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Workers’
Compensation Board
OPINION
ENTERED: July 29, 2016
CLAIM NOS. 200900328 & 200900327
TONY COUCH PETITIONER
VS. APPEAL FROM HON. GRANT S ROARK,
ADMINISTRATIVE LAW JUDGE
JAMES RIVER COAL SERVICE CO.
HON. GRANT S ROARK,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
AND
CLAIM NO. 200900052
LARRY HAMILTON PETITIONER
VS. APPEAL FROM HON. R ROLAND CASE,
ADMINISTRATIVE LAW JUDGE
CONSOL OF KENTUCKY INC
HON. R ROLAND CASE,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. This opinion concerns two coal
workers’ pneumoconiosis (“CWP”) claims which have been consolidated on
appeal. Tony Couch (“Couch”) appeals
from the April 4, 2016 Opinion and Order of Hon. Grant S. Roark, Administrative
Law Judge (“Judge Roark”) dismissing his motion to reopen. Larry Hamilton (“Hamilton”) appeals from the
April 4, 2016 Opinion and Order rendered by Hon. R. Roland Case, Administrative
Law Judge (“Judge Case”) dismissing his motion to reopen. Because both claims raise a single, identical
issue on appeal, Couch and Hamilton filed unopposed motions to consolidate the
claims, which were granted by this Board.
For the reasons set forth herein, we affirm.
In 2009, Couch was
awarded permanent partial disability benefits based on a simple category 2/2
CWP claim without pulmonary impairment.
Thereafter, his condition worsened and rose to “complicated” CWP, rating
a category 3/3 with pulmonary impairment.
Couch filed a motion to reopen in 2014.
At the final hearing, Couch testified he had not worked or had any coal
dust exposure since the 2009 award.
Judge Roark dismissed the claim, citing KRS 342.125(5), which permits
reopening of an occupational pneumoconiosis award when the employee’s condition
has progressed, respiratory impairment has developed, and the employee had “two
additional years of employment in the Commonwealth wherein [he] was
continuously exposed to the hazards of the disease.”
Hamilton also filed a
claim for CWP in 2009. He was awarded
retraining incentive benefits. He filed
a motion to reopen his claim in 2013, alleging his CWP had progressed and he
now suffered respiratory impairment. At
the final hearing, Hamilton testified he last worked on July 31, 2008 and has
not been further exposed to coal, rock or sand dust since that date. Judge Case dismissed the claim, finding
Hamilton failed to establish two years of additional exposure as required by
KRS 342.125(5).
Both Hamilton and Couch
appealed, raising a single issue: the
constitutionality of KRS 342.125(5).
They argue the requirement of two years of additional exposure violates
principles of equal protection because it places workers suffering from CWP in
a different position than those who contracted a disease from other
occupational irritants. They also assert
the requirement of additional exposure violates their right to due process of
law.
This Board lacks the
jurisdiction to rule on the constitutionality of an administrative regulation
or statute. Commonwealth v. DLX, Inc.,
42 S.W.3d 624 (Ky. 2001). Because we
have no authority or jurisdiction to declare a statute unconstitutional, we can
render no determination or opinion on the issues raised by Hamilton and
Couch. Both Judge Roark and Judge Case
correctly applied the law as written to the facts of these claims, and determined
the motions to reopen must be dismissed.
Accordingly, we must
hereby AFFIRM the April 4, 2016
Opinion and Order of Hon. Grant S. Roark, Administrative Law Judge, and the
April 4, 2016 Opinion and Order rendered by Hon. R. Roland Case, Administrative
Law Judge.
IT IS FURTHER ORDERED AND ADJUDGED
Claims nos. 200900328 and 200900327 are DECONSOLIDATED
with 200900052.
ALL CONCUR.
COUNSEL
FOR PETITIONER, TONY COUCH:
HON MCKINNLEY MORGAN
921 S MAIN ST
LONDON, KY 40741
COUNSEL
FOR RESPONDENT, JAMES RIVER COAL SERVICE CO:
HON PAUL JONES
PO BOX 1167
PIKEVILLE, KY 41502
COUNSEL
FOR PETITIONER, LARRY HAMILTON:
HON MCKINNLEY MORGAN
921 S MAIN ST
LONDON, KY 40741
COUNSEL
FOR RESPONDENT, CONSOL OF KENTUCKY INC.:
HON JEFFREY SOUKUP
PO BOX 2150
LEXINGTON, KY 40588
ADMINISTRATIVE
LAW JUDGES:
HON R ROLAND CASE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
HON. GRANT S ROARK
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
