DEAL (RANDY) VS. GUNTHER NASH MINING CONSTRUCTION COMPANY, ET AL.
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RENDERED: FEBRUARY 14, 2014; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2013-CA-000777-WC RANDY DEAL v. APPELLANT PETITION FOR REVIEW OF A DECISION OF THE WORKERS COMPENSATION BOARD ACTION NO. WC-91-15712 GUNTHER NASH MINING CONSTRUCTION COMPANY; SPECIAL FUND; HON. J. LANDON OVERFIELD, CHIEF ADMINISTRATIVE LAW JUDGE; WORKERS COMPENSATION BOARD APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: CAPERTON, TAYLOR, AND THOMPSON, JUDGES. CAPERTON, JUDGE: The Appellant, Randy Deal, appeals the April 5, 2013, opinion of the Workers Compensation Board affirming the November 27, 2012, order entered by the Chief Administrative Law Judge (CALJ) overruling Deal s October 19, 2012, motion to reopen this matter on grounds of a worsening of his physical condition and an increase in occupational disability, finding that pursuant to Kentucky Revised Statutes (KRS) 342.125, Deal s motion was untimely. Upon review of the record, the arguments of the parties, and the applicable law, we affirm. The underlying facts of this matter are not in dispute. In an Opinion, Award, and Order dated December 29, 1993, it was noted that the claim dealt with three separate injuries and an occupational disease claim for which Deal was awarded temporary total disability (TTD) benefits, permanent partial disability (PPD) benefits, and medical expenses. Deal was also awarded retraining incentive benefits (RIB) in the amount of $132.47 per week, payable semi-monthly, commencing with the date of the award and for a period not exceeding 208 weeks. On or about October 17, 2012, Deal moved to reopen his claim pursuant to KRS 342.125 based on an alleged worsening of his condition. As noted, the CALJ entered a November 27, 2012, order in which he noted that pursuant to KRS 342.125(3), no claim shall be reopened more than four years following the date of the last award or order. As Deal s award was rendered on December 29, 1993, the ALJ found that he had four years from and after December 12, 1996, to file a motion to reopen. As Deal filed his motion to reopen more than four years after that date, the CALJ found it to be time-barred. Deal filed a Motion for ALJ to Reconsider, Alter, Amend, or Vacate 11/27/12 Order in which he argued that the law in 1996 did not exist at the time -2- of the 1993 award and therefore was not binding upon him. Moreover, Deal asserted that: His receiving a RIB (retraining incentive benefits) award does not prevent him from filing an additional claim which results in his being additionally injured by his continued exposure over a significant number of years from breathing and inhaling the dust associated with the coal mining industry. In the alternate, Deal argued that, If the ALJ should find he is not entitled to reopen his claim, then the ALJ should find that he is entitled to have his claim considered as a new claim. In a January 8, 2013, order overruling the petition for reconsideration, the CALJ stated as follows: This matter comes before the Chief Administrative Law Judge (CALJ) upon the Frankfort Motion Docket for consideration of Plaintiff s petition for reconsideration of the CALJ s order of November 27, 2012. The CALJ s order overruled Plaintiff s motion to reopen for an increase in occupational disability due to the worsening of his coal workers pneumoconiosis. Review pursuant to a petition for reconsideration is limited by KRS 342.281 and 803 KAR [Kentucky Administrative Regulations] 25:010 §19 to the correction of errors patently appearing on the fact of an award, order, or decision, and does not allow reconsideration of the merits of a claim or defense. Plaintiff does not set forth in his petition any errors appearing on the face of the CALJ s order. Plaintiff actually argues that the CALJ has improperly applied the statutory provisions of KRS 342.125 and/or 342.316. Plaintiff was awarded retraining incentive benefits in an Opinion and Award rendered on December 29, 1993. On October 19, 2012, Plaintiff moved to reopen his award for an increase in occupational disability. The Special Fund objected citing the four year limitation set forth in KRS 342.125(8). The CALJ, relying on that -3- statutory four year limitation, overruled Plaintiff s motion to reopen. Plaintiff now petitions for a reconsideration of that order arguing that the statutory limitation does not apply to an award rendered prior to December 12, 1996. The statute in question, KRS 342.125(8), reads in part as follows: The time limitation prescribed in this section shall apply to all claims irrespective of when they were incurred, or when the award was entered, or the settlement approved. However, claims decided prior to December 12, 1996 may be reopened within four (4) years of the award or order or within (4) years of December 12, 1996, whichever is later ¦ A review of the above order indicates no error patently appearing on the face thereof. The CALJ remains convinced that Plaintiff s reopening of his December 29, 1993 award for retraining incentive benefits is barred by the provisions of KRS 342.125(8). CALJ Order Overruling Petition for Reconsideration, January 8, 2013. Deal appealed that order to the Workers Compensation Board, which entered the aforementioned opinion on April 5, 2013, affirming the CALJ. In affirming, the Board found that the CALJ correctly determined that Deal had four years after December 12, 1996, or until December 12, 2000, to file a motion to reopen. The Board noted that Deal filed his motion to reopen on October 19, 2012, which exceeded that date by twelve years. Accordingly, the Board agreed with the CALJ that Deal s motion was not filed within the statutory period and was barred. In so finding, the Board concluded that the fact that Deal s occupational disease claim resulted in an award of RIB benefits was irrelevant -4- because December 29, 1993, was the date of the original award. Additionally, the Board found no legal support for Deal s alternative argument that he should be able to file a new claim based on his alleged worsening of an occupational disability. It is from that opinion that Deal now appeals to this Court. Prior to reviewing the arguments of the parties, we note that the function of this Court on review is to correct the Board only where the Court perceives that the Board has overlooked or misconstrued controlling statutes or precedent, or has committed an error in assessing the evidence so flagrant as to cause gross injustice. See Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687088 (Ky. 1992). We review this matter with this standard in mind. On appeal, Deal argues that the CALJ and the Board dismissed his motion without considering all aspects of his case. Deal argues, as he did to the CALJ and the Board, that because his claim was decided in 1993, and that the 1996 law did not then exist, it was not binding upon him. Deal argues that the legislature would not have intended to preclude a coal miner who received an RIB claim to be precluded from reopening his claim in a situation such as Deal s, where his condition has allegedly worsened.1 Appellees disagree, and assert that the 1 In reviewing this assertion, we note that Deal directs our attention to KRS 342.125(5)(a), which provides that: Upon the application of the affected employee, and a showing of progression of his previously-diagnosed occupational pneumoconiosis resulting from exposure to coal dust and development of respiratory impairment due to that pneumoconiosis and two (2) additional years of employment in the Commonwealth wherein the employee was continuously exposed to the hazards of the disease, the administrative law judge may review an award or order for benefits attributable to coalrelated pneumoconiosis under KRS 342.732. An application for review -5- Board and CALJ properly dismissed Deal s motion based upon the clear language of the controlling statutory provisions. Upon review of the record, the arguments of the parties, and the applicable law, we are in agreement with the Board that Deal s motion to reopen was time-barred in light of the undisputed facts of the case. It is undisputed that Deal s RIB award was entered on December 29, 1993, and it is also undisputed that his motion to reopen was not filed until October 17, 2012. KRS 342.125(3) is clear that, no claim shall be reopened more than four years following the date of the original award or order granting or denying benefits ¦ Moreover, KRS 342.125(8) provides that: The time limitation prescribed in this section shall apply to all claims irrespective of when they were incurred, or when the award was entered, or the settlement approved. However, claims decided prior to December 12, 1996, may be reopened within four years of the award or order or within four years of December 12, 1996, whichever is later[.] Following our review of these provisions, we are in agreement with the Board that Deal s motion to reopen was untimely. Pursuant to the clear under this subsection shall be made within one (1) year of the date the employee knew or reasonably should have known that a progression of his disease and development or progression of respiratory impairment have occurred. Review under this subsection shall include a review of all evidence admitted in all prior proceedings. While Deal attempts to rely upon this provision in asserting that his motion should not be time-barred, our review of the record indicates that Deal failed to include a medical report expressing the opinion that he has had a progression of his previously diagnosed occupational pneumoconiosis resulting from exposure to coal dust and the development of respiratory impairment as a result thereof, from two continuous years of continuous exposure to the hazards of the disease. Accordingly, we decline to address this argument further herein. -6- statutory wording, Deal had until December 12, 2000, to reopen his claim. His motion was filed twelve years after that time. Accordingly, we agree with both the Board and the CALJ that the motion was time-barred, and we affirm. Wherefore, for the foregoing reasons, we hereby affirm the April 5, 2013, opinion of the Workers Compensation Board, affirming the November 27, 2012, order entered by the Chief Administrative Law Judge (CALJ), overruling Deal s October 19, 2012, motion to reopen this matter. ALL CONCUR. BRIEF FOR APPELLANT: Johnnie L. Turner Harlan, Kentucky BRIEF FOR APPELLEE, SPECIAL FUND: Robert L. Whittaker Frankfort, Kentucky -7-
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