BEECH FORK PROCESSING v. JIMMY MUSICK; HON. SHEILA C. LOWTHER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: JANUARY 6, 2006, 10:00
NOT TO BE PUBLISHED
A.M.
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001660-WC
BEECH FORK PROCESSING
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-02-00336
JIMMY MUSICK; HON. SHEILA C.
LOWTHER, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE:
Beech Fork Processing (hereinafter “Beech
Fork”) has petitioned this Court for review of the Workers’
Compensation Board’s July 15, 2005, opinion affirming in part,
reversing in part and remanding the Chief Administrative Law
Judge’s opinion dismissing Jimmy D. Musick’s claim for an
enhanced award of retraining incentive benefits (hereinafter
“RIB”).
We affirm.
Musick is currently a sixty-year-old resident of Van
Lear, Johnson County, Kentucky, with a date of birth of
September 16, 1945.
He began first grade at age eight, and
dropped out of third grade at age thirteen.
Musick began
working in the mining industry in approximately 1980, and worked
for a number of different coal companies.
Beech Fork in 1988.
He began work for
In 1993, while continuing to work for Beech
Fork, Musick filed a RIB application based upon his inhalation
of coal dust.
Musick and Beech Fork settled that claim on July
12, 1993, for a lump sum payment of $18,000.
Musick continued
to work for Beech Fork until October 1, 2001, which is the last
day he was exposed to coal dust.
On November 19, 2001, Musick filed an injury claim as
well as a hearing loss claim against Beech Fork with the
Department of Workers’ Claims.
These claims were consolidated
and were eventually settled in 2003 for a $15,000 lump sum
payment.
On March 1, 2002, Musick filed the occupational
disease claim presently before the Court, alleging that he had
contracted pneumoconiosis during his work as a shuttle car
operator with Beech Fork.
He attached to his application a
report from “B” reader Dr. Brent D. Brandon, in which he
interpreted a June 5, 2001, x-ray as Category 3/2.
provided a spirometric testing report.
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Musick also
Beech Fork filed a
notice of denial, and submitted the report of Dr. Bruce Broudy,
also a “B” reader, who interpreted an x-ray taken on July 5,
2002, as Category 0/1.
Beech Fork also submitted the report of
Dr. A. Dahhan, who interpreted a July 13, 2002, x-ray as
Category 0/0.
On July 15, 2002, the General Assembly passed HB 348,
drastically amending KRS Chapter 342.
Musick was then permitted
to file an amended Form 102 pursuant to the statutes and
regulations along with supporting documents.
Musick filed Dr.
Brandon’s report, while Beech Fork continued to rely upon Dr.
Broudy’s report.
Because no consensus was reached between the
two experts, the consensus procedure was implemented, whereby
three “B” readers were randomly selected to read the x-rays.
Based upon the reports submitted, a consensus of coal workers’
pneumoconiosis 1/1 was reached.
Following a November 24, 2003,
benefit review conference, contested issues remained as to the
existence of the disease, the constitutionality of the 2002
amendments to the Act, the scope and authority of the
regulations, notice, and the effect of his 1993 RIB settlement.
Following briefing, the CALJ dismissed Musick’s claim,
stating as follows:
Therefore, it is the finding of the
Administrative Law Judge that Mr. Musick has
met his burden of proving the existence of
category 1 pneumoconiosis. The Plaintiff is
entitled to retraining incentive benefits
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pursuant to KRS 342.732(1) however, section
(1)1. of that statute provides a one time
only retraining incentive benefit [] which
the Plaintiff has already received when he
settled his claim in 1993. Therefore, it is
the finding of the undersigned that the
Plaintiff is not entitled to any additional
benefits. In as much as the Plaintiff’s
claim for benefits is dismissed, the
undersigned does not believe that it is
necessary to address the remaining contested
issues.
In his Petition for Reconsideration of the CALJ’s dismissal,
Musick argued that he was entitled to recover an additional
$18,208.83 as an enhanced RIB award pursuant to KRS 342.792(1),
which would be payable by the Kentucky coal workers’
pneumoconiosis fund.
This motion was denied, and Musick
appealed the CALJ’s decision to the Workers’ Compensation Board.
On November 12, 2004, the Board entered an opinion
vacating and remanding the CALJ’s decision.
After specifically
reviewing KRS 342.792, the Board agreed with Beech Fork that the
newly enacted statute would not authorize Musick “to obtain an
additional retraining incentive benefit award for the same
condition and injurious exposure for which [he] received a
retraining incentive benefit settlement in 1993.”
However, the
Board went on to assume that Musick’s present claim was
“premised on additional injurious exposure occurring subsequent
to his 1993 settlement.”
The Board then remanded the case to
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the CALJ to consider the provisions of KRS 342.792 as they
related to the factual allegations in the present case.
On remand, the CALJ again dismissed Musick’s claim,
stating as follows:
The undersigned apparently was not
sufficiently articulate in her original
opinion. It is the specific finding of the
Administrative Law Judge that Mr. Musick has
category 1 coal workers’ pneumoconiosis,
without evidence of pulmonary impairment.
Although he continued working in the coal
mining industry and experienced additional
injurious exposure between 1993, when he
settled his original claim, and 2002, there
is no evidence in the record that this
additional exposure resulted in the
progression of the radiographic evidence of
pneumoconiosis or the development of a
pulmonary impairment. Therefore, pursuant
to KRS 342.732(1)(a) and the holding in
Moore v. Sunstone Energy, Ky., 849 S.W.2d
529 (1993), the plaintiff is not entitled to
any additional benefits. Quite simply, he
has already been compensated for this
condition, and a subsequent change in the
statute does not entitle him to additional
compensation, absent a progression of his
occupational disease.
Musick appealed the CALJ’s decision to the Board.
On July 15, 2005, the Board entered an opinion
affirming the CALJ’s opinion in part, reversing in part and
remanding.
The Board affirmed the determination that Musick had
Category 1 pneumoconiosis without evidence of pulmonary
impairment, as that finding was based upon the consensus reached
by the “B” reader panel.
However, the Board reversed the
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remainder of the CALJ’s opinion, holding that based upon its
interpretation of the statutory provisions, Musick was entitled
to an enhanced award of benefits pursuant to KRS 342.732(1)(a),
less a credit for the money he received for the 1993 settlement,
provided that he could carry his burden of proof on the
essential elements of his claim.
Thus, the matter was remanded
to the CALJ for a determination on the remaining issues.
This
appeal followed.
In Western Baptist Hospital v. Kelly, 1 the Supreme
Court addressed its role and that of the Court of Appeals in
reviewing decisions in workers’ compensation actions.
“The
function of further review of the WCB in the Court of Appeals is
to correct the Board only where the [] Court perceives the Board
has overlooked or misconstrued controlling statutes or
precedent, or committed an error in assessing the evidence so
flagrant as to cause gross injustice.” 2
While we might agree
with the ALJ and Beech Fork that it appears inequitable for
Musick to reap the benefits of the statutory amendments without
showing that his condition has worsened, we nevertheless hold
that the Board correctly interpreted the law as it now stands.
In an opinion authored by Board Member Stanley, the Board
provided an excellent analysis, which we shall adopt as our own:
1
827 S.W.2d 685 (Ky. 1992).
2
Id. at 687-88.
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Our interpretation of KRS 342.792[ 3 ] is
that the provision was intended by the
General Assembly to provide coal miners last
exposed to the occupational hazards of coal
dust between December 12, 1996, and July 15,
2002, with an opportunity to receive
enhanced awards of RIB, irrespective of
other similar benefits that may have been
granted previously pursuant to earlier
versions of KRS 342.732(1). KRS 342.792(1)
plainly provides that the claim of “[a]ny
miner last exposed to the occupational
hazards of coal workers’ pneumoconiosis
between December 12, 1996, and July 15,
2002, shall nonetheless be governed by the
provisions of KRS 342.732 . . .
notwithstanding the provisions of KRS
342.125.” The provision further mandates
that “[i]ncome or retraining incentive
benefits shall be awarded thereon as if the
entitlement standards established by the
amendments to KRS 342.732 were effective at
the time of the last exposure.” Moreover,
KRS 342.792(1) expressly states that: (1)
“[a]ny benefits previously granted by an
award or settlement shall be credited
against any subsequent award or settlement
3
The applicable section of KRS 792.342 reads as follows:
(1) The claim of any miner last exposed to the occupational hazards of
coal worker’s pneumoconiosis between December 12, 1996, and July 15,
2002, shall nonetheless be governed by the provisions of KRS 342.732
and notwithstanding the provisions of KRS 342.125 all claims for
benefits which were filed for last injurious occupational exposure to
coal dust occurring between December 12, 1996, and July 15, 2002,
shall be considered pursuant to the provisions of KRS 342.732 and
administrative regulations promulgated by the executive director, and
closed claims, except claims dismissed for reasons other than failure
to meet medical eligibility standards, may be reopened by the
claimant. Income or retraining incentive benefits shall be awarded
thereon as if the entitlement standards established by the amendments
to KRS 342.732 were effective at the time of last exposure. Any
benefits previously granted by an award or settlement shall be
credited against any subsequent award or settlement and no interest
shall be payable on additional benefits. A previous grant of
retraining benefits shall be credited only to the extent that the
benefits were actually paid. All income or retraining incentive
benefits greater than those which would have been awarded were not
these new provisions applicable shall be paid without interest from
the Kentucky coal workers’ pneumoconiosis fund, the provisions of KRS
342.1242 notwithstanding.
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and no interest shall be payable on
additional benefits”; and (2) “[a] previous
grant of retraining incentive benefits shall
be credited only to the extent that the
benefits were actually paid.”
Along those same lines, KRS 342.792(3)
provides “the coal workers’ pneumoconiosis
claim of any miner last exposed between
December 12, 1996, and July 15, 2002, may be
filed with the commissioner on or before
December 12, 2003.” KRS 342.792(3) further
states that “[a]ll income or retraining
incentive benefits greater than those which
would have been awarded were not these new
provisions applicable shall be paid by the
Kentucky coal workers’ pneumoconiosis fund
without interest, in the provisions of KRS
342.1242 notwithstanding.”
Given such language, we believe it is
clear that the General Assembly intended to
allow coals miners such as Musick an
opportunity to receive additional benefits,
RIB or otherwise, under the 2002 amendments
to the Act. Enhancement of prior RIB awards
for certain classes of miners was a
deliberate effect envisioned and
incorporated by the legislature by means of
the enactment of HB 348. As such, the fact
that Musick’s claim may be an attempt at a
“second bite of the same apple” is not fatal
under the circumstances of this case. As we
stated in our original opinion, we believe
KRS 342.792(1) must be read to create a
statutory exception to the general “one (1)
time only” limitation of KRS 342.732(1)(a)
on a RIB award. To do otherwise would
effectively render meaningless language in
KRS 342.792 addressing additional retraining
incentive benefits.
For the foregoing reasons, the July 15, 2005, opinion
of the Workers’ Compensation Board is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul E. Jones
Pikeville, KY
John Harlan Callis, III
Inez, KY
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