IMPORTANTN-OTICE THIS OPINION IS DESIGNA TED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PR OCED URE PR OMUL GA TED B Y THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS A UTHORITYIN ANY OTHER
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IMPORTANTN-OTICE
NOT TO BE PUBLISHED OPINION
THIS OPINIONIS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMUL GA TED B Y THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITYIN ANY OTHER
CASE INANY CO UR T OF THIS STA TE.
RENDERED : NOVEMBER 23, 2005
NOT TO BE PUBLISHED
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JAMES LANKFORD
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APPEAL FROM COURT OF APPEALS
2004-CA-1937-WC
WORKERS' COMPENSATION BOARD NO. 01-1655
ADDINGTON ENTERPRISES ; SPECIAL FUND;
HON . LAWRENCE F. SMITH, ADMINISTRATIVE LAW
JUDGE ; AND WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
KRS 342 .316(4)(a) provides that "the right to compensation for any occupational
disease shall be forever barred, unless a claim is filed . . . within five (5) years from the
last injurious exposure to the occupational hazard ." In a decision that has been affirmed
by the Workers' Compensation-Board and the Court of Appeals, an Administrative Law
Judge (ALJ) dismissed the claimant's application for benefits on the ground that he did
not file it within five years after he last worked for the defendant-employer . We affirm .
It is undisputed that the claimant was born in 1940 and has an eleventh-grade
education with vocational training in carpentry . He testified that he worked about 25
years in the coal mining industry, during which time he was exposed to coal dust . He
began working for the defendant-employer on October 16, 1996 .
On December 18, 2001, the claimant filed an application for occupational disease
benefits, alleging that he suffered from coal workers' pneumoconiosis and was last
exposed to occupational coal dust on December 20, 1996. The employer filed a notice
that it was denying the claim and a special answer in which it listed the statute of
limitations as an affirmative defense.
When deposed in September, 2003, the claimant testified that he began to work
for the defendant-employer late in 1996, loading rock trucks at night. He worked about
60 hours per week. He stated that he left the employment sometime in December,
1996. When cross-examined, he acknowledged that his application listed December
20, 1996, as his last day of work and that Willard Thompson was his boss. Confronted
with Thompson's statement that he had terminated the employment on December 2,
1996, the claimant stated:
A.
That's right, sir.
Q72. Okay. So, would December 2"d, '96 have been the last time
you worked for Addingtons?
A.
Yes, it is.
Q73 .
Is that the last time you were exposed to coal dust?
A.
Yes, sir.
Yet, on re-direct, he testified:
Q1 .
Now, are your answers here today just the best you can
remember?
A.
The best I can remember, yes .
Q2 .
You were asked the question about the last day you worked
and he referred to somebody saying it was the 2nd of
December . Do you know for sure the last day you worked?
A.
No. Seems to me like it was up in December.
Q3.
Okay. Because you - the records you gave us was the 20 th ,
and that's the reason we put it on there.
A.
It was close to - it was fairly close to Christmas because I
asked the boss could I work till Christmas.
Q4.
Alright . So - but you don't know for sure the exact date .
A.
No .
On February 6, 2004, the claimant submitted wage records from DNL Services,
Inc., reflecting his earnings from Addington . They showed that Addington paid him
$4,010.00 in 1996 and $588 .57 in 1997. At a subsequent deposition, the claimant was
questioned about his prior testimony that his last day of work was December 2, 1996,
and testified as follows :
Q5 .
And in that testimony the Counsel for Addington Mining
asked whether you had, the last day you'd worked was
December the 2"d. Is that correct?
A.
Yes.
Q6.
And you agreed initially in the deposition. Is that correct?
A.
Yes, I did.
Q7.
Now, did you understand that question when he asked you?
A.
No, I didn't . I don't think I did .
Q8 .
Okay. Mr. Turner later on asked you whether or not you had
stated to us that you'd worked up till the 20th of December
and that's what you submitted to us when we filed your
claim? Is that correct?
A.
Yes, it was.
The claimant also testified that he had obtained unemployment office records which
indicated that Addington last paid him in 1997 and indicated that it held back "either a
week or two weeks" of wages . He stated that upon reviewing the wage records he
recalled that he had worked for Addington until December 20, 1996 . Furthermore, he
was certain of the date because he remembered asking if he could work until Christmas
and was told that he could not. When cross-examined, he acknowledged that
Addington paid a monthly production bonus in the month after it was earned ; however,
he denied that the payment he received in 1997 was such a bonus rather than back
wages.
The employer deposed Willard Thompson . He testified that he had worked for
the company since 1976 and was the claimant's shift supervisor . He stated that he
hired the claimant on October 16, 1996, and that the claimant "left the company" on
December 2, 1996, because his work was unsatisfactory . Thompson supported his
testimony with a copy of the company's change of status form for each event . The latter
form indicates that the claimant did not adequately perform the job for which he was
hired . A handwritten note in the right lower margin, dated December 6, 1996, states :
"laid off per W. Thompson (not discharged) sf." Questioned about the note, Thompson
testified that the claimant was laid off because couldn't operate the equipment properly
and that he was a danger to himself and others . Asked how he knew that the claimant
didn't work for the company after December 2, at a different location, Thompson replied
that he would have been notified if the claimant was sent to another location .
Addressing the date of last exposure, the ALJ noted that the matter came down
to a question of the claimant's and Thompson's credibility . The claimant had changed
his testimony; whereas, Thompson's testimony was supported by documentary
evidence that supported December 2, 1996, as the date of last exposure . Noting that
the burden was on the claimant to prove every element of his claim, the ALJ concluded
that he had been unable to meet that burden regarding the crucial date .
The claimant's basis for appealing the decision has been that, faced with his own
testimony and the evidence that Addington paid him in 1997, the burden shifted to
Addington to prove that the payment was for something other than hourly wages . He
criticizes the ALJ's reliance on Thompson on the ground that his status as a long-time
employee would tend to cloud his judgment. Although he acknowledges that the ALJ is
the designated finder of fact, he asserts that workers' compensation is fundamentally for
the benefit of the injured worker and that "a just claim must not fall victim to rules of
order unless it is clearly necessary in order to prevent chaos." Messer v. Drees , 382
S.W.2d 209 (Ky. 1964).
KRS 342 .316(4)(a) contains both a three-year statute of limitations and a fiveyear statute of repose . Dupree v. Kentucky Department of Mines and Minerals , 835
S.W.2d 887 (Ky. 1992) . Such statutes are strictly enforced . See Commonwealth,
Cabinet for Human Resources v. Riley, 921 S.W. 2d 616 (Ky. 1996) ; McIntosh v. John
P. Gorman Coal Co. , 253 Ky. 160, 69 S.W.2d 7 (Ky. 1934); and Wilburn v. Auto
Exchange , 198 Ky. 29, 247 S.W . 1109 (1923). In contrast, Messer v. Drees , supra ,
concerned whether, when subsequent events indicated that the initial award was based
on a misconception regarding the nature of the worker's disability, the "mistake"
provision in KRS 342.125 permitted a reopening .
As the party pleading an affirmative defense, the employer had the burden of
proof on that issue . Whittaker v. Hardin, 32 S.W.3d 497 (Ky. 2000); Glogower v.
Crawford, 2 S .W.3d 784 (Ky. 1999) ; and Teague v. South Central Bell, 585 S .W.2d 425
(Ky. App . 1979). KRS 342 .285 designates the ALJ as the finder of fact; therefore,
Thompson's credibility and that of claimant were matters for the AU to decide .
Whittaker v. Rowland , 998 S .W .2d 479 (Ky. 1999) . Thompson's status as a long-time
employee was relevant in that regard, but so was the claimant's status as an interested
party. See Grider Hill Dock v. Slone, 448 S .W.2d 373 (Ky. 1969) . Although the ALJ
erred in. stating that the burden of proof was on the claimant, the ALJ clearly stated that
Thompson's testimony was more persuasive on the issue and found in the employer's
favor. Therefore, because the employer prevailed before the ALJ, the claimant's burden
on appeal is to show that the decision was not supported by substantial evidence.
Special Fund v. Francis, 708 S.W .2d 641, 643 (Ky. 1986) . The finding that December
2, 1996, was the date of last employment was adequately supported by Mr. Thompson's
testimony and the documentary evidence he presented; therefore, the claimant has
failed to meet that burden .
The decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT:
Susan Turner Landis
Johnnie L. Turner, P.S.C .
114 S . First Street
P.O . Box 351
Harlan, KY 40831
COUNSEL FOR APPELLEE:
Jeffrey D . Damron
Baird & Baird, P.S .C .
P.O . Box 351
Pikeville, KY 41502
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