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 |
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.
[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.”