BELINDA BOLIN, ADMINISTRATRIX OF THE ESTATE OF DARREL BOLIN, DECEASED V. T & T MINING, ET AL.
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RENDERED : AUGUST 23, 2007
TO BE PUBLISHED
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BELINDA BOLIN, ADMINISTRATRIX OF THE
ESTATE OF DARREL BOLIN, DECEASED
V.
APPELLANT
ON APPEAL FROM COURT OF APPEALS
2006-CA-000349-WC
WORKERS' COMPENSATION NO . 02-01445
T & T MINING ;
HON . SHEILA C. LOWTHER,
ADMINISTRATIVE LAW JUDGE ; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
AFFIRMING
KRS 342.125(5)(a) requires a worker seeking to reopen an award rendered
under KRS 342.732 to make a preliminary showing that includes a progression of
pneumoconiosis, the development of respiratory impairment due the disease, and two
additional years of continuous exposure to the hazards of the disease in Kentucky.
Daniel Bolin supported his motion to reopen with evidence of a progression of
pneumoconiosis and a greater respiratory .impairment but had received no additional
exposure to coal dust. Thus, an Administrative Law Judge (ALJ) dismissed his motion,
and the Workers' Compensation Board affirmed . The Court of Appeals also affirmed,
holding that KRS 342.125(5)(a)'s additional-exposure requirement applies to all awards
rendered under KRS 342.732 and does not violate the Kentucky Constitution by
depriving affected miners of a remedy for increased disability . We affirm .
Bolin worked for 28-30 years in the coal mining industry. He was last exposed to
the hazards of coal workers' pneumoconiosis on June 28, 1998, while working for the
defendant-employer . Bolin had received a retraining incentive benefit (RIB) award in
about 1988 . On September 18, 2002, he filed an application for benefits under the
newly-enacted KRS 342.792(1). Based on unanimous evidence of category 1 disease
and on spirometric values at between 55% and 80% of the predicted normal, an ALJ
awarded 425 weeks of income benefits based on a 25% disability.
On February 25, 2005, Bolin moved to reopen his claim due to a worsening of
condition . He supported the motion with a recent report from Dr. Baker, who testified in
the initial claim. Dr. Baker presently reported category 3/3 disease and spirometric test
results at 40% of the predicted normal FEV1 value. Bolin's affidavit indicated that he
considered his present occupational disability to be total .
Objecting to the motion and moving to dismiss, the employer asserted that not
only does KRS 342.125(5)(a) require a progression of the disease and development of
respiratory impairment in order to reopen . It also requires an additional two years of
employment in which the worker is continuously exposed to the hazards of the disease.
The employer argued that Bolin was not entitled to reopen because he received no
post-award exposure to coal dust . It also pointed to Dr. Baker's observation that the
rapidity with which Bolin's x-ray category and physical condition had changed were
signs that some condition other than pneumoconiosis might be contributing . The ALJ
sustained the employer's motion and dismissed the motion to reopen.
Having been substituted as a party following Bolin's death, his widow raises two
arguments . Her first argument is that the additional-exposure requirement applies only
to the reopening of a RIB claim because KRS 342.125(5)(a) requires a showing of
"development of respiratory impairment ." She reasons that this language implies that
no respiratory impairment existed in the initial claim and, therefore, that the initial claim
must have been for a RIB rather than for income benefits . Pointing out that her
husband had a respiratory impairment and received income benefits, she argues that
the requirement is inapplicable to his award. She admits that simple pneumoconiosis
rarely progresses to complicated pneumoconiosis without additional exposure but
asserts that it occurred in her husband. Her second argument is that the additionalexposure requirement is arbitrary, capricious, and violates the Kentucky Constitution .
Workers' compensation is a statutory creation . Under KRS 446 .080(1), statutes
must be construed liberally so as "to promote their objects and carry out the intent of
the legislature ." Thus, as explained in Gateway Construction Company v. Wallbaum ,
356 S .W.2d 247 (Ky. 1962); the primary goal of statutory construction is to effectuate
the legislature's intent.
Until December 12, 1996, the conditions for reopening a pneumoconiosis award
were found in KRS 342.125(2)(a) . The statute contained no additional-exposure
requirement and referred separately to RIB and income benefit awards. It required the
development of respiratory impairment for the first but a progression of respiratory
impairment for the second .
As amended, KRS 342.125(5)(a) now provides :
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
3
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 coal-related pneumoconiosis under
KRS 342 .732. An application for review 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 . (emphasis added).
The first sentence of the statute now refers generally to "an award . . . for
benefits attributable to coal-related pneumoconiosis under KRS 342.732" but requires
the "development of respiratory impairment." The following sentence was retained from
the pre-1996 version and also is general, but it requires a motion to reopen under
subsection (5)(a) to be filed within one year after the "development or progression of
respiratory impairment ." The statute's history and the first sentence's general reference
to benefits awarded under KRS 342 .732 lead us to conclude that the legislature
intended for the additional-exposure requirement to apply to all awards made under
KRS 342 .732, just as the one-year limitation does, but inadvertently neglected to add
the words "or progression" when amending the first sentence.
The claimant pitches her next argument under Sections 2, 14, and 54 of the
Kentucky Constitution . Section 2 prohibits arbitrary laws . Sections 14 and 54 secure
what are commonly referred to as jural rights, i.e. , the right to open courts, to a remedy
for an injury, and to no statutory limit on the amount to be recovered . Although the
claimant acknowledges that the court has rejected arguments based on the jural rights
doctrine and has upheld both minimum-exposure and additional-exposure
requirements, she urges those decisions to be revisited . Having done so, we remain
convinced that the requirements are constitutional .
In Mullins v. Manning Coal Corporation , 938 S.W .2d 260 (Ky. 1997), the court
rejected an argument that KRS 342 .316(3)(b)'s minimum-exposure requirement for an
initial claim was arbitrary. Noting that the apparent purpose of the requirement was to
prevent forum shopping by workers from other states, the court explained that Kentucky
had a legitimate interest in providing a stable workers' compensation system and in
limiting the cost of workers' compensation benefits paid by employers . The court
concluded that the minimum-exposure requirement was constitutional because it was
rationally related to a legitimate state interest. The additional-exposure requirement for
reopening is rationally related to the same legitimate state interests.
The principle of res judicata or finality of judgments is central to our legal system .
KRS 342 .305 treats final workers' compensation awards as being equivalent to final
judgments and permits them to be enforced as such in circuit court. Although KRS
342.125 provides some relief from the principle of res judicata by permitting a final
award to be reopened and amended, it does so under limited circumstances .
In Slone v. R & S Mining, Inc. , 74 S.W .3d 259, 261 -62 (Ky. 2002), the court
upheld the denial of a motion to reopen in which the worker sustained no additional
exposure after the final adjudication of his initial claim. The denial was based on pre
1996 law. Although the worker alleged a worsening of condition, the court pointed to
the absence of any evidence that simple pneumoconiosis would progress without
additional exposure to coal dust . Citing to the decision in Pikeville Coal Co. v. Sullivan,
895 S.W .2d 574 (Ky. 1995) (a claim may be reopened after additional exposure
following the dismissal of a claim), the court determined that to require additional
exposure before permitting a final award to be reopened was consistent with the the
principle of res iudicata . The statutory additional-exposure requirement serves the
same legitimate purpose. The Slone court also cited Messer v. Drees , 382 S .W.2d 209
(Ky. 1964), and observed that nothing prevented an ALJ from reopening and
reconsidering a final decision if the worker showed it to be the product of fraud or
mistake or if the worker obtained evidence that existed but could not have been
discovered with due diligence in the initial proceeding .
Messer v. Dress , supra, concerned a mutual mistake regarding the worker's
actual condition at the time of the award . It stands for the principle that because
workers' compensation laws are fundamentally for the benefit of injured workers, justice
requires further inquiry when subsequent events indicate that an award was
substantially induced by a misconception concerning the cause, nature, or extent of a
worker's disability, regardless of the ground for which reopening was sought. The
additional-exposure requirement is inapplicable to such a reopening .
Addressing the jural rights argument in Johnson v. Gans Furniture Industries .
Inc . , 114 S.W .3d 850 (Ky. 2003) (citing Wright v. Oberle-Jordre Co., Inc., 910 S.W .2d
241 (Ky. 1995)), and in Shamrock Coal Co., Inc. v. Maricle , 5 S .W .3d 130 (Ky. 1999),
the court pointed out that workers' compensation involves the voluntary relinquishment
of common law remedies in favor of statutory remedies . Thus, Sections 14 and 54 do
not bar the legislature from altering or limiting the remedies available for a statutory
cause of action .
The decision of the Court of Appeals is affirmed .
All sitting . Lambert, C.J ., and Cunningham, Minton, Noble, Schroder and Scott,
JJ ., concur.
COUNSEL FOR APPELLANT,
BELINDA BOLIN, ADMINISTRATRIX OF THE ESTATE OF DARREL BOLIN,
DECEASED :
SIDNEY B. DOUGLASS
117 SOUTH SECOND STREET
P.O . BOX 839
HARLAN, KY 40831-0839
COUNSEL FOR APPELLEE,
T & T MINING :
TERRI SMITH WALTERS
JONES, WALTERS, TURNER & SHELTON, PLLC
P.O. BOX 1167
PIKEVILLE, KY 41502
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