ROBERT L . WHITTAKER, DIRECTOR OF WORKERS' COMPENSATION FUNDS, SUCCESSOR TO SPECIAL FUND V. JAMES D . JOHNSON ; JERICOL MINING, INC . ; HON . SHEILA C . LOWTHER, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD and JERICOL MINING, INC . V. JAMES D . JOHNSON ; HON . SHEILA C . LOWTHER, ADMINISTRATIVE LAW JUDGE ; WORKERS' COMPENSATION FUNDS ; AND WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY IN ANY OTHER
CASE IN ANY CO URT OF THIS STA TE.
RENDERED : March 18, 2004
NOT TO BE PUBLISHED
,*ixYrtmQ 1 .1vurf of ~R
Q
2003-SC-0195-W C
ROBERT L. WHITTAKER, DIRECTOR OF
WORKERS' COMPENSATION FUNDS,
SUCCESSOR TO SPECIAL FUND
V.
1?tP11H
[DATE ~_
APPEAL FROM COURT OF APPEALS
2001-CA-1051-W C, 2001-CA-1062-W C, 2001-CA-1191-W C
WORKERS' COMPENSATION BOARD NOS . : 96-4586, 96-4587 & 96-4588
JAMES D. JOHNSON ; JERICOL MINING, INC.;
HON . SHEILA C . LOWTHER, ADMINISTRATIVE LAW
JUDGE; AND WORKERS' COMPENSATION BOARD
AND
APPELLEES
2003-SC-0212-WC
JERICOL MINING, INC.
V.
APPELLANT
APPELLANT
APPEAL FROM COURT OF APPEALS
2001-CA-1051-WC, 2001-CA-1062-WC, 2001-CA-1191-WC
WORKERS' COMPENSATION BOARD NOS.: 96-4586,96-4587 & 96-4588
JAMES D . JOHNSON ; HON . SHEILA C. LOWTHER,
ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION
FUNDS ; AND WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
These appeals by the employer and the Workers' Compensation Funds stem
from a decision overruling the claimant's motion to reopen a settled back injury claim
and a previously-dismissed pneumoconiosis claim . Affirming a decision of the Workers'
Compensation Board (Board), the Court of Appeals determined that the claimant did not
. .
waive his right to reopen the injury claim and that the motion to reopen the dismissed
pneumoconiosis claim should have been considered under KRS 342.125(1). We affirm
with respect to the first issue but reverse with respect to the second . Slone v. R & S
Mining, Inc . , Ky., 74 S .W.3d 259 (2002).
On April 30, 1996, the claimant filed an application for benefits in which he
alleged a work-related back injury of November 14, 1994. In a second application, he
alleged that he was last exposed to coal dust on January 25, 1996, and that he suffered
from coal workers' pneumoconiosis . A third application alleged a work-related hearing
loss that is not presently at issue.
On February 11, 1997, an Administrative Law Judge (ALJ) approved an
agreement to settle the injury and hearing loss claims . The agreement provided for a
10% occupational disability for the injury, indicating that the sum was inclusive of
interest, permanent partial disability, temporary total disability, vocational rehabilitation,
and attorney's fees. It provided an additional lump sum of $700 .00 from the employer
and $500.00 from the Special Fund "as compromise for the plaintiffs agreement to
dismiss his claim with prejudice and to waive his right to future medical [benefits] for his
injury claim ." Similar provisions resolved the hearing loss claim.
The pneumoconiosis claim was fully litigated . X-ray readings introduced into
evidence ranged from category 0/0 to 1/1, and the parties stipulated that all of the
spirometric studies that were performed were invalid. In a decision rendered on May 1,
1997, an ALJ relied upon one of the two physicians who reported category 0/0 and
determined that the claimant did not suffer from the disease . No appeal was taken .
On August 21, 2000, the claimant filed motions to reopen the injury and
pneumoconiosis claims. Attached to each motion was an affidavit in which he asserted
that he was totally disabled due to a deterioration or progression of his conditions .
When deposed on September 25, 2000, he testified that he had not attempted to return
to work since January, 1996 .
The motion to reopen the injury claim was supported by a May 18, 2000, report
from Dr. Muffly, who diagnosed lumbar radiculopathy with degenerative disc disease
and osteoarthritis . Having reviewed Dr. Templin's records from 1996, he was of the
opinion that the claimant's back condition had worsened . The report indicated that the
claimant's present AMA impairment was 10% and that he could not return to
underground coal mining.
In the initial pneumoconiosis claim, Dr. Myers interpreted x-rays as showing
category 1/0 and 1/1 disease . In support of his motion to reopen, the claimant
submitted a May 6, 2000, report from Dr. Myers who interpreted new x-rays as revealing
category 1/1 disease, p/p, affecting all six lung zones. Dr. Myers reported that valid
spirometric testing produced a pre-bronchodilator FVC of 54% and FEV1 of 57% . The
post-bronchodilator FVC was 49% and FEV1 was 53%. In Dr. Myers' opinion, the
decrease in pulmonary function was caused by the claimant's exposure to coal dust
while working in the severance and processing of coal .
Construing the settlement agreement as providing that the claimant "agreed to
dismiss his claim with prejudice and waived his right to reopen" in return for payment,
the AU dismissed the motion to reopen the injury claim . After determining that the
claimant failed to make the necessary prima facie showing, the ALJ also dismissed the
motion to reopen the previously-dismissed pneumoconiosis claim. Although the
defendants maintained that the claimant waived his right to reopen the injury claim in
exchange for cash and that the dismissed pneumoconiosis claim could not be reopened
absent additional exposure to coal dust, the Board and the Court of Appeals determined
that both decisions were erroneous.
A legal waiver is a voluntary and intentional relinquishment of a known right. See
Barker v. Stearns Coal & Lumber Co . , 163 S .W .2d 466 (1942). Although the principles
of res judicata apply to settled workers' compensation awards, KRS 342 .125 permits an
AL to reopen and increase an otherwise final award upon proof of one of the stated
grounds. See Newberg v. Davis , Ky., 841 S .W.2d 164 (1992) ; Beale v. Faultless
Hardware , Ky., 837 S.W.2d 893 (1992) . The agreement to settle the back injury claim
did not contain an express waiver of the claimant's right to reopen . Therefore, what is
at issue is whether the phrase "agreement to dismiss with prejudice" could reasonably
be construed as implying that the claimant agreed to waive his right to reopen .
We think not. The terms of the agreement are detailed and explicit, and the
disputed phrase was followed immediately by an express agreement to waive the right
to future medical benefits . Therefore, it is likely that had there been an agreement to
waive reopening, it would have been explicit, too . The same consideration applied to
both the agreement to dismiss with prejudice and the waiver of future medical benefits,
and the amount was not so great as to imply that a waiver of the right to reopen was
included . Finally, even a claim that a fact-finder has dismissed with prejudice may be
reopened if the claimant makes a reasonable prima facie showing of a substantial
possibility that one of the conditions that are specified in KRS 342 .125 exists and
warrants a change in the previous decision . See Slone v. R & S Mining, Inc., supra ;
Stambaugh v. Cedar Creek Mining Co . , Ky.488 S .W.2d 681, 682 (1972) . Therefore, it
cannot be assumed that by agreeing to dismiss a claim with prejudice, a worker also
agrees to waive the right to reopen. Under the circumstances, the decision to remand
the motion for further consideration was correct.
It was undisputed that the claimant sustained no additional exposure to coal dust
after his pneumoconiosis claim was dismissed on the merits . Therefore, he was
precluded from reopening the claim unless he demonstrated that the previous decision
resulted from fraud or mistake or unless he produced evidence that could not have been
discovered with the exercise of due diligence in the initial proceeding . Slone v. R & S
Mining, Inc. , supra, at 262. The claimant's motion to reopen alleged a worsening of
condition and was dismissed for failure to make the necessary prima facie showing .
Under the circumstances, the decision was proper; therefore, the Court of Appeals
erred by remanding the claim.
The decision of the Court of Appeals is affirmed in part and reversed in part. The
motion to reopen the injury claim is remanded for further consideration, and the order
dismissing the motion to reopen the pneumoconiosis claim is reinstated .
All concur.
COUNSEL FOR ROBERT L . WHITTAKER,
DIRECTOR OF WORKERS' COMPENSATION FUNDS :
David W . Barr
Workers' Compensation Funds
1047 U .S . Hwy. 127 South, Suite 4
Frankfort, KY 40601
COUNSEL FOR JAMES D . JOHNSON :
Ronald C . Cox
103 E . Central Street
Harlan, KY 40831
COUNSEL FOR JERICOL MINING COMPANY, INC . :
W . Barry Lewis
Lewis and Lewis Law Offices
151 E . Main Street, Ste. 100
P .O . Box 800
Hazard, KY 41702-0800
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.