Workers’
Compensation Board
OPINION
ENTERED: July 24, 2015
CLAIM NO. 201200586
JERRY HAWKINS PETITIONER
VS. APPEAL FROM HON. J. LANDON
OVERFIELD,
CHIEF ADMINISTRATIVE LAW JUDGE
BLEDSOE COAL CORPORATION
and HON. J. LANDON OVERFIELD,
CHIEF ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
REVERSING
AND REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Jerry Hawkins (“Hawkins”) appeals from the July
27, 2012, Order of Hon. J. Landon Overfield, Chief Administrative Law Judge
("CALJ") sustaining Bledsoe Coal Corporation's ("Bledsoe")
Motion to Dismiss Hawkins' claim seeking benefits for coal workers pneumoconiosis
(“CWP”).[1]
Hawkins’ Form 102 filed May 3, 2012, alleges
on October 14, 2012, he became affected by CWP arising out of and in the course
of his employment at Bledsoe due to "exposure to dust at job site."
Hawkins checked "yes" in answer to the question, "Has plaintiff
previously filed a claim for Kentucky coal workers' pneumoconiosis benefits
(including retraining incentive benefits)?" Hawkins indicated his previous
claim is Jerry Hawkins v. Leeco, Inc., Claim No: 1994-02347.
On June 13, 2012, Bledsoe filed its Motion
to Dismiss asserting: "According to the Plaintiff's application he filed a
prior claim for coal workers' pneumoconiosis benefits. (Claim No.
1994-02347)."
In his June 19, 2012, Response to
Motion to Dismiss, Hawkins asserted as follows:
1. That the Plaintiff was awarded RIB
benefits against the Defendant/Employer in Claim No. 1994-02347; however, he
never collected any of the benefits as he continued to work for
Defendent/Employer until October 14, 2010.
2. That the Plaintiff has had approximately
16 additional years of exposure to coal dust while employed by the
Defendant/Employer and as shown by his breathing studies attached to his
Application, now suffers from a pulmonary impairment.
In the July 27, 2012, Order sustaining
Bledsoe's Motion to Dismiss, the CALJ determined as follows:
This matter comes before the undersigned
Chief Administrative Law Judge (CALJ) upon Defendant-Employer’s Motion to
Dismiss Plaintiff's claim for workers compensation benefits due to the disease
of coal workers pneumoconiosis, Plaintiff’s response to that motion and
Defendant-Employer’s Motion for Extension of Time. Defendant-Employer alleges in his [sic]
motion to dismiss the Plaintiff was previously awarded retraining incentive
benefits against Defendant-Employer in a coal workers pneumoconiosis claim
bearing claim number 1994-02347.
Plaintiff responds that, while he did receive the award as alleged by
Defendant-Employer, "he never collected any of the benefits and he
continued to work for Defendant-Employer until October 14, 2010".
Plaintiff also alleges that, due to the
approximately 16 additional years of exposure, he has developed pulmonary
impairment as a result of that coal mine exposure. Plaintiff submitted with his claim initiating
the above styled workers compensation claim, a pulmonary function report. However, the results of these biometric
testing indicated that Plaintiff's FVC was 102% of predicted and the FEV¹ was
92% of predicted. This medical report
does not support a claim of pulmonary function impairment.
Defendant-Employer has also moved for an
extension of time. As the motion to
dismiss will be sustained, the motion for an extension of time is moot. The ALJ having reviewed the pleadings and
being fully and sufficiently advised thereby,
It is therefore ordered and adjudged that
Defendant-Employer’s Motion to Dismiss is SUSTAINED
and Defendant-Employer’s Motion for Extension of Time is OVERRULED as moot.
On appeal, Hawkins argues as follows:
It is within the Board's province on appeal
to ensure that decisions of the ALJ are in conformity with the Workers'
Compensation Act. Whittaker v. Reeder, 30 SW3d 138 (Ky. 2000).
In his Order the CALJ dismissed Hawkins'
claim because he had previously filed for benefits in 1994. In this previously
filed claim Hawkins was awarded RIB benefits. KRS 342.732(1)(a)(8) states that
a claim for retraining incentive benefits provided under this section may be
filed, but benefits shall not be payable, while an employee is employed in the
severance or processing of coal as defined in KRS 342.0011(23). As detailed in
Hawkins' Form 102, he continued working for the Employer for another 16 years
and could never receive those benefits.
KRS 342.316(4)(a) states that
The right to compensation ender [sic] this
chapter resulting from an occupational disease shall be forever barred unless a
claim is filed with the commissioner within three (3) years after the last
injurious exposure to the occupational hazard or after the employee first
experiences a distinct manifestation of an occupational disease in the form of
symptoms reasonably sufficient to apprise the employee that he or she has
contracted the disease, whichever shall last occur...
Hawkins' claim is not forever barred; he
filed a claim within the 3 years after his last date of injurious exposure to
coal dust. In Beech Fork Processing v. Musick, No. 2005-CA-001660-WC, an
unpublished Kentucky Court of Appeals Opinion, the Court of Appeals adopted the
Opinion of the Board in a similar situation.
Our interpretation of KRS 342.792 is that the
provision was intended by the General Assembly to provide coal miners last
exposed to the occupational hazards of coal dust between December 12, 1996, and
July 15, 2002, with an opportunity to receive enhanced awards of RIB,
irrespective of other similar benefits that may have been granted previously
pursuant to earlier versions of KRS 342.732(1)....Moreover, KRS 342.792(1)
expressly states that: (1)"any benefits previously granted by an award or
settlement shall be credited against any subsequent award of settlement and no
interest shall by payable on additional benefits"; and (2)"a previous
grant of retraining incentive benefits shall be credited only to the extent
that the benefits were actually paid."
The Court of Appeals opined that the General
Assembly intended for coal miners that had additional exposure an opportunity
to receive additional benefits.
Because Hawkins continued
working in the severance or processing of coal after this award of RIB he never
received the benefits. Dismissing his claim is essentially punishing a man for
continuing to be a productive member of society. Hawkins has a diagnosed
occupational disease, and the medical expenses associated with his condition
are now the burden of the tax payers. His Employer has essentially gotten off
scot-free from any responsibilities associated with compensating their
dedicated employee for the disease he is suffering from.
We reverse the CALJ's dismissal of
Hawkins' claim and remand for a determination of Hawkins' entitlement to income
and medical benefits including retraining incentive benefits ("RIB")
based on the merits of the claim.
KRS 342.792, the statute implicated in Beech Fork
Processing v. Musick, Not Reported in S.W.3d, 2006 WL 29131 (Ky. App.
2006), reads, in part, as follows:
(1) The claim of
any miner last exposed to the occupational hazards of coal worker's
pneumoconiosis between December 12, 1996, and July 15, 2002, shall nonetheless
be governed by the provisions of KRS 342.732 and notwithstanding the
provisions of KRS 342.125 all claims for benefits which
were filed for last injurious occupational exposure to coal dust occurring
between December 12, 1996, and July 15, 2002, shall be considered pursuant to
the provisions of KRS 342.732 and administrative regulations
promulgated by the executive director, and closed claims, except claims
dismissed for reasons other than failure to meet medical eligibility standards,
may be reopened by the claimant. Income or retraining incentive benefits shall
be awarded thereon as if the entitlement standards established by the
amendments to KRS 342.732 were effective at the time of
last exposure. Any benefits previously granted by an award or settlement shall
be credited against any subsequent award or settlement and no interest shall be
payable on additional benefits. A previous grant of retraining benefits shall
be credited only to the extent that the benefits were actually paid. All income
or retraining incentive benefits greater than those which would have been
awarded were not these new provisions applicable shall be paid without interest
from the Kentucky coal workers' pneumoconiosis fund, the provisions of KRS 342.1242 notwithstanding.
In
Beech Fork Processing, supra, the Court of Appeals of Kentucky
determined as follows:
Our
interpretation of KRS 342.792
is that the provision was intended by the General Assembly to provide coal
miners last exposed to the occupational hazards of coal dust between December
12, 1996, and July 15, 2002, with an opportunity to receive enhanced awards of
RIB, irrespective of other similar benefits that may have been granted
previously pursuant to earlier versions of KRS 342.732(1).
KRS 342.792(1)
plainly provides that the claim of “[a]ny miner last exposed to the
occupational hazards of coal workers'
pneumoconiosis between December 12, 1996, and July 15, 2002, shall
nonetheless be governed by the provisions of KRS 342.732
... notwithstanding the provisions of KRS 342.125.”
The provision further mandates that “[i]ncome or retraining incentive benefits
shall be awarded thereon as if the entitlement standards established by the
amendments to KRS 342.732
were effective at the time of the last exposure.” Moreover, KRS 342.792(1)
expressly states that: (1) “[a]ny benefits previously granted by an award or
settlement shall be credited against any subsequent award or settlement and no
interest shall be payable on additional benefits”; and (2) “[a] previous grant
of retraining incentive benefits shall be credited only to the extent that the
benefits were actually paid.”
...
Along those same
lines, KRS 342.792(3)
provides “the coal workers'
pneumoconiosis claim of any miner last exposed between December 12,
1996, and July 15, 2002, may be filed with the commissioner on or before
December 12, 2003.” KRS 342.792(3)
further states that “[a]ll income or retraining incentive benefits greater than
those which would have been awarded were not these new provisions applicable
shall be paid by the Kentucky coal workers'
pneumoconiosis fund without interest, in the provisions of KRS 342.1242
notwithstanding.”
Given such
language, we believe it is clear that the General Assembly intended to allow
coals miners such as Musick an opportunity to receive additional benefits, RIB
or otherwise, under the 2002 amendments to the Act. Enhancement of prior RIB
awards for certain classes of miners was a deliberate effect envisioned and
incorporated by the legislature by means of the enactment of HB 348. As such,
the fact that Musick's claim may be an attempt at a “second bite of the same
apple” is not fatal under the circumstances of this case. As we stated in our
original opinion, we believe KRS 342.792(1)
must be read to create a statutory exception to the general “one (1) time only”
limitation of KRS 342 .732(1)(a) on a RIB award. To do otherwise would
effectively render meaningless language in KRS 342.792
addressing additional retraining incentive benefits.
Id. at 3.
The language in Beech Fork Processing v. Musick, supra,
convinces this Board Hawkins is entitled to bring a claim for income benefits
including RIB benefits based exclusively on his sixteen years of additional
exposure of coal dust while working in the coal mines. Even though KRS 342.792
is not applicable here, as Hawkins' last day of exposure to coal dust (i.e.
October 14, 2010), falls outside of the range specified in KRS 342.792(1), the
court's rationale in Beech Fork Processing, supra, is indeed
applicable to the case sub judice.
That is, Hawkins, based on an additional sixteen years exposure to coal dust,
is entitled to file a claim for RIB benefits "irrespective of other
similar benefits that may have been granted." Id. at 3. It is
important to note that a medical evaluation pursuant to KRS 342.315 and KRS
342.316 has not been performed in this case. Additionally, there is no
regulatory or statutory provision within Kentucky workers' compensation law
which permits summary dismissal as occurred in the case sub judice. We acknowledge the medical evidence from Dr. Thomas E.
Miller introduced in the record by Hawkins is weak, but our role is not to
resolve this claim on its merits. Our role is to determine whether Hawkins is
entitled to have his claim for CWP resolved on its merits. We conclude he does.
Accordingly, the July 27, 2012, Order is REVERSED and this case is REMANDED to the CALJ for a
determination as to Hawkins' entitlement to income benefits including RIB
benefits based upon the evidence in the record.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON MCKINNLEY MORGAN
921 S MAIN ST
LONDON KY 40741
COUNSEL
FOR RESPONDENT:
HON PAUL E JONES
P O BOX 1167
PIKEVILLE KY 41502
CHIEF
ADMINISTRATIVE LAW JUDGE:
HON ROBERT L SWISHER
657 CHAMBERLIN AVE
FRANKFORT KY 40601