BRASHER (LEE A.) VS. COMPENSATION CONSOLIDATED COAL COMPANY , ET AL.
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RENDERED: MAY 2, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-002085-WC
LEE A. BRASHER
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-02-02140
CONSOLIDATED COAL COMPANY;
HON. ANDREW F. MANNO, ALJ;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; CAPERTON AND MOORE, JUDGES.
MOORE, JUDGE: Lee Brasher petitions this Court to review an opinion of the Workers’
Compensation Board (“Board”) entered on September 19, 2007. The Board affirmed an
opinion and order of the Hon. Andrew F. Manno, Administrative Law Judge (“ALJ”)
entered on May 18, 2007.1 After a careful review of the record, we affirm.
Brasher brought his claim for workers’ compensation benefits alleging that
he had contracted the occupational disease known as coal workers’ pneumoconiosis
after working in Kentucky coal mines for approximately twenty-nine years. When
There is a typographical error in the ALJ’s opinion and order because it reflects that the
opinion and order were entered on May 18, 2006, when they were actually entered on May 18,
2007.
1
Brasher filed his workers’ compensation pneumoconiosis claim form (Form 102), he
attached an x-ray interpretation report from Dr. Matthew Vuskovich, a “B” Reader, who
found that Brasher’s x-ray showed parenchymal abnormalities consistent with
pneumoconiosis.
Consolidated Coal Company obtained an x-ray interpretation report from
Dr. Bruce Broudy, who found that Brasher’s x-ray showed no signs of pneumoconiosis.
Brasher’s x-rays were then sent to the Commonwealth’s “consensus panel” for its own
independent interpretation of the x-rays, as required by Kentucky Revised Statute
(KRS) 342.316. The consensus panel consists of a randomly selected group of three
“B” readers. One of the doctors on the consensus panel, Dr. Bapuji Narra, agreed with
Dr. Vuskovich and found that the x-rays were positive for pneumoconiosis. However,
the other two consensus panel members found that the x-rays were negative for
pneumoconiosis.
In an opinion and order, the ALJ found that the parties had stipulated to
the following facts:
1. Coverage under the Workers’ Compensation Act.
2. An employment relationship existed between the Plaintiff
and Defendant at all times herein relevant.
3. Plaintiff gave due and timely notice.
4. Last exposure to the hazards of the occupational disease
occurred during employment with the Defendant,
Consolidation Coal Company on November 1, 1999.
5. Mr. Brasher has at least 29 years of multiple exposures.
6. Plaintiff is not currently employed in the severance and
processing of coal.
7. Mr. Brasher was born on February 28, 1942.
8. Plaintiff completed 8 years of formal education.
The ALJ then stated that the consensus panel’s determination that Brasher did not
qualify for workers’ compensation benefits was correct unless Brasher could prove
otherwise by clear and convincing evidence. Brasher testified at a hearing that was
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held, but the ALJ found Brasher failed to show by clear and convincing evidence that he
qualified for benefits. Therefore, the ALJ dismissed Brasher’s claim.
Brasher appealed to the Workers’ Compensation Board, claiming that
KRS 342.316 is unconstitutional because it violates injured coal miners’ Equal
Protection Rights under the Fourteenth Amendment to the United States Constitution
and Sections One, Two, and Three of the Kentucky Constitution. The Board
determined that it had “no jurisdiction to determine the constitutionality of [a] statute
enacted by the Kentucky General Assembly.” (Citing Blue Diamond Coal Company v.
Cornett, 300 Ky. 647, 189 S.W.2d 963 (1945)). The Board then held that because the
constitutionality of the statute was the only issue before it and because it lacked
jurisdiction to make a determination on that claim, the opinion and order of the ALJ was
affirmed.
Brasher now appeals, claiming that KRS 342.316 is unconstitutional
because it violates injured coal miners’ rights to Equal Protection under the Fourteenth
Amendment to the United States Constitution and Sections One, Two, and Three of the
Kentucky Constitution. Specifically, he alleges: (1) A miner who suffers from coal
miners’ pneumoconiosis must meet a higher and more stringent burden of proof, i.e.,
the “clear and convincing evidence” standard, to rebut the consensus panel’s findings,
but other similarly situated workers only have to meet a “preponderance of the
evidence” standard; and (2) KRS 342.316 limits the type of evidence that an ALJ is
permitted to consider while reviewing a coal miner’s pneumoconiosis claim. Brasher
contends that in reviewing pneumoconiosis claims, an ALJ may not consider the
number of years that the miner was exposed to coal dust, the type of work performed by
the miner, or the miner’s testimony regarding his ability to breathe and function.
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Unfortunately for Brasher, this Court has reviewed these same claims on
multiple occasions in other cases and, in each of those cases, this Court found that
KRS 342.316 does not violate the Equal Protection Rights of injured coal miners
complaining of pneumoconiosis.2 We find this Court’s prior cases on this issue
dispositive.
Accordingly, the opinion of the Workers’ Compensation Board is affirmed.
CAPERTON, JUDGE, CONCURS IN RESULT AND FILES SEPARATE
OPINION.
COMBS, CHIEF JUDGE, CONCURS AND JOINS IN THE SEPARATE
OPINION.
CAPERTON, JUDGE: I concur with the opinion of the court but feel
compelled to write separately on Appellant’s argument regarding the constitutionality of
KRS 342.316.
Arguments to our court must be addressed as presented. The Appellant
argues that other workers enjoy a preponderance of the evidence burden while those
that endure the disease of pneumoconiosis grapple with the clear and convincing
standard. This is true in many cases, but may not be true in all cases. Specifically,
KRS 342.316 states, in relevant part:
(3) (b) 4. d. Within forty-five (45) days of assignment of a
coal workers' pneumoconiosis claim to an administrative
law judge, the employer shall cause the employee to be
examined by a physician of the employer's choice and
shall provide to all other parties and file with the executive
director the X-ray interpretation by a "B" reader. The
examination of the employee shall include spirometric
testing if pulmonary dysfunction is alleged by the employee
See, e.g., Lutz v. Energy Conversion Corp., __ S.W.3d __, No. 2006-CA-002628-WC, 2007
WL 2812289 (Ky. App. Sept. 28, 2007), as modified (Nov. 9, 2007); Middleton v. Centennial
Resources, Inc., No. 2007-CA-000037-WC, 2007 WL 2812617 (Ky. App. Sept. 28, 2007), as
modified (Nov. 9, 2007) (unpublished); Durham v. Peabody Coal Co., No. 2007-CA-000032WC, 2007 WL 2812615 (Ky. App. Sept. 28, 2007) (unpublished); Ratliff v. Peabody Coal Co.,
No. 2007-CA-001163-WC, 2008 WL 275146 (Ky. App. Jan. 25, 2008) (unpublished); Cain v.
Lodestar Energy, Inc., No. 2007-CA-000010-WC, 2008 WL 466073 (Ky. App. Feb. 22, 2008)
(unpublished).
2
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in the application for resolution of a claim. The executive
director shall determine whether the X-ray interpretations
filed by the parties are in consensus.
(3) (b) 4. e. If the readings are not in consensus, the
executive director shall forward both films, masking
information identifying the facility where the X-ray was
obtained and the referring physician, consecutively to
three (3) "B" readers selected randomly from a list
maintained by the executive director for interpretation.
Each "B" reader shall select the highest quality film and
report only the interpretation of that film. The executive
director shall determine if two (2) of the X-ray
interpretations filed by the three (3) "B" readers selected
randomly are in consensus. If consensus is reached, the
executive director shall forward copies of the report to all
parties as well as notice of the consensus reading which
shall be considered as evidence. If consensus is not
reached, the administrative law judge shall decide the
claim on the evidence submitted.
(3) (b) 4. f. "Consensus" is reached between two (2) chest Xray interpreters when their classifications meet one (1) of
the following criteria: each finds either category A, B, or C
progressive massive fibrosis; or findings with regard to
simple pneumoconiosis are both in the same major
category and within one (1) minor category (ILO category
twelve (12) point scale) of each other.
(13) For coal-related occupational pneumoconiosis claims,
the consensus procedure shall apply to all claims which
have not been assigned to an administrative law judge
prior to July 15, 2002. The consensus classification shall
be presumed to be the correct classification of the
employee's condition unless overcome by clear and
convincing evidence. If an administrative law judge finds
that the presumption of correctness of the consensus
reading has been overcome, the reasons shall be specially
stated in the administrative law judge's order.
(emphasis supplied).
A reading of the statute provides an interesting result. If consensus is
reached whether by the “B” readers of the employee and employer or after referral to
the consensus panel, the consensus shall be presumed to be the correct classification
and must be overcome by clear and convincing evidence. However, if there is no
consensus between the employee and employer “B” readers, and none is reached after
referral by the executive director to the three randomly selected “B” readers, then the
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case is given to the administrative law judge for decision. Nothing in KRS 342.316
elevates the burden of persuasion on the claimant above a preponderance of the
evidence when referred to the administrative law judge. Thus, to say that a
pneumoconiosis claimant must always contend with a clear and convincing standard of
proof may not be entirely correct, such claimant may possibly have a preponderance of
the evidence standard. This apparent change in burden between two persons suffering
from pneumoconiosis is interesting at the very least.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas E. Springer III
Madisonville, Kentucky
Carl M. Brashear
Lexington, Kentucky
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