COSTAIN COAL, INC. (NOW LODESTAR ENERGY, INC.) v. JOE BLACK; SPECIAL FUND; HON. ZARING P. ROBERTSON, Administrative Law Judge; AND WORKERS' COMPENSATION BOARD and ROBERT L. WHITTAKER, Director of SPECIAL FUND V. JOE BLACK; COSTAIN COAL, INC.; HON. ZARING P. ROBERTSON, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: December 18, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001011-WC (Direct)
COSTAIN COAL, INC. (NOW LODESTAR ENERGY, INC.)
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-93-044623
v.
JOE BLACK; SPECIAL FUND; HON. ZARING
P. ROBERTSON, Administrative Law Judge;
AND WORKERS' COMPENSATION BOARD
APPELLEES
and
NO.
1998-CA-001154-WC (Cross)
ROBERT L. WHITTAKER, Director of SPECIAL FUND
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-93-044623
v.
JOE BLACK; COSTAIN COAL, INC.; HON. ZARING
P. ROBERTSON, Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
CROSS-APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; COMBS and KNOPF, Judges.
COMBS, JUDGE:
The Special Fund and Costain Coal Inc., petition
for review of an opinion of the Workers' Compensation Board (the
"board") affirming an order of the administrative law judge (the
"ALJ").
Having reviewed the arguments presented, the disputed
opinion, and the applicable law, we believe that the board has
correctly interpreted the cited provisions and has not overlooked
or misconstrued the provisions or relevant precedent.
Nor do we
believe that the ALJ or the board erred in assessing the evidence
so flagrantly as to cause gross injustice as required by Western
Baptist Hosp. v. Kelly, Ky., 827 S.W.2d 685 (1992).
Consequently, we affirm.
We adopt the board's opinion as
follows:
Petitioners, Special Fund and Costain Coal
Inc. ("Costain"), appeal from an opinion and
award rendered by the Hon. Zaring P.
Robertson, Administrative Law Judge ("ALJ"),
on March 31, 1997 and from an order dated
November 11, 1997 overruling their petitions
for reconsideration. On reopening, the ALJ
awarded the respondent, Joe Black ("Black"),
Tier II benefits pursuant to KRS
342.732(1)(b). Black had initially been
awarded retraining incentive benefits ("RIB")
in an opinion and awarded dated May 31, 1994.
In support of that claim, Black had filed xray reports from Drs. William H. Anderson,
Emery Lane, and John Myers interpreting xrays as showing coal workers' pneumoconiosis
Category I but had introduced no evidence as
to any pulmonary impairment.
Upon reopening, Black submitted medical
testimony from Dr. Myers who performed a full
examination of him on April 10, 1995. Dr.
Myers interpreted a chest x-ray taken that
day as showing Category 1/1 and obtained vent
studies of 60 percent of predicted on FVC and
59 percent of predicted on FEV1, the results
of which he attributed to Black's
pneumoconiosis. At his deposition, he
acknowledged he had not performed pulmonary
testing at the time of Black's original claim
and therefore could not say whether Black's
breathing had worsened.
Dr. Lane provided evidence on behalf of Black
interpreting two chest x-rays taken May 10
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and July 26, 1995 as showing Category 1/1
pneumoconiosis.
Dr. B.T. Westerfield provided evidence in
support of Black's claim, performing a full
examination on July 26, 1995. He interpreted
an x-ray taken that day as showing Category ½
pneumoconiosis and an earlier film of May 10,
1995 as showing Category 1/1. He obtained
vent studies of 68 percent of predicted on
FVC and 63 percent of predicted on FEV1 and
indicated Black's pulmonary impairment was
caused by coal workers' pneumoconiosis.
Dr. Robert Powell examined Black at the
request of Costain on December 20, 1996. He
interpreted a chest x-ray taken that day as
negative for pneumoconiosis but had
previously read earlier chest x-rays of Black
as showing Category 1/1 pneumoconiosis. He
obtained vent studies of 68 percent of
predicted on FVC and 62 percent of predicted
on FEV1. In his opinion, Black did not
suffer from coal workers' pneumoconiosis, and
he therefore would not attribute Black's
pulmonary impairment to dust exposure.
The ALJ determined that in order to reopen a
previous RIB award, a claimant must produce
evidence of progression of the disease by xray and the development of respiratory
impairment due to the disease and that once a
claim has been reopened, an ALJ need only
find respiratory impairment in order to grant
the claimant an additional award under KRS
342.732. He then found, based upon the
opinions of Drs. Westerfield and Myers, that
Black suffered from a pulmonary impairment of
between 55 and 80 percent of predicted and
that the impairment was caused by his
pneumoconiosis.
In determining the credit to be given to the
petitioners herein, he stated:
Subsection (2)(b) of the reopening
statute also directs a specific credit
for retraining incentive benefits
"previously awarded." Unlike the
standard mathematics for credit, as
outlined in case law, the statute
provides, "the amount to be deducted
shall be subtracted from the total
amount awarded, and the remaining
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amount shall be divided by the number
of weeks for which the award was made,
to arrive at the weekly benefit amount
which shall be apportioned in
accordance with the provisions of KRS
342.316." The statute refers to
benefits previously awarded, as opposed
to benefits previously paid. In
addition, it inequitably allows credit
for retraining incentive benefits which
do not actually overlap the award
below, which does not begin until the
day of last exposure. Finally, it
allows the Special Fund a share of
credit for benefits paid exclusively by
the defendant-employer. Applying the
foregoing statute literally, it appears
to this Administrative Law Judge that
the retraining incentive benefit award
should continue unaffected by current
proceedings. The amount of that award
is $147.90 per week times 208 weeks, or
$30,763.20. This sum shall be
subtracted from the value of
plaintiff's "tier 2" award, and the
balance shall be divided by 425 weeks
to arrive at the weekly amount thereof.
In accord with KRS 342.316, the
defendant-employer shall be responsible
for the first one-fourth of the
payments below, and the Special Fund
shall [be] responsible for the balance.
The ALJ commenced Black's Tier II award on
March 9, 1995, Black's last date of injurious
exposure, rather than April 10, 1996, the
date Black filed his motion to reopen.
On appeal, the Special Fund contends the ALJ
erred in granting Black's motion to reopen in
that he showed no progression of respiratory
impairment, having produced no proof of any
spirometric testing in his original claim and
that the ALJ erred in commencing Black's
benefits on the date of last exposure rather
than on the date he filed his motion to
reopen. Costain concurs in the Special
Fund's contention that the ALJ erroneously
granted Black's motion to reopen and further
contends, in the alternative, that the ALJ
erred in basing the Tier II award on the
benefit rate in effect in 1995, the year of
Black's last injurious exposure, rather than
the 1992 benefit rate, the year in which
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Black filed his original RIB claim, and in
awarding benefits which exceed the maximum
benefit allowable for Tier II benefits.
The ALJ, in determining the award to be
payable to Black, stated:
As a maximum wage earner in 1995, the
value of the plaintiff's "tier 2" award
is $311.96 per week times 425 weeks or
$132,583. Subtracting the amount of
retraining incentive benefits awarded
results in a balance of $101,819.80.
The balance divided by the compensable
period of 425 weeks results in a weekly
award of $239.58.
Costain's argument relating to this issue is
that during the period of time the RIB award
overlaps the Tier II award, Black will be
receiving $147.90 per week on the RIB award
and $239.58 per week on the Tier II award, a
combined amount of $387.48 per week.
We first address the contention that Black's
RIB award was erroneously reopened. KRS
342.125(2)(a) provides that a RIB award may
be reviewed upon the application of the
claimant and a showing of progression of his
previously-diagnosed occupational
pneumoconiosis and the development of
respiratory impairment due to that
pneumoconiosis and that upon a finding of
respiratory impairment due to that
pneumoconiosis, an award for benefits under
KRS 342.732 shall be made. Costain and the
Special Fund both contend that since no
evidence of respiratory impairment was
produced in Black’s original RIB claim, he
cannot show that he has developed a
respiratory impairment since that award.
Costain also contends Black failed to show a
progression of his previously-diagnosed
occupational pneumoconiosis.
This latter contention has been addressed by
the Kentucky Supreme Court in AAA Mines
Services v. Wooton, Ky., [959 S.W.2d 440
(1998)]. In that case [,] the Court held
that a progression within Category I was
sufficient to establish a prima facie showing
under KRS 342.732(1)(a) if the claimant
satisfied the second step of the reopening
provision; that is, the development of
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respiratory impairment. KRS 342.316(2)(d)
(in effect on the date this claim was filed)
provides that the procedure for filing a RIB
claim is that a claimant file two x-rays and
x-ray reports in support of his claim. There
is no requirement and it would be of no
benefit in the adjudication of a RIB claim
for a claimant to file spirometric test
results in that a RIB award is not contingent
upon any breathing impairment. Therefore, in
our opinion, to interpret KRS 342.125(2)(a)
to require a claimant to prove that he
developed respiratory impairment after his
initial RIB award would be absurd in that the
statutory procedure for obtaining a RIB does
not provide for the claimant to produce any
evidence relating to respiratory impairment.
Furthermore, the reopening statute itself
merely requires the affected employee to show
that his pneumoconiosis has progressed and
that he has developed respiratory impairment
due to that pneumoconiosis. The progression
clearly must be a progression from that stage
of the disease the claimant had at the time
of his original RIB award. The development
of respiratory impairment has no such similar
time reference. Furthermore, the medical
evidence in this claim, both prior to the
original award and on reopening, is
practically identical to the medical evidence
presented in the claim of Wooton, supra.
KRS 342.125(1) provides that a reopening and
review under that section shall not affect
any previous order or award as to sums
already paid thereunder. KRS 342.316
provides the time of the beginning of
compensation payable for occupational disease
claims shall be the date of the employee's
last injurious exposure to the cause of the
disease or the date of actual disability,
whichever is later, except that RIB awards
shall begin on the date the RIB award becomes
final. The ALJ commenced Black's award on
reopening in this claim on the date of his
last exposure, stating in an order ruling on
petitions for reconsideration that the
reopening statute, KRS 342.125, directs an
award for benefits as provided in KRS 342.732
when a prior RIB recipient has prevailed on
reopening, and then noting that an award for
benefits under KRS 342.732(1)(b) commences
with the date of last exposure.
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The Special Fund, referring to the reopening
statute itself and to Newberg v. Cash,
Ky.App., 854 S.W.2d 791 (1993), contends the
award for Tier II benefits should commence on
the date Black filed his motion to reopen and
not on the date of last exposure. In Cash,
the Kentucky Court of Appeals reversed an
award of benefits on reopening to a claimant
that commenced on the last payment of
temporary total disability benefits to the
claimant notwithstanding the fact that last
payment occurred prior to the filing of the
motion to reopen. The Court referred to the
language in KRS 342.125 that a reopening
shall not affect a previous order or award as
to any sums already paid thereunder and that
such an award would require payments back to
a point in time when there had been a
previous determination the claimant suffered
no permanent occupational disability. That
same reasoning, however, would not apply to
Black's claim because of the specific
reopening provisions applicable to a RIB
award and specifically KRS 342.125(2)(b).
That subsection provides that benefits
awarded as a result of reopening a RIB are to
be reduced by the amount of the previously
awarded RIB, with the effect being that the
original award is not affected at all by the
award on reopening.
As previously noted, the ALJ based Black's
Tier II benefits on the wages Black was
making on the date of his last exposure
rather than the wages upon which his RIB
award was based. Costain contends the
benefit rate should be based upon the 1993
rate. However, in our opinion, benefits
awarded under KRS 342.125(2)(a) are distinct
from benefits awarded on the reopening of any
other claim.
That subsection specifically provides that in
the event a proper showing is made, an award
for benefits shall be made as provided in KRS
342.732. Subsection (b) of that section
provides that the benefits awarded under
Subsection(a) shall be reduced by the amount
of RIB previously awarded and provides that
the amount to be deducted shall be subtracted
from the total amount awarded with the
remaining amount divided by the number of
weeks for which the award was made. In the
reopening of any other claim, Subsection (1)
-7-
of the reopening statute provides that upon
the proper showing, the ALJ may reopen and
review any award or order ending,
diminishing, or increasing the compensation
previously awarded. The distinction in our
opinion is that under Subsection (2) the ALJ
is required to make an award as provided in
KRS 342.732.
That statute refers to KRS
342.740 with respect to the amount of the
award of income benefits. KRS 342.740
provides that the average weekly wage
determined under that section is applicable
for the full period of the award when the
date of occurrence of injury or of
disablement in the case of disease falls
within the calendar [year] at issue.
Therefore, in our opinion, the ALJ correctly
based Black's Tier II award on the wages he
was earning at the time of his last injurious
exposure.
Costain's final argument relates to the
method by which the ALJ reduced the Tier II
award by the amount of the RIB previously
awarded. Costain contends that the method
used by the ALJ results in Black receiving,
during the period the Tier II benefits
overlap with the RIB, a combined benefit in
excess of the maximum benefit for a Tier II
award. It contends the proper method is to
extinguish the RIB award as of the date on
which Tier II benefits commence and that the
amount of RIB paid through that date are in
fact the amount awarded. KRS 342.125(2)(b)
provides:
Benefits awarded as a result of a
review under this subsection shall be
reduced by the amount of the retraining
incentive benefits previously awarded.
. . . The amount to be deducted shall
be subtracted from the total amount
awarded, and the remaining amount shall
be divided by the number of weeks for
which the award was made, to arrive at
the weekly benefit amount which shall
be apportioned in accordance with
provisions of KRS 342.316.
Costain would have us, in essence, rewrite
that subsection so that the Tier II benefit
is reduced by the amount of RIB previously
paid, not awarded. The statute, in our
opinion, is clear on its face and is
-8-
therefore not subject to the interpretation
urged by Costain. Board of Education of
Nelson County v. Lawrence, Ky., 375 S.W.2d
830 (1963).
Accordingly, the decision of the ALJ is
hereby AFFIRMED and these appeal[s]
DISMISSED.
The opinion of the Workers' Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE COSTAIN COAL, INC.:
BRIEF FOR APPELLEE JOE BLACK:
John S. Sowards, Jr.
Lexington, KY
Charles E. Lowther
Madisonville, KY
BRIEF FOR APPELLEE/CROSSAPPELLANT SPECIAL FUND:
Benjamin C. Johnson
Louisville, KY
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