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May 22, 2016 201601402

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED: May 22, 2017

 

 

CLAIM NO. 201601402

 

 

BILLY JOE BRYAN

(BY WIFE VELMA DARLENE BRYAN)[1]                 PETITIONER

 

 

 

VS.           APPEAL FROM HON. TANYA PULLIN,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

GATES RUBBER COMPANY

and HON. TANYA PULLIN,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

OPINION

AFFIRMING IN PART, REMANDING IN PART,

AND VACATING IN PART

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

STIVERS, Member. Billy Joe Bryan by wife Velma Darlene Bryan (“Bryan”) seeks review of the November 2, 2016, Order dismissing his claim for occupational disease since it was barred by the applicable statute of limitations in KRS 342.316.[2]  Bryan also appeals from the February 1, 2017, Order overruling his Motion to Reconsider.

          Apparently, the argument on appeal is that Bryan’s claim is not barred by KRS 342.316(4) as the claim is for an asbestos-related occupational disease.  The contents of the brief will be discussed later.  We affirm in part and vacate in part.

          On July 1, 2016, a Form 102-OD was filed in the name of Billy Joe Bryan asserting an occupational disease claim against Gates Rubber Company (“Gates”).  The Form 102-OD alleges on June 21, 2016, Bryan became affected by pulmonary fibrosis arising out of and in the course of his employment.  Regarding the date and means by which Bryan gave notice of the injury to the employer, the Form 102-OD reads as follows: “retired April 30, 1997. After diagnosed after that had occupational x-ray before retired showed [sic] problem.” The alleged exposure occurred in Elizabethtown, Hardin County, Kentucky.  The Form 102-OD alleged exposure to the disease occurred when “Company took out asbestos while working. Working in black carbon.”  It also indicates Bryan died on October 23, 2001, and he had thirty-two years of exposure to the hazards of the occupational disease.  The Form 102-OD was signed by Velma Darlene Bryan, wife of Billy Joe Bryan.  Significantly, Velma Darlene Bryan was not listed as a party on the Form 102-OD.  All documents thereafter refer to Billy Joe Bryan as “the Plaintiff.”

          The July 12, 2016, letter addressed to the parties notifying them the claim had been assigned to the ALJ and setting out a proof schedule lists two insurance companies, Billy Joe Bryan, counsel for Bryan, Gates, and Gates’ counsel.

          On July 19, 2016, Gates filed a Special Answer asserting, in relevant part, the following defenses:

1. This claim is barred, whether in whole or in part, due to the plaintiff’s failure to provide due and timely notice per KRS 342.185 and/or KRS 342.316.

2. This claim is barred by statute of limitations and the period of repose per KRS 342.185 and/or KRS 342.316.

. . .

4. This claim is barred, whether in whole or in part, due to being non-compliant with the statutory rules and regulations per KRS 342 with regard to the requirements for properly filing a Form 102-OD.

5. This claim is barred, whether in whole or in part, due to KRS 342.610.

6. This claim warrants dismissal as being non-compliant with 803 KAR 25:010.

          Also on July 19, 2016, Gates filed a Form 111 again denying the claim.

          On July 22, 2016, Gates filed a Motion to Dismiss asserting Bryan cannot proceed since KRS 342.610(4) establishes Bryan has waived his right to proceed with a concurrent workers’ compensation claim because he had previously filed a personal injury action against Gates in Hardin Circuit Court.  Gates also asserted the claim was barred by the statute of limitations and period of repose set forth in KRS 342.316.  Gates reasoned Bryan had stopped working on April 30, 1997, and did not file an occupational disease claim until June 21, 2016.  It also asserted as follows:

3. This claim is procedurally deficient pursuant to the requirements of filing a Form 102/Application for Resolution of Occupational Disease Claim as set forth by 803 KAR 25:010 §6(1), which states that “to apply for resolution of occupational disease claim, the applicant shall file a Form 102-OD with the following completed attachments:

(b) Medical history (Form 105), to include all physicians … and medical facilities such as hospitals where the individual has been seen or admitted in the preceding fifteen (15) and including beyond that date any physicians or hospitals regarding treatment of same body part claimed to have been injured;

(d) One (1) medical report supporting the existence of occupational disease; and

(e) Social Security Release Form (Form 115).”

          Gates asserted none of the required forms or a medical report making a prima facie showing of the existence of work-related occupational disease were filed with the Form 102-OD.

          On that same date, Gates also filed a “Motion to Clarify date of alleged injury and Motion to Certify coverage on the date of the alleged injury.”  Gates’ counsel asserted he had just discovered Bryan ceased working for Gates on April 30, 1997.  Thus, the date of injury is April 30, 1997, Bryan’s last day of employment.  Consequently, Gates requested an order correcting the date of the alleged injury to April 30, 1997.  Gates stated Zurich American Insurance Company (“Zurich”) was joined as the responsible carrier, but represented Zurich’s coverage period did not begin until June 1, 2016.  Therefore, Gates sought an order requesting the Commissioner to certify coverage on the date of injury, April 30, 1997, which would result in the dismissal of Zurich and the appropriate carrier joined.   

          On July 25, 2016, a letter from Velma Darlene Bryan sent to the Commissioner, filed in the record, stated as follows:

On application Insurance Co. listed was one before illness. Went to hospital and got correct one at time of illness.

Correct one is

Great Western Life and Annuity

719 Teaco Road

Kennett Mo. 63857-374

877-673-3142

Policy #216-38-4159

Group#007078

I am enclosing a copy of info received that has claim #

Attached to her letter were two letters dated July 1, 2016, from the Commissioner addressed to the parties.

          On July 26, 2016, the “Plaintiff” filed a “Statement” signed by Dr. J. Wesley McConnell and Dr. McConnell’s April 9, 2001, and May 1, 2001, office notes concerning the examination of Bryan on those dates.[3] The “Statement” signed by Dr. McConnell reads as follows:

Re: Billy Joe Bryan

     Billy Joe Bryan was and is my patient. I am aware of the fact that Billy Joe Bryan worked for many years at the Gates Rubber Company. It is my understanding that all of the people who worked at Gates Rubber Company regularly inhaled the following chemicals:

1) Benzene

2) Toluene

3) Asbestos

4) Hexane

5) Powdered Glass

6) Powdered Limestone (Called PIG)

7) Carbon Black

8) And Others

     It is my opinion that breathing these chemicals over a period of years will definitely cause pulmonary fibrosis and it is my opinion that my patient, Billy Joe Bryan, got pulmonary fibrosis due to the exposure to these chemicals over a period of years at Gates Rubber Company.

          On that same date, Gates filed a Notice of Claim Denial.        

          On July 26, 2016, Zurich filed a Motion to Dismiss asserting 803 KAR 25:010 §6(1)(d) requires the claimant to attach to the Form 102 a medical report supporting the existence of occupational disease.[4]  It noted the Form 102 alleges that on June 21, 2016, Bryan contracted  pulmonary  fibrosis  arising  out of and in the course of his employment.  Since the “Plaintiff” failed to attach a medical report supporting the existence of an occupational disease as required by the regulations, Zurich asserted the Form 102 is deficient on its face.  Zurich sought dismissal of the claim without prejudice until the “Plaintiff” filed the proper Form 102.

          On that same date, Zurich filed a Motion for Certification of Coverage asking the ALJ to request certification of coverage for this alleged occupational disability since Zurich did not provide coverage on April 30, 1997, the date of last injurious exposure. 

          On July 26, 2016, the “Plaintiff” filed a Response to Claim Denial stating as follows:

1) All statements made by Plaintiff are true and Plaintiff has not violated KRS 342.165.

2) Same answer as above in #1.

3) Plaintiff has documented all requirements of KRS 342.165.

4) Plaintiff flully [sic] intends to make a vallient [sic] effort to follow all of the Department of Workers [sic] Claims orders and rules. 

          On November 2, 2016, the ALJ entered the following Order dismissing the claim:

     Plaintiff states in his Form 102 that he retired from Defendant Employer on April 30, 1997. The claim is barred under KRS 342.316 as it was filed more than 3 years after the last injurious exposure. Therefore, claim 2016-01402 shall be and is hereby DISMISSED.

     Further, attached to Defendant Employer’s Motion to Dismiss is a copy of a complaint filed on January 12, 2016 in Hardin Circuit Court. KRS 342.610(4) it [sic] states in pertinent part, “If a suit is brought under this subsection, all right to compensation under this Chapter shall thereby be waived as to all persons.” Plaintiff having filed no proof to the contrary, based on the copy of the Circuit Court filing for the same injury attached to Defendant Employer’s motion, claim 2016-01402 is DISMISSED also pursuant to KRS 342.610(4)

     Other pending motions filed by the Defendant Employer and Defendant Zurich American Insurance are now moot in light of the dismissal of the claim.

          On November 9, 2016, a “Motion to Reconsider” was filed stating as follows:

1. The KRS statute assumed valid is KRS 342.316(4).

2. The correct statute is KRS 242.316(4)(a) [sic]. It states in pertinant [sic] part, as follows: “The statute is limited for five (5) years … except that in cases of asbestos-related diseases a twenty years (20 Years) statute of limitations of injurious exposure to the occupational hazard.”

3. The following chemicals were inhaled by all employees at Gates Rubber Company.

     Chemicals were: Benzene, Tolene, Asbestos, Hexane, Acetone, Powereed [sic] Glass, Powdred [sic] Limestone Carbon Black, (Called Pig) and other chemicals which were deadly inhalents [sic]. At times all of these chemicals would be exposed where all employees had the inhalant chemicals.

4. This includes the above Plaintiff.

5. At the last count 150 (one hundred and fifty) parties have died from asbestos and asbestos-related inhalants, my understanding is that this one hundred fifty people was from 1970 to the early 1990’s. The count by 2016 is well over 200 by now. I represent many of those and my clients keep me informed.

6. With the known facts and law in the action herein there is no way that the party Plaintiffs should be denied their belated compensation. And, the order dismissing the above Defendant as well as many others who gave up death and serious personal injuries without due compensation must not be denied. Thus, the motion to overrule the actions herein must be granted. Otherwise justice will certainly be stomped on profusely.

          On February 1, 2017, the ALJ denied the Motion to Reconsider:

     This matter is before the ALJ on Plaintiff’s Petition for Reconsideration filed herein. Plaintiff requests this ALJ reconsider the final order dated November 2, 2016 wherein the ALJ found Plaintiff failed to meet the requirements of KRS 342.610(4) and KRS 342.316 and therefore Plaintiff’s claim was dismissed. Defendant Employer filed a response to the Petition for Reconsideration citing KRS 342.281 and noting the only proper subject matter concerning a Petition for Reconsideration is to “correct errors patently appearing upon the face of the award, order, or decision” rendered by the ALJ herein. Defendant Employer additionally asserted Plaintiff has failed to correct any deficiencies in his claim as set forth in the Order dismissing Plaintiff’s claim.

     The ALJ grasps the full extent of Plaintiff’s condition but is bound by the dictates of the law which clearly require the dismissal of the claim. The ALJ has provided more than sufficient findings to permit meaningful appellate review. Big Sandy Community Action Program v. Chafins, 502 S.W.2d 526 (Ky 1973). Therefore, the Petition for Reconsideration is DENIED.

          On March 2, 2017, a Notice of Appeal was filed styled “Billy Jo [sic] Bryan (by wife Velma Darline [sic] Bryan due to Billy Jo [sic] Bryan’s death” and stated as follows:

1) The appeal is timely filed

2) Lower Court’s Number – 2016-01402

3) Hon. Tanya Pullin was ALJ is a party

4) Final order of ALJ attached

5) The ALJ would not accept KRE [sic] 342.216(4)(A) which provides that the statute reguarding [sic] of asbestos and asbestos-related chemicals have a 20-year statute of limitations, this would negate any argument available to Defendants

6) There is no need for a hearing because KRS 342.316(4)(A) clearly decides the question as stated above.

7) The benefits are the total amount that is the highest benefit allowed by the Workers’ Compensation by law.

8) The Plaintiff is within the 20-year statute of limitations.

THE BRIEF

1) The issues in this are only one (1). Plaintiff is [sic] years before the statute of limitations because Asbestos and Asbestos-related chemicals have a bearing on the pulmonary fibrosis, and he and his cohorts also breathed Benene, Asbestos and Asbestos-related inhalants, Bemzene, Acetone, Toulinehexane, Acetone, Powered Glass, Carbon Black, and other death causing chemical inhalants. Asbelsos [sic] and all these other inhalants mentioned as well as other chemicals used all of these chemicals, and they didn’t even offer prevention masks to protect their employees [sic] health and safety. And Gates had operated a similar set of inhalents [sic] in company(s) before. Murder would be more reasonable a description than any civil actions. Again. Pulmonary (illegible) 342.316(4)(A) has a 20 year statute of limitations. Further, Plaintiff has a written statement far sell than 20 years.

          The Petitioner’s brief filed March 16, 2017, reads as follows:

1) All statements made by Plaintiff are true and Plaintiff has not violated KRS KRS [sic] 342.165.

2) Same answer as above in #1.

3) Plaintiff has documented all requirements of KRS 342.165.

4) Plaintiff flully [sic] intends to make a vallient [sic] effort to follow all of the Department of Workers [sic] Claims orders and rules.

*Billy Jo [sic] died 2 to 3 years after leaving Gates Rubber Co., However, And, according to the doctor’s statement for Billy Jo [sic], the fumes that Billy Jo [sic] inhaled at Gates contributed to the death of Billy Jo [sic]. And, KRS 342.316(4)(A) says that asbestos-related diseases (such as pulmanarly [sic] fibrosis) clearly have a 20-year statute of limitations. As such, the case should be continued to it’s [sic] priior [sic] state before dismissal. (Medicals Attached) (Note all of the chemicals that the whole plant inhaled previously on the first page of the medicals.)

          Attached to the brief is the “Statement” signed by Dr. McConnell recited herein and Dr. McConnell’s office notes of April 9, 2001, and May 1, 2001. We note that only the first page of Dr. McConnell’s May 1, 2001, office note was filed in the record. 

          KRS 342.316(4)(a) reads as follows:

The right to compensation under 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; and if death results from the occupational disease within that period, unless a claim therefor be filed with the commissioner within three (3) years after the death; but that notice of claim shall be deemed waived in case of disability or death where the employer, or its insurance carrier, voluntarily makes payment therefor, or if the incurrence of the disease or the death of the employee and its cause was known to the employer. However, the right to compensation for any occupational disease shall be forever barred, unless a claim is filed with the commissioner within five (5) years from the last injurious exposure to the occupational hazard, except that, in cases of radiation disease or asbestos-related disease, a claim must be filed within twenty (20) years from the last injurious exposure to the occupational hazard.

          Bryan’s last date of employment and thus last date of exposure was April 30, 1997.  Bryan died on October 23, 2001.  Based on those undisputed facts, the ALJ properly dismissed any claim for occupational disease other than asbestos-related disease since no action was filed within three years after Bryan’s death or five years after the last date of exposure on April 30, 1997.  Any claim for occupational disease other than asbestos-related disease is time barred.  Consequently, we affirm the ALJ’s dismissal with prejudice of Bryan’s claim for occupational disease other than asbestos-related.[5] 

          We also affirm the ALJ’s dismissal of the claim for asbestos-related occupational disease.  However, the November 2, 2016, Order should have dismissed the claim for asbestos-related occupational disease without prejudice as the time for filing this claim had not expired. 

          Dismissal of the asbestos-related claim is appropriate for two reasons.  First, the action was brought in the name of Bryan almost fifteen years after his death.  Even though Velma Darlene Bryan, his wife, signed the claim, she was not named as a party.  In all the pleadings filed before the ALJ and in the ALJ’s November 2, 2016, and February 1, 2017, Orders, there is no reference to Velma Darlene Bryan as a party to the action.  We read KRS 342.730 as permitting, the spouse, the personal representative of the estate, or both, to file an action on behalf of a deceased claimant.  In this claim, neither asserted the action.  It is beyond dispute that a deceased person, in this case one who has been deceased for almost fifteen years before the claim was filed, cannot file a personal injury or workers’ compensation claim.  Second, the Form 102-OD was deficient on its face as it did not comply with KRS 342.316(3)(a) which reads, in relevant part, as follows:

The application for resolution of claim shall set forth the complete work history of the employee with a concise description of injurious exposure to a specific occupational disease, together with the name and addresses of the employer or employers with the approximate dates of employment. The application shall also include at least one (1) written medical report supporting his or her claim. This medical report shall be made on the basis of clinical or X-ray examination performed in accordance with accepted medical standards and shall contain full and complete statements of all examinations performed and the results thereof. The report shall be made by a duly-licensed physician. The commissioner shall promulgate administrative regulations which prescribe the format of the medical report required by this section and the manner in which the report shall be completed.

          The required medical report was not filed with the Form 102-OD.  Later, the “Plaintiff” filed a “Statement” signed by Dr. McConnell which is not a medical report made on the basis of clinical x-ray examination and did not contain a full and complete statement of all the examinations performed and the results thereof.  Rather, in his “Statement,” Dr. McConnell stated it was his “understanding” that all people who worked at Gates regularly inhaled eight specific chemicals along with other chemicals.  It was his opinion that breathing these chemicals over a period of years would definitely cause cancer or pulmonary fibrosis; therefore, he believed Bryan developed pulmonary fibrosis due to the exposure to these chemicals working at Gates over the years.  Those statements do not comprise the written medical report supporting an asbestos-related claim as contemplated by KRS 342.316(3)(a). 

          Similarly, the April 9, 2001, office note of Dr. McConnell offers no opinion whether Bryan’s pulmonary fibrosis was an asbestos-related disease resulting from his occupation.  The only statement referencing Bryan’s employment is the following contained under the heading of “Social History”: “He worked for a rubber company and was exposed to quite a bit of toxic material at work.”  Under the Plan Assessment, Dr. McConnell wrote as follows: “Pulmonary fibrosis of uncertain etiology.”   

          The only page of Dr. McConnell’s May 1, 2001, office note filed in the record reflects the following: “The patient returns today for a re-evaluation of his pulmonary fibrosis of uncertain etiology.”  Those are the only medical records filed in the record at the time the November 2, 2016, Order was entered dismissing the claim.[6] Dr. McConnell’s medical records in conjunction with his “Statement” do not constitute the written medical report required by KRS 342.316(3)(a). Notably, Zurich raised this issue in its Motion to Dismiss. 

          In dismissing the claim, the ALJ also relied upon the fact that a circuit court claim had been filed for the same injury as grounds for dismissal.  The ALJ erred in relying upon this ground as a basis for dismissal.

          KRS 342.610(4) reads as follows:

If injury or death results to an employee through the deliberate intention of his or her employer to produce such injury or death, the employee or the employee's dependent as herein defined shall receive the amount provided in this chapter in a lump sum to be used, if desired, to prosecute the employer. The dependents may bring suit against the employer for any amount they desire. If injury or death results to an employee through the deliberate intention of his or her employer to produce such injury or death, the employee or the employee's dependents may take under this chapter, or in lieu thereof, have a cause of action at law against the employer as if this chapter had not been passed, for such damage so sustained by the employee, his dependents or personal representatives as is recoverable at law. If a suit is brought under this subsection, all right to compensation under this chapter shall thereby be waived as to all persons. If a claim is made for the payment of compensation or any other benefit provided by this chapter, all rights to sue the employer for damages on account of such injury or death shall be waived as to all persons.

          The above-cited statute pertains to an action where the employer has intentionally caused the injury or death of the employee.  A review of the suit filed in Hardin Circuit Court filed in the record, does not allege Gates deliberately intended to produce Bryan’s death or injury.  Thus, KRS 342.610(4) is inapplicable to the case sub judice.

          Addressing Gates’ argument that the appeal should be denied because the appeal brief did not comply with the regulations, we note a previous order was entered accepting the brief as filed. We will not disturb that order. 

          Accordingly, the November 2, 2016, and February 1, 2017, Orders, dismissing the claim for occupational diseases except for asbestos-related disease as being barred by the statute of limitations is AFFIRMED.  The dismissal of the claim for asbestos-related occupational disease is also AFFIRMED.  However, those portions of the Orders dismissing the claim for asbestos-related disease based on the statute of limitations and KRS 342.610(4) are VACATED.  This claim is REMANDED for entry of an order dismissing the claim for the asbestos-related occupational disease without prejudice.  We emphasize that should Bryan re-file a claim for asbestos-related occupational disease, all defenses are still available to Gates and Zurich in resisting the claim.

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON JAMES A MAPLES

420 GEORGIA LN

ELIZABETHTOWN KY 42701

COUNSEL FOR RESPONDENT:

HON JOEL AUBREY

303 N HURSTBOURNE PKWY STE 110
LOUISVILLE KY 40222

ADMINISTRATIVE LAW JUDGE:

HON TANYA PULLIN

657 CHAMBERLIN AVE

FRANKFORT KY 40601

 

 



[1] Based on a note filed in the record on July 25, 2016, by Bryan’s widow, her name is misspelled by Bryan’s attorney in all pleadings upon which her name appears.

[2] Although the Notice of Appeal and briefs of both parties state the party appealing is Billy Joe Bryan (by his wife Velma Darlene Bryan), the Form 102 OD was filed in the name of Billy Joe Bryan, and his wife was never designated or listed as a party in the proceedings before the ALJ.

[3] The May 1, 2001, office note consists of one page.

[4] Zurich secured its own counsel.

 

 

 

 

[5] We note that radiation disease has not been pled in the action and we will not address the statute of limitations relating to a claim for that condition.

 

 

 

 

[6] We note the second page of the May 1, 2001, office note under the heading Assessment Plan was “pulmonary fibrosis of unknown etiology with hypoxemia will proceed with biopsy.”