MAGIC COAL COMPANY V. RONNIE FOX; ZARING P. ROBERTSON, Administrative Law Judge; and WORKERS' COMPENSATION BOARD AND PEABODY COAL COMPANY V. BILLY GENE HAWES; EDDIE BEALMEAR; SHEILA C. LOWTHER, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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MAGIC COAL COMPANY
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-APPELLANT
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APPEAL FROM COURT OF APPEALS’ - “‘. --’
NO. 1998-CA-000527-WC
WORKERS’ COMPENSATION BOARD NO. 97-00367
,-.
V.
RONNIE FOX; ZARING P. ROBERTSON,
Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
AND
1999-SC-0509-WC
PEABODY COAL COMPANY
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
NO. 1998-CA-0000489-WC
WORKERS’ COMPENSATION BOARD
NOS. 96-08675, 96-07835
BILLY GENE HAWES; EDDIE BEALMEAR;
SHEILA C. LOWTHER, Administrative Law Judge;
and WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
REVERSING AND REMANDING IN 1999-SC-0163-WC
AFFIRMING IN 1999-SC-0509-WC
These workers’ compensation appeals concern the portion of KRS 342.315(2)
which. became effective December 12, 1996, and which states that the findings and
opinions of designated university medical evaluators “shall be afforded presumptive
weight.” At issue is whether the amendment governs claims which arose before its
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effective date.
The 1996 version of KRS 342.315 provides, in pertinent part, as follows:
(1) The commissioner shall contract with the University of Kentucky and
the University of Louisville medical schools to evaluate workers who have
had injuries or become affected by occupational diseases covered by this
chapter. Referral for evaluation may be made to one (1) of the medical
schools whenever a medical question is at issue.
(2) The physicians and institutions performing evaluations pursuant to this
section shall render reports encompassing their findings and opinions in
the form prescribed by the commissioner. The clinical findings and
opinions of the designated evaluator shall be afforded presumptive weight
by arbitrators and administrative law judges and the burden to overcome
such findings and opinions shall fall on the opponent of that evidence.
When arbitrators or administrative law judges reject the clinical findings
and opinions of the designated evaluator, they shall specifically state in
the order the reasons for rejecting that evidence.
Two other amendments which became effective on December 12, 1996, also are
relevant to a consideration of the question at issue. KRS 342.0015 provides, in
pertinent part, that the “procedural provisions” of the 1996 Act “shall apply to all claims
irrespective of the date of injury or last exposure, including, but not exclusively, the
mechanisms by which claims are decided and workers are referred for medical
evaluations.” KRS 342.316(3)(b)4.b. provides that the arbitrator to whom an
occupational disease claim is assigned “shall” refer the worker to a university evaluator
for examination. There is no comparable requirement concerning injury claims, leaving
it to the discretion of the fact-finder whether to order an evaluation in a given case.
These appeals both involve retraining incentive benefit (RIB) claims.
Maaic Coal Co. v. Fox:
The claimant was employed in the coal mining industry for over 19 years and last
worked in March, 1992. In February, 1997, he filed a claim for a RIB. Among the
contested issues was whether he suffered from coal workers’ pneumoconiosis and
whether the university medical expert’s report was entitled to presumptive weight
pursuant to KRS 342.315. Evidence of the presence of the disease was conflicting, and
the report of the university evaluator was negative. In a decision rendered on
September 9, 1997, the Administrative Law Judge (ALJ) determined that, to the extent
that it afforded presumptive weight to the findings and opinions of university evaluators,
the 1996 amendment to KRS 342.315 was substantive and should not be applied to a
claim which arose before the amendments effective date. The ALJ indicated that the
credentials of all of the expert witnesses were worthy of respect but chose to rely upon
the claimant’s witnesses and awarded a RIB.
This appeal was considered by the Workers’ Compensation Board (Board)
together with several others, including Peabodv Coal Co. v. Hawes and Peabody Coal
Co. v. Bealmear. The Board rejected the argument that KRS 342.314(2) simply shifts
the burden of going forward with proof to the party who opposes the evaluator’s report,
indicating that such a construction would render the amendment ineffectual. The Board
determined, instead, that the amendment creates a rebuttable presumption which favors
the university evaluator’s opinion, which represents an alteration in the overall burden of
proof placed upon the parties, and which is substantive in nature. For that reason, the
Board concluded that the findings and opinions of university evaluators should not be
given “presumptive weight” in those claims which arose before December 12, 1996.
The Court of Appeals affirmed the Board.
Magic Coal Co. (Magic) emphasizes that this is a RIB claim which, unlike a claim
for income benefits, is controlled by the law on the date of filing rather than the law on
the date of last exposure. Breedina v. Colonial Coal Co., Ky., 975 S.W.2d 914 (1998).
This claim was filed after December 12, 1996; therefore, Magic asserts, the
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December 12, 1996, amendments to Chapter 342 controlled the claim. Second, Magic
argues that KRS 342.315(2) does not alter the burden of proof but is a procedural
mechanism to ensure the ALJ’s reliance upon impartial expert testimony “when
alternative medical testimony is not particularly convincing.” Emphasizing that the
presumption is rebuttable, not conclusive, it argues that the presumption is procedural in
nature. See Boaas v. Blue Diamond Coal Co., 497 F. Supp. 1105 (1980); General
Refractories Co., Inc. v. Henderson, Ky., 232 S.W.2d 846 (1950).
Claimant responds that in the absence of specific language to the contrary, the
meaning of “presumptive weight” should be dictated by KRE 301. In the alternative, he
argues that if the Board’s construction of the term is correct, the amendment is
substantive and should not be applied in instances where the injury or last exposure
occurred before the amendment’s effective date. Finally, claimant raises four
arguments against the constitutionality of the provision in the event that it is construed
as restricting the authority of the ALJ to weigh conflicting medical evidence.
Peabodv Coal Co. v. Hawes. et. al.:
This appeal involves two different RIB claims. They were filed against Peabody
Coal Co. (Peabody) by Billy Gene Hawes and by Eddie Bealmear. In each instance,
the last exposure occurred before December 12, 1996, and a RIB claim had been filed
and was pending before the ALJ on December 12, 1996: It is undisputed that the preDecember 12, 1996, version of the Act was the controlling substantive law. In each
instance, the ALJ determined that the “presumptive weight” provision was procedural in
nature and did apply to the claim. The ALJ also determined, in each instance, that the
worker had introduced favorable evidence from two well respected pulmonary
specialists, one of whom was the only expert who had actually examined the worker as
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well as read an x-ray. In each instance, the ALJ was persuaded that the evidence
offered by the worker overcame the testimony of the university evaluator. The Board
affirmed the result on the basis that the presumptive weight provision was substantive,
and the Court of Appeals affirmed.
The questions presented on appeal concern whether the amendment is
procedural or substantive. If the amendment is procedural, a question arises
concerning the type of evidence which is necessary to overcome the presumptive
weight of a university evaluator’s testimony. No constitutional question is raised.
As a general rule, the law in effect on the date of injury or last injurious exposure
is deemed to control a worker’s rights and an employer’s obligations with regard to any
claim arising out of and in the course of the employment. Although a retraining
requirement was adopted in 1994, KRS 342.732(l)(a) permitted workers who continued
to be employed in the mining industry to receive a RIB; therefore, there was no date of
last exposure from which to fix the rights of the parties with regard to RIB claims filed by
working miners. In Arch of Kentuckv. Inc. v. Thomas, Ky., 895 S.W.2d 578 (1995) the
Court determined that, unlike other claims for occupational disease, RIB claims were
payable at the rate in effect on the date the claim was filed.
With regard to the appeals which are presently at issue, Hawes’ and Bealmear’s
last exposure to coal dust occurred before December 12, 1996, and their RIB claims
had been filed and were pending before the ALJ on December 12, 1996. Fox’s last
exposure occurred before December 12, 1996, but his RIB claim was filed after
December 12, 1996. The Board rendered a decision on all three claims on January 30,
1998. On July 23, 1998, during the pendency of the employers’ appeals to the Court of
Appeals, this Court rendered a decision in Breedina v. Colonial Coal Co., Ky., 975
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S.W.2d 914 (1998).
Breedinq concerned a RIB claim which was filed in 1995 by a worker who had
retired from the mining industry in 1991. The 1996 amendments were enacted during
the pendency of the appeal to the Board. When the appeal was before the Court of
Appeals, the employer asserted for the first time that the December 12, 1996, version of
KRS 342.732(l)(a) was remedial and controlled the claim. Relying upon Arch of
Kentucky. Inc. v. Thomas, supra, we determined that the law on the date the claim was
filed controlled the worker’s entitlement to a RIB and noted that the claim would be
subject to a remedial amendment which became effective during its pendency before
the ALJ. We concluded, however, that the ALJ could not have erred by failing to apply
an amendment which became effective after the decision was entered. We also noted
that the employer had failed to raise an argument that the 1996 amendment to
KRS 342.732(
1 )(a) was remedial before the Board and concluded, therefore, that the
Court of Appeals should not have considered the question.’
Magic’s argument has been that the 1996 amendments to KRS 342.315 were
remedial legislation and that they applied, retroactively, without regard to the date of a
worker’s last exposure to coal dust. Magic has asserted that KRS 342.0015 indicated a
legislative intent for the 1996 amendments to KRS 342.315 be applied to all workers’
compensation claims which were filed on or after the effective date of the amendment.
In its appeal to this Court, Magic relies for the first time upon Breedina v. Colonial Coal
Co.. supra, as authority for raising the additional proposition that because Fox’s claim
lln each of the claims presently at issue, the last exposure to coal dust occurred
before December 12, 1996. Hawes’ and Bealmear’s claims were filed and pending before
the ALJ on that date. Fox’s claim was filed after that date. Neither employer argued to the
ALJ, the Board, or the Court of Appeals that the December 12, 1996, version of
KRS 342.732(l)(a) was remedial.
was filed after December 12, 1996, the amended versions of both KRS 342.732(1)(a)
and KRS 342.315 apply to the claim, without regard to whether either provision is
remedial.
We begin by noting that Magic raised no argument before the ALJ or the Board
which asserted that the date of filing fixed the rights of the parties with regard to the
claimant’s RIB claim and, therefore, that the version of KRS 342.732(1)(a) and of
KRS 342.315 which became effective on December 12, 1996, controlled the claim. We
conclude, therefore, that the argument is not properly preserved for review. In any
event, our decision in Breedina v. Colonial Coal Co., supra, was rendered after Fox’s
claim was considered by the ALJ and, therefore, could not be a basis for determining
that the decision was erroneous.
KRS 446.080(3) provides that, “No statute shall be construed to be retroactive,
unless expressly so declared.” With regard to the intent of the legislature in enacting
the 1996 amendments to the Act, KRS 342.0015 provides, in pertinent part, as follows:
Procedural provisions of 1996 (1 st Extra. Sess.) Ky. Acts ch. 1 shall apply
to all claims, irrespective of the date of injury or last exposure, including,
but not exclusively, the mechanisms by which claims are decided and
workers are referred for medical evaluations.
It is apparent that KRS 342.316(3)(b)4.b. relates to the mechanism by which workers
are referred for medical evaluations in occupational disease claims. It also is apparent
that KRS 342.315(2) relates to the mechanisms by which claims are decided. We,
therefore, view KRS 342.0015 as expressing a clear legislative intent for KRS 342.315
and KRS 342.316(3)(b)4.b., to apply to all claims pending before an arbitrator or ALJ on
or after December 12, 1996. This appeal turns upon what we discern the meaning and
intent of KRS 342.315(2) to be. The role of the Court in construing a legislative act is to
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effectuate the intent of the legislature. Where that intent is not clear, we remain mindful
of the principle embodied in KRS 446.080(3) that, unless the legislature clearly indicates
otherwise, legislation is not intended to affect the legal consequences of events which
occurred before its enactment.
Prior to December 12, 1996, KRS 342.3.15 permitted an ALJ, upon motion of
either party or on the ALJ’s own motion, to appoint up to three “disinterested and duly
qualified physicians or surgeons” to examine an injured worker and to testify by means
of a joint report. Physicians who agreed to participate were limited to charging $75.00.
An ALJ was permitted to allow the reasonable cost of x-rays and an additional fee of
$25.00 if such a physician was deposed. KRS 342.315 contained no standard or
procedure for assuring a supply of “disinterested and duly qualified physicians or
surgeons.”
Taken together, the 1996 amendments to KRS 342.315 and KRS 342.316
provide for contracts with the University of Kentucky and University of Louisville medical
schools for medical examinations. They require a university evaluation in all
occupational disease claims and provide that the “clinical findings and opinions” of the
university evaluator “shall be afforded presumptive weight.” They indicate that the
burden to overcome the findings and opinions of a university evaluator falls upon the
opponent of the evidence. Finally, they indicate that if an arbitrator or ALJ rejects the
findings and opinions of a university evaluator, the reasons for doing so must be
specifically stated in the order.
The term “presumptive weight” is one which the parties concede is not found in
prior Kentucky law and one which is not defined in Chapter 342. KRS 342.315(2) does
not evince a legislative intent for the clinical findings and opinions of a university
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evaluator to be conclusive. It anticipates that the opponent of a university evaluator’s
report may introduce countervailing evidence which will overcome the report;
furthermore, KRS 342.125(2)
does not prohibit the fact-finder from rejecting a finding or
opinion of a university evaluator but requires only that the reasons for doing so must be
specifically stated. In the absence of a definition of the term “presumptive weight,”
either by prior judicial decision or by statute, we conclude that the legislature intended to
create a rebuttable presumption.
A presumption has been defined as a rule of law which creates or recognizes a
probative relationship between two facts, one of which is proved (the proven fact) and
the other of which is unproved (the presumed fact), and which attributes a procedural
significance to that relationship. Robert G. Lawson, The Kentuckv Evidence Law
Handbook § 10.00 (3d ed. 1993). The presumption created by KRS 342.315(2)
requires the fact-finder to rely upon the clinical findings and opinions of the university
evaluator unless that testimony is properly rebutted by the opponent of the evidence.
The Board determined, that the presumption created by KRS 342.315(2) must be
rebutted by “clear, convincing and positive proof.” We note, however, that Kentucky
requires the proof of facts by the “clear and convincing evidence” standard only in a few
instances. Among those instances are establishing a lost will, termination of parental
rights, illegitimacy of a child born in wedlock, unfitness of a natural parent for custody of
a child, and fraud. Lawson, supra, § 9.00. The clear and convincing evidence standard
is not found in Chapter 342, and we have been directed to no judicial decision which
has employed that standard with regard to the essential facts of a workers’
compensation claim. In view of the foregoing, we are persuaded that had the legislature
intended for the presumption created by KRS 342.315(2) to be overcome only by clear
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and convincing evidence, it would have so declared.
Although KRS 342.315(2) indicates that the “burden to overcome” a university
evaluator’s testimony falls on the opponent of the evidence, it does not provide a
standard for determining the type of evidence which is necessary in order to do so and
does not explicitly shift the risk of nonpersuasion to the opponent of the evidence.
Under those circumstances, we conclude that the procedural effect of the presumption
created by KRS 342.315(2) is properly governed by KRE 301 which provides as follows:
In all civil actions and proceedings when not otherwise provided for by
statute or by these rules, a presumption imposes on the party against
whom it is directed the burden of going forward with evidence to rebut or
meet the presumption, but does not shift to such party the burden of proof
in the sense of the risk of nonpersuasion, which remains throughout the
trial upon the party on whom it was originally cast.
The proven fact upon which the rebuttable presumption at issue is based is that
the services of those physicians who testify are provided pursuant to a contract between
the Department of Workers’ Claims and the University of Kentucky and University of
Louisville medical schools. Particularly in claims for occupational disease, but also in
some injury claims, fact-finders are confronted with medical evidence in which the
clinical findings and opinions introduced on behalf of one party are vastly different from
those introduced on behalf of the opponent. It is clear that clinical findings and opinions
from an unbiased medical expert would reasonably be expected to provide an accurate
assessment of the medical status of the individual whose condition was at issue and
would assist the fact-finder in weighing the conflicting evidence presented by the
parties. As amended, KRS 342.315 assures that such testimony will be considered in
all occupational disease claims and provides a mechanism for obtaining sufficient
numbers of such experts. It is not unreasonable to infer that, with regard to issues
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which fall within the province of medical experts, the clinical findings and opinions of
physicians who are affiliated with a medical school are informed by some degree of
expertise and are more likely to be free from a preconceived bias toward either the
plaintiff or the defense than those of a physician who has been hired to testify on behalf
of the plaintiff or defendant. For that reason, it is neither unreasonable nor irrational to
presume that the clinical findings and opinions of a university evaluator accurately
reflect the medical condition of the claimant in the absence of evidence to rebut that
presumption.
It has long been the rule that the claimant bears the burden of proof and the risk
of nonpersuasion before the fact-finder with regard to every element of a workers’
compensation claim.
Youna v. Burqett, Ky., 483 S.W.2d 483 (1972); Roark v. Alva
Coal Corooration, Ky., 371 S.W.2d 856(1963); Wolf Creek Collieries v. Crum, Ky. App.,
673 S.W.2d 735 (1984); Snawder v. Stice, Ky. App., 576 S.W.2d 276 (1979). In order
for that burden to be sustained, no less than substantial evidence of each element of
the claim must be introduced. Substantial evidence has been defined as some
evidence of substance and relevant consequence, having the fitness to induce
conviction in the minds of reasonable people. Soecial Fund v. Francis, Ky., 708 S.W.2d
641 (1986); Smyzer v. B. F. Goodrich Chemical Co., Ky., 474 S.W.2d 367 (1971).
Substantial evidence also has been equated to evidence which would be sufficient to
survive a motion for a directed verdict if the matter were being tried to a jury. Kentucky
Utilities Co. v. Hammons, Ky., 145 S.W.2d 67, 71 (1940). Although substantial
evidence is sufficient to support an essential finding of fact, it will not necessarily require
a favorable finding, even in instances where the contrary evidence is less than
substantial. Lee v. International Harvester Co., Ky., 373 S.W.2d 418 (1963). Only
evidence which is so overwhelming that no reasonable person would fail to be
persuaded by it will compel a particular finding. Special Fund v. Francis, supra.
Where the question at issue is one which properly falls within the province of
medical experts, the fact-finder may not disregard the uncontradicted conclusion of a
medical expert and reach a different conclusion. Menael v. Hawaiian-Tropic Northwest
and Central Distributors. Inc., Ky., 618 S.W.Zd
KRS 342.315(2),
184 (1981). By operation of
the clinical findings and opinions of the university evaluator are
presumed to accurately reflect the claimant’s medical condition. For that reason, unless
evidence is introduced which rebuts the clinical findings and opinions of the university
evaluator, they may not be disregarded by the fact-finder. To the extent that the
university evaluator’s testimony favors a particular party, it shifts to the opponent the
burden of going forward with evidence which rebuts the testimony. If the opponent fails
to do so, the party whom the testimony favors is entitled to prevail by operation of the
presumption. Stated otherwise, the clinical findings and opinions of the university
evaluator constitute substantial evidence with regard to medical questions which, if
uncontradicted, may not be disregarded by the fact-finder.
KRS 342.285 was not amended in the 1996 Extraordinary Session. It has been
construed to mean that the fact-finder has the sole discretion to determine the quality,
character, and substance of evidence and to draw reasonable inferences from the
evidence. Paramount Foods. Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985); Kentuckv
Carbon Corp. v. Dotson, Ky. App., 573 S.W.2d 368 (1978). The fact-finder has the sole
authority to judge the weightto be afforded the testimony of a particular witness.
McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46 (1974). The fact-finder may reject
any testimony and believe or disbelieve various parts of the evidence, regardless of
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whether it comes from the same witness or the same adversary party’s total proof.
Caudill v. Maloney’s Discount Stores, Ky., 560 S.W.2d 15, 16 (1977). Together, KRS
342.315 and KRS 342.316 assure that testimony from a disinterested medical expert
will be considered by the fact-finder in all occupational disease claims. We do not view
KRS 342.315(2) as restricting the fact-finder’s authority to weigh conflicting medical
evidence. We construe it to mean only that because it is presumed that the clinical
findings and opinions of a university evaluator will accurately reflect the worker’s
medical condition, a reasonable basis for disregarding that testimony must be
specifically stated by the fact-finder. In other words, the parties are entitled to be
informed of the basis for the decision. See Shields v. Pittsburah & Midwav Coal Mining
Co., Ky. App., 634 S.W.2d 440,444 (1982). The presumption created by
KRS 342.315(2) neither shifts the risk of nonpersuasion to the defendant nor “raises the
bar” with regard to the claimant’s burden of persuasion.
In summary, the amendments to KRS 342.315 which became effective on
December 12, 1996, apply to all claims pending before the fact-finder on or after that
date. KRS ‘342.315(2)
creates a rebuttable presumption which is governed by KRE 301
and, therefore, does not shift the burden of persuasion. Pursuant to KRS 342.315(2),
the clinical findings and opinions of the university evaluator constitute substantial
evidence of the worker’s medical condition which may not be disregarded by the factfinder unless it is rebutted. Where the clinical findings and opinions of the university
evaluator are rebutted, KRS 342.315(2)
does not restrict the authority of the fact-finder
to weigh the conflicting medical evidence. In instances where a fact-finder chooses to
disregard the testimony of the university evaluator, a reasonable basis for doing
be specifically stated.
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SO
must
The version of KRS 342.732(1
)(a) which controls these claims requires a finding
that the affected worker has a radiographic classification of l/O, l/l, or l/2. In each of
these claims, the ALJ who considered the evidence was persuaded that the claimant
had introduced substantial evidence that he suffered from category 1 coal workers’
pneumoconiosis and that the testimony introduced by the claimant was more
persuasive than the testimony of the university evaluator. Claimant Fox introduced
evidence from two physicians, both of whom interpreted x-rays taken in January and
February, 1997. Dr. Myers categorized both x-rays as l/l. Dr. Baker categorized the
January x-ray as l/O and the February x-ray as 2/l. The defense introduced reports by
Drs. Powell and Westetfield which indicated that the January x-ray was negative.
Dr. Joyce, the designated university evaluator, categorized an April, 1997, x-ray as O/O.
Among other things, Fox argued that if the 1996 amendments to KRS 342.315
did apply to his claim, the term “presumptive weight” should be construed consistently
with KRE 301. The ALJ who considered the claim did not apply the amendments,
decided to rely upon Fox’s experts, and gave no specific reason for rejecting the clinical
findings and opinions of the designated university evaluator. Under those
circumstances, the claim must be remanded for further proceedings pursuant to
KRS 342.315(2). In view of the fact that we have construed KRS 342.315(2)
as
creating a rebuttable presumption which is governed by KRE 301 and which does not
alter the claimant’s burden of persuasion, it is unnecessary for us to address the
constitutional questions which he has raised.
Claimant Hawes has argued that if the amended version of KRS 342.315
controls his claim, he offered sufficient evidence to rebut the testimony of the university
evaluator. Drs. Powell and Houser testified on his behalf. Dr. Powell, a B-reader and
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pulmonary specialist, examined the claimant in November, 1996. He obtained an x-ray
which he gave a quality grade of 1 and reported as indicating category l/O coal workers’
pneumoconiosis. Dr. Houser examined the claimant in September, 1996. He obtained
an x-ray which he classified as grade 1 and reported as indicating category l/l coal
workers’ pneumoconiosis.
Drs. Broudy and Wright testified for the defense. They reviewed the September
and November, 1996, x-rays and also classified them as grade 1. Dr. Broudy reported
no evidence of pneumoconiosis on either x-ray. Dr. Wright classified the September
x-ray as category O/O and the November x-ray as category O/l.
Dr. Joyce, the university evaluator and a B-reader, reviewed an x-ray made in
March, 1997. She classified the x-ray as grade 1 and reported category O/l.
The ALJ chose to rely upon Hawes’s experts based upon the fact that they were
“well-qualified pulmonary specialists” and that they were the only physicians to examine
the claimant as well as to review x-ray evidence. We also note that, although Dr. Joyce
concluded that Hawes did not suffer from category 1 pneumoconiosis, her report did not
indicate that his x-ray was entirely negative. In any event, we are persuaded that the
ALJ stated a reasonable basis for choosing to rely upon the claimant’s experts and also
that the finding that claimant suffered from category 1 coal workers’ pneumoconiosis
was supported by substantial evidence. We conclude, therefore, that the award which
was entered was proper.
Mr. Bealmear asserts that the decision of the Court of Appeals should be
affirmed. Drs. Powell and Houser testified on his behalf. Dr. Powell, a B-reader and a
pulmonary specialist, reviewed a September 10, 1996, x-ray. He classified the film as
quality grade 1 and as indicating category l/O coal workers’ pneumoconiosis.
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Dr. Houser, also a pulmonary specialist, examined the claimant on November 29, 1993.
He obtained an x-ray which he classified as quality 1 and as indicating the presence of
category l/O coal workers’ pneumoconiosis.
Dr. Wright testified for the employer. He reviewed the September IO, 1996, x-ray
and reported that it was of acceptable quality. He found no evidence of
pneumoconiosis.
Dr. Goldman, a B-reader, served as the university evaluator. He reviewed an
x-ray made on March 11, 1997. He classified the film as quality 1 and as completely
negative for pneumoconiosis.
The ALJ chose to rely upon Mr. Bealmear’s experts based upon the fact that they
were “well-qualified pulmonary specialists,” and that Dr. Houser had actually examined
the claimant as well as read his chest x-ray. We are persuaded that the ALJ stated a
reasonable basis for choosing to rely upon the claimant’s experts and also that the
finding of category 1 coal workers’ pneumoconiosis was supported by substantial
evidence. We conclude, therefore, that the award which was entered was proper.
The decision of the Court of Appeals is reversed with regard to Mr. Fox’s claim,
and the claim is remanded to the ALJ to make the findings required by KRS 342.315(2).
The Board and the Court of Appeals affirmed the awards to Mr. Houser and
Mr. Bealmer; therefore, although our reasoning is different, we affirm the decision of the
Court of Appeals with regard to their claims.
Lambert, C.J., and Cooper, Johnstone, Keller, and Wintersheimer, J.J., concur.
Graves, J., dissents by separate opinion. Stumbo, J., not sitting.
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COUNSEL FOR APPELLANT MAGIC COAL CO.
Hon. John C. Morton
Hon. Samuel J. Bach
MORTON & BACH
126 North Main Street
P.O. Box 734
Henderson, KY 42419-0734
COUNSEL FOR APPELLANT PEABODY COAL CO.:
Hon. Philip J. Reverman
BOEHL, STOPHER, & GRAVES
Suite 2300 Aegon Center
400 W. Market Street
Louisville, KY 40202-3354
Hon. William P. Swain
Phillips, Parker, Orberson, & Moore, P.L.C.
716 W. Main Street, Suite 300
Louisville, KY 40202
COUNSEL FOR APPELLEE FOX:
Hon. John S. Sowards, Jr.
WILSON, SOWARDS, BOWLING, & COSTANZO
Suite 610 - PNC Plaza
200 West Vine Street.
Lexington, KY 40507
COUNSEL FOR APPELLEE HAWES:
Hon. A. V. Conway, II
124 West Union Street
P.O. Box 25
Hartford, KY 42347
COUNSEL FOR APPELLEE BEALMEAR:
Hon. Harry R. Hinton
113 East Center Street
P.O. Box 830
Madisonville, KY 42431
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RENDERED: MAY 18,200O
TO BE PUBLISHED
1999-SC-0163-WC
MAGIC COAL COMPANY
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
NO. 1998-CA-000527-WC
WORKERS’ COMPENSATION BOARD NO. 97-00367
RONNIE FOX; ZARING P. ROBERTSON
Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
AND
1999-SC-0509-WC
PEABODY COAL COMPANY
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
NO. 1998-CA-0000489-WC
WORKERS’ COMPENSATION BOARD
NOS. 96-08675, 96-07835
BILLY GENE HAWES; EDDIE BEALMEAR;
SHEILA C. LOWTHER, Administrative Law Judge;
and WORKERS’ COMPENSATION BOARD
APPELLEES
DISSENTING OPINION BY JUSTICE GRAVES
I dissent from so much of the majority’s opinion that states it is rational and
reasonable to conclude that physicians engaged in academic medicine at the University
of Kentucky and the University of Louisville will probably provide a more objective or
accurate diagnostic assessment than an equally or better credentialed physician who
may work elsewhere. The legislature’s affording presumptive weight to the clinical
findings and opinions of local medical school teachers is myopic. There is no rational
reason to believe a university physician is better qualified solely because he works in
Lexington or Louisville. It is unreasonable to give presumptive weight to University of
Kentucky and University of Louisville physicians’ views over other equally well-qualified
and highly motivated physicians located throughout this Commonwealth and the United
States.
Under KRS 342.315(2), the evaluator from the University of Kentucky or the
University of Louisville diagnoses the worker’s medical condition. Based upon the
medical conclusions of the university physician, it is mandatorily presumed that this
physician’s opinion is correct. This is nothing more than sophistical conjecture. No
rational connection exists between the fact that one is a University of Kentucky or
University of Louisville physician, and the fact that an opinion from such a physician is
presumptively correct. While both are accredited medical schools, the physicians
working there are no more clinically successful than well-credentialed physicians at
places such as Vanderbilt, Duke, Johns Hopkins, and the Mayo Clinic, merely due to
their place of employment.
The purpose of this presumption is to reduce litigation over conflicting medical
evidence. However, the means used to reach this arguably proper purpose (giving
presumptive weight to university doctors’ conclusions) is not rationally related to any
legitimate state interests. The haphazard results caused by this presumption show the
unjust and irrational consequences that it produces. A case is totally built or destroyed
-2.-’
based upon the university evaluation, and not upon the objective weighing of all the
medical evidence by the Arbitrator and/or ALJ. Instead, the ArbitratorIALJ must view
the evidence presumptively in favor of the university report. The irrational results of this
presumption exceed the reasonable and legitimate interest of the people, causing it to
violate Section 2 of the Constitution of Kentucky which states as follows:
Absolute and arbitrary power over the lives, liberty and property of free
men exists nowhere in a Republic, not even in the largest majority:
KRS 342.315(2)
places an arbitrary power in a small privileged class and is
therefore unconstitutional. The majority opinion fails to save its constitutionality by
adding the qualification “unless thattestimony is properly rebutted by the opponent of
the evidence.”
-3-
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