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Workers’
Compensation Board
OPINION ENTERED: September 8, 2017
CLAIM NO. 201700152
GEORGE D. GRACE, JR. PETITIONER
VS.
APPEAL
FROM HON. R. ROLAND CASE,
ADMINISTRATIVE LAW JUDGE
EXCEL MINING, LLC
AND HON R. ROLAND CASE,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. George Grace (“Grace”) appeals from the April 5, 2017 Order and the
April 26, 2017 Order on Reconsideration rendered by Hon. R. Roland Case,
Administrative Law Judge (“ALJ”). Grace
argues the ALJ improperly dismissed his claim against Excel Mining, LLC
(“Excel”) as time barred. We disagree
and affirm.
The relevant facts of this
claim are uncontested. Grace worked as
an underground coal miner with Excel in Kentucky. His last date of employment at Excel was on
April 5, 2007. Thereafter, he worked as
an underground coal miner for various mining companies located outside of
Kentucky. His last date of injurious
exposure occurred in West Virginia on May 22, 2013. He filed a claim for coal workers’
pneumoconiosis (“CWP”) on January 14, 2017.
He identified his date of manifestation as September 4, 2014, also the
date he was diagnosed with CWP.
The ALJ dismissed Grace’s
claim. He first determined Grace had not
filed his claim within three years of his last injurious exposure, as required
by KRS 342.316(4)(a).
Again citing KRS 342.316(4)(a), the ALJ further
determined Grace filed his claim “more than five years after his last exposure
for the defendant/employer in the state of Kentucky.” Accordingly, the ALJ dismissed the claim as
barred by the statute of limitations and the statute of repose. Grace’s petition for reconsideration was denied.
KRS 342.316(4) states:
(4) (a) 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.
(b) Income benefits for the
disease of pneumoconiosis resulting from exposure to coal dust or death
therefrom shall not be payable unless the employee has been exposed to the
hazards of such pneumoconiosis in the Commonwealth of Kentucky over a
continuous period of not less than two (2) years during the ten (10) years
immediately preceding the date of his or her last exposure to such hazard, or
for any five (5) of the fifteen (15) years immediately preceding the date of
such last exposure.
Grace acknowledges KRS
342.316(4)(a) requires the claimant be injuriously
exposed within five years of the date the claim is filed. However, he argues there is nothing in the
statute requiring the last injurious exposure to occur within Kentucky. Rather, KRS 342.316(4)(b)
only requires that the injurious exposure occur in Kentucky “over a continuous
period of not less than two years during the ten years immediately preceding
the date of his or her last injurious exposure.” Grace claims he satisfies the requirements of
both KRS 342.316(4)(a) and (b): he filed his claim
within three years of the manifestation date, and he worked in Kentucky from
2003 to 2007.
As Grace emphasizes, there
is nothing in the plain language of KRS 342.316(4)(a)
or (b) that requires the claimant’s last injurious exposure to be in Kentucky. However, statutes must be read as a whole, to
comport with the entire chapter and corresponding provisions. KRS 342.316(1)(a)
imposes liability on the employer “in whose employment the employee was last
exposed to the hazard of the occupational disease.” The Kentucky Supreme Court has noted this
provision applies to “employers subject to the Act; from among those, if the
claim is otherwise valid, it imposes liability upon that employer in whose
service the claimant was last exposed to the hazard.” Coal Dust Coal Co. v. Stiltner, 905 S.W.2d 859, 860 (Ky. 1995).
As applied to this claim,
the fact Grace was last exposed to coal dust in West Virginia does not, in and
of itself, insulate Excel from liability.
However, Grace’s claim must be “otherwise valid.” Grace’s date of last exposure in Kentucky was
2007. He filed his claim for benefits in
2017. Therefore, the claim was filed
outside the three year statute of limitation set forth in KRS 342.316(4)(a). The ALJ
properly dismissed the claim as time barred.
For the foregoing reasons,
the April 5, 2017 Order and the April 26, 2017 Order on Reconsideration
rendered by Hon. R. Roland Case, Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON LEONARD STAYTON
PO BOX 1386
INEZ, KY 41224
COUNSEL
FOR RESPONDENT:
HON TERRI SMITH WALTERS
PO BOX 1167
PIKEVILLE, KY 41502
ADMINISTRATIVE
LAW JUDGE:
HON R. ROLAND CASE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
