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Workers’
Compensation Board
OPINION
ENTERED: January 29, 2016
CLAIM NO. 201301850
KENTUCKY FUEL CORP. PETITIONER
VS. APPEAL FROM HON. R. ROLAND CASE,
ADMINISTRATIVE LAW JUDGE
SHELBY SENTERS
HON. R. ROLAND CASE,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
VACATING
IN PART
AND
REMANDING IN PART
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Kentucky Fuel Corporation appeals from the July
22, 2015 Opinion, Award and Order and the August 20, 2015 Order on Petition for
Reconsideration rendered by Hon. R. Roland Case, Administrative Law Judge
(“ALJ”). On appeal, Kentucky Fuel argues
the ALJ erred in calculation of an award pursuant to KRS 342.732(1)(a)7. For the
reasons set forth herein, we remand this claim to the ALJ for further findings
of fact.
The facts underlying this claim are
not disputed on appeal. Shelby Senters (“Senters”) filed a claim
alleging he became affected by coal workers’ pneumoconiosis (“CWP”). His last date of exposure was September 2,
2012. He filed an x-ray interpretation
by Dr. Michael S. Alexander, dated April 8, 2013. However, the ALJ was more persuaded by the
report of Dr. Byron T. Westerfield, who evaluated Senters pursuant to KRS 342.316. Dr. Westerfield
concluded Senters suffers from simple CWP based on
x-ray evidence read as Category 1/0, but does not have pulmonary impairment or
respiratory disability. Pulmonary
function studies indicated pre-bronchodilator functions of FCV 92% and FEV1
95%.
Therefore,
the ALJ awarded a Retraining Incentive Benefit (“RIB”) pursuant to KRS
342.732(1)(a)1.
However, because Senters was 63 years old at
the time of his last exposure, the ALJ additionally noted KRS 342.732(1)(a)7, which permits the claimant to elect to receive an
award based on a 25% disability rating in lieu of a RIB. The ALJ determined this award, if Senters so elected, would commence on the last date of
exposure and would expire when he turned 65 years old.
Kentucky Fuel petitioned for
reconsideration, arguing the award pursuant to KRS 342.732(1)(a)7
should commence on the date of actual disability, not the date of last
exposure. It points to April 8, 2013,
the date of Dr. Alexander’s evaluation, as the date of actual disability. The ALJ overruled the petition, stating:
Quite simply, there are no cases indicating an
occupational disease award begins on a date other than last exposure. Although KRS 342.732 in various sections
indicates the duration of the award, it does not indicate the commencement date
of the award with the exception of a retraining incentive benefit. In this case, defendant argues for the
commencement date to be the date of first positive x-ray. However, it is extremely unlikely that an
x-ray read as Category 1/1 by a Board Certified Radiologist, Dr. Michael
Alexander, on April 22, 2013 would not have shown the same changes when the
plaintiff last worked on September 2, 2012. The x-ray changes quite simply
would have been unlikely to develop in the timeframe between September 2, 2012
and April 22, 2013. The Administrative
Law Judge would also note that the date of commencement of the award was not
preserved as an issue and neither the plaintiff or
defendant attempted to establish the actual date of disability. The Administrative Law Judge therefore
commences the award if the plaintiff elects same from the date of last exposure
which would be consistent with a long line of cases holding a worker has no
disability as long as he continues to be exposed.
Kentucky Fuel now appeals, raising the
same issue on appeal. At the outset, we
conclude this issue is properly preserved for our review because Kentucky Fuel
has raised solely a question of law. As
such, it was not necessary for Kentucky Fuel to file a petition for
reconsideration. Brasch-Barry General
Contractors v. Jones, 175 S.W.3d 81 (Ky. 2005). We also note Kentucky Fuel addressed the
proper commencement date of the award in its brief to the ALJ.
The primary issue in this case is when
benefits pursuant to KRS 342.732(1)(a)7 commence. KRS 342.732(1)(a)7
sets forth a benefit which a claimant may elect to receive in lieu of a RIB:
An employee
who is age fifty-seven (57) years or older on the date of last exposure and who
is awarded retraining incentive benefits under subparagraphs 1. to 4. of this paragraph, may elect to receive in lieu of
retraining incentive benefits, an amount equal to sixty-six and two-thirds
percent (66-2/3%) of the employee's average weekly wage, not to exceed
seventy-five percent (75%) of the state average weekly wage as determined by
KRS 342.740 multiplied by the disability rating of twenty-five percent (25%)
for a period not to exceed four hundred twenty-five (425) weeks, or until the
employee reaches sixty-five (65) years of age, whichever occurs first, KRS
342.730(4) notwithstanding.
Thus,
while the statute plainly states this elected benefit shall cease upon the
claimant reaching 65 years of age, it does not state when the benefit shall
commence. Kentucky Fuel argues KRS
342.316, which sets forth an employer’s liability for occupational disease,
applies. Subsection (1)(b)
provides: “The time of the beginning of compensation payments shall be on the
date of the employee’s last injurious exposure to the cause of the disease, or
the date of actual disability, whichever is later.” Therefore, Kentucky Fuel reasons, Senters’ award must commence on the earliest recorded date
of his disability – the date of Dr. Alexander’s examination and diagnosis.
Senters responds that KRS 342.316 should not be referred to,
because that provision relates only to a true award of income benefits for
occupational disease. Senters draws a distinction between income benefits for
occupational disease and the elected award provided by KRS 342.732(1)(a)7. The elected
award is granted in lieu of a RIB and does not require a finding of
occupational disability, and is therefore not a true award for disability. In fact, the 25% disability rating employed
by KRS 342.732(1)(a)7 is statutorily assigned and is
not an actual representation of his true impairment.
“The
seminal duty of a court in construing a statute is to effectuate the intent of
the legislature.” Commonwealth
v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002) (citing Commonwealth v. Harrelson,
14 S.W.3d 541 (Ky. 2000)). Thus, if a statute is
clear and unambiguous and expresses the legislature's intent, the statute must
be applied as written. Griffin v. City of Bowling Green, 458 S.W.2d 456, 457
(Ky. 1970). However, where
an ambiguity does exist, an “absurdity which may follow one construction or
another may properly be considered.” Fayette County v. Hill, 201 S.W.2d 886, 889 (Ky. 1947).
Statutes, of course, “must be read as a whole and in context with other parts
of the law.” Lewis
v. Jackson Energy Co–Op Corp., 189 S.W.3d 87, 92 (Ky. 2005).
KRS
342.732(1)(a)7, which sets forth the award a claimant
may elect in lieu of a RIB, does not expressly state when the award commences
for calculation purposes. In light of
this ambiguity, we must read the provision “in context with” other parts of the
Workers’ Compensation Act. Id.
Though special provisions for calculation of CWP awards are promulgated
in KRS 342.732, CWP is nonetheless an occupational disease and therefore, we
conclude reference must be made to KRS 342.316(1)(b)
and the two provisions must be read together.
It is
true, as Senters points out, the award provided in
KRS 342.732(1)(a)7 is not a true award of income
benefits based on actual disability.
However, the award is not entirely dissimilar to any other award of
income benefits provided in Chapter 342.
It is calculated in the same manner, through reference to the claimant’s
average weekly wage and a disability rating.
For this reason, we are compelled to conclude the General Assembly
intended the award provided in KRS 342.732(1)(a)7 be
calculated in the same manner as other income benefits for occupational
disability, and therefore is subject to the requirements of KRS 342.316(1)(b).
The
question remains whether Senters’ date of “actual
disability” is subsequent to his date of last injurious exposure. We note the record does not appear to be
particularly developed on this point.
Nonetheless, this is a question of fact to be determined by the ALJ
alone, as this Board has no fact-finding authority. Square D Co. v. Tipton,
862 S.W.2d 308 (Ky. 1993). While
the ALJ briefly addressed the question in his order on reconsideration, we
conclude it is prudent to remand this claim so that the ALJ may squarely
determine the issue in light of the legal analysis provided herein.
For the
foregoing reasons, that portion of the opinion addressing the award pursuant to
KRS 342.732(1)(a)7 is hereby VACATED and this claim is REMANDED
to Hon. Roland R. Case, Administrative Law Judge, for further analysis in
conformity with the opinions expressed herein.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON WHITNEY MOBLEY
300 E MAIN ST, #400
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON THOMAS W MOAK
PO BOX 510
PRESTONBURG, KY 41653
ADMINISTRATIVE
LAW JUDGE:
HON R. ROLAND CASE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
