consensus
findings of a panel of physicians following
a statutory procedure are presumed to be
correct unless overcome by “clear and
convincing evidence”, [sic] is properly
drawn in the absence of evidence that the
statutory procedures were followed.
3.
Whether the burden of overcoming a
rebutable [sic] presumption is separate from
the burden of showing entitlement to a
rebutable [sic] presumption.
In order for the presumption to attach to the
consensus reading under KRS 342.316(13), Hampton essentially
argues that there must be evidence in the record reflecting that
the consensus procedure described in KRS 342.316 was followed.
Hampton points out that the record is void of any such evidence:
There is no showing, nor even a suggestion,
that the commissioner forwarded two films to
the panel physicians. There is no showing
that each “B” reader selected the highest
quality film and reported only the
interpretation of that film.
Absent evidence that the consensus procedure had been followed,
Hampton believes the consensus reading is not entitled to the
presumption of KRS 342.316.
-3-
In rejecting Hampton’s argument, the Board concluded:
Nothing in the record officially confirms
that the Commissioner fulfilled his
statutory duties as prescribed by KRS
342.316(3)(b)4.e., or that the physicians
composing the three-member consensus panel
selected for review the highest quality film
from two films available to them. However,
it is equally true that there is no
substantial evidence of record proving those
persons acted inappropriately or in any
manner contrary to the express dictates of
the Act. Therein lies the fatal flaw in
Hampton’s logic. The record is devoid of
even a scintilla of evidence that could be
interpreted as supporting petitioner’s
allegations regarding any corruption in the
consensus process. Since the burden of proof
rested with Hampton, his argument fails.
Once the Commissioner determined that a
negative consensus had been reached by the
three-member panel, the correctness of
consensus classification was presumed as a
matter of law, and the burden of proof and
persuasion shifted to Hampton as the nonprevailing [sic] party faced with
challenging the consensus. See KRS
342.316(13). At that point, Hampton bore
the burden of not only proving each of the
essential elements of his cause of action,
but he also became charged with overcoming
the presumed correctness of the consensus
reading by clear and convincing evidence.
If Hampton had reason to believe the
Commissioner and his staff did not follow
statutory mandates pertaining to the
circulation of x-rays among consensus panel
“B” readers, or if he suspected that the “B”
readers were not selecting the highest
quality film for purposes of review, the
onus was on him to present evidence
establishing a reasonable basis to support
those allegations.
-4-
Hampton was free at any time to depose the
panel “B” readers, the Commissioner, or any
member of his staff involved in the
circulation of x-rays to panel experts in
order to verify or impeach the propriety of
the consensus process. Unfortunately, he
chose not to do so. He, therefore, failed
in his burden of proof.
We agree with the Board’s reasoning and conclude that
Hampton bore the burden of proving that he suffered from
pneumoconiosis and that the consensus procedure was not
followed.
The parties’ experts disagreed upon the
interpretation of the two submitted x-rays; thereafter, two of
the three “B” readers reached consensus that Hampton did not
suffer from pneumoconiosis.
The record is clear that Hampton
presented no evidence to demonstrate that the commissioner or
any of the three “B” readers failed to comply with the mandates
of KRS 342.316.
As such, we are of the opinion that Hampton
failed to demonstrate that the consensus procedure was not
followed and failed to overcome the presumption of correctness
that attached to the consensus reading under KRS 342.316.
For the foregoing reasons, the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark L. Ford
Harlan, Kentucky 40831
Jeffrey D. Damron
BARID & BAIRD, PSC
Pikeville, Kentucky
-5-
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